ZNOMICS, INC.
Exhibit
99.1
2002
STOCK INCENTIVE PLAN
Unless
otherwise defined herein, the terms defined in the Znomics, Inc. 2002 Stock
Incentive Plan (the “Plan”) will have the same defined meanings in this Stock
Option Grant Agreement (the “Grant Agreement”).
I. NOTICE OF STOCK OPTION
GRANT
Participant
Name:
Address:
You have
been granted an option (the “Option”) to purchase Common Stock of Znomics, Inc.
(the “Company”), subject to the terms and conditions of the Plan and this Grant
Agreement, as follows:
| Grant Number | ________________________ | |
| Date of Grant | ________________________ | |
| Vesting Commencement Date | ________________________ | |
| Exercise Price per Share | $_______________________ | |
| Total Number of Shares Granted | ________________________ | |
| Total Exercise Price | $_______________________ | |
| Type of Option: | ___ Incentive Stock Option | |
| ___ Nonstatutory Stock Option | ||
| Term/Expiration Date: | ________________________ | |
Vesting
Schedule:
Subject
to any acceleration provisions contained in the Plan or set forth below, this
Option may be exercised, in whole or in part, in accordance with the following
schedule:
[INSERT
VESTING SCHEDULE]
Termination
Period:
This
Option will be exercisable for [three (3)
months] after Participant ceases to provide services to the Company,
unless such termination is due to Participant’s death or disability, in which
case this Option will be exercisable for [twelve
(12) months] after Participant ceases to provide services to the
Company. Notwithstanding the foregoing, in no event may this Option
be exercised after the Term/Expiration Date as provided above and may be subject
to earlier termination as provided in Section 7(d) of the Plan.
By
Participant’s signature and the signature of the Company's representative below,
Participant and the Company agree that this Option is granted under and governed
by the terms and conditions of the Plan and this Grant Agreement, including the
Terms and Conditions of Stock Option Grant, attached hereto as Exhibit A, all of
which are made a part of this document. Participant has reviewed the
Plan and this Grant Agreement in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Grant Agreement and fully
understands all provisions of the Plan and Grant
Agreement. Participant hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Grant Agreement. Participant
further agrees to notify the Company upon any change in the residence address
indicated below.
| PARTICIPANT: | ZNOMICS, INC. | ||
| __________________________ | ________________________________ | ||
| Signature | By | ||
|
__________________________________
|
__________________________________________ | ||
| Print Name | Title | ||
Residence Address:
______________________________
______________________________
EXHIBIT
A
(a)TERMS
AND CONDITIONS OF STOCK OPTION GRANT
1. Grant of
Option. The Company hereby grants to the Participant named in
the Notice of Grant attached as Part I of this Grant Agreement (the
“Participant”) an option (the “Option”) to purchase the number of shares of
Common Stock (“Shares”), as set forth in the Notice of Grant, at the exercise
price per Share set forth in the Notice of Grant (the “Exercise Price”), subject
to all of the terms and conditions in this Grant Agreement and the Plan, which
is incorporated herein by reference. Subject to Section 7(g) of the
Plan, in the event of a conflict between the terms and conditions of the Plan
and the terms and conditions of this Grant Agreement, the terms and conditions
of the Plan will prevail.
If
designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this
Option is intended to qualify as an ISO under Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”). However, if this
Option is intended to be an ISO, to the extent that it exceeds the $100,000 rule
of Code Section 422(d) it will be treated as a Nonstatutory Stock Option
(“NSO”).
2. Vesting
Schedule. Except as provided in Section 3, the Option awarded
by this Grant Agreement will vest in accordance with the vesting provisions set
forth in the Notice of Grant. Shares scheduled to vest on a certain
date or upon the occurrence of a certain condition will not vest in Participant
in accordance with any of the provisions of this Grant Agreement, unless
Participant will have continuously provided services to the Company from the
Date of Grant until the date such vesting occurs.
3. Administrator
Discretion. The Administrator, in its discretion, may
accelerate the vesting of the balance, or some lesser portion of the balance, of
the unvested Option at any time, subject to the terms of the Plan. If
so accelerated, such Option will be considered as having vested as of the date
specified by the Administrator.
4. Exercise of
Option.
(a) Right to
Exercise. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Grant Agreement.
(b) Method of
Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached as Exhibit B (the
“Exercise Notice”) or in a manner and pursuant to such procedures as the
Administrator may determine, which will state the election to exercise the
Option, the number of Shares in respect of which the Option is being exercised
(the “Exercised Shares”), and such other representations and agreements as may
be required by the Company pursuant to the provisions of the
Plan. The Exercise Notice will be completed by Participant and
delivered to the Company. The Exercise Notice will be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares together with
any applicable tax withholding. This Option will be deemed to be
exercised upon receipt by the Company of such fully executed Exercise Notice
accompanied by such aggregate Exercise Price.
5. Method of
Payment. Payment of the aggregate Exercise Price will be by
any of the following, or a combination thereof, at the election of
Participant.
