EXHIBIT 10.3
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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LIPOMED, INC.
INCENTIVE STOCK OPTION AGREEMENT
LipoMed, Inc. (the "Company") granted to the individual named below an
option to purchase certain shares of common stock of the Company pursuant to the
LipoMed, Inc. Stock Option Plan, in the manner and subject to the provisions of
this Option Agreement.
1. Definitions:
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(a) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(All citations to sections of the Code are to such sections as
they may from time to time be amended or renumbered.)
(b) "Commencement Date" shall mean ________________.
(c) "Company" shall mean LipoMed, Inc., a Delaware corporation, and
any successor corporation thereto.
(d) "Date of Option Grant" shall mean __________________.
(e) "Disability" shall mean disability within the meaning of section
22(e)(3) of the Code, as determined by the Board in its
discretion under procedures established by the Board of Directors
of the Company.
(f) "Exercise Price" shall mean ___________ ($______) per share as
adjusted from time to time pursuant to paragraph 9 below.
(g) "Number of Option Shares" shall mean ________________ (______)
shares of common stock of the Company as adjusted from time to
time pursuant to paragraph 9 below.
(h) "Option Term Date" shall mean the date ten (10) years after the
Date of Option Grant.
(i) "Optionee" shall mean _______________________________.
(j) "Participating Company" shall mean (i) the Company and (ii) any
present or future parent and/or subsidiary corporation of the Company
while such corporation is a parent or subsidiary of the Company. For
purposes of this Option Agreement, a parent corporation and a
subsidiary corporation shall be as defined in sections 424(e) and
424(f) of the Code.
(k) "Participating Company Group" shall mean at any point in time all
corporations collectively which are then a Participating Company.
(l) "Plan" shall mean the LipoMed, Inc. Stock Option Plan.
2. Status of the Option. This Option is intended to be an incentive stock
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option as described in section 422 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 advisors 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.
3. Administration. All questions of interpretation concerning this Option
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Agreement shall be determined by the Board of Directors of the Company
(the "Board") and/or by a duly appointed committee of the Board having
such powers as shall be specified by the Board. Any subsequent
references herein to the Board shall also mean the committee if such
committee has been appointed and, unless the powers of the committee
have been specifically limited, the committee shall have all of the
powers of the Board granted in the Plan, other than the power to
terminate or amend the Plan as provided in section 12 of the Plan,
subject to the terms of the Plan and any applicable limitations
imposed by law. 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.
4. Exercise and Vesting of the Option.
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(a) Right to Exercise. The Option shall vest and become exercisable
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from time to time, subject to the schedule set forth below, in
whole or in part, subject to the termination provisions of
paragraphs 6 and 7 hereof and the Optionee's agreement that any
shares purchased upon exercise are subject to the Company's
repurchase rights set forth in paragraph 11 below:
[Insert vesting schedule.]
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The schedule set forth above is cumulative, so that shares as to which
the Option has become exercisable on and after a date indicated by the
schedule may be purchased pursuant to exercise of the Option at any
subsequent date prior to termination of the Option. The Option may be
exercised at any time and from time to time to purchase up to the
number of shares as to which it is then exercisable.
Notwithstanding the foregoing, if the aggregate fair market value,
determined as of the Date of Option Grant, of the stock with respect
to which the Optionee may exercise incentive stock options (determined
without regard to this provision) for the first time during any
calendar year (under this Plan or under any other plan of the
Participating Company Group), as determined in accordance with section
422(d) of the Code, shall exceed one hundred thousand dollars
($100,000), the Option shall be deemed a nonqualified stock option to
the extent of such excess.
(b) Method of Exercise. The Option shall be exercised by written notice to
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the Company in the form of Exhibit A hereto stating the election to
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exercise the Option, the number of shares 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 by the Company. The written notice must be signed by the
Optionee and must be delivered in person or by certified or registered
mail, return receipt requested, 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
paragraph 6 below, accompanied by (i) full payment of the exercise
price for the number of shares being purchased and (ii) an executed
copy, if required herein, of the then current form of joint escrow
instructions referenced below.
