SUNESIS PHARMACEUTICALS, INC. STOCK OPTION GRANT NOTICE AND STOCK OPTION AGREEMENT (OUTSIDE DIRECTORS - ANNUAL GRANT)
SUNESIS
PHARMACEUTICALS, INC.
2005
EQUITY INCENTIVE AWARD PLAN
STOCK
OPTION GRANT NOTICE AND STOCK OPTION AGREEMENT
(OUTSIDE
DIRECTORS - ANNUAL GRANT)
Sunesis
Pharmaceuticals, Inc. (the “Company”),
pursuant to the Sunesis Pharmaceuticals, Inc. 2005 Equity Incentive Award Plan
(the “Plan”),
hereby grants to the Optionee listed below (“Optionee”),
an
option to purchase the number of shares of the Company’s Stock set forth below
(the “Option”).
This
Option is subject to all of the terms and conditions as set forth herein and
in
the Stock Option Agreement and the Plan, each of which are attached hereto
and
incorporated herein by reference. Capitalized terms not specifically defined
herein shall have the meanings specified in the Plan.
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Optionee:
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Date
of Stock Option Agreement:
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Grant
Date:
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Vesting
Commencement Date:
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Exercise
Price per Share:
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Total
Number of Shares Granted:
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10,000
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Total
Exercise Price:
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Expiration
Date:
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| Type of Option: | Non-Qualified Stock Option |
| Vesting Schedule: |
1/12th
of
the shares subject to the Option shall vest monthly following the
Grant
Date on the same day of the month as the Grant Date, subject to Optionee
continuing to be a member of the Company’s Board of Directors on such
dates.
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By
his or
her signature and the Company’s signature below, Optionee agrees to be bound by
the terms and conditions of the Plan and the Stock Option Agreement attached
hereto. Optionee has reviewed the Stock Option Agreement and the Plan in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option and fully understands all provisions of the Grant Notice,
the Stock Option Agreement and the Plan. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Committee
upon any questions arising under the Plan or this Option. Optionee further
agrees to notify the Company upon any change in the residence address indicated
below.
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SUNESIS
PHARMACEUTICALS, INC. Optionee:
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OPTIONEE:
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By:
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By:
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Print
Name:
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Print
Name:
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Title:
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Address: ▇▇▇
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Address:
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Date:
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Date:
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GRANT
NOTICE PAGE 1
SUNESIS
PHARMACEUTICALS, INC.
2005
EQUITY INCENTIVE AWARD PLAN
(OUTSIDE
DIRECTORS - ANNUAL GRANT)
Pursuant
to the Stock Option Grant Notice (“Grant
Notice”)
to
which this Stock Option Agreement (this “Agreement”)
is
attached, Sunesis Pharmaceuticals, Inc. (the “Company”)
has
granted to the Optionee set forth in the Grant Notice (the “Optionee”)
an
option under the Sunesis Pharmaceuticals, Inc. 2005 Equity Incentive Award
Plan
(the “Plan”)
to
purchase the number of shares of Stock indicated in the Grant Notice at the
exercise price indicated in the Grant Notice (the “Option”).
The
Option is subject to all of the terms and conditions set forth herein and in
the
Grant Notice and the Plan.
ARTICLE
I
DEFINITIONS;
INCORPORATION OF TERMS
1.1 Definitions.
Capitalized terms not specifically defined herein shall have the meanings
specified in the Plan.
1.2 Incorporation
of Terms of Plan.
The
Option is subject to the terms and conditions of the Plan which are incorporated
herein by reference.
ARTICLE
II
GRANT
OF OPTION
2.1 Grant
of Option.
In
consideration of the Optionee’s agreement to remain a member of the Board of
Directors of the Company and for other good and valuable consideration,
effective as of the Grant Date set forth in the Grant Notice (the “Grant
Date”),
the
Company irrevocably grants to the Optionee the Option to purchase any part
or
all of an aggregate of the number of shares of Stock set forth in the Grant
Notice, upon the terms and conditions set forth in this Agreement. The Option
is
a Non-Qualified Stock Option.
