EXHIBIT 10.49
COLLATERAL THERAPEUTICS, INC.
1998 STOCK INCENTIVE PLAN
AUTOMATIC OPTION GRANT
FOR NON-EMPLOYEE BOARD MEMBERS
(IMMEDIATELY EXERCISABLE
SUBJECT TO REPURCHASE RIGHT)
STOCK PURCHASE AGREEMENT
FOR NON-EMPLOYEE BOARD MEMBERS
THIS AGREEMENT is made as of this _______ day of ______________,
20____, by and among Collateral Therapeutics, Inc., a Delaware corporation (the
"Corporation"), and ________________, the holder of a stock option (the
"Optionee") granted as an Automatic Option Grant for Non-Employee Board Members
under the Corporation's 1998 Stock Incentive Plan and __________________, the
Optionee's spouse (if any). Grants under the Automatic Option Grant program are
immediately exercisable for all option shares but unvested shares are subject to
Repurchase Rights of the Corporation.
I. EXERCISE OF OPTION
1.1 EXERCISE. Optionee hereby purchases _____________ shares
("Purchased Shares") of the Corporation's common stock ("Common Stock") pursuant
to that certain option ("Option") granted Optionee on _____________, 19___
("Grant Date") to purchase up to ____________ shares of the Common Stock ("Total
Purchasable Shares") under the Corporation's 1998 Stock Incentive Plan (the
"Plan") at an option price of $__________ per share ("Option Price").
1.2 PAYMENT. Concurrently with the delivery of this Agreement to
the Corporate Secretary of the Corporation, Optionee shall pay the Option Price
for the Purchased Shares in accordance with the provisions of the agreement
between the Corporation and Optionee evidencing the Option (the "Option
Agreement") and shall deliver whatever additional documents may be required by
the Option Agreement as a condition for exercise, together with a duly-executed
blank Assignment Separate from Certificate (in the form attached hereto as
Exhibit A) with respect to the Purchased Shares.
1.3 UNVESTED SHARES. Unvested Shares (as defined in paragraph 4.1
below) will be held in book form by the Corporation's transfer agent.
1.4 SHAREHOLDER RIGHTS. Until such time as the Corporation
actually exercises its Repurchase Right under Article IV, Optionee (or any
successor in interest) shall have all the rights of a shareholder (including
voting and dividend rights) with respect to the Purchased Shares, subject,
however, to the transfer restrictions of Article III.
II. SPECIAL TAX ELECTION
2.1 SECTION 83(b) ELECTION APPLICABLE TO THE EXERCISE OF A
NON-STATUTORY STOCK OPTION. The Purchased Shares are acquired hereunder pursuant
to the exercise of A NON-STATUTORY STOCK OPTION. The Optionee understands that
under Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"),
the excess of the fair market value of the Purchased Shares on the date any
forfeiture restrictions applicable to such shares lapse over the Option Price
paid for such shares will be reportable as ordinary income on such lapse date.
For this purpose, the term "forfeiture restrictions" includes the right of the
Corporation to repurchase the Purchased Shares pursuant to the Repurchase Right
provided under Article IV of this Agreement. Optionee understands that he/she
may elect under Section 83(b) of the Code to be taxed at the time the Purchased
Shares are acquired hereunder, rather than when and as such Purchased Shares
cease to be subject to such forfeiture restrictions. Such election must be filed
with the Internal Revenue Service within thirty (30) days after the date of this
Agreement. Even if the fair market value of the Purchased Shares at the date of
this Agreement equals the Option Price paid (and thus no tax is payable), the
election must be made to avoid adverse tax consequences in the future.
2.2 A form for making an election under Section 83(b) is attached
as EXHIBIT B hereto. Optionee understands that failure to make this filing
within the thirty (30)-day period may result in the recognition of ordinary
income by the Optionee as the forfeiture restrictions lapse. OPTIONEE
ACKNOWLEDGES THAT IT IS OPTIONEE'S SOLE RESPONSIBILITY, AND NOT THE
CORPORATION'S, TO FILE A TIMELY ELECTION UNDER SECTION 83(B), EVEN IF OPTIONEE
REQUESTS THE CORPORATION OR ITS REPRESENTATIVES TO MAKE THIS FILING ON HIS/HER
BEHALF. This filing should be made by registered or certified mail, return
receipt requested, and Optionee must retain two (2) copies of the completed form
for filing with his or her State and Federal tax returns for the current tax
year and an additional copy for his or her records.
