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Exhibit
10.18
VIA PHARMACEUTICALS,
INC.
2004 STOCK
PLAN
STOCK OPTION
AGREEMENT
Unless otherwise defined
herein, the terms defined in the 2004 Stock Plan shall have the
same defined meanings in this Stock Option Agreement.
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I.
NOTICE OF STOCK OPTION GRANT
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| Name: |
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| Address: |
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The undersigned Optionee has been granted an Option to purchase
Common Stock of the Company, subject to the terms and conditions of
the Plan and this Option Agreement, as follows:
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Date of Grant
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Vesting Commencement Date
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Exercise Price per Share
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$ |
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Total Number of Shares Granted
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Total Exercise Price
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$ |
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Type of Option:
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___ Incentive Stock Option |
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___ Nonstatutory Stock Option |
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Term/Expiration Date:
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Vesting Schedule:
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This Option shall be 100% vested as of the vesting commencement
date.
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Termination Period
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This Option shall be
exercisable for three (3) months after Optionee ceases to be a
Service Provider. Upon Optionee’s death or Disability, this
Option may be exercised for one (1) year after Optionee ceases
to be a Service Provider. In no event may Optionee exercise this
Option after the Term/Expiration Date as provided above.
1.
Grant of Option . The Plan
Administrator of the Company hereby grants to the Optionee named in
the Notice of Grant (the “Optionee”), an option (the
“Option”) to purchase the number of Shares set forth in
the Notice of Grant, at the exercise price per Share set forth in
the Notice of Grant (the “Exercise Price”), and subject
to the terms and conditions of the Plan, which is incorporated
herein by reference. Subject to Section 15(c) of the Plan, in
the event of a conflict between the terms and conditions of the
Plan and this Option Agreement, the terms and conditions of the
Plan shall prevail.
If designated in the Notice
of Grant as an Incentive Stock Option (“ISO”), this
Option is intended to qualify as an Incentive Stock Option as
defined in Section 422 of the Code. Nevertheless, to the
extent that it exceeds the $100,000 rule of Code
Section 422(d), this Option shall be treated as a Nonstatutory
Stock Option (“NSO”).
(a) Right to Exercise
. This Option shall be exercisable during its term in accordance
with the Vesting Schedule set out in the Notice of Grant and with
the applicable provisions of the Plan and this Option
Agreement.
(b) Method of Exercise
. This Option shall be exercisable by delivery of an exercise
notice in the form attached as Exhibit A (the
“Exercise Notice”) which shall state the election to
exercise the Option, the number of Shares with respect to which the
Option is being exercised, and such other representations and
agreements as may be required by the Company. The Exercise Notice
shall be accompanied by payment of the aggregate Exercise Price as
to all Exercised Shares. This Option shall be deemed to be
exercised upon receipt by the Company of such fully executed
Exercise Notice accompanied by the aggregate Exercise
Price.
No Shares shall be issued
pursuant to the exercise of an Option unless such issuance and such
exercise complies with Applicable Laws. Assuming such compliance,
for income tax purposes the Shares shall be considered transferred
to the Optionee on the date on which the Option is exercised with
respect to such Shares.
3.
Optionee’s Representations .
In the event the Shares have not been registered under the
Securities Act of 1933, as amended, at the time this Option is
exercised, the Optionee shall, if required by the Company,
concurrently with the exercise of all or any portion of this
Option, deliver to the Company his or her Investment Representation
Statement in the form attached hereto as Exhibit B
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4.
Lock-Up Period . Optionee hereby
agrees that Optionee shall not offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Common Stock (or other securities) of the Company
or enter into any swap, hedging or other arrangement that transfers
to another, in whole or in part, any of the economic consequences
of ownership of any Common Stock (or other securities) of the
Company held by Optionee (other than those included in the
registration) for a period specified by the representative of the
underwriters of Common Stock (or other securities) of the Company
not to exceed one hundred eighty (180) days following the
effective date of any registration statement of the Company filed
under the Securities Act.