(c) Form of Payment of Option Price. Such payment shall be made in cash,
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check or cash equivalent or in any other form as may be permitted by
the Board in its discretion.
(d) Withholding. At the time the Option is exercised, in whole or in part,
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or at any time thereafter as requested by the Company, the Optionee
hereby authorizes payroll withholding and otherwise agrees to make
adequate provision for foreign, federal and state tax withholding
obligations of the Company, if any, which arise
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in connection with the Option, including, without limitation,
obligations arising upon (i) the exercise, in whole or in part, of the
Option, (ii) the transfer, in whole or in part, of any shares acquired
on exercise of the Option, (iii) the operation of any law or
regulation providing for the imputation of interest, or (iv) the
lapsing of any restriction with respect to any shares acquired on
exercise of the Option.
(e) Certificate Registration. The certificate or certificates for the
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shares as to which the Option shall be exercised shall be registered
in the name of the Optionee, or, if applicable, the heirs of the
Optionee.
(f) Restrictions on Grant of the Option and Issuance of Shares. The grant
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of the Option and the issuance of the shares upon exercise of the
Option shall be subject to compliance with all applicable requirements
of federal or state law with respect to such securities. The Option
may not be exercised if the issuance of shares upon such exercise
would constitute a violation of any applicable federal or state
securities laws or other law or regulations. In addition, no Option
may be exercised unless (i) a registration statement under the
Securities Act of 1933, as amended (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 (ii) 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
EXERCISABLE 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.
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.
(g) Fractional Shares. The Company shall not be required to issue
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fractional shares upon the exercise of the Option.
5. Non-Transferability of the Option. The Option may be exercised during the
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lifetime of the Optionee only by the Optionee and may not be assigned or
transferred in any manner except by will or by the laws of descent and
distribution.
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6. Termination of the Option. The Option shall terminate and may no longer be
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exercised on the first to occur of (a) the Option Term Date as defined
above, (b) the last date for exercising the Option following termination of
employment as described in paragraph 7 below, or (c) upon a Transfer of
Control as described in paragraph 8 below.
7. Termination of Employment.
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(a) Termination of the Option. If the Optionee ceases to be an employee of
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the Participating Company Group for any reason except death or
Disability, the Option, to the extent unexercised and exercisable by
the Optionee on the date on which the Optionee ceased to be an
employee, may be exercised by the Optionee within three (3) months
after the date on which the Optionee's employment terminates, but in
any event no later than the Option Term Date. If the Optionee's
employment with the Participating Company Group is terminated because
of the death or Disability of the Optionee, the Option, to the extent
unexercised and exercisable by the Optionee on the date on which the
Optionee ceased to be an employee, may be exercised by the Optionee
(or the Optionee's legal representative) at any time prior to the
expiration of twelve (12) months from the date the Optionee's
employment terminated, but in any event no later than the Option Term
Date. The Optionee's employment shall be deemed to have terminated on
account of death if the Optionee dies within three (3) months after
the Optionee's termination of employment. This paragraph shall be
interpreted such that the Option ceases to vest on the date on which
the Optionee ceases to be an employee of the Participating Company
Group (pursuant to this paragraph 7) for any reason, notwithstanding
any period after such cessation of employment during which the Option
may remain exercisable as provided in this paragraph 7.
(b) Termination of Employment Defined. For purposes of this paragraph 7,
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the Optionee's employment shall be deemed to have terminated either
upon an actual termination of employment or upon the Optionee's
employer ceasing to be a Participating Company.
(c) Exercise Prevented by Law. Except as provided in this paragraph 7, the
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Option shall terminate and may not be exercised after the Optionee's
employment with the Participating Company Group terminates unless the
exercise of the Option in accordance with this paragraph 7 is
prevented by the provisions of paragraph 4(f) above. If the exercise
of the Option is so prevented, the Option shall remain exercisable
until three (3) months after the date the Optionee is notified by the
Company that the Option is exercisable, but in any event no later than
the Option Term Date.
