Stock Option Agreement
Exhibit
10.2
ADVENTRX
Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and
the undersigned person (“Optionee”)
have
entered into this Stock Option Agreement (this “Agreement”)
effective as of the Grant Date set forth below. The Company has granted to
Optionee the option (the “Option”)
to
purchase the number of shares (the “Shares”)
of
common stock, par value $0.001 per share, of the Company (“Common
Stock”)
set
forth below at the per Share purchase price (the “Exercise
Price”)
set
forth below, pursuant to the terms of this Agreement. The Option was granted
under the Company’s 2005
Equity Incentive Plan (the “Plan”).
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Optionee
Name:
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_____________________
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Grant
Date:
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MM/DD/YYYY
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Vesting
Commencement Date:
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MM/DD/YYYY
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Shares:
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X,XXX
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Exercise
Price:
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$X.XX
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1. Terms
of Plan.
All
capitalized terms used in this Agreement and not otherwise defined shall
have
the meanings ascribed thereto in the Plan. Optionee confirms and acknowledges
that Optionee has received and reviewed copies of the Plan and the Information
Statement, dated _____________, with respect to the Plan. Optionee and the
Company agree that the terms and conditions of the Plan are incorporated
in this
Agreement by this reference.
2. Nature
of the Option.
The
Option has been granted as an incentive to Optionee’s Continuous Service, and is
in all respects subject to such Continuous Service and all other terms and
conditions of this Agreement. The Option is intended to be an
[Incentive/Nonstatutory] Option within the meaning of the Plan.
3. Vesting
and Exercise of Option.
The
Option shall vest and become exercisable during its term in accordance with
the
following provisions:
(a) Vesting
and Right of Exercise.
(i) The
Option shall vest and become exercisable with respect to one-fourth of the
Shares at the first anniversary of the Vesting Commencement Date set forth
in
the preamble of this Agreement and as to one forty-eighth of the Shares at
the
end of each successive month thereafter until all of the Shares have vested,
subject to Optionee’s Continuous Service.
(ii) In
the
event of Optionee’s death, disability or other termination of Optionee’s
Continuous Service, the Option shall be exercisable in the manner and to
the
extent provided in Section 6.3 of the Plan.
(iii) No
fraction of a Share shall be purchasable or deliverable upon exercise of
the
Option, but in the event any adjustment hereunder of the number of Shares
shall
cause such number to include a fraction of a Share, such number of Shares
shall
be rounded down to the nearest smaller whole number of Shares.
(b) Method
of Exercise.
In order
to exercise any portion of the Option which has vested, Optionee shall notify
the Company in writing of the election to exercise such vested portion of
the
Option and the number of Shares in respect of which the Option is being
exercised, by executing and delivering the Notice of Exercise of Stock Option
in
the form attached hereto as Exhibit
A
(the
“Exercise
Notice”).
The
certificate or certificates representing Shares as to which the Option has
been
exercised shall be registered in the name of Optionee.
(c) Restrictions
on Exercise.
(i) Optionee
may exercise the Option only with respect to Shares that have vested in
accordance with Section 3(a) of this Agreement.
(ii) Optionee
may not exercise the Option if the issuance of the Shares upon such exercise
or
the method of payment of consideration for such Shares would constitute a
violation of any applicable federal or state securities law or other law
or
regulation.
(iii) The
method and manner of payment of the Exercise Price will be subject to the
rules
under Part 221 of Title 12 of the Code of Federal Regulations as promulgated
by
the Federal Reserve Board if such rules apply to the Company at the date
of
exercise.
(iv) As
a
condition to the exercise of the Option, the Company may require Optionee
to
make any representation or warranty to the Company at the time of exercise
of
the Option as in the opinion of legal counsel for the Company may be required
by
any applicable law or regulation, including the execution and delivery of
an
appropriate representation statement. Accordingly, the stock certificate(s)
for
the Shares issued upon exercise of the Option may bear appropriate legends
restricting transfer.
(v) Optionee
may only exercise the Option upon, and the obligations of the Company under
this
Agreement to issue Shares to Optionee upon any exercise of the Option is
conditioned on, satisfaction of all federal, state, local or other withholding
tax obligations associated with such exercise (whether so required to secure
for
the Company an otherwise available tax deduction or otherwise) (“Withholding
Obligations”).
The
Company reserves the right to require Optionee to remit to the Company an
amount
sufficient to satisfy all Withholding Obligations prior to the issuance of
any
Shares upon any exercise of the Option. Optionee authorizes the Company to
withhold in accordance with applicable law from any compensation payable
to
Optionee any amounts necessary to meet any Withholding Obligations.
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4. Non-Transferability
of Option.
