EXHIBIT 99.3
ATTACHMENT NO. 1
TO
NOTICE OF GRANT STOCK OPTION
AGOURON PHARMACEUTICALS, INC.
(a California Corporation)
1996 INCENTIVE STOCK OPTION AGREEMENT
This Option Agreement is entered into between Agouron Pharmaceuticals,
Inc., a California corporation and the Optionee whose name appears on the
Notice of Grant of Stock Option to which this Agreement is an attachment.
1. Recitals.
1.01 The Board of Directors of the Company or its duly authorized
delegates authorized the granting of this Option to Optionee who is an
Employee of the Company or its Affiliates pursuant to the Agouron
Pharmaceuticals, Inc. 1996 Stock Option Plan.
1.02 This Option Agreement is intended to constitute an "incentive
stock option" within the meaning of Section 422 of Internal Revenue Code of
1986, as amended from time to time.
2. Definitions.
In addition to those words and phrases defined above and unless
otherwise required by the context in which they appear, words and phrases
having their initial letters capitalized shall have the following meanings:
2.01 Act. "Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
2.02 Affiliate. "Affiliate" shall mean any corporation defined as a
"parent corporation" or a "subsidiary corporation" by Code Section 424(e) and
(f), respectively.
2.03 Agreement. "Agreement" shall mean this 1996 Incentive Stock
Option Agreement (including any schedules, attachments, documents
incorporated by reference, or modifications agreed to in writing by the
Company and Optionee) which sets forth the Optionee's and the Company's
rights and obligations with respect to the Option granted Optionee by the
Board or its duly authorized delegates as described on the Notice of Grant.
2.04 Board. "Board" shall mean the Board of Directors of the
Company.
2.05 Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
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2.06 Company. "Company" shall mean Agouron Pharmaceuticals, Inc., a
California corporation, and any successors or assigns.
2.07 Date of Grant. "Date of Grant" shall mean the Date of Grant
set forth on the Notice of ▇▇▇▇▇.
2.08 Disability. "Disability" or "Disabled" shall mean the
condition of being "disabled" within the meaning of Section 422(c)(6) of the
Code or any successor provision.
2.09 Employee. "Employee" shall mean any salaried employee of the
Company or its Affiliates, including those employees who are officers of the
Company or its Affiliates.
2.10 Expiration Date. "Expiration Date" shall mean the Expiration
Date set forth on the Notice of ▇▇▇▇▇.
2.11 Fair Market Value. "Fair Market Value" of Stock on a given
date shall mean an amount per share, as determined by the Board or its
delegates by applying any reasonable valuation method determined without
regard to any restriction other than a restriction which, by its terms, will
never lapse. Notwithstanding the preceding, if the Stock is traded upon an
established stock exchange, then the "Fair Market Value" of Stock on a given
date per share shall be deemed to be the average of the highest and lowest
selling price per share of the Stock on the principal stock exchange on which
the Stock is then trading or, if there was no trading of the Stock on that
day, on the next preceding day on which there was such trading; if the Stock
is not traded upon an established stock exchange but is quoted on a quotation
system, the "Fair Market Value" of Stock on a given date shall be deemed to
be the mean between the closing representative "bid" and "ask" prices per
share of the Stock on such date as reported by such quotation system or, if
there was no trading of the Stock on that day, on the next preceding day on
which there was such trading.
2.12 Notice of Grant of Stock Option. "Notice of Grant of Stock
Option" or "Notice of Grant" shall mean the Notice of Grant executed by the
Company and the Optionee to which this Agreement is an attachment.
2.13 Option. "Option" shall mean the right of Optionee to purchase
the number of shares of Stock set forth on the Notice of Grant in accordance
with the terms and conditions of this Agreement.
2.14 Optionee. "Optionee" shall mean the person whose name is set
forth on the Notice of ▇▇▇▇▇.
2.15 Option Price. "Option Price" shall mean the price per share of
Stock to be paid by the Optionee upon exercise of the Option, which amount is
set forth on the Notice of Grant.
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2.16 Option Stock. "Option Stock" shall mean the total number of
shares of Stock the Optionee shall be entitled to purchase pursuant to this
Agreement, which number of shares is set forth on the Notice of Grant.
2.17 Plan. "Plan" shall mean the 1996 Agouron Pharmaceuticals, Inc.
Stock Option Plan, as amended from time to time.
2.18 Reporting Person. "Reporting Person" shall mean an Optionee
who is required to file statements relating to his or her beneficial
ownership of Stock with the SEC pursuant to Section 16(a) of the Act.
2.19 Rule 16b-3. "Rule 16b-3" shall mean Rule 16b-3 (as amended
from time to time) promulgated by the SEC under the Act, and any successor
thereto.
