Exhibit 10.34
ARCA BIOPHARMA,
INC.
STOCK OPTION
AGREEMENT
ARCA biopharma, Inc. (f/k/a Nuvelo,
Inc.) has granted to the individual (the “ Optionee
” ) named in the Notice of Grant of Stock Option (the
“ Notice ” ) to which this Stock Option
Agreement (the “ Option Agreement ” ) is
attached an option (the “ Option ” ) to
purchase certain shares of Stock upon the terms and conditions set
forth in the Notice and this Option Agreement. The Option has been
granted pursuant to and shall in all respects be subject to the
terms and conditions of the Nuvelo, Inc. 2004 Equity Incentive Plan
(the “ Plan ” ), as amended to the Date
of Option Grant, the provisions of which are incorporated herein by
reference. By signing the Notice, the Optionee: (a) represents
that the Optionee has read and is familiar with the terms and
conditions of the Notice, the Plan and this Option Agreement,
including the Effect of Termination of Service set forth in
Section 7, (b) accepts the Option subject to all of the
terms and conditions of the Notice, the Plan and this Option
Agreement, (c) agrees to accept as binding, conclusive and
final all decisions or interpretations of the Board upon any
questions arising under the Notice, the Plan or this Option
Agreement, and (d) acknowledges receipt of a copy of the
Notice, the Plan and this Option Agreement.
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1.
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D EFINITIONS A ND C ONSTRUCTION .
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1.1 Definitions .
Unless otherwise defined herein, capitalized terms shall have the
meanings assigned to such terms in the Notice or the
Plan.
1.2 Construction .
Captions and titles contained herein are for convenience only and
shall not affect the meaning or interpretation of any provision of
this Option Agreement. Except when otherwise indicated by the
context, the singular shall include the plural and the plural shall
include the singular. Use of the term “or” is not
intended to be exclusive, unless the context clearly requires
otherwise.
2.1 Tax Status of Option
. This Option is intended to have the tax status
designated in the Notice.
(a) Incentive Stock Option
. If the Notice so designates, this Option is intended to be an
Incentive Stock Option within the meaning of Section 422(b) of
the Code, but the Company does not represent or warrant that this
Option qualifies as such. The Optionee should consult with the
Optionee’s own tax advisor regarding the tax effects of this
Option and the requirements necessary to obtain favorable income
tax treatment under Section 422 of the Code, including, but
not limited to, holding period requirements. (NOTE TO OPTIONEE: If
the Option is exercised more than three (3) months after the
date on which you cease to be an Employee (other than by reason of
your death or permanent and total disability as defined in
Section 22(e)(3) of the Code), the Option will be treated as a
Nonstatutory Stock Option and not as an Incentive Stock Option to
the extent required by Section 422 of the Code.)
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(b) Nonstatutory Stock
Option. If the Notice so designates, this Option is
intended to be a Nonstatutory Stock Option and shall not be treated
as an Incentive Stock Option within the meaning of
Section 422(b) of the Code.
2.2 ISO Fair Market Value
Limitation. If the Notice designates this Option as an
Incentive Stock Option , then to the extent that the Option
(together with all Incentive Stock Options granted to the Optionee
under all stock option plans of the Participating Company Group,
including the Plan) becomes exercisable for the first time during
any calendar year for shares having a Fair Market Value greater
than One Hundred Thousand Dollars ($100,000), the portion of such
options which exceeds such amount will be treated as Nonstatutory
Stock Options. For purposes of this Section 2.2, options
designated as Incentive Stock Options are taken into account in the
order in which they were granted, and the Fair Market Value of
stock is determined as of the time the option with respect to such
stock is granted. If the Code is amended to provide for a different
limitation from that set forth in this Section 2.2, such
different limitation shall be deemed incorporated herein effective
as of the date required or permitted by such amendment to the Code.