(d) Optionee Subject to Section 16(b). Notwithstanding the foregoing, if
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the exercise of the Option within the applicable time periods set
forth above would subject the Optionee to suit under Section 16(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Option shall remain exercisable until the
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earliest to occur of (i) the tenth (10th) day following the date on
which the Optionee would no longer be subject to such suit, (ii) the
one hundred and ninetieth (190th) day after the Optionee's termination
of employment, or (iii) the Option Term Date.
(e) Leave of Absence. For purposes hereof, the Optionee's employment with
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the Participating Company Group shall not be deemed to terminate if
the Optionee takes any military leave, sick leave, or other bona fide
leave of absence approved by the Company of ninety (90) days or less.
In the event of a leave in excess of ninety (90) days, the Optionee's
employment shall be deemed to terminate on the ninety-first (91st) day
of the leave unless the Optionee's right to reemployment with the
Participating Company Group remains guaranteed by statute or contract.
8. Transfer of Control. Upon a merger, consolidation, corporate
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reorganization, or any transaction in which all or substantially all of the
assets of the Company are sold, leased, transferred or otherwise disposed
of (other than a mere reincorporation transaction or one in which the
holders of capital stock of the Company immediately prior to such merger or
consolidation continue to hold at least a majority of the voting power of
the surviving corporation) (a "Transfer of Control"), then any
unexercisable portion of an outstanding Option shall become immediately
exercisable as of a date prior to the Transfer of Control, which date shall
be determined by the Board. The exercise of any Option that was permissible
solely by reason of this paragraph 8 shall be conditioned upon the
consummation of the Transfer of Control. The Board may further elect, in
its sole discretion, to provide that any Options which become exercisable
solely by reason of this paragraph 8 and which are not exercised as of the
date of the Transfer of Control shall terminate effective as of the date of
the Transfer of Control.
9. Effect of Change in Stock Subject to the Option. The Board shall make
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appropriate adjustments in the number, exercise price and class of shares
of stock subject to the Option in the event of a stock dividend, stock
split, reverse stock split, combination, reclassification, or like change
in the capital structure of the Company. In the event a majority of the
shares which are of the same class as the shares that are subject to the
Option are exchanged for, converted into, or otherwise become (whether or
not pursuant to a Transfer of Control) shares of another corporation (the
"New Shares"), the Board may unilaterally amend the Option to provide that
the Option is exercisable for New Shares. In the event of any such
amendment, the number of shares and the exercise price shall be adjusted in
a fair and equitable manner.
10. Rights as a Shareholder or Employee. The Optionee shall have no rights as a
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shareholder with respect to any shares covered by the Option until the date
of the issuance of a certificate or certificates for the shares for which
the Option has been exercised. No adjustment shall be made for dividends or
distributions or other rights for which the record date is prior to the
date such certificate or certificates are issued, except as provided in
paragraph 9 above. Nothing in the Option shall confer upon the Optionee any
right to continue in the employ of a Participating Company or interfere in
any way
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with any right of the Participating Company Group to terminate the
Optionee's employment at any time.
11. Right of First Refusal.
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(a) Right of First Refusal. In the event the Optionee proposes to sell,
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pledge, or otherwise transfer any shares acquired upon exercise of the
Option (the "Transfer Shares") to any person or entity, including,
without limitation, any shareholder of the Participating Company
Group, the Company shall have the right to repurchase the Transfer
Shares under the terms and subject to the conditions set forth in this
paragraph 11 (the "Right of First Refusal").
(b) Notice of Proposed Transfer. Prior to any proposed transfer of the
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Transfer Shares, the Optionee shall give a written notice (the
"Transfer Notice") to the Company describing fully the proposed
transfer, including the number of Transfer Shares, the name and
address of the proposed transferee (the "Proposed Transferee") and, if
the transfer is voluntary, the proposed transfer price and containing
such information necessary to show the bona fide nature of the
proposed transfer. In the event of a bona fide or involuntary
transfer, the proposed transfer price shall be deemed to be the fair
market value of the Transfer Shares as determined by the Company in
good faith. In the event the Optionee proposes to transfer any
Transfer Shares to more than one (1) Proposed Transferee, the Optionee
shall provide a separate Transfer Notice for the proposed transfer to
each Proposed Transferee. The Transfer Notice shall be signed by both
the Optionee and the Proposed Transferee and must constitute a binding
commitment of the Optionee and the Proposed Transferee for the
transfer of the Transfer Shares to the Proposed Transferee subject
only to the Right of First Refusal.