(a) cash;
(b) check;
(c) consideration
received by the Company under a formal cashless exercise program adopted by the
Company in connection with the Plan; or
(d) surrender
of other Shares which have a Fair Market Value on the date of surrender equal to
the aggregate Exercise Price of the Exercised Shares, provided that accepting
such Shares, in the sole discretion of the Administrator, will not result in any
adverse accounting consequences to the Company.
6. Tax
Obligations.
(a) Withholding
Taxes. Notwithstanding any contrary provision of this Grant
Agreement, no certificate representing the Shares will be issued to Participant,
unless and until satisfactory arrangements (as determined by the Administrator)
will have been made by Participant with respect to the payment of income,
employment and other taxes which the Company determines must be withheld with
respect to such Shares. To the extent determined appropriate by the
Company in its discretion, it will have the right (but not the obligation) to
satisfy any tax withholding obligations by reducing the number of Shares
otherwise deliverable to Participant. If Participant fails to make
satisfactory arrangements for the payment of any required tax withholding
obligations hereunder at the time of the Option exercise, Participant
acknowledges and agrees that the Company may refuse to honor the exercise and
refuse to deliver Shares if such withholding amounts are not delivered at the
time of exercise.
(b) Notice of Disqualifying
Disposition of ISO Shares. If the Option granted to
Participant herein is an ISO, and if Participant sells or otherwise disposes of
any of the Shares acquired pursuant to the ISO on or before the later of (i) the
date two (2) years after the Grant Date, or (ii) the date one (1) year after the
date of exercise, Participant will immediately notify the Company in writing of
such disposition. Participant agrees that Participant may be subject
to income tax withholding by the Company on the compensation income recognized
by Participant.
(c) Code Section
409A. Under Code Section 409A, an option that vests after
December 31, 2004 that was granted with a per Share exercise price that is
determined by the Internal Revenue Service (the “IRS”) to be less than the Fair
Market Value of a Share on the date of grant (a “Discount Option”) may be
considered “deferred compensation.” A Discount Option may result in
(i) income recognition by Participant prior to the exercise of the option, (ii)
an additional twenty percent (20%) federal income tax, and (iii) potential
penalty and interest charges. The Discount Option may also result in
additional state income, penalty and interest charges to the
Participant. Participant acknowledges that the Company cannot and has
not guaranteed that the IRS will agree that the per Share exercise price of this
Option equals or exceeds the Fair Market Value of a Share on the Date of Grant
in a later examination. Participant agrees that if the IRS determines
that the Option was granted with a per Share exercise price that was less than
the Fair Market Value of a Share on the date of grant, Participant will be
solely responsible for Participant’s costs related to such a
determination.
7. Rights as
Stockholder. Neither Participant nor any person claiming under
or through Participant will have any of the rights or privileges of a
stockholder of the Company in respect of any Shares deliverable hereunder unless
and until certificates representing such Shares will have been issued, recorded
on the records of the Company or its transfer agents or registrars, and
delivered to Participant. After such issuance, recordation and
delivery, Participant will have all the rights of a stockholder of the Company
with respect to voting such Shares and receipt of dividends and distributions on
such Shares.
8. No Guarantee of Continued
Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING
OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING
TO PROVIDE SERVICES TO THE COMPANY AT THE WILL OF THE COMPANY (OR THE PARENT OR
SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING
HIRED, BEING GRANTED THE OPTION OR ACQUIRING SHARES
HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS
GRANT AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING
SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS A SERVICE PROVIDER OF THE COMPANY FOR THE VESTING
PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH
PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY
EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A
SERVICE PROVIDER OF THE COMPANY AT ANY TIME, WITH OR WITHOUT CAUSE.
9. Address for
Notices. Any notice to be given to the Company under the terms
of this Grant Agreement will be addressed to the Company, in care of its [TITLE] at Znomics, Inc.,
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the Company may
hereafter designate in writing.
10. Non-Transferability of
Option. This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution and may be
exercised during the lifetime of Participant only by Participant.
11. Binding
Agreement. Subject to the limitation on the transferability of
this grant contained herein, this Grant Agreement will be binding upon and inure
to the benefit of the heirs, legatees, legal representatives, successors and
assigns of the parties hereto.
12. Additional Conditions to
Issuance of Stock. If at any time the Company will determine,
in its discretion, that the listing, registration or qualification of the Shares
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental regulatory authority is necessary or desirable
as a condition to the issuance of Shares to Participant (or his or her estate),
such issuance will not occur unless and until such listing, registration,
qualification, consent or approval will have been effected or obtained free of
any conditions not acceptable to the Company. The Company will make
all reasonable efforts to meet the requirements of any such state or federal law
or securities exchange and to obtain any such consent or approval of any such
governmental authority. Assuming such compliance, for income tax
purposes the Exercised Shares will be considered transferred to Participant on
the date the Option is exercised with respect to such Exercised
Shares.
