Exhibit 10.3
ALTUS BIOLOGICS INC.
1993 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
This Stock Option Agreement sets forth the terms and conditions of an Option
granted pursuant to the provisions of the 1993 Stock Option Plan (as from time
tot ime amended, restated or otherwise modified, the "Plan") of Altus Biologics
Inc., a Delaware corporation (the "Company") to the optionee whose name appears
below, covering the specific number of shares of stock of the Company set forth
below, pursuant to and subject to the provisions of the Plan and on the
following express terms and conditions:
1. Name and address of optionee to whom option granted:
NAME ______________________________
ADDRESS ___________________________
ADDRESS2 __________________________
2. Number of shares of common stock of the company which are subject to this
option:
# OF SHARE
3. Purchase price of shares subject to this option:
PRICE PER SHARE
4. Date of grant of this option:
DATE
5. Vesting. This option shall be exercisable in full at any time after the
date of grant and prior to its expiration or earlier termination in
accordance with the terms of this option and the Plan; provided, however,
that any shares of Common Stock issued by the Company upon exercise of this
option (the "Option Shares") shall be subject to the following transfer
restriction and repurchase right. You may not transfer this option, any of
your rights under this option or any of the Option Shares. The Option
Shares may be transferred only by will or the laws of descent and
distribution. Any other assignment or transfer of this option, any of your
rights under this option or any of the Option Shares is prohibited without
the prior written consent of the Company. Following any such transfer, the
Option Shares will continue to be subject to all restrictions provided
herein and in the Plan. The Option Shares shall be subject to repurchase by
the Company at a purchase price equal to the Option Exercise Price in the
event of the termination for any reason, with or without cause of your
service as a director of the Company. Such repurchase right shall be
exercisable by written notice given to you by the Company at the address
set forth above within three (3) months after the date of the termination
of your service as a director of the Company. The foregoing transfer
restriction and the repurchase right shall lapse quarterly from VESTING
DATE with respect to 1/16 of the total number of Option Shares, so long as
you remain a
director of the Company; provided, however, the option shall become
immediately exercisable in full upon a Change in Control (as defined in
Attachment A).
6. Expiration date of this option:
10 Years from option grant date
7. Non-Qualified Stock Option. This option is NOT designated as an incentive
stock option within the meaning of Section 422(b) of the Internal Revenue
Code of 1986.
The optionee hereby acknowledges receipt of a copy of the Plan as presently
in effect. The text and all of the terms and provisions of the Plan are
incorporated herein by reference, and the option herein granted is subject
to these terms and provisions in all respects, including but not limited to
the following:
(a) If, at the time of the exercise of this option, the shares subject
hereto have not been registered under the Securities Act of 1933, as
amended, the optionee will, upon the request of the Company, execute
and deliver to the Company an agreement to the effect that the
optionee is acquiring such shares for investment and not for resale or
distribution and agrees that the certificates representing such shares
may bear an appropriate legend restricting the disposition thereof
except in compliance with such Act and the rules and regulations
thereunder.
b.) This option is not transferable by the optionee otherwise than by will
or by the laws of descent and distribution, and is exercisable during
the director's lifetime, only by the optionee.
(c) If this is a non-qualified option, Federal income tax laws and the
laws of various states require the Company to withhold a certain
amount toward the payment of income taxes accruing at the time of
exercise of the option. Before any shares are issued upon the exercise
of this option, the optionee will be required to pay to the Company
the amount thus required to be withheld, or otherwise to satisfy any
withholding obligation as provided in the Plan.
At any time when the optionee wishes to exercise this option, in whole
or in part, the optionee shall submit a duly executed copy of a Notice
of Exercise, a copy of which is attached to this Agreement, to the
Company.
ALTUS BIOLOGICS INC.,
a Delaware corporation
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
OPTIONEE
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NAME
ATTACHMENT A
"Change in Control" shall mean:
(i) the shareholders of the Company approve (a) any consolidation
or merger of the Company (x) where the shareholders of the Company, immediately
prior to the consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own, directly or indirectly, shares
representing in the aggregate more than 50% of the combined voting power of all
the outstanding securities of the corporation issuing cash or securities in the
consolidation or merger (or of its ultimate parent corporation, if any) or (y)
where the members of the Board of Directors of the Company, immediately prior to
the consolidation or merger, would not, immediately after the consolidation or
merger, constitute more than 50% of the board of directors of the corporation
issuing cash or securities in the consolidation or merger (or of its ultimate
parent corporation, if any), (b) any sale, lease, exchange or other transfer (in
one transaction or a series of transactions contemplated or arranged by any
party as a single plan) of all or substantially all of the assets of the Company
or (c) any plan or proposal for the liquidation or dissolution of the Company.
