NON-QUALIFIED STOCK OPTION AGREEMENT ARCHEMIX CORP.
Exhibit 10.30
For Grants to Directors
AGREEMENT made as of the ___day of 200___, between Archemix Corp. (the “Company”), a
Delaware corporation and (the “Participant”).
WHEREAS, the Company desires to grant to the Participant an Option to purchase shares of its
common stock, $0.001 par value per share (the “Shares”), under and for the purposes set forth in
the Company’s 2007 Employee, Director and Consultant Stock Plan (the “Plan”);
WHEREAS, the Company and the Participant understand and agree that any terms used and not
defined herein have the same meanings as in the Plan; and
WHEREAS, the Company and the Participant each intend that the Option granted herein shall be a
Non-Qualified Option.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other
good and valuable consideration, the parties hereto agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to the Participant the right and option to purchase all or any part
of an aggregate of Shares, on the terms and conditions and subject to all the
limitations set forth herein, under United States securities and tax laws, and in the Plan, which
is incorporated herein by reference. The Participant acknowledges receipt of a copy of the Plan.
2. EXERCISE PRICE.
The exercise price of the Shares covered by the Option shall be $ per Share, subject to
adjustment, as provided in the Plan, in the event of a stock split, reverse stock split or other
events affecting the holders of Shares after the date hereof (the “Exercise Price”). Payment shall
be made in accordance with Paragraph 9 of the Plan.
3. EXERCISABILITY OF OPTION.
Subject to the terms and conditions set forth in this Agreement and the Plan, the Option
granted hereby shall become exercisable as follows:
On the first anniversary of the date of
this Agreement |
up to Shares | |
Every three months thereafter until the
fourth anniversary of the date of this
Agreement |
an additional Shares |
The foregoing rights are cumulative and are subject to the other terms and conditions of this
Agreement and the Plan.
4. TERM OF OPTION.
This Option shall terminate ten years from the date of this Agreement, but shall be subject to
earlier termination as provided herein or in the Plan.
If the Participant ceases to be a director of the Company for any reason other than the death
or Disability of the Participant or termination of the Participant for Cause, the Option may be
exercised, if it has not previously terminated, within three years after the date the Participant
ceases to be a director of the Company, or within the originally prescribed term of the Option,
whichever is earlier, but may not be exercised thereafter. In such event, the Option shall be
exercisable only as to Shares which have vested as of the date of termination of service in
accordance with the schedule set forth in Section 3 above and not as to unvested Shares and only to
the extent that the Option is in effect at the date of such cessation of service as a director.
In the event the Participant’s directorship is terminated by the Company for Cause, the
Participant’s right to exercise any unexercised portion of this Option shall cease immediately as
of the time the Participant is notified his or her directorship is terminated for Cause, and this
Option shall thereupon terminate. Notwithstanding anything herein to the contrary, if subsequent
to the Participant’s termination, but prior to the exercise of the Option, the Board of Directors
of the Company determines that, either prior or subsequent to the Participant’s termination, the
Participant engaged in conduct which would constitute Cause, then the Participant shall immediately
cease to have any right to exercise the Option and this Option shall thereupon terminate.
