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EXHIBIT 10.22
FOR GRANTS TO DIRECTORS
[APPROVED BY THE BOARD OF DIRECTORS 1/05]
NON-QUALIFIED STOCK OPTION AGREEMENT
ARCHEMIX CORP.
AGREEMENT made as of the ___ day of _______ 200_, between
Archemix Corp.
(the "Company"), a Delaware corporation having a principal place
of business in
Cambridge, Massachusetts, and _______________ of ___________
(the
"Participant").
WHEREAS, the Company desires to grant to the Participant an
Option to
purchase shares of its common stock, $.001 par value per share
(the "Shares"),
under and for the purposes set forth in the Company's 2001
Employee, Director
and Consultant Stock Plan (the "Plan");
WHEREAS, the Company and the Participant understand and agree
that any
terms used and not defined herein have the same meanings as in
the Plan; and
WHEREAS, the Company and the Participant each intend that the
Option
granted herein shall be a Non-Qualified Option.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set
forth and for other good and valuable consideration, the parties
hereto agree as
follows:
1. GRANT OF OPTION.
The Company hereby grants to the Participant the right and
option to
purchase all or any part of an aggregate of _______________
Shares, on the terms
and conditions and subject to all the limitations set forth
herein, under United
States securities and tax laws, and in the Plan, which is
incorporated herein by
reference. The Participant acknowledges receipt of a copy of the
Plan.
2. PURCHASE PRICE.
The purchase price of the Shares covered by the Option shall be
$_____ per
Share, subject to adjustment, as provided in the Plan, in the
event of a stock
split, reverse stock split or other events affecting the holders
of Shares after
the date hereof (the "Purchase Price"). Payment shall be made in
accordance with
Paragraph 8 of the Plan.
3. EXERCISABILITY OF OPTION.
Subject to the terms and conditions set forth in this Agreement
and the
Plan, the Option granted hereby shall become exercisable as
follows:
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<TABLE>
<S> <C>
On the first anniversary of the date of this up to _________
Shares
Agreement
Every three months thereafter until the an additional _________
Shares
fourth anniversary of this Agreement.
</TABLE>
Alternatively, at the election of the Participant, the Option
may be
exercised in whole or in part at any time as to Shares which
have not yet vested
in accordance with the above schedule; provided however, as a
condition to
exercising the Option for such unvested Shares, the Participant
shall execute a
Restricted Stock Agreement in the form attached hereto as
Exhibit C.
The foregoing rights are cumulative and are subject to the other
terms and
conditions of this Agreement and the Plan.
4. TERM OF OPTION.
The Option shall terminate ten years from the date of this
Agreement, but
shall be subject to earlier termination as provided herein or in
the Plan.
If the Participant ceases to be a director of the Company or of
an
Affiliate (for any reason other than the death or Disability of
the Participant
or termination of the Participant for "cause" as defined in the
Plan), the
Option may be exercised, if it has not previously terminated,
within three years
after the date the Participant ceases to be a director of the
Company or an
Affiliate, or within the originally prescribed term of the
Option, whichever is
earlier, but may not be exercised thereafter. In such event, the
Option shall be
exercisable only as to Shares which have vested as of the date
of termination of
service in accordance with the schedule set forth in Section 3
above and not as
to unvested Shares and only to the extent that the Option is in
effect at the
date of such cessation of directorship.
In the event the Participant's directorship is terminated by the
Company or
an Affiliate for "cause" as defined in the Plan, the
Participant's right to
exercise any unexercised portion of this Option shall cease
immediately as of
the time the Participant is notified his or her directorship is
terminated for
"cause", and this Option shall thereupon terminate.
Notwithstanding anything
herein to the contrary, if subsequent to the Participant's
termination, but
prior to the exercise of the Option, the Board of Directors of
the Company
determines that, either prior or subsequent to the Participant's
termination,
the Participant engaged in conduct which would constitute
"cause," then the
Participant shall immediately cease to have any right to
exercise the Option and
this Option shall thereupon terminate.