13. Plan
Governs. This Grant Agreement is subject to all terms and
provisions of the Plan. In the event of a conflict between one or
more provisions of this Grant Agreement and one or more provisions of the Plan,
the provisions of the Plan will govern. Capitalized terms used and
not defined in this Grant Agreement will have the meaning set forth in the
Plan.
14. Administrator
Authority. The Administrator will have the power to interpret
the Plan and this Grant Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules (including, but not limited
to, the determination of whether or not any Shares subject to the Option have
vested). All actions taken and all interpretations and determinations
made by the Administrator in good faith will be final and binding upon
Participant, the Company and all other interested persons. No member
of the Administrator will be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or this Grant
Agreement.
15. Electronic
Delivery. The Company may, in its sole discretion, decide to
deliver any documents related to Options awarded under the Plan or future
Options that may be awarded under the Plan by electronic means or request
Participant’s consent to participate in the Plan by electronic
means. Participant hereby consents to receive such documents by
electronic delivery and agrees to participate in the Plan through any on-line or
electronic system established and maintained by the Company or another third
party designated by the Company.
16. Captions. Captions
provided herein are for convenience only and are not to serve as a basis for
interpretation or construction of this Grant Agreement.
17. Agreement
Severable. In the event that any provision in this Grant
Agreement will be held invalid or unenforceable, such provision will be
severable from, and such invalidity or unenforceability will not be construed to
have any effect on, the remaining provisions of this Grant
Agreement.
18. Modifications to the
Agreement. This Grant Agreement constitutes the entire
understanding of the parties on the subjects covered. Participant
expressly warrants that he or she is not accepting this Grant Agreement in
reliance on any promises, representations, or inducements other than those
contained herein. Modifications to this Grant Agreement or the Plan
can be made only in an express written contract executed by a duly authorized
officer of the Company. Notwithstanding anything to the contrary in
the Plan or this Grant Agreement, the Company reserves the right to revise this
Grant Agreement as it deems necessary or advisable, in its sole discretion and
without the consent of Participant, to comply with Code Section 409A or to
otherwise avoid imposition of any additional tax or income recognition under
Section 409A of the Code in connection to this Option.
19. Amendment, Suspension or
Termination of the Plan. By accepting this Award, Participant
expressly warrants that he or she has received an Option under the Plan, and has
received, read and understood a description of the Plan. Participant
understands that the Plan is discretionary in nature and may be amended,
suspended or terminated by the Company at any time.
20. Governing
Law. This Grant Agreement will be governed by the laws of the
State of [Oregon], without giving effect to
the conflict of law principles thereof. For purposes of litigating
any dispute that arises under this Option or this Grant Agreement, the parties
hereby submit to and consent to the jurisdiction of the State of [Oregon], and agree that such
litigation will be conducted in the courts of [Multnomah] County, [Oregon], or the federal courts for the United
States for the [District of Oregon],
and no other courts, where this Option is made and/or to be
performed.
EXHIBIT
B
2002
STOCK INCENTIVE PLAN
EXERCISE
NOTICE
▇▇▇▇ ▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Portland,
Oregon 97201
Attention: [_______]
2. Exercise of
Option. Effective as of today, ________________, _____, the
undersigned (“Purchaser”) hereby elects to purchase ______________ shares (the
“Shares”) of the Common Stock of Znomics, Inc. (the “Company”) under and
pursuant to the 2002 Stock Incentive Plan (the “Plan”) and the Stock Option
Grant Agreement dated ________ (the “Grant Agreement”). The purchase
price for the Shares will be $_____________, as required by the Grant
Agreement.
3. Delivery of
Payment. Purchaser herewith delivers to the Company the full
purchase price of the Shares and any required tax withholding to be paid in
connection with the exercise of the Option.
4. Representations of
Purchaser. Purchaser acknowledges that ▇▇▇▇▇▇▇▇▇ has received,
read and understood the Plan and the Grant Agreement and agrees to abide by and
be bound by their terms and conditions.
5. Rights as
Stockholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the Shares, no right to vote or receive dividends or
any other rights as a stockholder will exist with respect to the Shares subject
to the Option, notwithstanding the exercise of the Option. The Shares
so acquired will be issued to Participant as soon as practicable after exercise
of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date of issuance, except as
provided in Section 7(d) of the Plan.
6. Tax
Consultation. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser’s purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with
any tax consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
7. Entire Agreement; Governing
Law. The Plan and Grant Agreement are incorporated herein by
reference. This Exercise Notice, the Plan and the Grant Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser’s interest except by
means of a writing signed by the Company and Purchaser. This
agreement is governed by the internal substantive laws, but not the choice of
law rules, of the State of [Oregon].
| Submitted by: | Accepted by: | ||
| PURCHASER | ZNOMICS, INC. | ||
| __________________________ | ________________________________ | ||
| Signature | By | ||
|
__________________________________
|
__________________________________________ | ||
| Print Name | Title | ||
Address:
______________________________
______________________________
____________________________________
Date
Received