(c) Bona Fide Transfer. In the event that the Company shall determine that
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the information provided by the Optionee in the Transfer Notice is
insufficient to establish the bona fide nature of a proposed voluntary
transfer, the Company shall give the Optionee written notice of the
Optionee's failure to comply with the procedure described in this
paragraph 11 and the Shares without first complying with the
procedures described in this paragraph 11. The Optionee shall not be
permitted to transfer the Transfer Shares if the proposed transfer is
not bona fide.
(d) Exercise of the Right of First Refusal. In the event the proposed
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transfer is deemed to be bona fide, the Company shall have the right
to purchase all, but not less than all, of the Transfer Shares at the
purchase price and on the terms set forth in the Transfer Notice by
delivery to the Optionee of a notice of exercise of the Right of First
Refusal within thirty (30) days after the date the Transfer Notice is
delivered to the Company. The Company's exercise or failure to
exercise the Right of First Refusal with respect to any proposed
transfer described in a Transfer Notice shall not affect the Company's
ability to exercise the Right of
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First Refusal with respect to any proposed transfer described in any
other Transfer Notice, whether or not such other Transfer Notice is
issued by the Optionee or issued by a person other than the Optionee
with respect to a proposed transfer to the same Proposed Transferee.
If the Company exercises the Right of First Refusal, the Company and
the Optionee shall thereupon consummate the sale of the Transfer
Shares to the Company on the terms set forth in the Transfer Notice;
provided however, that in the event that the Transfer Notice provides
for the payment for the Transfer Shares other than in cash, the
Company shall have the option of paying for the Transfer Shares by the
discounted cash equivalent of the consideration described in the
Transfer Notice as reasonably determined by the Company. For purposes
of the foregoing, cancellation of any indebtedness of the Optionee to
any Participating Company shall be treated as payment to the Optionee
in cash to the extent of the unpaid principal and any accrued interest
cancelled.
(e) Failure to Exercise the Right of First Refusal. If the Company fails
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to exercise the Right of First Refusal in full within the period
specified in paragraph 11(d) above, the Optionee may conclude a
transfer to the Proposed Transferee of the Transfer Shares on the
terms and conditions described in the Transfer Notice, provided such
transfer occurs not later than one hundred twenty (120) days following
delivery to the Company of the Transfer Notice. The Company shall have
the right to demand further assurances from the Optionee and the
Proposed Transferee (in a form satisfactory to the Company) that the
transfer of the Transfer Shares was actually carried out on the terms
and conditions described in the Transfer Notice. No Transfer Shares
shall be transferred on the books of the Company until the Company has
received such assurances, if so demanded, and has approved the
proposed transfer as bona fide. Any proposed transfer on terms and
conditions different from those described in the Transfer Notice, as
well as any subsequent proposed transfer by the Optionee, shall again
be subject to the Right of First Refusal and shall require compliance
by the Optionee with the procedure described in this paragraph 11.
(f) Transferees of the Transfer Shares. All transferees of the Transfer
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Shares or any interest therein, other than the Company, shall be
required as a condition of such transfer to agree in writing (in a
form satisfactory to the Company) that such transferee shall receive
and hold such Transfer Shares or interests subject to the provisions
of this paragraph 11 providing for the Right of First Refusal with
respect to any subsequent transfer. Any sale or transfer of any shares
acquired upon exercise of the Option shall be void unless the
provisions of this paragraph 11 are met.
