EXHIBIT 10.16
Draft of December 15, 2005
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE
AVETA INC.
2005 STOCK INCENTIVE PLAN
THIS AGREEMENT ("Agreement"), dated as of [_______ __, 200_]
by and between Aveta Inc. (the "Company") and [_________] (the "Participant").
PRELIMINARY STATEMENT
The Board of Directors of the Company (the "Board") or a
Committee appointed by the Board (the "Committee"), to administer the Aveta Inc.
2005 Stock Incentive Plan (the "Plan"), has authorized this grant of a
non-qualified stock option (the "Option") on ___________, 20__ (the "Grant
Date") to purchase the number of shares of the Company's common stock, par value
$0.001 per share (the "Common Stock") set forth below to the Participant, as an
Eligible Employee of the Company or an Affiliate (collectively, the Company or
the "Employer"). Unless otherwise indicated, any capitalized term used but not
defined herein shall have the meaning ascribed to such term in the Plan. A copy
of the Plan has been delivered to the Participant. By signing and returning this
Agreement, the Participant acknowledges having received and read a copy of the
Plan and agrees to comply with it, this Agreement and all applicable laws and
regulations.
Accordingly, the parties hereto agree as follows:
1. TAX MATTERS. No part of the Option granted hereby is
intended to qualify as an "incentive stock option" under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. GRANT OF OPTION. Subject in all respects to the Plan and
the terms and conditions set forth herein and therein, the Participant is hereby
granted an Option to purchase from the Company [______] shares of Common Stock,
at a price per share of $[____] (the "Option Price"), which may not be less than
Fair Market Value on the Grant Date. Notwithstanding anything herein, the
Participant hereby acknowledges and agrees that the Options granted pursuant to
this Agreement are subject to, and conditioned upon, stockholder approval of the
Plan, and the Participant further agrees that if such approval is not obtained
this Agreement shall be null and void ab initio.
3. VESTING AND EXERCISE. (a) Except as set forth below, the
Option shall become exercisable as provided below, which shall be cumulative. To
the extent that the Option has become exercisable with respect to a number of
shares of Common Stock as provided below, the Option may thereafter be exercised
by the Participant, in whole or in part, at any time or from time to time prior
to the expiration of the Option as provided herein and in accordance with
Section 6.3 of the Plan, including, without limitation, the filing of such
written form of exercise notice, if any, as may be required by the Committee and
payment in full of the Option Price multiplied by the number of shares of Common
Stock so exercised. Upon expiration of the
Option, the Option shall be canceled and no longer exercisable. The following
table indicates each date upon which the Participant shall be entitled to
exercise the Option with respect to the number of shares of Common Stock
indicated beside that date provided that the Participant has not had a
Termination any time prior to the applicable vesting date:(1)
VESTING DATE NUMBER OF SHARES
------------ ----------------
[FIRST ANNIVERSARY OF GRANT DATE] [25]%
[SECOND ANNIVERSARY OF GRANT DATE] [25]%
[THIRD ANNIVERSARY OF GRANT DATE] [25]%
[FOURTH ANNIVERSARY OF GRANT DATE] [25]%
(b) There shall be no proportionate or partial vesting in the
periods prior to each vesting date and all vesting shall occur only on the
appropriate vesting date; provided that no Termination has occurred prior to
such date.
4. OPTION TERM. The term of each Option shall be 10 years
after the Grant Date, subject to earlier termination in the event of the
Participant's Termination of Employment as specified in Section 5 below.
5. TERMINATION. Subject to Section 4 above and the terms of
the Plan, the Option, to the extent vested at the time of the Participant's
Termination, shall remain exercisable as provided in Section 6.3 of the Plan.(2)
Any portion of the Option that is not vested as of the date of the Participant's
Termination for any reason shall terminate and expire as of the date of such
Termination.
6. RESTRICTION ON TRANSFER OF OPTION. No part of the Option
shall be subject to Transfer other than by will or by the laws of descent and
distribution and during the lifetime of the Participant, may be exercised only
by the Participant or the Participant's guardian or legal representative. In
addition, the Option shall not be assigned, negotiated, pledged or hypothecated
in any way (except as provided by law or herein), and the Option shall not be
subject to execution, attachment or similar process. Upon any attempt to
Transfer the Option or in the event of any levy upon the Option by reason of any
execution, attachment or similar process contrary to the provisions hereof, the
Option shall immediately become null and void.