III. TRANSFER RESTRICTIONS
3.1 RESTRICTION ON TRANSFER. Optionee shall not transfer, assign,
encumber or otherwise dispose of any of the Purchased Shares which are subject
to the Corporation's Repurchase Right under Article IV. Such restriction on
transfer, however, shall not be applicable to (i) a gratuitous transfer of the
Purchased Shares made to the Optionee's spouse or issue, including adopted
children, or to a trust for the exclusive benefit of the Optionee or the
Optionee's spouse or issue, PROVIDED AND ONLY IF the Optionee obtains the
Corporation's prior written consent to such transfer, (ii) a transfer of title
to the Purchased Shares effected pursuant to the Optionee's will or the laws of
intestate succession or (iii) a transfer to the Corporation in pledge as
security for any purchase-money indebtedness incurred by the Optionee in
connection with the acquisition of the Purchased Shares.
3.2 TRANSFEREE OBLIGATIONS. Each person (other than the
Corporation) to whom the Purchased Shares are transferred by means of one of the
permitted transfers specified in paragraph 3.1 must, as a condition precedent to
the validity of such transfer, acknowledge in writing to the Corporation that
such person is bound by the provisions of this Agreement and that
2.
the transferred shares are subject to the Corporation's Repurchase Right to the
same extent such shares would be so subject if retained by the Optionee.
3.3 DEFINITION OF OWNER. For purposes of Articles III and IV of
this Agreement, the term "Owner" shall include the Optionee and all subsequent
holders of the Purchased Shares who derive their chain of ownership through a
permitted transfer from the Optionee in accordance with paragraph 3.1.
IV. REPURCHASE RIGHT
4.1 GRANT. The Corporation is hereby granted the right (the
"Repurchase Right"), exercisable at any time during the sixty (60)-day period
following the date the Optionee ceases for any reason to remain in Service or
(if later) during the sixty (60)-day period following the execution date of this
Agreement, to repurchase at the Option Price all or (at the discretion of the
Corporation and with the consent of the Optionee) any portion of the Purchased
Shares in which the Optionee has not acquired a vested interest in accordance
with the vesting provisions of paragraph 4.3 (such shares to be hereinafter
called the "Unvested Shares"). For purposes of this Agreement, the Optionee
shall be deemed to remain in Service for so long as the Optionee continues to
render periodic services to the Corporation or any parent or subsidiary
corporation, whether as an employee, a non-employee member of the board of
directors, or an independent contractor or consultant.
4.2 EXERCISE OF THE REPURCHASE RIGHT. The Repurchase Right shall
be exercisable by written notice delivered to the Owner of the Unvested Shares
prior to the expiration of the applicable sixty (60)-day period specified in
paragraph 4.1. The notice shall indicate the number of Unvested Shares to be
repurchased and the date on which the repurchase is to be effected, such date to
be not more than thirty (30) days after the date of notice. The Corporation
shall, concurrently with the transfer of the Unvested Shares to the Corporation
on the Corporation's books, pay to Owner in cash or cash equivalents (including
the cancellation of any purchase-money indebtedness), an amount equal to the
Option Price previously paid for the Unvested Shares which are to be
repurchased.
4.3 TERMINATION OF THE REPURCHASE RIGHT.
A. The Repurchase Right shall terminate with respect to any
Unvested Shares for which it is not timely exercised under paragraph 4.2.
B. The Repurchase Right shall terminate, and cease to be
exercisable, with respect to any and all Purchased Shares in which the Optionee
vests in accordance with the vesting schedule specified in the Grant Notice.
C. The Repurchase Right shall terminate upon the consummation
of one of the following transactions unless expressly assigned by the
Corporation to its successor upon the occurrence of any one or more of the
following transactions:
(i) a merger or consolidation in which the
Corporation is not the surviving entity,
3.
