EXHIBIT 10.15
Draft of December 15, 2005
INCENTIVE STOCK OPTION AGREEMENT(1)
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 an
incentive 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, a Parent or a Subsidiary. 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. 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"). Notwithstanding the foregoing, the Option
will not qualify as an "incentive stock option," among other events, (a) if the
Participant disposes of the Common Stock acquired pursuant to the Option at any
time during the two year period following the date of this Agreement or the one
year period following the date on which the Option is exercised; (b) except in
the event of the Participant's death or disability, as defined in Section
22(e)(3) of the Code, if the Participant is not employed by the Company, any
Subsidiary or any Affiliate at all times during the period beginning on the date
of this Agreement and ending on the day three months before the date of exercise
of the Option; or (c) to the extent the aggregate fair market value (determined
as of the time the Option is granted) of the Common Stock subject to "incentive
stock options" which become exercisable for the first time in any calendar year
exceeds $100,000. To the extent that the Option does not qualify as an
"incentive stock option," it shall not effect the validity of the Option and
shall constitute a separate non-qualified stock option.
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
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(1) By statute, incentive stock options may only be granted to common law
employees of the Company, the Parent or a Subsidiary of the Parent.
"Option Price"), which may not be less than Fair Market Value on the Grant
Date.(2) 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(d) 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:(3)
VESTING DATE NUMBER OF SHARES
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[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 of Employment, shall remain exercisable as provided in Section 6.3
of the Plan. Any portion of the Option that is not vested as of the date of the
Participant's Termination of Employment for any reason shall terminate and
expire as of the date of such Termination of Employment.(4)
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(2) By statute, if the option holder is a Ten Percent Stockholder, in order
to qualify as an incentive stock option, the Option Price must be at
least 110% of the Fair Market Value of a share of Common Stock on the
date of grant.
(3) This vesting schedule is optional and reflects a suggested schedule
only. It may be revised as appropriate.
(4) The Committee has the discretion to vary the Plan's default provisions
concerning post-termination exercise periods.
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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:
(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
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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
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.
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.
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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
Employer will employ the Participant for any specific time period, nor does it
modify in any respect the Employer's right to terminate or modify the
Participant's employment or compensation.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the date and year first above written.
AVETA INC.
By:
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Authorized Officer
PARTICIPANT
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[Name]
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