Nile Therapeutics, Inc. Incentive Stock option Agreement
EXHIBIT
10.11
This
Incentive
Stock Option Agreement
is made
and entered into as of the __ day of _____________________, 200__ (the “Grant
Date”), between _____________________ (“Employee”)
and
Nile Therapeutics, Inc., a Delaware corporation (the “Company”).
Background
A. Employee
has either been hired to serve as an employee to the Company or the Company
desires to induce Employee to continue to serve the Company as an
employee.
B. The
Company has adopted the 2005 Stock Option Plan (the “Plan”)
pursuant to which shares of common stock of the Company have been reserved
for
issuance under the Plan.
Now,
Therefore, the
parties hereto agree as follows:
1. Incorporation
by Reference.
The
terms and conditions of the Plan, a copy of which has been delivered to
Employee, are hereby incorporated herein and made a part hereof by reference
as
if set forth in full. In the event of any conflict or inconsistency between
the
provisions of this Agreement and those of the Plan, the provisions of the Plan
shall govern and control.
2. Grant
of Option; Purchase Price.
Subject
to the terms and conditions herein set forth, the Company hereby irrevocably
grants from the Plan to Employee the right and option, hereinafter called the
“Option,”
to
purchase all or any part of an aggregate of the number of shares of common
stock, $0.001 par value, of the Company (the “Shares”)
set
forth at the end of this Agreement after “Number of Shares:” at the price per
Share set forth at the end of this Agreement after “Purchase Price:”
3. Exercise
and Vesting of Option.
The
Option shall be exercisable only to the extent that all, or any portion thereof,
has vested in the Employee. Except as provided herein in paragraph 4, the
Options shall vest in Employee in _____ cumulative installments of
________________ percent (______%) of the total grant beginning on the first
anniversary of the date of this Agreement, with an additional ________________
percent (______%) of the total grant becoming exercisable on each of the next
_____________ (______) successive anniversaries of such date, so long as
Employee remains an employee of the Company (each such date is hereinafter
referred to singularly as a “Vesting
Date”
and
collectively as “Vesting
Dates”).
4. Termination
of Employment.
Other
than as expressly provided for in the Employee’s employment agreement, if any,
in the event that the Employee ceases to be employed by the Company, for any
reason or no reason, with or without cause, prior to any Vesting Date, that
part
of the Option scheduled to vest on such Vesting Date, and all parts of the
Option scheduled to vest in the future, shall not vest and all of Employee's
rights to and under such non-vested parts of the Option shall
terminate.
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5. Term
of Option.
To the
extent vested, and except as otherwise provided in this Agreement or the
Employee’s employment agreement, if any, the Option shall be exercisable for ten
(10) years from the date of this Agreement; provided,
however,
that in
the event Employee ceases to be employed by the Company, for any reason or
no
reason, with or without cause, Employee or his/her legal representative shall
have ninety (90) days from the date of such termination of his/her position
as
an employee to exercise any part of the Option vested pursuant to Section 3
of
this Agreement. Upon the expiration of such ninety (90) day period, or if
earlier, upon the date that is 10 years from the Grant Date (the “Expiration
Date”), the Option shall terminate and become null and void.
6. Rights
of Option Holder.
Employee, as holder of the Option, shall not have any of the rights of a
shareholder with respect to the Shares covered by the Option except to the
extent that one or more certificates for such Shares shall be delivered to
him
or her upon the due exercise of all or any part of the Option.
7. Transferability.
The
Option shall not be transferred except to the extent permitted in the
Plan.
8. Securities
Law Matters.
Employee acknowledges that the Shares to be received by him or her upon exercise
of the Option may not have been registered under the Securities Act of 1933,
as
amended, or the Blue Sky laws of any state (collectively, the “Securities
Acts”).
If
such Shares are not so registered, Employee acknowledges and understands that
the Company is under no obligation to register, under the Securities Acts,
the
Shares received by him or her or to assist him or her in complying with any
exemption from such registration if he or she should at a later date wish to
dispose of the Shares. Employee acknowledges that if not then registered under
the Securities Acts, the Shares shall bear a legend restricting the
transferability thereof, such legend to be substantially in the following
form:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED
UNDER FEDERAL OR STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE,
SOLD, PLEDGED OR OTHERWISE DISPOSED OF UNLESS SO REGISTERED OR QUALIFIED, UNLESS
AN EXEMPTION EXISTS OR UNLESS SUCH DISPOSITION IS NOT SUBJECT TO THE FEDERAL
OR
STATE SECURITIES LAWS, NILE THERAPEUTICS, INC. MAY REQUIRE THAT THE AVAILABILITY
OR ANY EXEMPTION OR THE INAPPLICABILITY OF SUCH SECURITIES LAWS BE ESTABLISHED
BY AN OPINION OF COUNSEL, WHICH OPINION OF COUNSEL SHALL BE REASONABLY
SATISFACTORY TO NILE THERAPEUTICS, INC..”
9. Incentive
Stock Option.
The
Company intends that the Option shall be an incentive stock option governed
by
the provisions of Section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”).
The
terms of the Plan and the Option shall be interpreted and administered so as
to
satisfy the requirements of the Code.
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10. Employee
Representations.
Employee hereby represents and warrants that Employee has reviewed with his
or
her own tax advisors the federal, state, and local tax consequences of the
transactions contemplated by this Agreement. Employee is relying solely on
such
advisors and not on any statements or representation of the Company or any
of
its agents. Employee understands that he or she will be solely responsible
for
any tax liability that may result to him or her as a result of the transactions
contemplated by this Agreement. The Option, if exercised, will be exercised
for
investment and not with a view to the sale or distribution of the Shares to
be
received upon exercise thereof.
11. Notices.
All
notices and other communications provided in this Agreement will be in writing
and will be deemed to have been duly given when received by the party to whom
it
is directed at the following addresses:
|
If
to the Company:
0000
Xxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxx,
XX
Attn:
Chief Financial Officer
|
If
to Employee:
___________________
___________________
___________________
|
12. General.
(a) The
Option is granted pursuant to the Plan and is governed by the terms thereof.
The
Company shall at all times during the term of the Option reserve and keep
available such number of Shares as will be sufficient to satisfy the
requirements of this Option Agreement.
(b) Nothing
herein expressed or implied is intended or shall be construed as conferring
upon
or giving to any person, firm, or corporation other than the parties hereto,
any
rights or benefits under or by reason of this Agreement.
(c) Each
party hereto agrees to execute such further documents as may be necessary or
desirable to effect the purposes of this Agreement.
(d) This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
agreement.
(e) This
Agreement, in its interpretation and effect, shall be governed by the laws
of
the State of Delaware applicable to contracts executed and to be performed
therein.
In
Witness Whereof,
the
undersigned have executed this Agreement as of the date first written
above.
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Number
of Shares: __________
Exercise
Price: $
/share
|
EMPLOYEE:
________________________
Name:
|
|
By:_________________________
Its:
|
|
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