2.2 Purchase
Price.
The
exercise price per share of the Stock subject to the Option shall be as set
forth in the Grant Notice, without commission or other charge; provided,
however,
that in
no event shall such exercise price be less 100% of the Fair Market Value of
a
share of Stock on the Grant Date or than the par value of a share of Stock,
unless otherwise permitted by applicable law.
2.3 Consideration
to the Company.
In
consideration of the granting of the Option by the Company, the Optionee agrees
to render faithful and efficient service to the Company as a member of the
Board
of Directors. Nothing in the Plan or this Agreement shall confer upon the
Optionee any right to continue as a member of the Board of Directors of the
Company.
ARTICLE
III
PERIOD
OF EXERCISABILITY
3.1 Commencement
of Exercisability.
(a) Subject
to Sections 3.3 and 5.8, the Option shall become exercisable upon becoming
vested in such amounts and at such times as are set forth in the Grant
Notice.
(b) No
portion of the Option which has not become vested and exercisable at Termination
of Service (as defined in Section 3.3 below) shall thereafter become
exercisable, except as may be otherwise provided by the Board of Directors
of
the Company or as set forth in a written agreement between the Company and
the
Optionee.
3.2 Duration
of Exercisability.
The
installments provided for in Section 3.1(a) are cumulative. Each such
installment which becomes vested and exercisable pursuant to Section 3.1
shall remain exercisable until it becomes unexercisable under
Section 3.3.
3.3 Expiration
of Option.
The
Option may not be exercised to any extent by anyone after the first to occur
of
the following events:
(a) The
expiration of ten years from the Grant Date; or
(b) The
expiration of twelve months following the date of the Optionee’s cessation of
membership on the Board of Directors of the Company for any reason
(“Termination
of Service”).
ARTICLE
IV
EXERCISE
OF OPTION
4.1 Person
Eligible to Exercise.
Except
as provided in Sections 5.2(b) and 5.2(c), during the lifetime of the Optionee,
only the Optionee may exercise the Option or any portion thereof.
4.2 Partial
Exercise.
Any
vested and exercisable portion of the Option or the entire Option, if then
wholly vested and exercisable, may be exercised in whole or in part at any
time
prior to the time when the Option or portion thereof becomes unexercisable
under
Section 3.3.
4.3 Manner
of Exercise.
The
Option, or any exercisable portion thereof, may be exercised solely by delivery
to the Secretary of the Company or the Secretary’s office of all of the
following prior to the time when the Option or such portion thereof becomes
unexercisable under Section 3.3:
(a) An
Exercise Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion thereof, stating that the Option
or
portion thereof is thereby exercised, such notice complying with all applicable
rules established by the Committee. Such notice shall be substantially in the
form attached as Exhibit
A
(or such
other form as is prescribed by the Committee); and
(b)
(i) Full
payment (in cash or by check) for the shares with respect to which the Option
or
portion thereof is exercised, to the extent permitted under applicable laws;
or
(ii) To
the
extent permitted under applicable laws, through the delivery of a notice that
the Optionee has placed a market sell order with a broker with respect to shares
of Stock then issuable upon exercise of the Option, and that the broker has
been
directed to pay a sufficient portion of the net proceeds of the sale to the
Company in satisfaction of the Option exercise price, provided,
that
payment of such proceeds is made to the Company upon settlement of such sale;
or
(iii) With
the
consent of the Committee, any combination of the consideration provided in
the
foregoing subparagraphs (i) and (ii); and
(c) A
bona
fide written representation and agreement, in such form as is prescribed by
the
Committee, signed by the Optionee or other person then entitled to exercise
such
Option or portion thereof, stating that the shares of Stock are being acquired
for the Optionee’s own account, for investment and without any present intention
of distributing or reselling said shares or any of them except as may be
permitted under the Securities Act of 1933, as amended (the “Securities
Act”),
and
then applicable rules and regulations thereunder, and that the Optionee or
other
person then entitled to exercise such Option or portion thereof will indemnify
the Company against and hold it free and harmless from any loss, damage, expense
or liability resulting to the Company if any sale or distribution of the shares
by such person is contrary to the representation and agreement referred to
above. The Committee may, in its absolute discretion, take whatever
additional actions it deems appropriate to ensure the observance and performance
of such representation and agreement and to effect compliance with the
Securities Act and any other federal or state securities laws or regulations.
