Exhibit 10.3
VERSICOR INC.
NON-STATUTORY STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Versicor Inc., a Delaware corporation (the
"Company"), hereby grants to the person (the "Optionee") listed on the above
Grant Summary an option, pursuant to the Company's 1995 stock Option Plan (the
"Plan"), to purchase up to the number of shares of common stock ("Common Stock")
of the Company at a price of $0.01 par value per share as set forth on the Grant
Summary as Total Shares at a price per share set forth on the Grant Summmary as
the Option Price. Except where the context otherwise requires, the term
"Company" shall include the parent and all present and future subsidiaries of
the Company as defined in Sections 424(e) and 424(f) of the Internal Revenue
Code of 1986, as amended or replaced from time to time (the "Code").
2. NON-STATUTORY STOCK OPTION. This option is not intended to qualify
as an incentive stock option within the meaning of Section 422 of the Code.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
(a) VESTING SCHEDULE. Except as otherwise provided in this
Agreement, this option may be exercised prior to the tenth anniversary of the
Grant Date set forth on the Grant Summary (hereinafter the "Expiration Date") to
purchase, from and after each date set forth under the column entitled "Full
Vest Date" on the attached Grant Summary Table, the number of shares of Common
Stock set forth opposite such date. The right of exercise shall be cumulative so
that if the option is not exercised to the maximum extent permissible during any
exercise period, it shall be exercisable, in whole or in part, with respect to
all shares not so purchased at any time prior to the Expiration Date or the
earlier termination of this option. This option may not be exercised at any time
on or after the Expiration Date, except as otherwise provided in Section 3(e)
below.
(b) EXERCISE PROCEDURE. Subject to the conditions set forth in
this Agreement, this option shall be exercised by the Optionee's delivery of
written notice of exercise to the Treasurer of the Company, specifying the
number of shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in full in accordance with Section 4. Such exercise shall
be effective upon receipt by the Treasurer of the Company of such written notice
together with the required payment. The Optionee may purchase less than the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten whole shares.
(c) CONTINUOUS RELATIONSHIP WITH THE COMPANY REQUIRED. Except
as otherwise provided in this Section 3, this option may not be exercised unless
the Optionee, at the time he or she exercises this option, is, and has been at
all times since the date of grant of this option, an
employee, officer or director of, or consultant or advisor to, the Company (an
"Eligible Optionee").
(d) TERMINATION OF RELATIONSHIP WITH THE COMPANY. If the
Optionee ceases to be an Eligible Optionee for any reason, then, except as
provided in paragraphs (e) and (f) below, the right to exercise this option
shall terminate three months alter such cessation (but in no event after the
Expiration Date), PROVIDED THAT this option shall be exercisable only to the
extent that the Optionee was entitled to exercise this option on the date of
such cessation. Notwithstanding the forgoing, if the Optionee, prior to the
Expiration Date, materially violates the non-competition or confidentially
provisions of this agreement or any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Optionee and the Company,
the right to exercise this option shall terminate immediately upon written
notice to the Optionee from the Company describing such violation.
(e) EXERCISE PERIOD UPON DEATH OR DISABILITY. If the Optionee
dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code)
prior to the Expiration Date while he or she is an Eligible Optionee, or if the
Optionee dies within three months after the Optionee ceases to be an Eligible
Optionee (other than as the result of a termination of such relationship by the
Company for "cause", as specified in paragraph (f) below), this option shall be
exercisable, within the period of one year following the date of death or
disability of the Optionee (whether or not such exercise occurs before the
Expiration Date), by the Optionee or by the person to whom this option is
transferred by will or the laws of descent and distribution, PROVIDED THAT this
option shall be exercisable only to the extent that this option was exercisable
by the Optionee on the date of his or her death or disability. Except as
otherwise indicated by the context, the term "Optionee", as used in this option,
shall be deemed to include the estate of the Optionee or any person who acquires
the right to exercise this option by bequest or inheritance or otherwise by
reason of the death of the Optionee.
(f) DISCHARGE FOR CAUSE. If the Optionee, prior to the
Expiration Date, is discharged by the Company for "cause" (as defined below),
the right to exercise this option shall terminate immediately upon such
cessation of employment. "Cause" shall mean willful misconduct by the Optionee
or willful failure to perform his or her responsibilities in the best interests
of the Company (including, without limitation, breach by the Optionee of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Optionee and the
Company), as determined by the Company, which determination shall be conclusive.
The Optionee shall be considered to have been discharged "for cause" if the
Company determines, within 30 days after the Optionee's resignation, that
discharge for cause was warranted.