(ii) a sale, transfer or other disposition of
all or substantially all of the Corporation's assets, or
(iii) any transaction (including a merger)
through or by means of which a majority of the Corporation's
outstanding voting securities are transferred to a person or persons
other than those who held such securities immediately prior to the
merger.
For purposes of this Section, the Corporation shall be treated as a new
corporation following a transaction described in subparagraph (iii) above and
the Repurchase Right hereunder shall terminate absent an express assignment of
such right.
4.4 AGGREGATE VESTING LIMITATION. If the Option is exercised in
more than one increment so that the Optionee is a party to one or more other
Stock Purchase Agreements ("Prior Purchase Agreements") which are executed prior
to the date of this Agreement, then the total number of Purchased Shares as to
which the Optionee shall be deemed to have a fully-vested interest under this
Agreement and all Prior Purchase Agreements shall not exceed in the aggregate
the number of Purchased Shares in which the Optionee would otherwise at the time
be vested, in accordance with the vesting provisions of paragraph 4.3, had all
the Purchased Shares been acquired exclusively under this Agreement.
4.5 FRACTIONAL SHARES. No fractional shares shall be repurchased
by the Corporation. Accordingly, should the Repurchase Right extend to a
fractional share (in accordance with the vesting provisions of paragraph 4.3) at
the time the Optionee ceases Service, then such fractional share shall be added
to any fractional share in which the Optionee is at such time vested in order to
make one whole vested share no longer subject to the Repurchase Right.
4.6 ADDITIONAL SHARES OR SUBSTITUTED SECURITIES. In the event of
any stock dividend, stock split, recapitalization or other change affecting the
Corporation's outstanding Common Stock as a class effected without receipt of
consideration, then any new, substituted or additional securities or other
property (including money paid other than as a regular cash dividend) which is
by reason of any such transaction distributed with respect to the Purchased
Shares shall be immediately subject to the Repurchase Right, but only to the
extent the Purchased Shares are at the time covered by such right. Appropriate
adjustments to reflect the distribution of such securities or property shall be
made to the number of Purchased Shares and Total Purchasable Shares hereunder
and to the price per share to be paid upon the exercise of the Repurchase Right
in order to reflect the effect of any such transaction upon the Corporation's
capital structure; PROVIDED, however, that the aggregate purchase price shall
remain the same.
V. GENERAL PROVISIONS
5.1 ASSIGNMENT. The Corporation may assign its Repurchase Right
under Article IV to any person or entity selected by the Corporation's Board of
Directors, including (without limitation) one or more shareholders of the
Corporation.
If the assignee of the Repurchase Right is other than a one
hundred percent (100%) owned subsidiary corporation of the Corporation or the
parent corporation owning one hundred percent (100%) of the Corporation, then
such assignee must make a cash payment to the
4.
Corporation, upon the assignment of the Repurchase Right, in an amount equal to
the excess (if any) of (i) the fair market value of the Unvested Shares at the
time subject to the assigned Repurchase Right over (ii) the aggregate repurchase
price payable for the Unvested Shares thereunder.
5.2 DEFINITIONS.
(a) Except as otherwise provided herein, capitalized
terms shall have the meanings assigned to them in the Plan.
(b) For purposes of this Agreement, the following
provisions shall be applicable in determining the parent and
subsidiary corporations of the Corporation:
(i) Any corporation (other than the
Corporation) in an unbroken chain of corporations ending with the
Corporation shall be considered to be a parent corporation of the
Corporation, provided each such corporation in the unbroken chain
(other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the
other corporations in such chain.
(ii) Each corporation (other than the
Corporation) in an unbroken chain of corporations beginning with
the Corporation shall be considered to be a subsidiary of the
Corporation, provided each such corporation (other than the last
corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the
other corporations in such chain.
5.3 NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this Agreement
or in the Plan shall confer upon the Optionee any right to continue in the
Service of the Corporation (or any parent or subsidiary corporation of the
Corporation employing or retaining Optionee) for any period of specific duration
or interfere with or otherwise restrict in any way the rights of the Corporation
(or any parent or subsidiary corporation of the Corporation employing or
retaining Optionee) or the Optionee, which rights are hereby expressly reserved
by each, to terminate the Optionee's Service at any time for any reason
whatsoever, with or without cause.
