Exhibit (d) (5)
NMT MEDICAL, INC.
Incentive Stock Option Agreement
Granted Under 1998 Stock Incentive Plan
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1. Grant of Option.
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This agreement evidences the grant by NMT Medical, Inc., a Delaware
corporation (the "Company"), on March 27, 2001 (the "Grant Date") to
[__________], an employee of the Company (the "Participant"), of an option to
purchase, in whole or in part, on the terms provided herein and in the Company's
1998 Stock Incentive Plan (the "Plan"), a total of [__________] shares (the
"Shares") of common stock, $.001 par value per share, of the Company ("Common
Stock") at $[_____] per Share. Unless earlier terminated, this option shall
expire on March 26, 2011 (the "Final Exercise Date").
It is intended that the option evidenced by this agreement shall be an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended and any regulations promulgated thereunder (the "Code").
Except as otherwise indicated by the context, the term "Participant", as used in
this option, shall be deemed to include any person who acquires the right to
exercise this option validly under its terms.
2. Vesting Schedule.
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This option will become exercisable ("vest") as to 25% of the original
number of Shares on each of the first, second, third and fourth anniversaries of
the Grant Date.
The right of exercise shall be cumulative so that to the extent the option
is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all shares for
which it is vested until the earlier of the Final Exercise Date or the
termination of this option under Section 3 hereof or the Plan.
In the event of an Acquisition Event (as defined in the Plan), and as long
as the Participant is an employee, officer, director, consultant or advisor of
the Company at such time, this option shall become immediately exercisable in
full. An "Acquisition Event" is defined in the Plan to mean (a) any merger or
consolidation of the Company with or into another entity as a result of which
the Common Stock is converted into or exchanged for the right to receive cash,
securities or other property or (b) any exchange of shares of the Company for
cash, securities or other property pursuant to a statutory share exchange
transaction.
3. Exercise of Option
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(a) Form of Exercise. Each election to exercise this option shall be in
writing, signed by the Participant, and received by the Company at its
principal office, accompanied by this agreement, and payment in full in the
manner provided in the Plan. The Participant may purchase less than the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share.
(b) Continuous Relationship with the Company Required. Except as otherwise
provided in this Section 3, this option may not be exercised unless the
Participant, at the time he or she exercises this option, is, and has
been at all times since the Grant Date, an employee, officer or
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director of, or consultant or advisor to, the Company or any parent or
subsidiary of the Company as defined in Section 424(e) or (f) of the Code
(an "Eligible Participant").
(c) Termination of Relationship with the Company. If the Participant
ceases to be an Eligible Participant for any reason, then, except as
provided in paragraphs (d) and (e) below, the right to exercise this option
shall terminate three months after such cessation (but in no event after
the Final Exercise Date), provided that this option shall be exercisable
only to the extent that the Participant was entitled to exercise this
option on the date of such cessation. Notwithstanding the foregoing, if the
Participant, prior to the Final Exercise Date, violates the non-competition
or confidentiality provisions of any employment contract, confidentiality
and nondisclosure agreement or other agreement between the Participant and
the Company, the right to exercise this option shall terminate immediately
upon such violation.
(d) Exercise Period Upon Death or Disability. If the Participant dies or
becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior
to the Final Exercise Date while he or she is an Eligible Participant and
the Company has not terminated such relationship for "cause" as specified
in paragraph (e) below, this option shall be exercisable, within the period
of one year following the date of death or disability of the Participant by
the Participant, provided that this option shall be exercisable only to the
extent that this option was exercisable by the Participant on the date of
his or her death or disability, and further provided that this option shall
not be exercisable after the Final Exercise Date.
(e) Discharge for Cause. If the Participant, prior to the Final Exercise
Date, is discharged by the Company for "cause" (as defined below), the
right to exercise this option shall terminate immediately upon the
effective date of such discharge. "Cause" shall mean willful misconduct by
the Participant or willful failure by the Participant to perform his or her
responsibilities to the Company (including, without limitation, breach by
the Participant of any provision of any employment, consulting, advisory,
nondisclosure, non-competition or other similar agreement between the
Participant and the Company), as determined by the Company, which
determination shall be conclusive. The Participant shall be considered to
have been discharged for "Cause" if the Company determines, within 30 days
after the Participant's resignation, that discharge for cause was
warranted.
4. Withholding.
No Shares will be issued pursuant to the exercise of this option unless and
until the Participant pays to the Company, or makes provision satisfactory to
the Company for payment of, any federal, state or local withholding taxes
required by law to be withheld in respect of this option.
5. Nontransferability of Option.
This option may not be sold, assigned, transferred, pledged or otherwise
encumbered by the Participant, either voluntarily or by operation of law, except
by will or the laws of descent and distribution, and, during the lifetime of the
Participant, this option shall be exercisable only by the Participant.
6. Disqualifying Disposition.
If the Participant disposes of Shares acquired upon exercise of this option
within two years from the Grant Date or one year after such Shares were acquired
pursuant to exercise of this option, the Participant shall notify the Company in
writing of such disposition.
7. Provisions of the Plan.
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This option is subject to the provisions of the Plan, a copy of which is
furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be executed under
its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
NMT Medical, Inc.
Dated: _________________ By:___________________________________
Name:_____________________________
Title:____________________________
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PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms
and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company's 1998 Stock Incentive Plan.
PARTICIPANT:
________________________________
Address:________________________
________________________
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