4. PAYMENT OF PURCHASE PRICE.
(a) METHOD OF PAYMENT. Payment of the purchase price for
shares purchased upon exercise of this option shall be made (i) by delivery to
the Company of cash or a check to the order of the Company in an amount equal to
the purchase price of such shares, (ii) subject to the consent of the Company,
by delivery to the Company of shares of Common Stock of the
Company then owned by the Optionee having a fair market value equal in amount to
the purchase price of such shares, (iii) by any other means which the Board of
Directors determines are consistent with the purpose of the Plan and with
applicable laws and regulations (including, without limitation, the provisions
of Rule 16b-3 under the Securities Exchange Act of 1934 and Regulation T
promulgated by the Federal Reserve Board), or (iv) by any combination of such
methods of payment.
(b) VALUATION OF SHARES OR OTHER NON-CASH CONSIDERATION
TENDERED IN PAYMENT OF PURCHASE PRICE. For the purposes hereof, the fair market
value of any share of the Company's Common Stock or other noncash consideration
which may be delivered to the Company in exercise of this option shall be
determined in good faith by the Board of Directors of the Company.
(c) DELIVER OF SHARES TENDERED IN PAYMENT OF PURCHASE PRICE.
If the Optionee exercises this option by delivery of shares of Common Stock of
the Company, the certificate or certificates representing the shares of Common
Stock of the Company to be delivered shall be duty executed in blank by the
Optionee or shall be accompanied by a stock power duly executed in blank
suitable for purposes of transferring such shares to the Company. Fractional
shares of Common Stock of the Company will not be accepted in payment of the
purchase price of shares acquired upon exercise of this option.
(d) RESTRICTIONS ON USE OF OPTION STOCK. Notwithstanding the
foregoing, no shares of Common Stock of the Company may be tendered in payment
of the purchase price of shares purchased upon exercise of this option if the
shares to be so tendered were acquired within twelve (12) months before the date
of such tender, through the exercise of an option granted under the Plan or any
other stock option or restricted stock plan of the Company.
5. DELIVERY OF SHARES, COMPLIANCE WITH SECURITIES LAWS ETC.
(a) GENERAL. The Company shall, upon payment of the option
price for the number of shares purchased and paid for, make prompt delivery of
such shares to the Optionee, provided that if any law or regulation requires the
Company to take any action with respect to such shares before the issuance
thereof, then the date of delivery of such shares shall be extended for the
period necessary to complete such action.
(b) LISTING, QUALIFICATION, ETC. This option shall be subject
to the requirement that if, at any time, counsel to the Company shall determine
that the listing, registration or qualification of the shares subject hereto
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is necessary
as a condition of, or in connection with, the issuance or purchase of shares
hereunder, this option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or obtained on
terms acceptable to the Board of Directors. Nothing herein shall be deemed to
require the
Company to apply for, effect or obtain such listing, registration, qualification
or disclosure, or to satisfy such other condition.
6. NONTRANSFERABILITY OF OPTION. This option is personal and no
rights granted hereunder may be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) nor shall
any such rights be subject to execution, attachment or similar process,
except that this option may be transferred (i) by will or the laws of descent
and distribution or (ii) pursuant to a qualified domestic relations order as
defined in Section 414(p) of the Code. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of this option or of such rights
contrary to the provisions hereof, or upon the levy of any attachment or
similar process upon this option or such rights, this option and such rights
shall, at the election of the Company, become null and void.
7. NO SPECIAL EMPLOYMENT OR SIMILAR RIGHTS. Nothing contained in
the Plan or this option shall be construed or deemed by any person under any
circumstances to bind the Company to continue the employment or other
relationship of the Optionee with the Company for the period within which
this option may be exercised.
8. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as
a shareholder with respect to any shares which may be purchased by exercise
of this option (including, without limitation, any rights to receive
dividends or non-cash distributions with respect to such shares) unless and
until a certificate representing such shares is duly issued and delivered to
the Optionee. No adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is issued.
9. ADJUSTMENT PROVISIONS.
(a) GENERAL. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar transaction, (i) the outstanding
shares of Common Stock are increased or decreased or are exchanged for a
different number or kind of shares or other securities of the Company, or
(ii) additional shares or new or different shares or other securities of the
Company or other non-cash assets are distributed with respect to such shares
of Common Stock or other securities, the Optionee shall, with respect to this
option or any unexercised portion hereof, be entitled to the rights and
benefits, and be subject to the limitations, set forth in Section 15(a) of
the Plan.
(b) BOARD AUTHORITY TO MAKE ADJUSTMENTS. Any adjustments
under this Section 9 will be made by the Board of Directors, whose
determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive. No fractional shares will be
issued pursuant to this option on account of any such adjustments.