5.4 NOTICES. Any notice required in connection with the Repurchase
Right or the disposition of any Purchased Shares covered thereby shall be given
in writing and shall be deemed effective upon personal delivery or upon deposit
in the United States mail, registered or certified, postage prepaid and
addressed to the party entitled to such notice at the address indicated below
such party's signature line on this Agreement or at such other address as such
party may designate by ten (10) days advance written notice under this paragraph
5.4 to all other parties to this Agreement.
5.5 NO WAIVER. The failure of the Corporation (or its assignees)
in any instance to exercise the Repurchase Right granted under Article IV shall
not constitute a waiver
5.
of any other repurchase rights that may subsequently arise under the provisions
of this Agreement or any other agreement between the Corporation and the
Optionee or the Optionee's spouse. No waiver of any breach or condition of this
Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
5.6 CANCELLATION OF SHARES. If the Corporation (or its assignees)
shall make available, at the time and place and in the amount and form provided
in this Agreement, the consideration for the Purchased Shares to be repurchased
in accordance with the provisions of this Agreement, then from and after such
time, the person from whom such shares are to be repurchased shall no longer
have any rights as a holder of such shares (other than the right to receive
payment of such consideration in accordance with this Agreement), and such
shares shall be deemed purchased in accordance with the applicable provisions
hereof and the Corporation (or its assignees) shall be deemed the owner and
holder of such shares.
VI. MISCELLANEOUS PROVISIONS
6.1 OPTIONEE UNDERTAKING. Optionee hereby agrees to take whatever
additional action and execute whatever additional documents the Corporation may
in its judgment deem necessary or advisable in order to carry out or effect one
or more of the obligations or restrictions imposed on either the Optionee or the
Purchased Shares pursuant to the express provisions of this Agreement.
6.2 AGREEMENT IS ENTIRE CONTRACT. This Agreement constitutes the
entire contract between the parties hereto with regard to the subject matter
hereof. This Agreement is made pursuant to the provisions of the Plan and shall
in all respects be construed in conformity with the express terms and provisions
of the Plan.
6.3 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, as such laws
are applied to contracts entered into and performed in such State without resort
to that State's conflict of laws rules.
6.4 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
6.5 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the Corporation and its successors
and assigns and the Optionee and the Optionee's legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether or
not any such person shall have become a party to this Agreement and have agreed
in writing to join herein and be bound by the terms and conditions hereof.
6.6 POWER OF ATTORNEY. Optionee's spouse ▇▇▇▇▇▇ appoints Optionee
his or her true and lawful attorney in fact, for him or her and in his or her
name, place and stead, and for his or her use and benefit, to agree to any
amendment or modification of this Agreement and to execute such further
instruments and take such further actions as may reasonably be necessary to
carry out the intent of this Agreement. Optionee's spouse further gives and
grants unto Optionee as his or her attorney in fact full power and authority to
do and perform every act
6.
necessary and proper to be done in the exercise of any of the foregoing powers
as fully as he or she might or could do if personally present, with full power
of substitution and revocation, hereby ratifying and confirming all that
Optionee shall lawfully do and cause to be done by virtue of this power of
attorney.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the day and year first indicated above.
COLLATERAL THERAPEUTICS, INC.
By:
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Title:
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OPTIONEE(1)
----------------------
Address:
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The undersigned spouse of Optionee has read and hereby approves
the foregoing Stock Purchase Agreement. In consideration of the Corporation's
granting the Optionee the right to acquire the Purchased Shares in accordance
with the terms of such Agreement, the undersigned hereby agrees to be
irrevocably bound by all the terms and provisions of such Agreement, including
(specifically) the right of the Corporation (or its assignees) to purchase any
and all interest or right the undersigned may otherwise have in such shares
pursuant to community property laws or other marital property rights.
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OPTIONEE'S SPOUSE
Address:
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1 I understand that the Section 83(b) election that is attached hereto
may be filed in connection with this Stock Purchase Agreement. As set forth in
Article II, I understand that I, and NOT the Corporation, will be responsible
for completing the form and filing the election with the appropriate office of
the Federal and State tax authorities and that if such filing is not completed
within thirty (30) days after the date of this Agreement, I will not be entitled
to the tax benefits provided by Section 83(b).