Without limiting the generality of the foregoing, the Committee may require
an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on an Option exercise does not violate the Securities Act
and
may issue stop-transfer orders covering such shares. Share certificates
evidencing Stock issued on exercise of the Option shall bear an appropriate
legend referring to the provisions of this subsection (c) and the
agreements herein. The written representation and agreement referred to in
the
first sentence of this subsection (c) shall, however, not be required if
the shares to be issued pursuant to such exercise have been registered under
the
Securities Act, and such registration is then effective in respect of such
shares; and
(d) Full
payment to the Company of all amounts which, under federal, state, local or
foreign tax law, it is required to withhold upon exercise of the Option. With
the consent of the Committee, shares of Stock issuable to the Optionee upon
exercise of the Option, having a Fair Market Value at the date of Option
exercise equal to the statutory minimum sums required to be withheld, may be
used to make all or part of such payment; and
(e) In
the
event the Option or portion thereof shall be exercised pursuant to
Section 4.1 by any person or persons other than the Optionee, appropriate
proof of the right of such person or persons to exercise the
Option.
4.4 Conditions
to Issuance of Stock Certificates.
The
shares of Stock deliverable upon the exercise of the Option, or any portion
thereof, shall be fully paid and nonassessable. The Company shall not be
required to issue or deliver any certificate or certificates for shares of
Stock
purchased upon the exercise of the Option or portion thereof prior to
fulfillment of all of the following conditions:
(a) The
admission of such shares to listing on all stock exchanges on which such Stock
is then listed; and
(b) The
completion of any registration or other qualification of such shares under
any
state or federal law or under rulings or regulations of the Securities and
Exchange Commission or of any other governmental regulatory body, which the
Committee shall, in its absolute discretion, deem necessary or advisable;
and
STOCK
OPTION AGREEMENT PAGE 3
(c) The
obtaining of any approval or other clearance from any state or federal
governmental agency which the Committee shall, in its absolute discretion,
determine to be necessary or advisable; and
(d) The
receipt by the Company of full payment for such shares, including payment of
all
amounts which, under federal, state or local tax law, the Company is required
to
withhold upon exercise of the Option; and
(e) The
lapse
of such reasonable period of time following the exercise of the Option as the
Committee may from time to time establish for reasons of administrative
convenience.
4.5 Rights
as Stockholder.
The
holder of the Option shall not be, nor have any of the rights or privileges
of,
a stockholder of the Company in respect of any shares purchasable upon the
exercise of any part of the Option unless and until such shares of Stock have
been issued (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company).
ARTICLE
V
OTHER
PROVISIONS
5.1 Administration.
The
Committee shall have the power to interpret the Plan and this Agreement and
to
adopt such rules for the administration, interpretation and application of
the
Plan as are consistent therewith and to interpret, amend or revoke any such
rules. All actions taken and all interpretations and determinations made by
the
Committee in good faith shall be final and binding upon the Optionee, the
Company and all other interested persons. No member of the Committee shall
be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan, this Agreement or the Option. In its absolute
discretion, the Board may at any time and from time to time exercise any and
all
rights and duties of the Committee under the Plan and this
Agreement.
5.2 Option
Not Transferable.
(a) Subject
to Section 5.2(b), the Option may not be sold, pledged, assigned or transferred
in any manner other than by will or the laws of descent and distribution unless
and until the Option has been exercised, or the shares underlying such Option
have been issued, and all restrictions applicable to such shares have lapsed.