(ii) individuals who, as of the date hereof, constitute the
entire Board of Directors of the Company (the "Incumbent Directors") cease for
any reason to constitute at least 50% of the Board, provided that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least a
majority of the then Incumbent Directors shall be, for purposes of this
Agreement, considered as though such individual were an Incumbent Director; or
(iii) any "person", as such term is used in Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than the
Company, any employee benefit plan of the Company or any entity organized,
appointed or established by the Company for or pursuant to the terms of such
plan), together with all "affiliates" and "associates" (as such terms are
defined in Rule 12b-2 under the Exchange Act) of such person, shall become the
"beneficial owner" or "beneficial owners" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of securities of the Company
representing in the aggregate 25% or more of either (a) the then outstanding
shares of the Common Stock of the Company or (b) the combined voting power of
all then outstanding securities of the Company having the right under ordinary
circumstances to vote in an election of the Board of Directors of the Company
("Voting Securities") (in either such case, other than as a result of
acquisitions of such securities directly from the Company).
Notwithstanding the foregoing, a "Change in Control" of the Company shall
not be deemed to have occurred for purposes of the foregoing clause (iii) solely
as the result of an acquisition of securities by the Company which, by reducing
the number of shares of Common Stock or other Voting Securities outstanding,
increases (a) the proportionate number of shares of Common Stock beneficially
owned by any person to 25% or more of the Common Stock then outstanding or (b)
the proportionate voting power represented by the Voting Securities beneficially
owned by any person to 25% or more of the combined voting power of all then
outstanding Voting Securities; provided, however, that if any person referred to
in clause (a) or (b) of this sentence shall thereafter become the beneficial
owner of any additional shares of Common Stock or other Voting Securities (other
than pursuant to a stock split, stock dividend or similar transaction), then a
"Change in Control" shall be deemed to have occurred for purposes of the
foregoing clause (iii).
NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION
To: ALTUS BIOLOGICS INC.
Ladies and Gentlemen:
I hereby exercise my Non-Qualified Stock Option to purchase ____________
shares (the "Shares") of the common stock, $.01 par value, of Altus Biologics
Inc. (the "Company"), at the exercise price of $______ per share, pursuant to
and subject to the terms of that certain Non-Qualified Stock Option Agreement
between the undersigned and the Company dated __________, 200___.
I am aware that the Shares have not been registered under the Securities
Act of 1933, as amended (the "1933 Act"), or any state securities laws. I
understand that the reliance by the Company on exemptions under the 1933 Act is
predicated in part upon the truth and accuracy of the statements by me in this
Notice of Exercise.
I hereby represent and warrant that (1) I have been furnished with all
information which I deem necessary to evaluate the merits and risks of the
purchase of the Shares; (2) I have had the opportunity to ask questions
concerning the Shares and the Company and all questions posed have been answered
to my satisfaction; (3) I have been given the opportunity to obtain any
additional information I deem necessary to verify the accuracy of any
information obtained concerning the Shares and the Company; and (4) I have such
knowledge and experience in financial and business matters that I am able to
evaluate the merits and risks of purchasing the Shares and to make an informed
investment decision relating thereto.
I hereby represent and warrant that I am purchasing the Shares for my own
personal account for investment and not with a view to the sale or distribution
of all or any part of the Shares.
I understand that because the Shares have not been registered under the
1933 Act, I must continue to bear the economic risk of the investment for an
indefinite time and the Shares cannot be sold unless the Shares are subsequently
registered under applicable federal and state securities laws or an exemption
from such registration requirements is available.
I agree that I will in no event sell or distribute or otherwise dispose of
all or any part of the Shares unless (1) there is an effective registration
statement under the 1933 Act and applicable state securities laws covering any
such transaction involving the Shares or (2) the Company receives an opinion of
my legal counsel (concurred in by legal counsel for the Company) stating that
such transaction is exempt from registration or the Company otherwise satisfies
itself that such transaction is exempt from registration.
I consent to the placing of a legend on my certificate for the Shares
stating that the Shares have not been registered and setting forth the
restriction on transfer contemplated hereby and to the placing of a stop
transfer order on the books of the Company and with any transfer agents against
the Shares until the Shares may be legally resold or distributed without
restriction.
I understand that at the present time Rule 144 of the Securities and
Exchange Commission (the "SEC") may not be relied on for the resale or
distribution of the Shares by me. I understand that the Company has no
obligation to me to register the sale of the Shares with the SEC and has not
represented to me that it will register the sale of the Shares.
I understand the terms and restrictions on the right to dispose of the
Shares set forth in the 2002 Employee, Director and Consultant Stock Plan and
the Non-Qualified Stock Option Agreement, both of which I have carefully
reviewed. I consent to the placing of a legend on my certificate for the Shares
referring to such restriction and the placing of stop transfer orders until the
Shares may be transferred in accordance with the terms of such restrictions.
I have considered the Federal, state and local income tax implications of
the exercise of my Option and the purchase and subsequent sale of the Shares.
I am paying the option exercise price for the Shares as follows:
___________________________________
Please issue the stock certificate for the Shares (check one):
[ ] to me; or
[ ] to me and ________________, as joint tenants with right of
survivorship
and mail the certificate to me at the following address:
___________________________________
___________________________________
___________________________________
My mailing address for shareholder communications, if different from the
address listed above is:
___________________________________
___________________________________
___________________________________
Very truly yours,
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Employee (signature) Date
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Print Name Social Security Number