(g) Transfers Not Subject to the Right of First Refusal. The Right of
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First Refusal shall not apply to any transfer or exchange of the
shares acquired pursuant to the exercise of the Option if (i) such
transfer is in connection with a Transfer of Control, (ii) such
transfer is to one or more members of the Optionee's immediate
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family (or a trust for their benefit) provided all such transferees
agree in writing to the restrictions of paragraph 11(f), or (iii) such
transfer has been approved by the Board its complete discretion. If
the consideration received pursuant to such transfer or exchange
consists of stock of a Participating Company, such consideration shall
remain subject to the Right of First Refusal unless the provisions of
paragraph 11(i) below result in a termination of the Right of First
Refusal.
(h) Assignment of the Right of First Refusal. The Company shall have the
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right to assign the Right of First Refusal at any time, whether or not
the Optionee has attempted a transfer, to one (1) or more persons as
may be selected by the Company.
(i) Stock Dividends Subject to Option Agreement. If, from time to time,
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there is any stock dividend, stock split, or other change in the
character or amount of any of the outstanding stock of the Company,
the stock of which is subject to the provisions of this Option
Agreement, then, in such event, any and all new substituted or
additional securities to which the Optionee is entitled by reason of
the Optionee's ownership of the shares acquired upon exercise of the
Option shall be immediately subject to the Right of First Refusal
with the same force and effect as the shares subject to the Right of
First Refusal immediately before such event.
(j) Early Termination of the Right of First Refusal. The other provisions
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of this paragraph 11 notwithstanding, the Right of First Refusal shall
terminate, and be of no further force and effect, upon (i) the
occurrence of a Transfer of Control, unless the surviving, continuing,
successor, or purchasing corporation, as the case may be, assumes the
Company's rights and obligations under the Plan, or (ii) the existence
of a public market for the class of shares subject to the Right of
First Refusal. A "public market" shall be deemed to exist if (x) such
stock is listed on a national securities exchange (as that term is
used in the Exchange Act) or (y) such stock is traded on the
over-the-counter market and prices therefor are published daily on
business days in a recognized financial journal.
12. Escrow.
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(a) Establishment of Escrow. To insure shares subject to the Right of
-----------------------
First Refusal will be available for repurchase, the Company may
require the Optionee to deposit the certificate or certificates
evidencing the shares which the Optionee purchases upon exercise of
the Option with an escrow agent designated by the Company under the
terms and conditions of an escrow agreement approved by the Company.
If the Company does not require such deposit as a condition of
exercise of the Option, the Company reserves the right at any time to
require the Optionee to so deposit the certificate or certificates in
escrow. The Company shall bear the expenses of the escrow.
(b) Delivery of Shares to Optionee. As soon as practicable after the
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expiration of the Right of First Refusal, the escrow agent shall
deliver to the Optionee the shares no longer subject to such
restrictions.
(c) Notices and Payments. In the event the shares held in escrow are
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subject to the Company's exercise of the Right of First Refusal, the
notices required to be given to the Optionee shall be given to the
escrow agent and any payment required to be given to the Optionee
shall be given to the escrow agent. Within thirty (30) days after
payment by the Company, the escrow agent shall deliver the shares
which
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the Company has purchased to the Company and shall deliver the payment
received from the Company to the Optionee.
13. Notice of Sales Upon Disqualifying Disposition. The Optionee shall dispose
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of the shares acquired pursuant to the Option only in accordance with the
provisions of this Option Agreement. In addition, the Optionee shall
promptly notify the Chief Financial Officer of the Company if the Optionee
disposes of any of the shares acquired pursuant to the Option within one
(1) year from the date the Optionee exercises all or part of the Option or
within two (2) years of the date of grant of the Option. Until such time as
the Optionee disposes of such shares in a manner consistent with the
provisions of this Option Agreement, the Optionee shall hold all shares
acquired pursuant to the Option in the Optionee's name (and not in the name
of any nominee) for the one-year period immediately after exercise of the
Option and the two-year period immediately after grant of the Option. At
any time during the one-year or two-year periods set forth above, the
Company may place a legend or legends on any certificate or certificates
representing shares acquired pursuant to the Option requesting the transfer
agent for the Company's stock to notify the Company of any such transfers.