The
Option may not be transferred in any manner other than by will or by the
laws of
descent and distribution. The terms of this Agreement shall bind the executors,
administrators, heirs and successors of Optionee.
5. Method
of Payment.
(a) Upon
exercise, Optionee shall pay the aggregate Exercise Price of the Shares
purchased by any of the following methods, or a combination thereof, at the
election of Optionee:
(i) by
cash;
(ii) by
certified or bank cashier’s check;
(iii) if
shares
of Common Stock are traded on an established stock market or exchange on
the
date of exercise, by surrender of whole shares of Common Stock having a Market
Value equal to the portion of the Exercise Price to be paid by such surrender,
provided
that if
such shares of Common Stock to be surrendered were acquired upon exercise
of an
Incentive Option, Optionee must have first satisfied the holding period
requirements under Section 422(a)(1) of the Code; or
(iv) if
shares
of Common Stock are traded on an established stock market or exchange on
the
date of exercise, pursuant to and under the terms and conditions of any formal
cashless exercise program authorized by the Company entailing the sale of
the
Stock subject to an Option in a brokered transaction (other than to the
Company).
(b) If
Optionee shall pay all or a portion of the aggregate Exercise Price due upon
an
exercise of the Option by surrendering shares of Common Stock pursuant to
Section 5(a)(iii), then Optionee:
(i) shall
accompany the Exercise Notice with a duly endorsed blank stock power with
respect to the number of shares of Common Stock to be surrendered and shall
deliver the certificate(s) representing such surrendered shares to the Company
at its principal offices within two business days after the date of the Exercise
Notice;
(ii) authorizes
and directs the Secretary of the Company to transfer so many of the shares
of
Common Stock represented by such certificate(s) as are necessary to pay the
aggregate Exercise Price in accordance with this Agreement;
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(iii) agrees
that Optionee may not surrender any fractional share as payment of any portion
of the Exercise Price; and
(iv) agrees
that, notwithstanding any other provision in this Agreement, Optionee may
only
surrender shares of Common Stock owned by Optionee as of the date of the
Exercise Notice in the manner and within the time periods allowed under Rule
16b-3 promulgated under the Exchange Act.
6. Adjustments
to Option.
Subject
to any required action by the stockholders of the Company, the number of
Shares
covered by the Option, and the Exercise Price, shall be proportionately adjusted
in accordance with and pursuant to Section 8.1 of the Plan. Such adjustments
shall be made by the Committee, whose determination in that respect shall
be
final, binding and conclusive. Except as expressly provided in this Agreement,
no issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number of Shares or
the
Exercise Price.
7. Term
of Option.
The
Option may not be exercised more than 10 years after the Grant Date, and
may be
exercised during such term only in accordance with the terms of this
Agreement.
8. Not
Employment Contract.
Nothing
in this Agreement shall confer upon Optionee any right to continue in the
employ
of the Company or shall interfere with or restrict in any way the rights
of the
Company, which are hereby expressly reserved, to terminate Optionee’s Continuous
Service at any time for any reason whatsoever, with or without cause, subject
to
the provisions of applicable law.
9. Tax
Consequences Generally.
Optionee
acknowledges that Optionee may suffer adverse tax consequences as a result
of
Optionee’s exercise of the Option. Optionee acknowledges that the Company
advises that Optionee consult with Optionee’s tax advisers in connection with
any exercise of the Option or disposition of the Shares receivable upon exercise
of the Option. Optionee agrees that Optionee is not relying on the Company
for
any tax advice with respect to the acceptance or exercise of the Option,
the
disposition of any Shares Optionee may acquire upon exercise of the Option
or
otherwise. Any adverse consequences incurred by an Optionee with respect
to the
use of shares of Common Stock to pay any part of the aggregate Exercise Price
or
of any tax in connection with the exercise of an Option, including, without
limitation, any adverse tax consequences arising as a result of a disqualifying
disposition within the meaning of Section 422 of the Code shall be
the sole
responsibility of Optionee.
10. Adjustments
in Acquisitions. [APPLICABLE
PROVISION TO BE DESIGNATED BY COMPENSATION COMMITTEE AT TIME OF
GRANT]
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[In
accordance with the provisions of Section 8.2(a) of the Plan, the Option
will
Accelerate in full in the event of an Acquisition constituting a Change of
Control if Optionee remains employed by the Company or one of its Affiliates
as
of the closing date of such Acquisition, and the Option is not assumed or
replaced by the successor or acquiring entity or the entity in control of
such
successor or acquiring entity in accordance with Section 8.2 (referred to
for
purposes of this section as the “Acquirer”).
Otherwise, the Option will not Accelerate in the event of an Acquisition.