Neither the Option nor any interest or right therein shall be liable for the
debts, contracts or engagements of the Optionee or his or her successors in
interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null
and
void and of no effect, except to the extent that such disposition is permitted
by the preceding sentence.
(b) Notwithstanding
any other provision in this Agreement, with the consent of the Committee the
Option may be transferred to, exercised by and paid to certain persons or
entities related to the Optionee, including but not limited to members of the
Optionee’s family, charitable institutes or trusts or other entities whose
beneficiaries or beneficial owners are members of the Optionee’s family or to
such other persons or entities as may be expressly approved by the Committee
(each a “Permitted
Transferee”),
pursuant to such conditions and procedures as the Committee may
require.
(c) Unless
transferred to a Permitted Transferee in accordance with Section 5.2(b), during
the lifetime of the Optionee, only the Optionee may exercise the Option or
any
portion thereof. Subject to such conditions and procedures as the Committee
may
require, a Permitted Transferee may exercise the Option or any portion thereof
in accordance with this Agreement. After the death of the Optionee, any
exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by the Permitted Transferee
or the Optionee’s beneficiary designated in accordance with Section 10.4 of the
Plan, as applicable. If no beneficiary has been designated or survives the
Optionee, the Option may be exercised by the person entitled to such exercise
pursuant to the Optionee’s will or the laws of descent and
distribution.
STOCK
OPTION AGREEMENT PAGE 4
5.3 Restrictive
Legends and Stop-Transfer Orders.
(a) The
share
certificate or certificates evidencing the shares of Stock purchased hereunder
shall be endorsed with any legends that may be required by state or federal
securities laws.
(b) The
Optionee agrees that, in order to ensure compliance with the restrictions
referred to herein, the Company may issue appropriate “stop transfer”
instructions to its transfer agent, if any, and that, if the Company transfers
its own securities, it may make appropriate notations to the same effect in
its
own records.
(c) The
Company shall not be required: (i) to transfer on its books any shares of Stock
that have been sold or otherwise transferred in violation of any of the
provisions of this Agreement, or (ii) to treat as owner of such shares of Stock
or to accord the right to vote or pay dividends to any purchaser or other
transferee to whom such shares shall have been so transferred.
5.4 Shares
to Be Reserved.
The
Company shall at all times during the term of the Option reserve and keep
available such number of shares of Stock as will be sufficient to satisfy the
requirements of this Agreement.
5.5 Notices.
Any
notice to be given under the terms of this Agreement to the Company shall be
addressed to the Company in care of the Secretary, and any notice to be given
to
the Optionee shall be addressed to the Optionee at the address given beneath
the
Optionee’s signature on the Grant Notice. By a notice given pursuant to this
Section 5.5, either party may hereafter designate a different address for
notices to be given to that party. Any notice which is required to be given
to
the Optionee shall, if the Optionee is then deceased, be given to the Optionee’s
designated beneficiary if any, or the person otherwise entitled to exercise
his
or her Option pursuant to Section 4.1 by written notice under this
Section 5.5. Any notice shall be deemed duly given when sent via
email or enclosed in a properly sealed envelope or wrapper addressed as
aforesaid and deposited (with postage prepaid) in a post office or branch post
office regularly maintained by the United States Postal Service.
5.6 Titles.
Titles
are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
5.7 Construction.
This
Agreement shall be administered, interpreted and enforced under the laws of
the
State of Delaware without regard to conflicts of laws thereof.
5.8 Conformity
to Securities Laws.
The
Optionee acknowledges that the Plan is intended to conform to the extent
necessary with all provisions of the Securities Act and the Exchange Act and
any
and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, and all applicable foreign and state securities laws
and
regulations. Notwithstanding anything herein to the contrary, the Plan shall
be
administered, and the Option is granted and may be exercised, only in such
a
manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Plan and this Agreement shall be deemed amended
to the extent necessary to conform to such laws, rules and
regulations.
