NONSTATUTORY STOCK OPTION
________________, Optionee:
Aviron (the "Company"), has granted to you, the optionee
named above, an option to purchase shares of the common stock of
the Company ("Common Stock"). This option is not intended to
qualify as and will not be treated as an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance
of the Company's compensatory benefit plan for participation of
the Company's employees (including officers) directors or
consultants. The grant of this option and the issuance of shares
upon the exercise of this option are also intended to be exempt
from the securities qualification requirements of the California
Corporations Code pursuant to Section 25102(f) of that code.
Defined terms not explicitly defined in this agreement but
defined in the Plan shall have the same definitions as in the
Plan.
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The
total number of shares of Common Stock subject to this option is
_______________ (__________).
2. VESTING. Subject to the limitations contained herein,
__% of the shares will vest each month commencing on
____________, 19__ and continuing until either (i) you cease to
provide services to the Company for any reason, or (ii) the
option becomes fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) EXERCISE PRICE. The exercise price of this option
is ($ ) per share.
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(b) METHOD OF PAYMENT. Payment of the exercise price
per share is due in full upon exercise of all or any part of each
installment which has accrued to you. You may elect, to the
extent permitted by applicable statutes and regulations, to make
payment of the exercise price under one of the following
alternatives:
(i) Payment of the exercise price per share
in cash (including check) at the time of exercise;
(ii) Payment pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board
which, prior to the issuance of Common Stock, results in either
the receipt of cash (or check) by the Company or the receipt
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of irrevocable instructions to pay the aggregate exercise price
of the Company from the sales proceeds;
(iii) Payment by a combination of the methods
of payment permitted by subparagraph 3(b)(i) or 3(b)(ii) above.
4. WHOLE SHARES. This option may not be exercised for any
number of shares which would require the issuance of anything
other than whole shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to
the contrary contained herein, this option may not be exercised
unless the shares issuable upon exercise of this option are then
registered under the Act or, if such Shares are not then so
registered, the Company has determined that such exercise and
issuance would be exempt from the registration requirements of
the Act.
6. TERM. The term of this option commences on
_______________, 19__, the date of grant, and expires on
_______________, (the "Expiration Date," which date shall be no
more than ten (10) years from the date this option is granted).
In no event may this option be exercised on or after the
Expiration Date. This option shall terminate prior to the
Expiration Date as follows: three (3) months after the
termination of your Continuous Status as an Employee, Director or
Consultant with the Company or an Affiliate of the Company for
any reason or for no reason unless:
(a) such termination of Continuous Status as an
Employee, Director or Consultant is due to your disability, in
which event the option shall expire on the earlier of the
Expiration Date set forth above or twelve (12) months following
such termination of Continuous Status as an Employee, Director or
Consultant; or
(b) such termination of Continuous Status as an
Employee, Director or Consultant is due to your death or your
death occurs within three (3) months following your termination
for any other reason, in which event the option shall expire on
the earlier of the Expiration Date set forth above or twelve (12)
months after your death; or
(c) during any part of such three (3) month period the
option is not exercisable solely because of the condition set
forth in paragraph 6 above, in which event the option shall not
expire until the earlier of the Expiration Date set forth above
or until it shall have been exercisable for an aggregate period
of three (3) months after the termination of Continuous Status as
an Employee, Director or Consultant; or
(d) exercise of the option within three (3) months
after termination of your Continuous Status as an Employee,
Director or Consultant with the Company or with an Affiliate of
the Company would result in liability under section 16(b) of the
Securities Exchange Act of 1934 (the "Exchange Act), in which
case the option will expire on the earlier of (i) the Expiration
Date set forth above, (ii) the tenth (10th) day after the last
date upon which exercise would result in such liability or
(iii) six (6) months and ten (10) days after the termination of
2.
your Continuous Status as an Employee, Director or Consultant
with the Company or an Affiliate of the Company.
However, this option may be exercised following termination
of Continuous Status as an Employee, Director or Consultant only
as to that number of shares as to which it was exercisable on the
date of termination of Continuous Status as an Employee, Director
or Consultant under the provisions of paragraph 2 of this option.
7. REPRESENTATIONS. By executing this option agreement,
you hereby warrant and represent that you are acquiring this
option for your own account and that you have no intention of
distributing, transferring or selling all or any part of this
option except in accordance with the terms of this option
agreement and Section 25102(f) of the California Corporations
Code. You also hereby warrant and represent that you have either
(i) preexisting personal or business relationships with the
Company or any of its officers, directors or controlling persons,
or (ii) the capacity to protect your own interests in connection
with the grant of this option by virtue of the business or
financial expertise of any of your professional advisors who are
unaffiliated with and who are not compensated by the Company or
any of its affiliates, directly or indirectly.
8. EXERCISE.
(a) This option may be exercised, to the extent
specified above, by delivering a notice of exercise (in a form
designated by the Company) together with the exercise price to
the Secretary of the Company, or to such other person as the
Company may designate, during regular business hours.