In the event of the Disability of the Participant, as determined in accordance with the Plan,
the Option shall be exercisable within three years after the Participant’s termination of service
or, if earlier, within the term originally prescribed by the Option. In such event, the Option
shall be exercisable:
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| (a) | to the extent that the Option has become exercisable but has not been exercised as of the date of Disability; and | ||
| (b) | in the event rights to exercise the Option accrue periodically, to the extent of a pro rata portion through the date of Disability of any additional vesting rights that would have accrued on the next vesting date had the Participant not become Disabled. The proration shall be based upon the number of days accrued in the current vesting period prior to the date of Disability. |
In the event of the death of the Participant while a director of the Company, the Option shall
be exercisable by the Participant’s Survivors within three years after the date of death of the
Participant or, if earlier, within the originally prescribed term of the Option. In such event,
the Option shall be exercisable:
| (x) | to the extent that the Option has become exercisable but has not been exercised as of the date of death; and | ||
| (y) | in the event rights to exercise the Option accrue periodically, to the extent of a pro rata portion through the date of death of any additional vesting rights that would have accrued on the next vesting date had the Participant not died. The proration shall be based upon the number of days accrued in the current vesting period prior to the Participant’s date of death. |
5. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Agreement, the Option may be exercised by written
notice to the Company or its designee, in substantially the form of Exhibit A attached
hereto. Such notice shall state the number of Shares with respect to which the Option is being
exercised and shall be signed by the person exercising the Option. Payment of the Exercise Price
for such Shares shall be made in accordance with Paragraph 9 of the Plan. The Company shall
deliver such Shares as soon as practicable after the notice shall be received, provided, however,
that the Company may delay issuance of such Shares until completion of any action or obtaining of
any consent, which the Company deems necessary under any applicable law (including, without
limitation, state securities or “blue sky” laws). The Shares as to which the Option shall have
been so exercised shall be registered in the Company’s share register in the name of the person so
exercising the Option (or, if the Option shall be exercised by the Participant and if the
Participant shall so request in the notice exercising the Option, shall be registered in the
Company’s share register in the name of the Participant and another person jointly, with right of
survivorship) and shall be delivered as provided above to or upon the written order of the person
exercising the Option. In the event the Option shall be exercised, pursuant to Section 4 hereof,
by any person other than the Participant, such notice shall be accompanied by appropriate proof of
the right of such person to exercise the Option. All Shares that shall be purchased upon the
exercise of the Option as provided herein shall be fully paid and nonassessable.
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6. PARTIAL EXERCISE.
Exercise of this Option to the extent above stated may be made in part at any time and from
time to time within the above limits, except that no fractional share shall be issued pursuant to
this Option.
7. NON-ASSIGNABILITY.
The Option shall not be transferable by the Participant otherwise than by will or by the laws
of descent and distribution or pursuant to a qualified domestic relations order as defined by the
Code or Title I of the Employee Retirement Income Security Act or the rules thereunder. However,
the Participant, with the approval of the Administrator, may transfer the Option for no
consideration to or for the benefit of the Participant’s Immediate Family (including, without
limitation, to a trust for the benefit of the Participant’s Immediate Family or to a partnership or
limited liability company for one or more members of the Participant’s Immediate Family), subject
to such limits as the Administrator may establish, and the transferee shall remain subject to all
the terms and conditions applicable to the Option prior to such transfer and each such transferee
shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
The term “Immediate Family” shall mean the Participant’s spouse, former spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers, nieces, nephews and grandchildren (and,
for this purpose, shall also include the Participant.) Except as provided above in this paragraph,
the Option shall be exercisable, during the Participant’s lifetime, only by the Participant (or, in
the event of legal incapacity or incompetency, by the Participant’s guardian or representative) and
shall not be assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process. Any attempted
transfer, assignment, pledge, hypothecation or other disposition of the Option or of any rights
granted hereunder contrary to the provisions of this Section 7, or the levy of any attachment or
similar process upon the Option shall be null and void.
8. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE.
The Participant shall have no rights as a stockholder with respect to Shares subject to this
Agreement until registration of the Shares in the Company’s share register in the name of the
Participant. Except as is expressly provided in the Plan with respect to certain changes in the
capitalization of the Company, no adjustment shall be made for dividends or similar rights for
which the record date is prior to the date of such registration.
9. ADJUSTMENTS.
The Plan contains provisions covering the treatment of Options in a number of contingencies
such as stock splits and mergers. Provisions in the Plan for adjustment with respect to stock
subject to Options and the related provisions with respect to successors to the business of the
Company are hereby made applicable hereunder and are incorporated herein by reference.
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10. TAXES.
The Participant acknowledges that upon exercise of the Option the Participant will be deemed
to have taxable income measured by the difference between the then fair market value of the Shares
received upon exercise and the price paid for such Shares pursuant to this Agreement. The
Participant acknowledges that any income or other taxes due from him or her with respect to this
Option or the Shares issuable pursuant to this Option shall be the Participant’s responsibility.