In the event of the Disability of the Participant, as determined
in
accordance with the Plan, the Option shall be exercisable within
three years
after the Participant's termination of service or, if earlier,
within the term
originally prescribed by the Option. In such event, the Option
shall be
exercisable:
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(a) to the extent that the Option has become exercisable but has
not been
exercised as of the date of Disability; and
(b) in the event rights to exercise the Option accrue
periodically, to the
extent of a pro rata portion through the date of Disability of
any
additional vesting rights that would have accrued on the next
vesting
date had the Participant not become Disabled. The proration
shall be
based upon the number of days accrued in the current vesting
period
prior to the date of Disability.
In the event of the death of the Participant while a director of
the
Company or of an Affiliate, the Option shall be exercisable by
the Participant's
Survivors within three years after the date of death of the
Participant or, if
earlier, within the originally prescribed term of the Option. In
such event, the
Option shall be exercisable:
(x) to the extent that the Option has become exercisable but has
not been
exercised as of the date of death; and
(y) in the event rights to exercise the Option accrue
periodically, to the
extent of a pro rata portion through the date of death of
any
additional vesting rights that would have accrued on the next
vesting
date had the Participant not died. The proration shall be based
upon
the number of days accrued in the current vesting period prior
to the
Participant's date of death.
5. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Agreement, the
Option may be
exercised by written notice to the Company or its designee, in
substantially the
form of Exhibit A attached hereto. Such notice shall state the
number of Shares
with respect to which the Option is being exercised and shall be
signed by the
person exercising the Option. Payment of the Purchase Price for
such Shares
shall be made in accordance with Paragraph 8 of the Plan. The
Company shall
deliver a certificate or certificates representing such Shares
as soon as
practicable after the notice shall be received, provided,
however, that the
Company may delay issuance of such Shares until completion of
any action or
obtaining of any consent, which the Company deems necessary
under any applicable
law (including, without limitation, state securities or "blue
sky" laws). The
certificate or certificates for the Shares as to which the
Option shall have
been so exercised shall be registered in the Company's share
register in the
name of the person so exercising the Option (or, if the Option
shall be
exercised by the Participant and if the Participant shall so
request in the
notice exercising the Option, shall be registered in the name of
the Participant
and another person jointly, with right of survivorship) and
shall be delivered
as provided above to or upon the written order of the person
exercising the
Option. In the event the Option shall be exercised, pursuant to
Section 4
hereof, by any person other than the Participant, such notice
shall be
accompanied by appropriate proof of the right of such person to
exercise the
Option. All Shares that shall be purchased upon the exercise of
the Option as
provided herein shall be fully paid and nonassessable.
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6. PARTIAL EXERCISE.
Exercise of this Option to the extent above stated may be made
in part at
any time and from time to time within the above limits, except
that no
fractional share shall be issued pursuant to this Option.
7. NON-ASSIGNABILITY.
The Option shall not be transferable by the Participant
otherwise than by
will or by the laws of descent and distribution or pursuant to a
qualified
domestic relations order as defined by the Code or Title I of
the Employee
Retirement Income Security Act or the rules thereunder. However,
the
Participant, with the approval of the Administrator, may
transfer the Option for
no consideration to or for the benefit of the Participant's
Immediate Family
(including, without limitation, to a trust for the benefit of
the Participant's
Immediate Family or to a partnership or limited liability
company for one or
more members of the Participant's Immediate Family), subject to
such limits as
the Administrator may establish, and the transferee shall remain
subject to all
the terms and conditions applicable to the Option prior to such
transfer and
each such transferee shall so acknowledge in writing as a
condition precedent to
the effectiveness of such transfer. The term "Immediate Family"
shall mean the
Participant's spouse, former spouse, parents, children,
stepchildren, adoptive
relationships, sisters, brothers, nieces, nephews and
grandchildren (and, for
this purpose, shall also include the Participant.) Except as
provided in the
previous sentence, the Option shall be exercisable, during the
Participant's
lifetime, only by the Participant (or, in the event of legal
incapacity or
incompetency, by the Participant's guardian or representative)
and shall not be
assigned, pledged or hypothecated in any way (whether by
operation of law or
otherwise) and shall not be subject to execution, attachment or
similar process.
Any attempted transfer, assignment, pledge, hypothecation or
other disposition
of the Option or of any rights granted hereunder contrary to the
provisions of
this Section 7, or the levy of any attachment or similar process
upon the Option
shall be null and void.
8. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE.