If the Option is treated as an Incentive Stock Option in part and
as a Nonstatutory Stock Option in part by reason of the limitation
set forth in this Section 2.2, the Optionee may designate
which portion of such Option the Optionee is exercising. In the
absence of such designation, the Optionee shall be deemed to have
exercised the Incentive Stock Option portion of the Option first.
Separate certificates representing each such portion shall be
issued upon the exercise of the Option. (NOTE TO OPTIONEE: If the
aggregate Exercise Price of the Option (that is, the Exercise Price
multiplied by the Number of Option Shares) plus the aggregate
exercise price of any other Incentive Stock Options you hold
(whether granted pursuant to the Plan or any other stock option
plan of the Participating Company Group) is greater than $100,000,
you should contact the Chief Financial Officer of the Company to
ascertain whether the entire Option qualifies as an Incentive Stock
Option.)
All questions of interpretation
concerning this Option Agreement shall be determined by the Board.
All determinations by the Board shall be final and binding upon all
persons having an interest in the Option. Any officer of a
Participating Company shall have the authority to act on behalf of
the Company with respect to any matter, right, obligation, or
election which is the responsibility of or which is allocated
to the Company herein, provided the officer has apparent authority
with respect to such matter, right, obligation, or
election.
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4.
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E XERCISE OF THE O PTION .
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4.1 Right to Exercise. Except
as otherwise provided herein, the Option shall be exercisable on
and after the Date of Option Grant (or if later, the
Optionee’s Service commencement date) and prior to the
termination of the Option (as provided in Section 6) in an
amount not to exceed (a) the number of Option Shares that have
vested in accordance with the vesting provisions set forth in the
Notice and this Option Agreement, minus (b) the number
of Option Shares previously acquired upon exercise of the
Option.
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4.2 Method of Exercise
. Exercise of the Option shall be by written notice to
the Company which must state the election to exercise the
Option, the number of whole shares of Stock for which the Option is
being exercised and such other representations and agreements as to
the Optionee’s investment intent with respect to such shares
as may be required pursuant to the provisions of this Option
Agreement. The written notice must be signed by the Optionee and
must be delivered in person, by certified or registered mail,
return receipt requested, by confirmed facsimile transmission, or
by such other means as the Company may permit, to the Chief
Financial Officer of the Company, or other authorized
representative of the Participating Company Group, prior to the
termination of the Option as set forth in Section 6,
accompanied by full payment of the aggregate Exercise Price for the
number of shares of Stock being purchased. The Option shall be
deemed to be exercised upon receipt by the Company of such written
notice and the aggregate Exercise Price.
4.3 Payment of Exercise
Price.
(a) Forms of Consideration
Authorized . Except as otherwise provided below, payment of
the aggregate Exercise Price for the number of shares of Stock for
which the Option is being exercised shall be made (i) in cash,
by check, or cash equivalent, (ii) by tender to the Company,
or attestation to the ownership, of whole shares of Stock owned by
the Optionee having a Fair Market Value (as determined by the
Company without regard to any restrictions on transferability
applicable to such stock by reason of federal or state securities
laws or agreements with an underwriter for the Company) not less
than the aggregate Exercise Price, (iii) by means of a
Cashless Exercise, as defined in Section 4.3(b), or
(iv) by any combination of the foregoing.
(b) Limitations on Forms of
Consideration.
(i) Tender of Stock.
Notwithstanding the foregoing, the Option may not be exercised by
tender to the Company, or attestation to the ownership, of shares
of Stock to the extent such tender or attestation would constitute
a violation of the provisions of any law, regulation or agreement
restricting the redemption of the Company’s stock. The Option
may not be exercised by tender to the Company, or attestation to
the ownership, of shares of Stock unless such shares either have
been owned by the Optionee for more than six (6) months or
were not acquired, directly or indirectly, from the
Company.
