EXHIBIT 10.5
------------
CERTIFICATE
No. NQSO - ____
JAVELIN PHARMACEUTICALS, INC.
OPTION AGREEMENT
(NON-QUALIFIED STOCK OPTION)
THIS STOCK OPTION IS GRANTED TO:
Name ______________________________________________________("Optionee" or "you")
Address: _____________________________________________________________________
in accordance with and pursuant to the terms of the 2005 Omnibus Stock Incentive
Plan (the "Plan") of Javelin Pharmaceuticals, Inc., a Delaware corporation (the
"Company" or "we"), and as set forth in this Option Agreement. This Option
Agreement covers a Stock Option previously granted to you by Intrac, Inc.
("Intrac") and which have been assigned by the Company.
The Plan is incorporated by reference and shall be considered part of this
Option Agreement. A copy of the Plan is attached hereto as Exhibit A. Because
this Option Agreement covers just the basic terms of your Stock Option, you
should carefully review the Plan in order to fully understand your rights and
the restrictions regarding the Stock Option granted to you. Defined terms used
in this Option Agreement without definition shall have the meanings ascribed to
them in the Plan. In the event of any discrepancy between the terms of the
Option Agreement and the Plan, the terms of the Plan shall govern.
The terms of your Stock Option include the following:
1. Grant. On ___________ (the "Grant Date"), you were granted Stock Option
under the Intrac 2004 Omnibus Stock Incentive Plan purchase all or any part of
an aggregate of __________ shares (the "Option Shares") of Intrac Common Stock,
$0.001 par value (the "Common Stock"), at an exercise price of $_____ per share
(the "Exercise Price"). Effective upon the merger of Intrac into the Company,
the Company assumed your Stock Option. The number of Option Shares, which are
now for shares of our Common Stock, $.001 par value, and Exercise Price remain
as set forth above, and are subject to adjustment in accordance with the terms
and conditions set forth in the Plan.
2. Non-Qualified Stock Option. This Stock Option was a Non-Qualified Stock
Option (i.e., it is not an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code")).
3. Exercise. This Stock Option, to the extent vested, shall expire at 5:00
p.m., New York time, on ___________, subject to earlier termination of the Stock
Option and the Option Agreement, by reason of your termination of employment or
other events, as provided in Section 14 of the Plan.
4. Vesting. You shall have the right to exercise this Stock Option only to
the extent of the Option Shares you are then vested in, subject to accelerated
vesting as determined by the Committee and subject further to cessation of
vesting upon your termination of employment or cessation of service, all as
otherwise provided for in the Plan. Your vesting schedule is as follows:
--------------------------------------------------------------------------------
NUMBER OF OPTION SHARES DATE VESTED AND EXERCISABLE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Immediately prior to our entry into a definitive agreement for a Corporate
Transaction, the occurrence of a Change of Control or the commencement of a
Hostile Takeover, any of your Option Shares outstanding but not vested of the
first to occur of the foregoing events shall become fully and immediately vested
and exercisable, and shall remain exercisable under their expiration,
termination or cancellation pursuant to the terms of the Plan.
5. Manner of Exercise. This Stock Option, to the extent vested and
exercisable, may be exercised by delivering to the Company (a) written notice of
exercise in substantially the form of the Exercise Letter attached hereto as
Exhibit B, and (b) full payment of the aggregate Exercise Price as to all Option
Shares you are then acquiring under the Stock Option. Your Exercise Letter shall
state the election to exercise the Stock Option, the number of Option Shares
with respect to which the Stock Option is being exercised, and such other
representations and agreements as may be required by the Company. The Stock
Option shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Letter accompanied by payment of the aggregate Exercise Price.
The notice of exercise, once given, shall be irrevocable. Upon exercise of all
or part of the Stock Option, the number of Option Shares subject to this Option
Agreement shall be reduced by the number of Option Shares with respect to which
such exercise is made.
You must tender payment of the aggregate Exercise Price by cash,
certified check or cashier's check, unless we have permitted you to make payment
by some other means. As soon as reasonably practicable after our receipt of your
Exercise Letter and payment, we shall issue to you a stock certificate for your
exercised Option Shares; provided, however, that no Option Shares shall be
issued pursuant to the exercise of the Stock Option unless such issuance and
exercise comply with the requirements relating to the administration of the Plan
under applicable U.S. federal and state securities laws, the Code, any stock
exchange or quotation system on which the Common Stock is listed or quoted.