The Participant shall have no rights as a stockholder with
respect to
Shares subject to this Agreement until registration of the
Shares in the
Company's share register in the name of the Participant. Except
as is expressly
provided in the Plan with respect to certain changes in the
capitalization of
the Company, no adjustment shall be made for dividends or
similar rights for
which the record date is prior to the date of such
registration.
9. ADJUSTMENTS.
The Plan contains provisions covering the treatment of Options
in a number
of contingencies such as stock splits and mergers. Provisions in
the Plan for
adjustment with respect to stock subject to Options and the
related provisions
with respect to successors to the business of the Company are
hereby made
applicable hereunder and are incorporated herein by
reference.
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10. TAXES.
The Participant acknowledges that upon exercise of the Option
the
Participant will be deemed to have taxable income measured by
the difference
between the then fair market value of the Shares received upon
exercise and the
price paid for such Shares pursuant to this Agreement. The
Participant
acknowledges that any income or other taxes due from him or her
with respect to
this Option or the Shares issuable pursuant to this Option shall
be the
Participant's responsibility.
The Participant agrees that the Company may withhold from the
Participant's
remuneration, if any, the minimum statutory amount of federal,
state and local
withholding taxes attributable to such amount that is considered
compensation
includable in such person's gross income. At the Company's
discretion, the
amount required to be withheld may be withheld in cash from such
remuneration,
or in kind from the Shares otherwise deliverable to the
Participant on exercise
of the Option. The Participant further agrees that, if the
Company does not
withhold an amount from the Participant's remuneration
sufficient to satisfy the
Company's income tax withholding obligation, the Participant
will reimburse the
Company on demand, in cash, for the amount under-withheld.
11. PURCHASE FOR INVESTMENT.
Unless the offering and sale of the Shares to be issued upon the
particular
exercise of the Option shall have been effectively registered
under the
Securities Act of 1933, as now in force or hereafter amended
(the "1933 Act"),
the Company shall be under no obligation to issue the Shares
covered by such
exercise unless and until the following conditions have been
fulfilled:
(a) The person(s) who exercise the Option shall warrant to the
Company, at
the time of such exercise, that such person(s) are acquiring
such
Shares for their own respective accounts, for investment, and
not with
a view to, or for sale in connection with, the distribution of
any
such Shares, in which event the person(s) acquiring such Shares
shall
be bound by the provisions of the following legend which shall
be
endorsed upon the certificate(s) evidencing the Shares issued
pursuant
to such exercise:
"The shares represented by this certificate have been taken
for
investment and they may not be sold or otherwise transferred
by
any person, including a pledgee, unless (1) either (a) a
Registration Statement with respect to such shares shall be
effective under the Securities Act of 1933, as amended, or
(b)
the Company shall have received an opinion of counsel
satisfactory to it that an exemption from registration under
such
Act is then available, and (2) there shall have been
compliance
with all applicable state securities laws;" and
(b) If the Company so requires, the Company shall have received
an opinion
of its counsel that the Shares may be issued upon such
particular
exercise in compliance with the 1933 Act without
registration
thereunder. Without limiting the generality of the foregoing,
the
Company may delay issuance of the Shares until completion
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of any action or obtaining of any consent, which the Company
deems
necessary under any applicable law (including without limitation
state
securities or "blue sky" laws).
12. RESTRICTIONS ON TRANSFER OF SHARES.
12.1 The Shares acquired by the Participant pursuant to the
exercise of the
Option granted hereby shall not be transferred by the
Participant except as
permitted herein.
12.2 In the event of the Participant's termination of service
for any
reason, the Company shall have the option, but not the
obligation, to repurchase
all or any part of the Shares issued pursuant to this Agreement
(including,
without limitation, Shares purchased after termination of
service, Disability or
death in accordance with Section 4 hereof). In the event the
Company does not,
upon the termination of service of the Participant (as described
above),
exercise its option pursuant to this Section 12.2, the
restrictions set forth in
the balance of this Agreement shall not thereby lapse, and the
Participant for
himself or herself, his or her heirs, legatees, executors,
administrators and
other successors in interest, agrees that the Shares shall
remain subject to
such restrictions. The following provisions shall apply to a
repurchase under
this Section 12.2:
(i) The per share repurchase price of the Shares to be sold to
the Company
upon exercise of its option under this Section 12.2 shall be
equal to
the Fair Market Value of each such Share determined in
accordance with
the Plan as of the date of termination of service.