(ii) Cashless Exercise. A
“ Cashless Exercise ” means the delivery
of a properly executed notice together with irrevocable
instructions to a broker in a form acceptable to the Company
providing for the assignment to the Company of the proceeds of a
sale or loan with respect to some or all of the shares of Stock
acquired upon the exercise of the Option pursuant to a program or
procedure approved by the Company (including, without limitation,
through an exercise complying with the provisions of
Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System). The Company reserves, at
any and all times, the right, in the Company’s sole and
absolute discretion, to decline to approve or terminate any such
program or procedure.
4.4 Tax Withholding .
At the time the Option is exercised, in whole or in part, or at any
time thereafter as requested by the Company, the Optionee hereby
authorizes
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withholding from payroll and any other amounts
payable to the Optionee, and otherwise agrees to make adequate
provision for (including by means of a Cashless Exercise to the
extent permitted by the Company), any sums required to satisfy the
federal, state, local and foreign tax withholding obligations of
the Participating Company Group, if any, which arise in
connection with the Option, including, without limitation,
obligations arising upon (a) the exercise, in whole or in
part, of the Option, (b) the transfer, in whole or in part, of
any shares acquired upon exercise of the Option, (c) the
operation of any law or regulation providing for the imputation of
interest, or (d) the lapsing of any restriction with respect
to any shares acquired upon exercise of the Option. The Company
shall have no obligation to deliver shares of Stock until the tax
withholding obligations of the Participating Company Group have
been satisfied by the Optionee.
4.5 Certificate Registration
. Except in the event the Exercise Price is paid by
means of a Cashless Exercise, the certificate for the shares as to
which the Option is exercised shall be registered in the name of
the Optionee, or, if applicable, in the names of the heirs of the
Optionee.
4.6 Restrictions on Grant of the
Option and Issuance of Shares . The grant of the Option
and the issuance of shares of Stock upon exercise of the Option
shall be subject to compliance with all applicable requirements of
federal, state or foreign law with respect to such securities. The
Option may not be exercised if the issuance of shares of Stock upon
exercise would constitute a violation of any applicable federal,
state or foreign securities laws or other law or regulations or the
requirements of any stock exchange or market system upon which the
Stock may then be listed. In addition, the Option may not be
exercised unless (a) a registration statement under the
Securities Act shall at the time of exercise of the Option be in
effect with respect to the shares issuable upon exercise of the
Option or (b) in the opinion of legal counsel to the Company,
the shares issuable upon exercise of the Option may be issued in
accordance with the terms of an applicable exemption from the
registration requirements of the Securities Act. THE OPTIONEE IS
CAUTIONED THAT THE OPTION MAY NOT BE EXERCISED UNLESS THE FOREGOING
CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE
TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS
VESTED. The inability of the Company to obtain from any regulatory
body having jurisdiction the authority, if any, deemed by the
Company’s legal counsel to be necessary to the lawful
issuance and sale of any shares subject to the Option shall relieve
the Company of any liability in respect of the failure to issue or
sell such shares as to which such requisite authority shall not
have been obtained. As a condition to the exercise of the Option,
the Company may require the Optionee to satisfy any qualifications
that may be necessary or appropriate, to evidence compliance with
any applicable law or regulation and to make any representation or
warranty with respect thereto as may be requested by the
Company.
4.7 Fractional Shares
. The Company shall not be required to issue fractional
shares upon the exercise of the Option.
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5.
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T RANSFERABILITY OF THE O PTION .
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The Option may generally only be
exercised during the lifetime of the Optionee only by the Optionee
or the Optionee’s guardian or legal representative and may
not be exercised, assigned or transferred in any manner except by
will, by the laws of descent and distribution, or as otherwise
provided in the Plan. Following the death of the Optionee, the
Option, to the extent provided in Section 7, may be exercised
by the Optionee’s legal representative or by any person
empowered to do so under the deceased Optionee’s will or
under the then applicable laws of descent and
distribution.
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6.
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T ERMINATION OF THE O PTION .
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The Option shall terminate and may
no longer be exercised on the first to occur of (a) the Option
Expiration Date, (b)