2.20 SEC. "SEC" shall mean the Securities and Exchange Commission.
2.21 Stock. "Stock" shall mean the no par common stock of the
Company.
2.22 Vesting. "Vesting" shall mean the date(s) when all or a portion
of the Option Stock becomes available for exercise.
2.23 Vesting Schedule. "Vesting Schedule" shall mean the Vesting
Schedule set forth on the Notice of Grant which indicates on what dates all or
a portion of the Option Stock becomes available for exercise.
3. Option.
3.01 Grant. The Company hereby grants to Optionee an Option to
purchase all or any part of the Option Stock on the terms and conditions set
forth in this Agreement. The Date of Grant shall be the Date of ▇▇▇▇▇ set
forth on the Notice of ▇▇▇▇▇.
3.02 Purchase Price. The purchase price per share of Stock to be
paid upon the exercise of this Option shall be the Option Price set forth on
the Notice of Grant. This Option Price is deemed by the Board or its
delegatees to be not less than the Fair Market Value of the Stock on the Date
of Grant.
3.03 Restrictions on Transfer. This Option shall not be
transferable by Optionee, other than by will or the laws of descent and
distribution, and may be exercised during Optionee's lifetime only by
Optionee; provided, however, that this Option may be transferred to a trust
for the benefit of the Optionee or members of his or her immediate family,
provided that such transfer does not violate the requirements of Rule 16b-3
and Code Section 422. Upon any attempt to sell, assign, encumber or
otherwise transfer this Option in violation of this Agreement, or upon the
levy of any attachment or similar process upon this Option, this Option shall
immediately become null and void.
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3.04 Modifications of Rights. As set forth in Paragraph 6(l) of the
Plan, the Board may modify (including, lowering the Option Price or
converting this Option, which is an incentive stock option, into a non-
statutory stock option), extend or renew this Option (to the extent not
previously exercised), or accept the surrender of this Option (to the extent
not previously exercised) and authorize the granting of new Stock options in
substitution therefor; provided, however, that no modification of this Option
shall, without the consent of the Optionee, alter or impair any existing
rights or obligations of Optionee under this Option.
3.05 Changes in Company's Equity Structure; Recapitalization of
Company. Upon the occurrence of the capital and/or recapitalization
transactions described in Paragraph 6(j) of the Plan, this Option (to the
extent not previously exercised) shall be adjusted or modified as provided in
Paragraph 6(j) of the Plan. Notwithstanding any provision of this Agreement,
the Company reserves the right to:
(a) make or enter into any adjustments, reclassifications,
reorganizations or changes of its capital or business
structure;
(b) merge or consolidate with other entities; or
(c) dissolve, liquidate or sell, or transfer all or any part
of its business or assets.
3.06 Shareholder's Rights. Optionee shall have no rights as a
shareholder with respect to any shares Optionee is entitled to purchase under
this Option until the date of the issuance of a certificate for such shares.
No adjustment shall be made for dividends (ordinary or extraordinary, whether
in cash, securities or other property) or distributions or other rights for
which the record date is prior to the date of issuance of such certificate,
except as provided in this Agreement or in the Plan.
4. Employment Conditions.
4.01 Employment Status. Optionee shall be considered to be in the
employment of the Company as long as Optionee remains an Employee of the
Company or its Affiliates. The Board exclusively shall determine:
(a) whether or when there has been a termination of
Optionee's employment;
(b) if there has been a failure to comply with Optionee's
covenant not to compete obligations; and
(c) the cause of such termination,
which determination shall be final.
4.02 Covenant Not to Compete. Unless otherwise permitted in
writing, Optionee, who is an Employee of the Company or its Affiliates, shall
devote his or her entire time, energy and
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skill to the service of the Company or its Affiliates, subject to vacation,
sick leave and other approved absences. Failure of Optionee to comply with
the covenant not to compete obligations stated above within thirty (30) days
of written notice of such failure shall cause, on the thirtieth (30th) day
after such written notice, the cancellation of Optionee's right to purchase
Option Stock (to the extent not previously exercised) without further action
by the Company.
4.03 Termination for Cause. Unless otherwise agreed to by the
Board, if Optionee's employment is terminated for cause, the right of
Optionee to purchase Option Stock shall only be exercisable by Optionee for a
period of thirty (30) days after the date of such termination.
5. Exercise.
5.01 Exercise Amounts. Subject to the earlier termination of the
right to exercise this Option as provided under this Agreement, including
Paragraphs 4.02 and 4.03 above, the Optionee shall be entitled to exercise
the amounts of Option Stock, in whole or in part, as set forth in the Vesting
Schedule on the Notice of Grant.