7.
EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
AND POWER OF ATTORNEY
FOR VALUE RECEIVED, THE UNDERSIGNED HEREBY SELLS, ASSIGNS AND
TRANSFERS UNTO COLLATERAL THERAPEUTICS, INC. (THE "CORPORATION"), ______________
SHARES OF THE COMMON STOCK OF THE CORPORATION ACQUIRED THROUGH EXERCISE OF AN
OPTION GRANTED UNDER THE NON-EMPLOYEE DIRECTOR AUTOMATIC OPTION GRANT PROGRAM,
WHICH SHARES ARE STANDING IN HIS/HER NAME ON THE BOOKS OF THE CORPORATION
REPRESENTED BY CERTIFICATE NO. ____________ AND DOES HEREBY IRREVOCABLY
CONSTITUTE AND APPOINT ______________ AS ATTORNEY TO TRANSFER THE SAID STOCK ON
THE BOOKS OF THE CORPORATION WITH FULL POWER OF SUBSTITUTION IN THE PREMISES.
DATED:
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NAME:
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SIGNATURE:
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INSTRUCTION: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE DATE, NAME AND
SIGNATURE LINE. THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE THE CORPORATION TO
EXERCISE ITS REPURCHASE RIGHT SET FORTH IN THE AGREEMENT WITHOUT REQUIRING
ADDITIONAL SIGNATURES ON THE PART OF THE OPTIONEE.
A-1
REPURCHASE RIGHTS
EXHIBIT B
SECTION 83(b) TAX ELECTION
THIS STATEMENT IS BEING MADE UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE,
PURSUANT TO TREAS. REG. SECTION 1.83-2.
(1) THE TAXPAYER WHO PERFORMED THE SERVICES IS:
NAME:
ADDRESS:
TAXPAYER IDENT. NO.:
(2) THE PROPERTY WITH RESPECT TO WHICH THE ELECTION IS BEING MADE IS
_________ SHARES OF THE COMMON STOCK OF COLLATERAL THERAPEUTICS, INC.
(3) THE PROPERTY WAS ISSUED ON _______________ , 20__.
(4) THE TAXABLE YEAR IN WHICH THE ELECTION IS BEING MADE IS THE CALENDAR
YEAR 20__ .
(5) THE PROPERTY IS SUBJECT TO A REPURCHASE RIGHT PURSUANT TO WHICH THE
ISSUER HAS THE RIGHT TO ACQUIRE THE PROPERTY AT THE ORIGINAL PURCHASE
PRICE IF FOR ANY REASON TAXPAYER'S SERVICE TO THE ISSUER IS TERMINATED.
THE ISSUER'S REPURCHASE RIGHT WITH RESPECT TO THE PROPERTY LAPSES IN A
SERIES OF ANNUAL INSTALLMENTS OVER A "_____" YEAR PERIOD BEGINNING ON
________,19__ AND ENDING ON ________, 20__.
(6) THE FAIR MARKET VALUE AT THE TIME OF TRANSFER (DETERMINED WITHOUT
REGARD TO ANY RESTRICTION OTHER THAN A RESTRICTION WHICH BY ITS TERMS
WILL NEVER LAPSE) IS $______ PER SHARE.
(7) THE AMOUNT PAID FOR SUCH PROPERTY IS $__________ PER SHARE.
(8) A COPY OF THIS STATEMENT WAS FURNISHED TO COLLATERAL THERAPEUTICS, INC.
FOR WHOM TAXPAYER RENDERED THE SERVICES UNDERLYING THE TRANSFER OF
PROPERTY.
(9) THIS STATEMENT IS EXECUTED AS OF: ____________.
_______________________________ _________________________________
SPOUSE (IF ANY) TAXPAYER
THIS FORM MUST BE FILED WITH THE INTERNAL REVENUE SERVICE CENTER WITH WHICH
TAXPAYER FILES HIS/HER FEDERAL INCOME TAX RETURNS. THE FILING MUST BE MADE
WITHIN 30 DAYS AFTER THE EXECUTION DATE OF THE STOCK PURCHASE AGREEMENT.
B-1