The obligation of the Optionee to notify the Company of any such transfer
shall continue notwithstanding that a legend has been placed on the
certificate or certificates pursuant to the preceding sentence.
14. Legends. The Company may at any time place legends referencing the Right of
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First Refusal set forth in paragraph 11 above and any applicable federal or
state securities law restriction on all certificates representing shares of
stock subject to the provisions of this Option Agreement. The Optionee
shall, at the request of the Company, promptly present to the Company any
and all certificates representing shares acquired pursuant to the Option in
the possession of the Optionee in order to effectuate the provisions of
this paragraph. Unless otherwise specified by the Company, legends placed
on such certificates may include, but shall not be limited to, the
following:
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SHARES, THE SALE
IS MADE IN ACCORDANCE WITH RULE 144 OR RULE 701 UNDER THE ACT, OR THE
CORPORATION RECEIVES AN
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OPINION OF COUNSEL FOR THE HOLDER OF THESE SHARES REASONABLY
SATISFACTORY TO THE CORPORATION, STATING THAT SUCH SALE, TRANSFER
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
(b) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF
FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION OR ITS ASSIGNEE SET
FORTH IN AN AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED
HOLDER, OR SUCH HOLDER'S PREDECESSOR IN INTEREST, A COPY OF WHICH IS
ON FILE AT THE PRINCIPAL OFFICE OF THIS CORPORATION.
(c) THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED BY THE
CORPORATION TO THE REGISTERED HOLDER UPON EXERCISE OF AN INCENTIVE
STOCK OPTION AS DEFINED IN SECTION 422 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED. THE TRANSFER AGENT FOR THE SHARES EVIDENCED HEREBY
SHALL NOTIFY THE CORPORATION IMMEDIATELY OF ANY TRANSFER OF THE SHARES
BY THE REGISTERED HOLDER HEREOF MADE ON OR BEFORE THE REGISTERED
HOLDER SHALL HOLD ALL SHARES PURCHASED UNDER THE OPTION IN THE
REGISTERED HOLDER'S NAME (AND NOT IN THE NAME OF ANY NOMINEE) FOR A
PERIOD OF ONE YEAR FROM THE DATE OF EXERCISE OF THE OPTION OR TWO
YEARS FROM THE DATE OF GRANT OF THE OPTION.
15. Initial Public Offering. The Optionee hereby agrees that in the event of an
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initial public offering of stock made by the Company under the Securities
Act, the Optionee shall not offer, sell, contract to sell, pledge,
hypothecate, grant any option to purchase or make any short sale of, or
otherwise dispose of any shares of stock of the Company or any rights to
acquire stock of the Company for such period of time as may be established
by the underwriter for such initial public offering; provided, however,
that such period of time shall not exceed one hundred eighty (180) days
from the effective date of the registration statement to be filed in
connection with such initial public offering. The foregoing limitation
shall not apply to shares registered under the Securities Act.
16. Binding Effect. This Option Agreement shall inure to the benefit of and be
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binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
17. Termination or Amendment. The Board may terminate or amend this Option
------------------------
Agreement at any time; provided, however, that no such termination or
amendment may adversely affect the Option or any unexercised portion hereof
without the consent of the Optionee
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unless such amendment is required to enable the Option to qualify as an
Incentive Stock Option.
18. Integrated Agreement. This Option Agreement constitutes the entire
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understanding and agreement of the Optionee and the Participating Company
Group with respect to the subject matter contained herein, and there are no
other agreements, understandings, restrictions, representations, or
warranties among the Optionee and the Company with respect to the subject
matter contained herein other than those as set forth or provided for
herein. To the extent contemplated herein, the provisions of this Option
Agreement shall survive any exercise of the Option and shall remain in full
force and effect.
19. Terms and Conditions of Plan. The terms and conditions included in the Plan
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are incorporated by reference herein, and to the extent that any conflict
may exist between any term or provision of this Option Agreement and any
term or provision of the Plan, the term or provision of the Plan shall
control.
