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Exhibit
10.4
TELIK, INC.
2000 Non-Employee
Directors’ Stock Option Plan
Adopted March 22,
2000
Approved By Stockholders
March 29, 2000
Amended by the Board of
Directors May 14, 2002
Amended by the Board of
Directors February 17, 2006
Approved by the Stockholders
May 25, 2006
Amended by the Board of
Directors February 20, 2008
Effective Date:
August 11, 2000
Termination Date: March,
2010
(1) P URPOSES
.
(a) Eligible Option
Recipients . The persons eligible to
receive Options are the Non-Employee Directors of the
Company.
(b) Available Options
. The purpose of the Plan is to provide a
means by which Non-Employee Directors may be given an opportunity
to benefit from increases in value of the Common Stock through the
granting of Nonstatutory Stock Options.
(c) General Purpose
. The Company, by means of the Plan, seeks
to retain the services of its Non-Employee Directors, to secure and
retain the services of new Non-Employee Directors and to provide
incentives for such persons to exert maximum efforts for the
success of the Company and its Affiliates.
(2) D EFINITIONS
.
(a) “
Affiliate ” means any parent corporation or
subsidiary corporation of the Company, whether now or hereafter
existing, as those terms are defined in Sections 424(e) and (f),
respectively, of the Code.
(b)
“Annual Grant” means an Option granted
annually to all Non-Employee Directors who meet the specified
criteria specified in subsection 6(b) of the Plan.
(c)
“Annual Meeting” means the annual meeting
of the stockholders of the Company.
(d) “
Board ” means the Board of Directors of the
Company.
(e) “
Code ” means the Internal Revenue Code of 1986,
as amended.
(f) “
Common Stock ” means the common stock of the
Company.
(g) “
Company ” means Telik, Inc., a Delaware
corporation.
(h) “
Consultant ” means any person, including an
advisor, (i) engaged by the Company or an Affiliate to render
consulting or advisory services and who is compensated for such
services or (ii) who is a member of the Board of Directors of
an Affiliate. However, the term “Consultant” shall not
include either Directors of the Company who are not compensated by
the Company for their services as Directors or Directors of the
Company who are merely paid a director’s fee by the Company
for their services as Directors.
(i) “
Continuous Service ” means that the
Optionholder’s service with the Company or an Affiliate,
whether as an Employee, Director or Consultant, is not interrupted
or terminated. The Optionholder’s Continuous Service shall
not be deemed to have terminated merely because of a change in the
capacity in which the Optionholder renders service to the Company
or an Affiliate as an Employee, Consultant or Director or a change
in the entity for which the Optionholder renders such service,
provided that there is no interruption or termination of the
Optionholder’s Continuous Service. For example, a change in
status from a Non-Employee Director of the Company to a Consultant
of an Affiliate or an Employee of the Company will not constitute
an interruption of Continuous Service. The Board or the Chief
Executive Officer of the Company, in that party’s sole
discretion, may determine whether Continuous Service shall be
considered interrupted in the case of any leave of absence approved
by that party, including sick leave, military leave or any other
personal leave.
(j) “
Director ” means a member of the Board of
Directors of the Company.
(k)
“Disability” means the permanent and
total disability of a person within the meaning of
Section 22(e)(3) of the Code.
(l) “
Employee ” means any person employed by the
Company or an Affiliate. Mere service as a Director or payment of a
director’s fee by the Company or an Affiliate shall not be
sufficient to constitute “employment” by the Company or
an Affiliate.
(m) “
Exchange Act ” means the Securities Exchange
Act of 1934, as amended.
(n) “ Fair
Market Value ” means, as of any date, the value of
the Common Stock determined as follows:
(i) If the Common
Stock is listed on any established stock exchange or traded on the
Nasdaq National Market or the Nasdaq SmallCap Market, the Fair
Market Value of a share of Common Stock, unless otherwise
determined by the Board, shall be the closing sales price for such
stock (or the closing bid, if no sales were reported) as quoted on
such exchange or market (or the exchange or market with the
greatest volume of trading in the Common Stock) on the day of
determination (or if such day of determination does not fall on a
market trading day, then the last market trading day prior to the
day of determination), as reported in The Wall Street
Journal or such other source as the Board deems
reliable.
(ii) In the absence of
such markets for the Common Stock, the Fair Market Value shall be
determined in good faith by the Board.
(o)
“Initial Grant” means an Option granted
to a Non-Employee Director who meets the criteria specified in
subsection 6(a) of the Plan.
(p) “IPO
Date” means the date the registration statement for
the initial public offering of the Company becomes
effective.
(q) “
Non-Employee Director ” means a Director who is
not an Employee.