5.9 Amendments.
This
Agreement may not be modified, amended or terminated except by an instrument
in
writing, signed by the Optionee or such other person as may be permitted to
exercise the Option pursuant to Section 4.1 and by a duly authorized
representative of the Company.
STOCK
OPTION AGREEMENT PAGE 5
EXHIBIT
A
TO
GRANT NOTICE AND STOCK OPTION AGREEMENT
FORM
OF EXERCISE NOTICE
Effective
as of today, ___________, _____, the undersigned (“Optionee”)
hereby
elects to exercise Optionee’s option to purchase _________ shares of common
stock (the “Shares”)
of
Sunesis Pharmaceuticals, Inc. (the “Company”)
under
and pursuant to the Sunesis Pharmaceuticals, Inc. 2005 Equity Incentive
Award
Plan
(the
“Plan”)
and
the Grant Notice and Stock Option Agreement dated _____________, _____ (the
“Option
Agreement”).
Capitalized terms used herein without definition shall have the meanings given
in the Option Agreement.
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Grant
Date:
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Number
of Shares as to which Option is Exercised:
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Exercise
Price per Share:
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$____________
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Total
Exercise Price:
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$____________
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Certificate
to be issued in name of:
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Cash
Payment delivered herewith:
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$____________
(Representing the full Exercise Price for the
Shares)
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Type
of Option: Non-Qualified
Stock Option
1. Representations
of Optionee.
Optionee acknowledges that Optionee has received, read and understood the Plan
and the Option Agreement. Optionee agrees to abide by and be bound by their
terms and conditions.
2. Rights
as Stockholder.
Until
the stock certificate evidencing such Shares is issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company), no right to vote or receive dividends or any other rights
as a stockholder shall exist with respect to Shares subject to the Option,
notwithstanding the exercise of the Option. The Company shall issue (or cause
to
be issued) such stock certificate promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the record
date
is prior to the date the stock certificate is issued, except as provided in
Article 11 of the Plan.
3. Tax
Consultation.
Optionee understands that Optionee may suffer adverse tax consequences as a
result of Optionee’s purchase or disposition of the Shares. Optionee represents
that Optionee has consulted with any tax consultants Optionee deems advisable
in
connection with the purchase or disposition of the Shares and that Optionee
is
not relying on the Company for any tax advice.
4. Successors
and Assigns.
The
Company may assign any of its rights under this Agreement to single or multiple
assignees, and this Agreement shall inure to the benefit of the successors
and
assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Agreement shall be binding upon Optionee and his or her heirs,
executors, administrators, successors and assigns.
EXERCISE NOTICE
PAGE 1
5. Interpretation.
Any
dispute regarding the interpretation of this Agreement shall be submitted by
Optionee or by the Company forthwith to the Committee, which shall review such
dispute at its next regular meeting. The resolution of such a dispute by the
Committee shall be final and binding on the Company and on
Optionee.
6. Governing
Law; Severability.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware excluding that body of law pertaining to conflicts of law.
Should any provision of this Agreement be determined by a court of law to be
illegal or unenforceable, the other provisions shall nevertheless remain
effective and shall remain enforceable.
7. Notices.
Any
notice required or permitted hereunder shall be given in accordance with the
provisions set forth in Section 5.5 of the Option Agreement.
8. Further
Instruments.
The
parties agree to execute such further instruments and to take such further
action as may be reasonably necessary to carry out the purposes and intent
of
this Agreement.
9. Entire
Agreement.
The
Plan and Option Agreement are incorporated herein by reference. This Agreement,
the Plan and the Option Agreement constitute the entire agreement of the parties
and supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof.
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ACCEPTED
BY:
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SUBMITTED
BY:
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SUNESIS
PHARMACEUTICALS, INC.
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OPTIONEE
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By:
_____________________________________________
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Name:
___________________________________________
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Optionee
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Its:
_____________________________________________
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Address:
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EXERCISE NOTICE
PAGE 2