Optionee agrees to execute
and deliver such other agreements as may be reasonably requested by
the Company or the underwriter which are consistent with the
foregoing or which are necessary to give further effect thereto. In
addition, if requested by the Company or the representative of the
underwriters of Common Stock (or other securities) of the Company,
Optionee shall provide, within ten (10) days of such request,
such information as may be required by the Company or such
representative in connection with the completion of any public
offering of the Company’s securities pursuant to a
registration statement filed under the Securities Act. The
obligations described in this Section shall not apply to a
registration relating solely to employee benefit plans on Form S-1
or Form S-8 or similar forms that may be promulgated in the future,
or a registration relating solely to a Commission Rule 145
transaction on Form S-4 or similar forms that may be promulgated in
the future. The Company may impose stop-transfer instructions with
respect to the shares of Common Stock (or other securities) subject
to the foregoing restriction until the end of said one hundred
eighty (180) day period. Optionee agrees that any transferee
of the Option or shares acquired pursuant to the Option shall be
bound by this Section.
5.
Method of Payment . Payment of the
aggregate Exercise Price shall be by any of the following, or a
combination thereof, at the election of the Optionee:
(a) cash or check;
(b) consideration received by
the Company under a formal cashless exercise program adopted by the
Company in connection with the Plan; or
(c) surrender of other Shares
which, (i) in the case of Shares acquired from the Company,
either directly or indirectly, have been owned by the Optionee, and
not subject to a substantial risk of forfeiture, for more than
six (6) months on the date of surrender, and (ii) have a
Fair Market Value on the date of surrender equal to the aggregate
Exercise Price of the Exercised Shares.
6.
Restrictions on Exercise . This
Option may not be exercised until such time as the Plan has been
approved by the shareholders of the Company, or if the issuance of
such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any
Applicable Law.
7.
Restrictions on Shares . Optionee
hereby agrees that Shares purchased upon the exercise of the Option
shall be subject to such terms and conditions as the Committee
shall
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determine in its sole discretion,
including, without limitation, restrictions on the transferability
of Shares, the right of the Company to repurchase Shares, and a
right of first refusal in favor of the Company with respect to
permitted transfers of Shares. Such terms and conditions may, in
the Committee’s sole discretion, be contained in the Exercise
Notice with respect to the Option or in such other agreement as the
Committee shall determine and which the Optionee hereby agrees to
enter into at the request of the Company
8.
Non-Transferability of Option . This
Option may not be transferred in any manner otherwise than by will
or by the laws of descent or distribution and may be exercised
during the lifetime of Optionee only by Optionee. The terms of the
Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the
Optionee.
9.
Term of Option . This Option may be
exercised only within the term set out in the Notice of Grant, and
may be exercised during such term only in accordance with the Plan
and the terms of this Option.
(a)
Withholding Taxes . Optionee agrees
to make appropriate arrangements with the Company (or the Parent or
Subsidiary employing or retaining Optionee) for the satisfaction of
all Federal, state, local and foreign income and employment tax
withholding requirements applicable to the Option exercise.
Optionee acknowledges and agrees that the Company may refuse to
honor the exercise and refuse to deliver Shares if such withholding
amounts are not delivered at the time of exercise.
(b)
Notice of Disqualifying Disposition of ISO Shares
. If the Option granted to Optionee herein
is an ISO, and if Optionee sells or otherwise disposes of any of
the Shares acquired pursuant to the ISO on or before the later of
(1) the date two years after the Date of Grant, or
(2) the date one year after the date of exercise, the Optionee
shall immediately notify the Company in writing of such
disposition. Optionee agrees that Optionee may be subject to income
tax withholding by the Company on the compensation income
recognized by the Optionee.
11.
Entire Agreement; Governing Law .
The Plan is incorporated herein by reference. The Plan and this
Option Agreement constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and
Optionee with respect to the subject matter hereof, and may not be
modified adversely to the Optionee’s interest except by means
of a writing signed by the Company and Optionee. This agreement is
governed by the internal substantive laws but not the choice of law
rules of California.
12.
No Guarantee of Continued Service .
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES
PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY
CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR
ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND
AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER
AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN
EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT
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AS A SERVICE PROVIDER FOR THE VESTING
PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY
WAY WITH OPTIONEE’S RIGHT OR THE COMPANY’S RIGHT TO
TERMINATE OPTIONEE’S RELATIONSHIP AS A SERVICE PROVIDER AT
ANY TIME, WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt
of a copy of the Plan and represents that he or she is familiar
with the terms and provisions thereof, and hereby accepts this
Option subject to all of the terms and provisions thereof. Optionee
has re
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