(b) By exercising this option you agree that:
(i) as a precondition to the completion of
any exercise of this option, the Company may require you to enter
an arrangement providing for the cash payment by you to the
Company of any tax withholding obligation of the Company arising
by reason of: (1) the exercise of this option; (2) the lapse of
any substantial risk of forfeiture to which the shares are
subject at the time of exercise; or (3) the disposition of shares
acquired upon such exercise. You also agree that any exercise of
this option has not been completed and that the Company is under
no obligation to issue any Common Stock to you until such an
arrangement is established or the Company's tax withholding
obligations are satisfied, as determined by the Company; and
(ii) the Company (or a representative of the
underwriters) may, in connection with the first underwritten
registration of the offering of any securities of the Company
under the Act, require that you not sell or otherwise transfer or
dispose of any shares of Common Stock or other securities of the
Company during such period (not to exceed one hundred eighty
(180) days) following the effective date (the "Effective Date")
of the registration statement of the Company filed under the Act
as may be requested by the Company or the representative of the
underwriters. You further agree that the Company may impose
stop-
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transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such period.
9. TRANSFERABILITY. This option is not transferable,
except by will or by the laws of descent and distribution, and is
exercisable during your life only by you or pursuant to a
qualified domestic relations order satisfying the requirements of
Rule 16b-3 of the Exchange Act (a "QDRO"), and is exercisable
during your life only by you or a transferee pursuant to a QDRO.
10. OPTION NOT A SERVICE CONTRACT. This option is not an
employment contract and nothing in this option shall be deemed to
create in any way whatsoever any obligation on your part to
continue in the employ of the Company, or of the Company to
continue your employment with the Company. In addition, nothing
in this option shall obligate the Company or any Affiliate of the
Company, or their respective shareholders, Board of Directors,
officers, or employees to continue any relationship which you
might have as a Director or Consultant for the Company or
Affiliate of the Company.
11. NOTICES. Any notices provided for in this option or
the Plan shall be given in writing and shall be deemed
effectively given upon receipt or, in the case of notices
delivered by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the
address specified below or at such other address as you hereafter
designate by written notice to the Company.
Dated the __th day of ______________________, 19__.
Very truly yours,
By
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Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
Notice of Exercise
4.
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein; and
(b) Acknowledges that as of the date of grant of this
option, it sets forth the entire understanding between the
undersigned optionee and the Company and its Affiliates regarding
the acquisition of stock in the Company and supersedes all prior
oral and written agreements on that subject with the exception of
(i) the options previously granted and delivered to the
undersigned under stock option plans of the Company, and (ii) the
following agreements only:
NONE
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(Initial)
OTHER -------------------------------
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ADDRESS:
5.
NOTICE OF EXERCISE
Secretary
Aviron
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▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Date of Exercise: ____________
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect
to purchase the number of shares for the price set forth below.
Type of option: Nonstatutory
Stock option dated: ______________
Number of shares as
to which option is
exercised: ______________
Certificates to be
issued in name of: ______________
Total exerise price: $_____________
Cash payment delivered
herewith: $_____________
By this exercise, I agree (i) to provide such additional
documents as you may require, (ii) to provide for the payment by
me to you (in the manner designated by you) of your withholding
obligation, if any, relating to the exercise of this option, and
(iii) if this exercise relates to an incentive stock option, to
notify you in writing within fifteen (15) days after the date of
any disposition of any shares of Common Stock issued upon
exercise of this option that occurs within two (2) years after
the date of grant of this option or within one (1) year after
such shares of Common Stock are issued upon exercise of this
option.
I hereby make the following certifications and
representations with respect to the number of shares of Common
Stock of the Company listed above (the "Shares"), which are being
acquired by me for my own account upon exercise of the Option as
set forth above:
1.
I acknowledge that the Shares have not been registered under
the Securities Act of 1933, as amended (the "Act"), and are
deemed to constitute "restricted securities" under Rule 701 and
"control securities" under Rule 144 promulgated under the Act. I
warrant and represent to the Company that I have no present
intention of distributing or selling said Shares, except as
permitted under the Act and any applicable state securities laws.
I further acknowledge that I will not be able to resell the
Shares for at least ninety days after the stock of the Company
becomes publicly traded (I.E., subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934) under Rule 701 and that more restrictive conditions
apply to affiliates of the Company under Rule 144.
I further acknowledge that all certificates representing any
of the Shares subject to the provisions of the Option shall have
endorsed thereon appropriate legends reflecting the foregoing
limitations, as well as any legends reflecting restrictions
pursuant to the Company's Articles of Incorporation, Bylaws
and/or applicable securities laws.
I further agree that, if required by the Company (or a
representative of the underwriters) in connection with the first
underwritten registration of the offering of any securities of
the Company under the Act, I will not sell or otherwise transfer
or dispose of any shares of Common Stock or other securities of
the Company during such period (not to exceed one hundred eighty
(180) days) following the effective date of the registration
statement of the Company filed under the Act (the "Effective
Date") as may be requested by the Company or the representative
of the underwriters. For purposes of this restriction I will be
deemed to own securities that (i) are owned directly or
indirectly by me, including securities held for my benefit by
nominees, custodians, brokers or pledgees; (ii) may be acquired
by me within sixty (60) days of the Effective Date; (iii) are
owned directly or indirectly, by or for my brothers or sisters
(whether by whole or half blood), spouse, ancestors and lineal
descendants; or (iv) are owned, directly or indirectly, by or for
a corporation, partnership, estate or trust of which I am a
shareholder, partner or beneficiary, but only to the extent of my
proportionate interest therein as a shareholder, partner or
beneficiary thereof. I further agree that the Company may impose
stop-transfer instructions with respect to securities subject to
the foregoing restrictions until the end of such period.
Very truly yours,
___________________________________
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