10. MERGERS, CONSOLIDATION, DISTRIBUTIONS, LIQUIDATIONS ETC.
(a) In the event of a merger or consolidation or sale of all
or substantially all of the assets of the Company in which outstanding shares of
Common Stock are exchanged for securities, cash or other property of any other
corporation or business entity, or in the event of a liquidation of the Company,
prior to the Expiration Date or termination of this option, the Optionee shall,
with respect to this option or any unexercised portion hereof, be entitled to
the rights and benefits, and be subject to the limitations, set forth in Section
16(a) of the Plan.
(b) Notwithstanding any other provision of this Agreement, in
the event of the sale of all or substantially all of the business or assets of
the Company by merger, sale of assets or otherwise, the exercise dates of all
options then outstanding shall be accelerated in full and any restrictions on
exercising outstanding options issued pursuant to this Agreement prior to any
given date shall terminate.
11. WITHHOLDING TAXES. The Company's obligation to deliver
shares upon the exercise of this option shall be subject to the Optionee's
satisfaction of all applicable federal, state and local income and employment
tax withholding requirements.
12. INVESTMENT REPRESENTATIONS, LEGENDS.
(a) REPRESENTATIONS. The Optionee represents, warrants and
covenants that:
(i) Any shares purchased upon exercise of this option
shall be acquired for the Optionee's account for
investment only, and not with a view to, or for sale
in connection with, any distribution of the shares in
violation of the Securities Act of 1933 (the
"Securities Act"), or any rule or regulation under
the Securities Act.
(ii) The Optionee has had such opportunity as he or
she has deemed adequate to obtain from
representatives of the Company such information as
is necessary to permit the Optionee to evaluate the
merits and risks of his or her investment in the
Company.
(iii) The Optionee is able to bear the economic risk
of holding such shares acquired pursuant to the
exercise of this option for an indefinite period.
(iv) The Optionee understands that (A) the shares
acquired pursuant to the exercise of this option will
not be registered under the Securities Act and are
"restricted securities" within the meaning of Rule
144 under the Securities Act; (B) such shares cannot
be sold, transferred or otherwise disposed of unless
they are subsequently registered under the Securities
Act or an exemption from registration is then
available; (C) in any event, an exemption from
registration under Rule 144 or otherwise under the
Securities Act not be available for at least two
years and even then will not
be available unless a public market then exists for
the Common Stock, adequate information concerning the
Company is then available to the public, and other
terms and conditions of Rule 144 are complied with;
and (D) there is now no registration statement on
file with the Securities and Exchange Commission with
respect to any stock of the Company and the Company
has no obligation or current intention to register
any shares acquired pursuant to the exercise of this
option under the Securities Act.
(v) The Optionee agrees that, if the Company offers
any of its Common Stock for sale pursuant to a
registration statement under the Securities Act, the
Optionee will not, without the prior written consent
of the Company, offer, sell, contract to sell or
otherwise dispose of, directly or indirectly (a
"Disposition"), any shares purchased upon exercise of
this option for a period of 90 days after the
effective date of such registration statement. By
making payment upon exercise of this option, the
Optionee shall be deemed to have reaffirmed, as of
the date of such payment, the representations made in
this Section 12.
(b) LEGENDS ON STOCK CERTIFICATE. All stock
certificates representing shares of Common Stock
issued to the Optionee upon exercise of this
option shall have affixed thereto legends
substantially in the following forms, in addition
to any other legends required by applicable state
law:
"The shares of stock represented by this certificate have not been registered
under the Securities Act of 1933 and may not be transferred, sold or otherwise
disposed of in the absence of an effective registration statement with respect
to the shares evidenced by this certificate, filed and made effective under the
Securities Act of 1933, or an opinion of counsel satisfactory to the Company to
the effect that registration under such Act is not required."
"The shares of stock represented by this certificate are subject to certain
restrictions on transfer contained in an Option Agreement, a copy of which will
be furnished upon request by the issuer."
13. NONCOMPETITION/NONSOLICITATION. Optionee agrees that for a period
of one (1) year from the date of termination, the Optionee will not, directly or
indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee,
director, joint venturer, investor, lender, consultant or in any other capacity
whatsoever, develop, design, produce, market, sell or render, or assist any
other person in developing, designing, producing, marketing, selling or
rendering) products or services competitive with those developed, designed,
produced, marketed, sold or rendered by the Company while Optionee was employed
by (or, acting as a consultant to) the Company; or
(ii) solicit, divert, or take away, or attempt to divert or to take away, the
business or patronage of any of the clients, customer or accounts, or
prospective clients, customers or accounts, of the Company which were contacted,
solicited or served by the Optionee while employed by (or, acting as a
consultant to) the Company.
14. MISCELLANEOUS.
(a) Except as provided herein, this option may not be amended
or otherwise modified unless evidenced in writing and signed by the Company and
the Optionee.
(b) All notices under this option shall be mailed or delivered
by hand to the parties at their respective addresses set forth beneath their
names below or at such other address as may be designated in writing by either
of the parties to one another.
(c) This option shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.