The Participant acknowledges and agrees that (i) the Participant was free to use professional
advisors of his or her choice in connection with this Agreement, has received advice from his or
her professional advisors in connection with this Agreement, understands its meaning and import,
and is entering into this Agreement freely and without coercion or duress; (ii) the Participant has
not received and is not relying upon any advice, representations or assurances made by or on behalf
of the Company or any Affiliate or any employee of or counsel to the Company or any Affiliate
regarding any tax or other effects or implications of the Option, the Shares or other matters
contemplated by this Agreement and (iii) neither the Company its Affiliates, nor any of its
officers or directors, shall be held liable for any applicable costs, taxes, or penalties
associated with the Option if, in fact, the Internal Revenue Service were to determine that the
Option constitutes deferred compensation under Section 409A of the Code.
The Participant agrees that the Company may withhold from the Participant’s remuneration, if
any, the minimum statutory amount of federal, state and local withholding taxes attributable to
such amount that is considered compensation includable in such person’s gross income. At the
Company’s discretion, the amount required to be withheld may be withheld in cash from such
remuneration, or in kind from the Shares otherwise deliverable to the Participant on exercise of
the Option. The Participant further agrees that, if the Company does not withhold an amount from
the Participant’s remuneration sufficient to satisfy the Company’s income tax withholding
obligation, the Participant will reimburse the Company on demand, in cash, for the amount
under-withheld.
11. PURCHASE FOR INVESTMENT.
Unless the offering and sale of the Shares to be issued upon the particular exercise of the
Option shall have been effectively registered under the Securities Act of 1933, as now in force or
hereafter amended (the “1933 Act”), the Company shall be under no obligation to issue the Shares
covered by such exercise unless and until the following conditions have been fulfilled:
| (a) | The person(s) who exercise the Option shall warrant to the Company, at the time of such exercise, that such person(s) are acquiring such Shares for their own respective accounts, for investment, and not with a view to, or for sale in connection with, the distribution of any such Shares, in which event the person(s) acquiring such Shares shall be bound by the provisions of the following legend which shall be endorsed upon any certificate(s) evidencing the Shares issued pursuant to such exercise: |
“The shares represented by this certificate have been taken for investment
and they may not be sold or otherwise transferred by any person, including a
pledgee, unless (1) either (a) a Registration Statement with respect to such
shares shall be effective under the Securities Act of 1933, as
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amended, or (b) the Company shall have received an opinion of counsel
satisfactory to it that an exemption from registration under such Act is
then available, and (2) there shall have been compliance with all applicable
state securities laws;” and
| (b) | If the Company so requires, the Company shall have received an opinion of its counsel that the Shares may be issued upon such particular exercise in compliance with the 1933 Act without registration thereunder. Without limiting the generality of the foregoing, the Company may delay issuance of the Shares until completion of any action or obtaining of any consent, which the Company deems necessary under any applicable law (including without limitation state securities or “blue sky” laws). |
12. RESTRICTIONS ON TRANSFER OF SHARES.
12.1 The Participant agrees that in the event the Company proposes to offer for sale to the
public any of its equity securities and such Participant is requested by the Company and any
underwriter engaged by the Company in connection with such offering to sign an agreement
restricting the sale or other transfer of Shares, then it will promptly sign such agreement and
will not transfer, whether in privately negotiated transactions or to the public in open market
transactions or otherwise, any Shares or other securities of the Company held by him or her during
such period as is determined by the Company and the underwriters, not to exceed 180 days following
the closing of the offering, plus such additional period of time as may be required to comply with
Marketplace Rule 2711 of the National Association of Securities Dealers, Inc. or similar rules
thereto (such period, the “Lock-Up Period”). Such agreement shall be in writing and in form and
substance reasonably satisfactory to the Company and such underwriter and pursuant to customary and
prevailing terms and conditions. Notwithstanding whether the Participant has signed such an
agreement, the Company may impose stop-transfer instructions with respect to the Shares or other
securities of the Company subject to the foregoing restrictions until the end of the Lock-Up
Period.
12.2 The Participant acknowledges and agrees that neither the Company, its shareholders nor
its directors and officers, has any duty or obligation to disclose to the Participant any material
information regarding the business of the Company or affecting the value of the Shares before, at
the time of, or following a termination of service of the Participant by the Company, including,
without limitation, any information concerning plans for the Company to make a public offering of
its securities or to be acquired by or merged with or into another firm or entity.
