Exhibit 10.5
CRITICAL THERAPEUTICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
GRANTED UNDER 2004 STOCK INCENTIVE PLAN
1. Grant of Option.
This agreement evidences the grant by Critical Therapeutics, Inc., a
Delaware corporation (the "Company"), on ______________, 200[_] (the "Grant
Date") to [__________], an employee of the Company (the "Participant"), of an
option to purchase, in whole or in part, on the terms provided herein and in the
Company's 2004 Stock Incentive Plan (the "Plan"), a total of [______________
shares (the "Shares") of common stock, $0.001 par value per share, of the
Company ("Common Stock") at $[_______] per Share. Unless earlier terminated,
this option shall expire at 5:00 p.m., Eastern time, on [_______] (the "Final
Exercise Date").
It is intended that the option evidenced by this agreement shall be an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the "Code").
Except as otherwise indicated by the context, the term "Participant", as used in
this option, shall be deemed to include any person who acquires the right to
exercise this option validly under its terms.
2. Vesting Schedule.
This option will become exercisable ("vest") as to [25]% of the
original number of Shares on [the [first] anniversary of the Grant Date](1) and
as to an additional [2.09]% of the original number of Shares at the end of each
successive [one-month] period following [the [first] anniversary of the Grant
Date](2) until [the [fourth] anniversary of the Grant Date.](3)
The right of exercise shall be cumulative so that to the extent the
option is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all Shares for
which it is vested until the earlier of the Final Exercise Date or the
termination of this option under Section 3 hereof or the Plan.
3. Exercise of Option.
(a) Form of Exercise. Each election to exercise this option shall
be in writing, signed by the Participant, and received by the Company at its
principal office, accompanied by this agreement, and payment in full in the
manner provided in the Plan. The Participant may purchase less than the number
of shares covered hereby, provided that no partial exercise of this option may
be for any fractional share or for fewer than ten whole shares.
(b) Continuous Relationship with the Company Required. Except as
otherwise provided in this Section 3, this option may not be exercised unless
the Participant, at the time he or she exercises this option, is, and has been
at all times since the Grant Date, an employee or officer of, or consultant or
advisor to, the Company or any parent or subsidiary of the Company as defined in
Section 424(e) or (f) of the Code (an "Eligible Participant").
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1. If the Participant is a new employee, the vesting schedule will relate to
the date of hire of the employee and not to the actual Grant Date. Accordingly,
replace the bracketed language with the date that is [one] year from the date
of hire.
2. If the Participant is a new employee, replace the bracketed language with
the date that is [one] year from the date of hire.
3. If the Participant is a new employee, replace the bracketed language with
the date that is [four] years from the date of hire.
(c) Termination of Relationship with the Company. If the
Participant ceases to be an Eligible Participant for any reason, then, except as
provided in paragraphs (d) and (e) below, the right to exercise this option
shall terminate three months after such cessation (but in no event after the
Final Exercise Date), provided that this option shall be exercisable only to the
extent that the Participant was entitled to exercise this option on the date of
such cessation. Notwithstanding the foregoing, if the Participant, prior to the
Final Exercise Date, violates the non-competition or confidentiality provisions
of any employment contract, confidentiality and nondisclosure agreement or other
agreement between the Participant and the Company, the right to exercise this
option shall terminate immediately upon written notice to the Participant from
the Company describing such violation.
(d) Exercise Period Upon Death or Disability. If the Participant
dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code)
prior to the Final Exercise Date while he or she is an Eligible Participant and
the Company has not terminated such relationship for "cause" as specified in
paragraph (e) below, this option shall be exercisable, within the period of one
year following the date of death or disability of the Participant, by the
Participant (or in the case of death by an authorized transferee), provided that
this option shall be exercisable only to the extent that this option was
exercisable by the Participant on the date of his or her death or disability,
and further provided that this option shall not be exercisable after the Final
Exercise Date.
(e) Discharge for Cause. If the Participant, prior to the Final
Exercise Date, is discharged by the Company for "cause" (as defined below), the
right to exercise this option shall terminate immediately upon the effective
date of such discharge. "Cause" shall mean willful misconduct by the Participant
or willful failure by the Participant to perform his or her responsibilities to
the Company (including, without limitation, breach by the Participant of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Participant and the
Company), as determined by the Company, which determination shall be conclusive.
The Participant shall be considered to have been discharged for "Cause" if the
Company determines, within 30 days after the Participant's resignation, that
discharge for cause was warranted.
4. Tax Matters.
(a) Withholding. No Shares will be issued pursuant to the exercise
of this option unless and until the Participant pays to the Company, or makes
provision satisfactory to the Company for payment of, any federal, state or
local withholding taxes required by law to be withheld in respect of this
option.
(b) Disqualifying Disposition. If the Participant disposes of
Shares acquired upon exercise of this option within two years from the Grant
Date or one year after such Shares were acquired pursuant to exercise of this
option, the Participant shall notify the Company in writing of such disposition.
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5. Nontransferability of Option.
This option may not be sold, assigned, transferred, pledged or
otherwise encumbered by the Participant, either voluntarily or by operation of
law, except by will or the laws of descent and distribution, and, during the
lifetime of the Participant, this option shall be exercisable only by the
Participant.
6. Provisions of the Plan.
This option is subject to the provisions of the Plan, a copy of which
is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be executed
under its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
CRITICAL THERAPEUTICS, INC.
Dated: _________ By: ____________________________
Name: ___________________
Title: ___________________
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PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions thereof. The undersigned hereby acknowledges receipt of a
copy of the Company's 2004 Stock Incentive Plan.(1)
PARTICIPANT:
________________________________
Address: ___________________
___________________
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1 If the Participant resides in a community property state, it is desirable
to have the Participant's spouse also accept the option by signature here. The
following are community property states: Arizona, California, Idaho, Louisiana,
Nevada, New Mexico, Texas, and Washington. Although Wisconsin is not formally a
community property state, it has laws governing the division of marital property
similar to community property states and it may be desirable to have a Wisconsin
Participant's spouse also accept the option.
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