In
this regard, if Optionee is offered employment or some other continuing role
by
or on behalf of the Acquirer, including but not limited to, continuing
employment with the Company, and in connection therewith, the Acquirer offers
to
assume or replace the Option, the Option will not Accelerate if Optionee
does
not accept the offer.] OR
[Notwithstanding the provision of Section 8.2(a) of the Plan, in the
event
of an Acquisition, the Option will not vest and become exercisable except
as
follows: [specify
alternative treatment]
[Subject
to the terms of any other written agreement between Optionee and the Company
related to Optionee’s Continuous Service and in accordance with Sections 8.1,
8.2, 8.4 and 8.5 of the Plan, the Committee may, if it so determines in the
exercise of its sole discretion, also make provision for proportionately
adjusting the number or class of securities covered by the Option, as well
as
the Exercise Price, in the event that the Company effects one or more
Acquisitions, corporate separations, reorganizations, liquidations or other
increases or reductions of shares of its outstanding Common Stock.]
OR
[If,
following a Change of Control in which the Option has been assumed by the
successor or acquiring entity as of the closing date of such Change of Control,
in the event of Optionee’s Involuntary Termination of employment within 24
months after the closing date of such Change of Control the vesting of the
assumed Option shall be accelerated such that the Option will so vest as
of the
effective date of such Involuntary Termination with respect to all Shares
that
would have become vested during such 24-month period but for the Change of
Control and Involuntary Termination (assuming Optionee’s Continuous Service). An
“Involuntary
Termination”
is one
that occurs by reason of dismissal for any reason other than Misconduct or
of
voluntary resignation following: (i) a change in position that materially
reduces the level of Optionee’s responsibility, (ii) a material reduction in
Optionee’s base salary, or (iii) relocation by more than 50 miles; provided that
(ii) and (iii) will apply only if Optionee has not consented to the change
or
relocation. “Misconduct”
shall
mean the commission of any act of fraud, embezzlement or dishonesty by Optionee,
any unauthorized use or disclosure by such person of confidential information
or
trade secrets of the Company (or any Parent or Subsidiary), or any other
intentional misconduct by such person adversely affecting the business affairs
of the Company (or any Parent or Subsidiary) in a material manner. The foregoing
definition shall not be deemed to be inclusive of all the acts or omissions
which the Company (or any Parent or Subsidiary) may consider as grounds for
the
dismissal or discharge of Optionee.]
11. Consent
of Spouse/Domestic Partner.
Optionee
agrees that Optionee’s spouse’s or domestic partner’s interest in the Option is
subject to this Agreement and such spouse or domestic partner is irrevocably
bound by the terms and conditions of this Agreement. Optionee agrees that
all
community property interests of Optionee and Optionee’s spouse or domestic
partner in the Option, if any, shall similarly be bound by this Agreement.
Optionee agrees that this Agreement is binding upon Optionee’s and Optionee’s
spouse’s or domestic partner’s executors, administrators, heirs and assigns.
Optionee represents and warrants to the Company that Optionee has the authority
to bind Optionee’s spouse/domestic partner with respect to the Option. Optionee
agrees to execute and deliver such documents as may be necessary to carry
out
the intent of this Section 11 and the consent of Optionee’s spouse/domestic
partner.
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IN
WITNESS WHEREOF, Optionee and the Company have entered into this Agreement
as of
the Grant Date.
| ADVENTRX Pharmaceuticals, Inc. | ||
| [Optionee Name] | ||
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By:
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Name:
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Title:
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Exhibit
A
Notice
of Exercise of Stock Option
I
________________________________________ (please print legibly) hereby elect
to
exercise the stock options(s) identified below (the “Option(s)”)
granted to me by ADVENTRX
Pharmaceuticals, Inc.
(the
“Company”)
under
its 2005 Equity Incentive Plan (the “Plan”)
with
respect to the number of shares of Common Stock of the Company set forth
below
(the “Shares”).
I
represent that each Share is fully vested and exercisable and subject to
the
Option(s). I acknowledge and agree that my exercise of the Option(s) is subject
to the terms and conditions of the Plan and the Stock Option Agreement(s)
governing the Option(s).
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1.
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_____________
Shares at $ ________ per share (Grant date):
____________
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2.
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_____________
Shares at $ ________ per share (Grant date):
____________
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3.
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_____________
Shares at $ ________ per share (Grant date):
____________
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4.
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_____________
Shares at $ ________ per share (Grant date):
____________
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I
choose to pay for the exercise of the above option(s) as follows
(please
circle applicable item numbers):
1. Cash:
$____________________
2. Check:
$____________________ (please
make checks payable to ADVENTRX Pharmaceuticals, Inc.)
3. Surrender
of _________________ Shares:
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Please
deliver the stock certificate(s) representing the Shares to (please
print
legibly):
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Name:
(please
print legibly)
Signature:
Date:
Phone
No:
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