(ii) The Company's option to repurchase the Participant's Shares
in the
event of termination of service shall be valid for a period of
three
years commencing with the date of such termination of
service.
(iii) In the event the Company shall be entitled to and shall
elect to
exercise its option to repurchase the Participant's Shares under
this
Section 12.2, the Company shall notify the Participant, or in
case of
death, his or her Survivor, in writing of its intent to
repurchase the
Shares. Such written notice may be mailed by the Company up to
and
including the last day of the time period provided for in
Section
12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Participant shall specify the
address at,
and the time and date on, which payment of the repurchase price
is to
be made (the "Closing"). The date specified shall not be less
than ten
days nor more than 60 days from the date of the mailing of the
notice,
and the Participant or his or her successor in interest with
respect
to the Shares shall have no further rights as the owner thereof
from
and after the date specified in the notice. At the Closing,
the
repurchase price shall be delivered to the Participant or his or
her
successor in interest and the Shares being purchased, duly
endorsed
for transfer, shall, to the extent that they are not then in
the
possession of the Company, be delivered to the Company by
the
Participant or his or her successor in interest.
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12.3 It shall be a condition precedent to the validity of any
sale or other
transfer of any Shares by the Participant that the following
restrictions be
complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or
otherwise
transferred (including by gift or devise) to any person or
entity,
voluntarily, or by operation of law, except in accordance with
the
terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the
Shares,
the Participant shall give written notice of such intention to
the
Company, which notice shall include the name of the proposed
transferee, the proposed purchase price per share, the terms
of
payment of such purchase price and all other matters relating to
such
sale or transfer and shall be accompanied by a copy of the
binding
written agreement of the proposed transferee to purchase the
Shares of
the Participant. Such notice shall constitute a binding offer by
the
Participant to sell to the Company such number of the Shares
then held
by the Participant as are proposed to be sold in the notice at
the
monetary price per share designated in such notice, payable on
the
terms offered to the Participant by the proposed transferee
(provided,
however, that the Company shall not be required to meet any
non-monetary terms of the proposed transfer, including,
without
limitation, delivery of other securities in exchange for the
Shares
proposed to be sold). The Company shall give written notice to
the
Participant as to whether such offer has been accepted in whole
by the
Company within sixty days after its receipt of written notice
from the
Participant. The Company may only accept such offer in whole and
may
not accept such offer in part. Such acceptance notice shall fix
a
time, location and date for the closing on such purchase
("Closing
Date") which shall not be less than ten nor more than sixty days
after
the giving of the acceptance notice, provided, however, if any
of the
Shares to be sold pursuant to this Section 12.3 have been held
by the
Participant for less than six months, then the Closing Date may
be
extended by the Company until no more than ten days after such
Shares
have been held by the Participant for six months. The place for
such
closing shall be at the Company's principal office. At such
closing,
the Participant shall accept payment as set forth herein and
shall
deliver to the Company in exchange therefor certificates for
the
number of Shares stated in the notice accompanied by duly
executed
instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the
Participant
shall be free to sell all, but not less than all, of the Shares
set
forth in his or her notice to the designated transferee at the
price
and terms designated in the Participant's notice, provided that
(i)
such sale is consummated within six months after the giving of
notice
by the Participant to the Company as aforesaid, and (ii) the
transferee first agrees in writing to be bound by the provisions
of
this Section 12 so that such transferee (and all subsequent
transferees) shall thereafter only be permitted to sell or
transfer
the Shares in accordance with the terms hereof. After the
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expiration of such six months, the provisions of this Section
12.3
shall again apply with respect to any proposed voluntary
transfer of
the Participant's Shares.
(iv) The restrictions on transfer contained in this Section 12.3
shall not
apply to (a) transfers by the Participant to his or her spouse
or
children or to a trust for the benefit of his or her spouse
or
children, (b) transfers by the Participant to his or her
guardian or
conservator, and (c) or transfers by the Participant, in the
event of
his or her death, to his or her executor(s) or administrator(s)
or to
trustee(s) under his or her will (collectively, "Permitted
Transferees"); provided however, that in any such event the
Shares so
transferred in the hands of each such Permitted Transferee
shall
remain subject to this Agreement, and each such Permitted
Transferee
shall so acknowledge in writing as a condition precedent to
the
effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the
Company. Any
such waiver may be unconditional or based upon such conditions
as the
Company may impose.