(r) “
Nonstatutory Stock Option ” means an Option not
intended to qualify as an incentive stock option within the meaning
of Section 422 of the Code and the regulations promulgated
thereunder.
(s) “
Officer ” means a person who is an officer of
the Company within the meaning of Section 16 of the Exchange
Act and the rules and regulations promulgated
thereunder.
(t) “
Option ” means a Nonstatutory Stock Option
granted pursuant to the Plan.
(u) “
Option Agreement ” means a written agreement
between the Company and an Optionholder evidencing the terms and
conditions of an individual Option grant. Each Option Agreement
shall be subject to the terms and conditions of the
Plan.
(v) “
Optionholder ” means a person to whom an Option
is granted pursuant to the Plan or, if applicable, such other
person who holds an outstanding Option.
(w) “
Plan ” means this Telik, Inc. 2000 Non-Employee
Directors’ Stock Option Plan.
(x) “ Rule
16b-3 ” means Rule 16b-3 promulgated under the
Exchange Act or any successor to Rule 16b-3, as in effect from time
to time.
(y) “
Securities Act ” means the Securities Act of
1933, as amended.
(3) A DMINISTRATION
.
(a) Administration by
Board . The Board shall administer the
Plan. The Board may not delegate administration of the Plan to a
committee.
(b) Powers of Board
. The Board shall have the power, subject
to, and within the limitations of, the express provisions of the
Plan:
(i) To determine the
provisions of each Option to the extent not specified in the
Plan.
(ii) To construe and
interpret the Plan and Options granted under it, and to establish,
amend and revoke rules and regulations for its administration. The
Board, in the exercise of this power, may correct any defect,
omission or inconsistency in the Plan or in any Option Agreement,
in a manner and to the extent it shall deem necessary or expedient
to make the Plan fully effective.
(iii) To amend the
Plan or an Option as provided in Section 12.
(iv) Generally, to
exercise such powers and to perform such acts as the Board deems
necessary or expedient to promote the best interests of the Company
that are not in conflict with the provisions of the
Plan.
(c) Effect of
Board’s Decision. All
determinations, interpretations and constructions made by the Board
in good faith shall not be subject to review by any person and
shall be final, binding and conclusive on all persons.
(4) S HARES S
UBJECT TO THE P
LAN .
(a) Share Reserve
. Subject to the provisions of
Section 11 relating to adjustments upon changes in the Common
Stock, the Common Stock that may be issued pursuant to Options
shall not exceed in the aggregate six hundred thousand
(600,000) shares of Common Stock.
(b) Reversion of Shares to
the Share Reserve . If any Option shall
for any reason expire or otherwise terminate, in whole or in part,
without having been exercised in full, the shares of Common Stock
not acquired under such Option shall revert to and again become
available for issuance under the Plan.
(c) Source of Shares
. The shares of Common Stock subject to the
Plan may be unissued shares or reacquired shares, bought on the
market or otherwise.
(5) E LIGIBILITY
.
The Options as set forth in
section 6 automatically shall be granted under the Plan to all
Non-Employee Directors.
(6) N ON -D
ISCRETIONARY G RANTS .
(a) Initial Grants.
Without any further action of the Board,
each Non-Employee Director shall be granted an Initial Grant as
follows:
(i) On the IPO Date,
each person who is then a Non-Employee Director automatically shall
be granted an Initial Grant to purchase twenty thousand
(20,000) shares of Common Stock on the terms and conditions
set forth herein.
(ii) After the IPO
Date, each person who is elected or appointed for the first time to
be a Non-Employee Director automatically shall, upon the date of
his or her initial election or appointment to be a Non-Employee
Director by the Board or stockholders of the Company, be granted an
Initial Grant to purchase twenty thousand (20,000) shares of
Common Stock on the terms and conditions set forth
herein.
(b) Annual Grants.
Without any further action of the Board, on
the day following each Annual Meeting commencing with the first
Annual Meeting following the IPO Date, each person who is then a
Non-Employee Director automatically shall be granted an Annual
Grant to purchase ten thousand (10,000) shares of Common Stock
on the terms and conditions set forth herein; provided,
however , that if the person has not been serving as a
Non-Employee Director for the entire period since the preceding
Annual Meeting, then the number of shares subject to the Annual
Grant shall be reduced pro rata for each full quarter prior to the
date of grant during which such person did not serve as a
Non-Employee Director.
(7) O PTION P
ROVISIONS .
Each Option shall be in such
form and shall contain such terms and conditions as required by the
Plan. Each Option shall contain such additional terms and
conditions, not inconsistent with the Plan, as the Board shall deem
appropriate. Each Option shall include (through
incorporatio
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