5.02 Additional Adjustments. Notwithstanding the terms of Paragraph
5.01 of this Agreement, the Board in its sole and exclusive discretion may
provide for conditions for the exercise of this Option and/or modify the
Vesting Schedule set forth on the Notice of Grant; provided, however, the
Board may only modify the conditions for the exercise of this Option and/or
modify the Vesting Schedule to provide for a more restrictive Vesting
Schedule with the consent of Optionee, if such modification alters or impairs
any existing rights or obligations of Optionee under this Option.
5.03 Cumulative Exercise Rights. If the Optionee does not exercise
in any one year period the full number of shares to which he or she is then
entitled to exercise, Optionee may exercise those shares in any subsequent
year prior to the Expiration Date of this Option as set forth on the Notice
of Grant, or such later date subsequently approved by the Board or its
delegates.
5.04 Expiration of Exercise Rights. Subject to the provisions of
Paragraph 5.08, in no event shall this Option be exercisable after the
Expiration Date or such later date subsequently approved by the Board or its
delegates; provided, however, that this Option shall expire and not be
exercisable after the expiration of ten (10) years from the Date of ▇▇▇▇▇.
5.05 Fractional Shares. This Option shall not be exercisable with
respect to any fractional shares of the Stock.
5.06 Exercise Procedure. This Option shall be exercised by the
giving of written notice of exercise to the Company which specifies the
number of shares of Stock to be purchased, accompanied by payment (in
accordance with the terms of Paragraph 6(d) of the Plan) of the aggregate
Option Price for the shares of Stock being purchased, such payment to be made
in any combination of:
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(a) United States cash currency;
(b) a cashier's or certified check to the order of the
Company;
(c) a personal check acceptable to the Company;
(d) to the extent permitted by the Board, shares of Stock
(including previously owned Stock or Stock issuable in
connection with the Option exercise), properly endorsed
to the Company, whose Fair Market Value on the date of
exercise equals the aggregate Option Price of the
Option being exercised; or
(e) to the extent agreed to by the Board, the Optionee's
entering into an agreement with the Company whereby a
portion of the Optionee's Options are terminated and
where the "built-in gain" on any Options which are
terminated as part of such agreement equals the
aggregate Option Price of the Option being exercised.
"Built-in gain" means the excess of the aggregate Fair
Market Value of any Stock otherwise issuable on
exercise of a terminated Option, over the aggregate
Option Price otherwise due the Company on such
exercise;
provided, however, that the form of payment which Optionee selects shall be
permissible under the Code Section 422. The Board (in accordance with the
terms of Paragraph 6(d) of the Plan) may provide such assistance to the
Optionee to facilitate the exercise of this Option as it deems appropriate;
provided, however, that the Board, as a prerequisite to providing such
assistance, may require satisfaction of any rules or conditions it deems
appropriate. Shares of Stock used to pay the Option Price shall be valued at
their Fair Market Value on the date of exercise. The Optionee's notice of
exercise shall also be accompanied by payment (in accordance with the terms
of Paragraph 6(p) of the Plan) of the amount of federal and state income and
employment taxes that the Company is required to collect from Optionee
because of the exercise of the Option.
5.07 Exercise During Life. Subject to the provisions of Paragraphs
4.02, 4.03, 5.04 and 5.08, during Optionee's lifetime, this Option shall be
exercisable only by Optionee either:
(a) while Optionee is employed by the Company or its
Affiliates;
(b) within three (3) months after the date on which
Optionee's employment terminates for reasons other than
"termination for cause" as provided in Paragraph 4.03
of this Agreement; or
(c) within one (1) year after the date on which the
Optionee's employment terminates due to a Disability;
provided, however, that in no event shall the period of exercise be extended
beyond the Expiration Date. Unless the Board or its delegates otherwise
agree, if Optionee is entitled to purchase shares of Stock after the
termination of Optionee's employment, the number of shares of Stock Optionee
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may so purchase shall be limited to the number of shares of Stock Optionee
was entitled to purchase as of such date of termination.
5.08 Exercise After Death. If Optionee dies while employed by or
while serving as an officer or director of the Company or its Affiliates or
within a period of three (3) months after the date such employment
terminates, but prior to the complete exercise of this Option, the Option may
be exercised within one (1) year from the date of Optionee's death, but:
(a) only by a personal representative of Optionee, or by
any person or persons who shall have acquired the
Option directly from the Optionee by bequest or
inheritance; and
(b) only to the extent that the Option was exercisable on
the date of death and had not previously been
exercised.