13. NO OBLIGATION TO MAINTAIN RELATIONSHIP.
The Company is not by the Plan or this Option obligated to continue the Participant as a
director of the Company. The Participant acknowledges: (i) that the Plan is discretionary in
nature and may be suspended or terminated by the Company at any time; (ii) that the grant of the
Option is a one-time benefit which does not create any contractual or other right to receive future
grants of options, or benefits in lieu of options; (iii) that all determinations with respect to
any such future grants, including, but not limited to, the times when options shall be granted, the
number of shares subject to each option, the option price, and the time or times when each option
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shall be exercisable, will be at the sole discretion of the Company; (iv) that the
Participant’s participation in the Plan is voluntary; (v) that the value of the Option is an
extraordinary item of compensation which is outside the scope of the Participant’s service
contract, if any; and (vi) that the Option is not part of normal or expected compensation for
purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses,
long-service awards, pension or retirement benefits or similar payments.
14. NOTICES.
Any notices required or permitted by the terms of this Agreement or the Plan shall be given by
recognized courier service, facsimile, registered or certified mail, return receipt requested,
addressed as follows:
If to the Company:
|
Archemix Corp. | |
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: Chief Financial Officer |
If to the Participant: |
||||
or to such other address or addresses of which notice in the same manner has previously been given.
Any such notice shall be deemed to have been given upon the earlier of receipt, one business day
following delivery to a recognized courier service or three business days following mailing by
registered or certified mail.
15. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the law of the State of
Delaware, without giving effect to the conflict of law principles thereof. For the purpose of
litigating any dispute that arises under this Agreement, whether at law or in equity, the parties
hereby consent to exclusive jurisdiction in the Commonwealth of Massachusetts and agree that such
litigation shall be conducted in the state courts of Middlesex County, Massachusetts, or the
federal courts of the United States for the District of Massachusetts.
16. BENEFIT OF AGREEMENT.
Subject to the provisions of the Plan and the other provisions hereof, this Agreement shall be
for the benefit of and shall be binding upon the heirs, executors, administrators, successors and
assigns of the parties hereto.
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17. ENTIRE AGREEMENT.
This Agreement, together with the Plan, embodies the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and supersedes all prior oral
or written agreements and understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement not expressly set forth in this Agreement shall
affect or be used to interpret, change or restrict, the express terms and provisions of this
Agreement, provided, however, in any event, this Agreement shall be subject to and governed by the
Plan.
18. MODIFICATIONS AND AMENDMENTS.
The terms and provisions of this Agreement may be modified or amended as provided in the Plan.
19. WAIVERS AND CONSENTS.
Except as provided in the Plan, the terms and provisions of this Agreement may be waived, or
consent for the departure therefrom granted, only by written document executed by the party
entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to
be or shall constitute a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not constitute a continuing
waiver or consent.
20. DATA PRIVACY.
By entering into this Agreement, the Participant: (i) authorizes the Company and each
Affiliate, and any agent of the Company or any Affiliate administering the Plan or providing Plan
recordkeeping services, to disclose to the Company or any of its Affiliates such information and
data as the Company or any such Affiliate shall request in order to facilitate the grant of options
and the administration of the Plan; (ii) waives any data privacy rights he or she may have with
respect to such information; and (iii) authorizes the Company and each Affiliate to store and
transmit such information in electronic form.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer, and the Participant has hereunto set his or her hand, all as of the day and
year first above written.
| ARCHEMIX CORP. | ||||||
| By: | ||||||
| Title | ||||||
| Participant | ||||||
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Exhibit A
NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION
TO: Archemix Corp.
Ladies and Gentlemen:
I hereby exercise my Non-Qualified Stock Option to purchase shares (the “Shares”) of
the common stock, $0.001 par value, of Archemix Corp. (the “Company”), at the exercise price of
$ per share, pursuant to and subject to the terms of that Non-Qualified Stock Option
Agreement between the undersigned and the Company dated , 200___.
I understand the nature of the investment I am making and the financial risks thereof. I am
aware that it is my responsibility to have consulted with competent tax and legal advisors about
the relevant national, state and local income tax and securities laws affecting the exercise of the
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 Shares (check one):
o to me; or
o to me and , as joint tenants with right of
survivorship,
at the following address:
My mailing address for shareholder communications, if different from the address listed above,
is:
A-1
| Very truly yours, | ||||
A-2