6. Restrictions on Transfer. You may not transfer or assign this Option
Agreement and the Stock Option granted herein except to the extent provided in
Section 8 of the Plan. The Stock Option shall be exercised only by you, subject
to certain rights of your legal representative, as provided in the Plan. Any
transfer or attempted transfer by you of the Option Agreement or the Stock
Option in violation of this Section or the Plan may cause termination of the
Stock Option as to the unexercised Option Shares thereunder.
7. No Implied Rights. Nothing contained in this Option Agreement or in the
Plan shall (i) confer on you any right with respect to the terms of or
continuation of your employment with the Company, or to interfere with the right
of the Company to terminate your employment at any time, with or without cause,
2
or (ii) give you any rights as to dividends or other rights (including voting
rights) of a stockholder with respect to the Option Shares except as to Option
Shares for which you duly acquired upon exercise hereunder.
8. Interpretation. The interpretation, construction, performance, and
enforcement of this Option Agreement and of the Plan shall lie within the sole
and absolute discretion of the Compensation Committee of the Board of Directors
of the Company. Its determination shall be conclusive and binding on you, and
shall be given the maximum deference permitted by law.
9. Governing Law. This Option Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to conflict
of laws provisions.
10. Taxes. We are not making any representations to you, by way of this
Option Agreement or otherwise, with respect to the actual tax consequences of
your grant or exercise of this Stock Option or any subsequent disposition of the
Common Stock acquired under this Stock Option. You agree to make appropriate
arrangements with the Company for the satisfaction of all federal, state, local,
and foreign income and employment tax withholding requirements applicable to the
Stock Option. You acknowledge and agree that the Company may refuse to honor the
exercise and refuse to deliver the Option Shares if such withholding amounts, if
required, are not delivered at the time of exercise.
11. Entire Agreement. This Option Agreement and the Plan constitute the
entire agreement between you and us with respect to the Stock Option granted
herein, and supersede the prior Intrac Stock Option that is being assumed
herein, which prior Intrac Stock Option has been terminated and has no further
force or effect.
JAVELIN PHARMACEUTICALS, INC.
By: _________________________
Name:
Title:
The undersigned hereby acknowledges receipt of the foregoing Option
Agreement and a copy of the Plan, and agrees to be bound by all of the terms and
conditions herein and therein with respect to the Stock Option granted herein.
OPTIONEE:
___________________________________
Signature
___________________________________
Print Name
___________________________________
Address (Street)
___________________________________
(City, State, Zip Code)
___________________________________
Social Security Number
Dated:_____________________________
3
EXHIBIT B
---------
_________ __, 20__
Javelin Pharmaceuticals, Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Exercise Letter
---------------
Gentlemen:
1. Exercise of Option. Pursuant to the terms of the 2005 Omnibus Stock
Incentive Plan (the "Plan") of Javelin Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and the Option Agreement dated ____________, the
undersigned ("Optionee") elects to exercise Optionee's Stock Option to purchase
________ shares (the "Option Shares") of the Common Stock, $0.001 par value, of
the Company, at an exercise price of $____ per Option Share.
2. Delivery of Payment. The Optionee herewith delivers to the Company the
full purchase price of the Option Shares, as set forth in the Option Agreement,
and any and all withholding taxes due in connection with the exercise of the
Stock Option.
3. Representation. In the event the Option Shares are not presently
registered under the Securities Act of 1933 as amended (the "Securities Act"),
the Optionee represents that he/she is purchasing the Option Shares for
investment and is aware the resale or other transfer of the Option Shares are
subject to certain restrictions under the Securities Act, including having
restrictive legends placed on the certificate for the Option Shares. The
Optionee also represents that he/she is aware of the business and prospects of
the Company and also of the economic and market risks and the tax consequences
in purchasing and holding the Option Shares.
4. Registration. The Option Shares purchased hereby should be registered as
follows:
______________________________ _____________________________
(Name) (Address)
______________________________ _____________________________
(Social Security No.)
Submitted by: Accepted by:
OPTIONEE: JAVELIN PHARMACEUTICALS, INC.
______________________________ _____________________________
Signature Signature
______________________________ _____________________________
Print Name Print Name
______________________________ _____________________________
Title
______________________________ _____________________________
Address Date Received
B-1