12.4 In the event that the Participant or his or her successor
in interest
fails to deliver the Shares to be repurchased by the Company
under this
Agreement, the Company may elect (a) to establish a segregated
account in the
amount of the repurchase price, such account to be turned over
to the
Participant or his or her successor in interest upon delivery of
such Shares,
and (b) immediately to take such action as is appropriate to
transfer record
title of such Shares from the Participant to the Company and to
treat the
Participant and such Shares in all respects as if delivery of
such Shares had
been made as required by this Agreement. The Participant hereby
irrevocably
grants the Company a power of attorney which shall be coupled
with an interest
for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a
stock split on
or with respect to any of its Common Stock, or otherwise
distribute securities
of the Company to the holders of its Common Stock, the number of
shares of stock
or other securities of Company issued with respect to the shares
then subject to
the restrictions contained in this Agreement shall be added to
the Shares
subject to the Company's rights to repurchase pursuant to this
Agreement. If the
Company shall distribute to its stockholders shares of stock of
another
corporation, the shares of stock of such other corporation,
distributed with
respect to the Shares then subject to the restrictions contained
in this
Agreement, shall be added to the Shares subject to the Company's
rights to
repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company
shall be
subdivided into a greater number of shares or combined into a
smaller number of
shares, or in the event of a reclassification of the outstanding
shares of
Common Stock of the Company, or if the Company shall be a party
to a merger,
consolidation or capital reorganization, there shall be
substituted for the
Shares then subject to the restrictions contained in this
Agreement such amount
and kind of securities as are issued in such subdivision,
combination,
reclassification, merger, consolidation or capital
reorganization in respect of
the Shares subject immediately prior thereto to the Company's
rights to
repurchase pursuant to this Agreement.
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12.7 The Company shall not be required to transfer any Shares on
its books
which shall have been sold, assigned or otherwise transferred in
violation of
this Agreement, or to treat as owner of such Shares, or to
accord the right to
vote as such owner or to pay dividends to, any person or
organization to which
any such Shares shall have been so sold, assigned or otherwise
transferred, in
violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall
terminate upon
the consummation of a public offering of any of the Company's
securities
pursuant to a registration statement filed with the Securities
and Exchange
Commission.
12.9 The Participant agrees that in the event that the Company
effects an
initial public offering of the Common Stock of the Company
registered under the
Securities Act, the Shares may not be sold, offered for sale or
otherwise
disposed of, directly or indirectly, without the prior written
consent of the
managing underwriter(s) of the offering, for such period of time
after the
execution of an underwriting agreement in connection with the
such offering that
all of the Company's then directors and executive officers agree
to be similarly
bound.
12.10 The Participant acknowledges and agrees that neither the
Company, its
shareholders nor its directors and officers, has any duty or
obligation to
disclose to the Participant any material information regarding
the business of
the Company or affecting the value of the Shares before, at the
time of, or
following a termination of service of the Participant by the
Company, including,
without limitation, any information concerning plans for the
Company to make a
public offering of its securities or to be acquired by or merged
with or into
another firm or entity.
12.11 All certificates representing the Shares to be issued to
the
Participant pursuant to this Agreement shall have endorsed
thereon a legend
substantially as follows: "The shares represented by this
certificate are
subject to restrictions set forth in a Non-Qualified Stock
Option Agreement
dated ________, 200__ with this Company, a copy of which
Agreement is available
for inspection at the offices of the Company or will be made
available upon
request."
13. NO OBLIGATION TO MAINTAIN RELATIONSHIP.
The Company is not by the Plan or this Option obligated to
continue the
Participant as a director of the Company or an Affiliate. The
Participant
acknowledges: (i) that the Plan is discretionary in nature and
may be suspended
or terminated by the Company at any time; (ii) that the grant of
the Option is a
one-time benefit which does not create any contractual or other
right to receive
future grants of options, or benefits in lieu of options; (iii)
that all
determinations with respect to any such future grants,
including, but not
limited to, the times when options shall be granted, the number
of shares
subject to each option, the option price, and the time or times
when each option
shall be exercisable, will be at the sole discretion of the
Company; (iv) t
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