5.09 Consultancy to the Company or Service as a Corporate Officer
After Termination of Employment. If Optionee acts as a consultant or
corporate officer for the Company or its Affiliates after the termination of
his or her employment, then Optionee shall not be deemed to have terminated
his or her employment for the Company or its Affiliates for the purposes of
Paragraphs 5.07 and 5.08 of this Agreement until Optionee ceases to be a
consultant or corporate officer for the Company or its Affiliates, provided
Optionee does not violate any covenant not to compete obligations contained
in his or her employment or consulting agreement with the Company or its
Affiliates. Notwithstanding Optionee not being deemed to have terminated his
or her employment for the Company or its Affiliates pursuant to the terms of
the preceding sentence, this Option, which is an incentive stock option,
shall automatically convert into a non-statutory stock option three (3)
months after the date on which Optionee actually terminates his or her
employment with the Company or its Affiliates (one (1) year if the Optionee
is Disabled on the date of termination).
5.10 Exercise of Option Prior to Vesting. The Board, in its sole
and exclusive discretion, may permit the Optionee to exercise this Option
prior to the date this Option is otherwise exercisable, provided the Stock
issued on such exercise is subject to repurchase rights which expire pro rata
as the Option would otherwise have become exercisable.
5.11 Non-Sequential Exercise Permitted. Subject to the exercise
limitations set forth herein, this Option shall be exercisable
notwithstanding the fact that there is an outstanding incentive stock option
or non-statutory stock option for the purchase of Stock of the Company which
was granted before this Option was granted, and no subsequently-granted
incentive stock option shall fail to be exercisable solely because this Option
remains outstanding.
5.12 Legends. Certificates for shares of Stock acquired upon
exercise of this Option may contain such legends and transfer restrictions as
the Company shall deem reasonably necessary or desirable to:
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(a) assure the satisfaction of any liability that the
Company may or will have incurred for withholding of any
federal and state income and employment taxes;
(b) facilitate compliance by the Company with any federal or
state laws or regulations, including, without
limitation, legends restricting transfer of the Stock
until there has been compliance with federal and state
securities laws;
(c) assure notice of the Company's repurchase rights under
Paragraph 5.10 of this Agreement; or
(d) assure notice of such other restrictions as may be
imposed on the Stock under the terms of this Agreement.
6. Conflict Between Plan and Agreement.
This Agreement, including the Option and Optionee's rights hereunder, is
subject to and governed by the Plan. Any conflict between the terms and
provisions of this Agreement and the terms and provisions of the Plan shall
be governed by the terms and provisions of the Plan.
7. Investment Intent.
This Option is granted on the condition that Optionee's purchase of
Stock shall be for investment purposes for Optionee's own account and not
with a view to resale or distribution. The Company shall not, upon the
exercise of this Option, be required to issue or deliver shares of Stock or
certificates therefor if, in the opinion of counsel for the Company, such
issuance or delivery would be in violation of, or would not comply with, any
applicable state or federal securities law, regulation or rule.
8. Notices.
8.01 In Writing. All notices, demands, requests, declarations,
service of process, or other communications permitted or required under this
Agreement or applicable law shall be in writing.
8.02 Delivery. All such communications may be served personally or
may be sent by registered or certified mail, return receipt requested,
postage prepaid and addressed to either Optionee or the Company at the
addresses appearing at the top of the Notice of Grant, or at such other
address as either party shall have communicated to the other pursuant to this
Paragraph 8.02. All such communications shall be deemed effectively
delivered upon personal service or three (3) days after deposit in the United
States Mail.
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9. Miscellaneous.
9.01 Successors and Assigns. Except as otherwise provided in this
Agreement, this Agreement shall inure to the benefit of only the Company,
Optionee and their respective successors or assigns.
9.02 Status. Nothing contained in this Agreement shall be construed
as giving Optionee any right to be retained as an Employee, officer or
director of the Company.
9.03 Severability. If any provision or provisions of this Agreement
are adjudged to be, for any reason, unenforceable, illegal or void, the
remainder of the provisions shall remain in full force and effect.
9.04 Integration. This Agreement and the Notice of Grant to which
this Agreement is an attachment constitute the entire understanding of the
parties concerning this Option. Except as otherwise provided, any changes,
modifications, variations, or subordinations pertaining to this Agreement and
the Notice of Grant are invalid, unless stated in writing and executed by the
Company and Optionee.
9.05 Governing Law. This Agreement and the Option granted hereby
shall be governed by the laws of the State of California.
9.06 Attorneys' Fees. If either party brings an action or seeks to
enforce or interpret any of the terms or provisions of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees
and costs, in addition to any other remedy it may be awarded.
9.07 Counterparts. This Agreement may be executed in counterparts,
and the counterparts shall constitute the whole instrument.
9.08 Titles for Convenience; Gender; and Plurals. Titles of
articles and paragraph headings are for convenience only and shall not affect
the construction or interpretation of this Agreement, or any portion thereof.
Whenever required by the context hereof, the singular shall include the
plural, and vice versa; the masculine gender shall include the feminine and
neuter, and vice versa.
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