20. Applicable Law. This Option Agreement shall be governed by the laws of the
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State of Delaware as such laws are applied to agreements between
Delaware as residents entered into and to be performed entirely within
the State of Delaware.
21. Effect of Certain Transactions. Notwithstanding anything to contrary in
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this Option Agreement, in the event that the Optionee has entered into a
nondisclosure, invention and/or non-competition agreement with the Company
and the Optionee breaches any such agreement, the Optionee shall forfeit
100% of the Option granted pursuant to this Option Agreement, whether or
not vested or exercisable.
LIPOMED, INC.
By:_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief
Executive Officer
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The Optionee represents that the Optionee is familiar with the terms and
provisions of this Option Agreement, including the Right of First Refusal set
forth in paragraph 11, and hereby accepts the Option subject to all of the terms
and provisions thereof. The Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board of Directors
of the Company made in good faith upon any questions arising under this Option
Agreement.
The undersigned hereby acknowledges receipt of a copy of the Plan.
Date:_________________________ ________________________________
(Signature of Optionee)
________________________________
(Printed Name of Optionee)
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EXHIBIT A
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LipoMed, Inc.
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Re: Exercise of Incentive Stock Option
Dear Sirs:
Pursuant to the terms and conditions of the Incentive Stock Option Award
Agreement dated as of __________,(the "Agreement"), between __________
("Optionee") and LipoMed, Inc. (the "Company"), Optionee hereby agrees to
purchase _____ shares (the "Shares") of the Common Stock of the Company and
tender payment in full for such shares in accordance with the terms of the
Agreement.
The Shares are being issued to Optionee in a transaction not involving a
public offering and pursuant to an exemption from registration under the
Securities Act of 1933, as amended (the "1933 Act"). In connection with such
purchase, Optionee represents, warrants and agrees as follows:
1. The Shares are being purchased for the Optionee's own account and not for
the account of any other person, with the intent of holding the Shares for
investment and not with the intent of participating, directly or
indirectly, in a distribution or resale of the Shares or any portion
thereof.
2. The Optionee is not acquiring the Shares based upon any representation,
oral or written, by any person with respect to the future value of, or
income from, the Shares, but rather upon independent examination and
judgment as to the prospects of the Company.
3. The Optionee has had complete access to and the opportunity to review all
material documents related to the business of the Company, has examined
all such documents as the Optionee desired, is familiar with the business
and affairs of the Company and realizes that any purchase of the Shares
is a speculative investment and that any possible profit therefrom is
uncertain.
4. The Optionee has had the opportunity to ask questions of and receive
answers from the Company and its executive officers and to obtain all
information necessary for the Optionee to make an informed decision with
respect to the investment in the Company represented by the Shares.
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5. The Optionee is able to bear the economic risk of any investment in the
Shares, including the risk of a complete loss of the investment, and the
Optionee acknowledges that he or she may need to continue to bear the
economic risk of the investment in the Shares for an indefinite period.
6. The Optionee understands and agrees that the Shares are being issued and
sold to the Optionee without registration under any state or federal laws
relating to the registration of securities, in reliance upon exemptions
from registration under appropriate state and federal laws based in part
upon the representations of the Optionee made herein.
7. The Company is under no obligation to register the Shares or to comply
with any exemption available for sale of the Shares by the Optionee without
registration, and the Corporation is under no obligation to act in any
manner so as to make Rule 144 promulgated under the Securities Act of 1933
available with respect to any sale of the Shares by the Optionee.
8. The Optionee has not relied upon the Company or an employee or agent of
the Company with respect to any tax consequences related to exercise of
this Option or the disposition of the Shares. The Optionee assumes full
responsibility for all such tax consequences and the filing of all tax
returns and elections the Optionee may be required to or find desirable to
file in connection therewith.
Date: ____________________
Very truly yours,
_____________________________________
Print Name: _________________________
_____________________________________
_____________________________________
_____________________________________
(Address)
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