7. SECURITIES REPRESENTATIONS. Upon the exercise of the Option
prior to the registration pursuant to the Securities Act of the Common Stock
subject to the Option, the Participant will be deemed to acknowledge and make
the following representations and warranties and any issuances of Common Stock
by the Company shall be made in reliance upon the following express
representations and warranties of the Participant:
----------
(1) This vesting schedule is optional and reflects a suggested schedule
only. It may be revised as appropriate.
(2) The Committee has the discretion to vary the Plan's default provisions
concerning post-termination exercise periods.
2
(a) shares of the Common Stock are being acquired for the
Participant's own account and not with a view to, or for sale in connection
with, the distribution thereof, nor with any present intention of distributing
or selling any of such shares of Common Stock;
(b) the Participant has been advised that the shares of Common
Stock have not been registered under the Securities Act on the ground that no
distribution or public offering of the shares of Common Stock is to be effected
(it being understood, however, that the shares of Common Stock are being issued
and sold in reliance on the exemption provided under Rule 701 under the
Securities Act), and in this connection the Company is relying in part on the
Participant's representations set forth in this Section;
(c) in the event that the Participant is permitted to Transfer
or otherwise dispose of the shares of Common Stock, the Participant may only do
so pursuant to a registration statement under the Securities Act and
qualification under applicable state securities laws or pursuant to an opinion
of counsel satisfactory to the Company that such registration and qualification
are not required, and that the transaction (if it involves a sale in the
over-the-counter market or on a securities exchange) does not violate the
provisions of Rule 144 under the Securities Act. A stop-transfer order will be
placed on the books of the Company respecting the certificates evidencing the
shares of Common Stock, and such certificates shall bear any required legends,
until such time as the shares of Common Stock evidenced by such certificates
shall have been registered under the Securities Act or shall have been
Transferred in accordance with an opinion of counsel for the Company that such
registration is not required;
(d) the Transfer of the shares of Common Stock have not been
registered under the Securities Act, and the shares of Common Stock must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available and the Company is under no
obligation to register the shares of Common Stock; and
(e) the Participant understands that the shares of Common
Stock acquired upon exercise of the Option are restricted securities within the
meaning of Rule 144 promulgated under the Securities Act; that the exemption
from registration under Rule 144 will not be available unless (i) a public
trading market then exists for the Common Stock, (ii) adequate information
concerning the Company is then available to the public, and (iii) other terms
and conditions of Rule 144 or any exemption therefrom are complied with; and
that any sale of the shares of Common Stock may be made only in limited amounts
in accordance with such terms and conditions.
8. RIGHTS AS A STOCKHOLDER. The Participant shall have no
rights as a stockholder with respect to any shares covered by the Option unless
and until the Participant has become the holder of record of the shares, and no
adjustments shall be made for dividends in cash or other property, distributions
or other rights in respect of any such shares, except as otherwise specifically
provided for in the Plan.
9. PROVISIONS OF PLAN CONTROL. This Agreement is subject to
all the terms, conditions and provisions of the Plan, including, without
limitation, the amendment provisions thereof, and to such rules, regulations and
interpretations relating to the Plan as may be adopted by the Committee and as
may be in effect from time to time. The Plan is incorporated herein by
3
reference. If and to the extent that this Agreement conflicts or is inconsistent
with the terms, conditions and provisions of the Plan, the Plan shall control,
and this Agreement shall be deemed to be modified accordingly. This Agreement
contains the entire understanding of the parties with respect to the subject
matter hereof and supersedes any prior agreements between the Company and the
Participant with respect to the subject matter hereof.
10. NOTICES. Any notice or communication given hereunder shall
be in writing and shall be deemed to have been duly given when delivered in
person, or by United States mail, to the appropriate party at the address set
forth below (or such other address as the party shall from time to time
specify):
If to the Company, to:
Aveta Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [GENERAL COUNSEL]
If to the Participant, to the address on file with the
Company.
11. NO OBLIGATION TO CONTINUE EMPLOYMENT. This Agreement is
not an agreement of employment. This Agreement does not guarantee that the
Company or its Affiliates will employ or retain, or to continue to, employ or
retain the Participant during the entire, or any portion of the, term of this
Agreement, including but not limited to any period during which any Option is
outstanding, nor does it modify in any respect the Company or its Affiliate's
right to terminate or modify the Participant's employment or compensation.
[Remainder of Page Left Blank]
4
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date and year first above written.
AVETA INC.
By:
----------------------------------------
Authorized Officer
PARTICIPANT
----------------------------------
[Name]
5