1
EXHIBIT 10.1.2
THE OPTION GRANTED PURSUANT TO THIS INCENTIVE STOCK OPTION AGREEMENT (THE
"OPTION") AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE OPTION OR THE SHARES UNDER THE SECURITIES ACT, OR AN OPINION OF COUNSEL,
WHICH IS SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION
IS NOT REQUIRED.
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS OPTION AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE HEREOF, OR ANY INTEREST THEREIN, OR TO
RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, EXCEPT AS PERMITTED IN
THE COMMISSIONER'S RULES.
1992 STOCK PLAN OF IXSYS, INC.:
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, entered into as of __________ __, 199_, between IXSYS,
INC., a Delaware corporation (the "Company"), and _____________________________
(the "Optionee"),
W I T N E S S E T H:
WHEREAS, the Company's Board of Directors has established the 1992 Stock
Plan of Ixsys, Inc. in order to provide selected Employees of the Company and
its Subsidiaries with an opportunity to acquire Stock of the Company; and
WHEREAS, the Committee has determined that it would be in the best
interests of the Company and its stockholders to grant the Incentive Stock
Option described in this Agreement to the Optionee as an inducement to enter
into or remain in the Service of the Company and as an incentive for
extraordinary efforts during such Service:
NOW, THEREFORE, it is agreed as follows:
-1-
2
SECTION 1. GRANT OF OPTION.
(a) Option. On the terms and conditions stated below, the Company hereby
grants to the Optionee the option to purchase ______________________________
(________) Shares for the sum of _____________________________ dollars ($___.__)
per Share, which is agreed to be __________ percent (___%) of the Fair Market
Value thereof on the Date of Grant.
(b) Stock Plan. This option is granted pursuant to the Plan, a copy of
which the Optionee acknowledges having received, read and understood. The
provisions of the Plan are incorporated into this Agreement by this reference.
SECTION 2. RIGHT TO EXERCISE.
(a) Vesting. Subject to the conditions stated herein, the right to
exercise this option shall accrue on a daily basis over the four-year period
commencing on the Date of Grant. The percentage of the total number of Shares
subject to this option with respect to which this option is exercisable at any
time shall be equal to the product of 0.06844627% times the number of days that
have elapsed since the Date of Grant; provided, however, that this option shall
not be exercisable for any number of Shares until after the Optionee has
completed six months of Service from the Date of Grant (as determined by and in
accordance with the Plan). The resulting number of Shares shall be rounded to
the nearest integer.
(b) Periods of Nonexercisability. Any other provision of this Agreement
notwithstanding, the Company shall have the right to designate one or more
periods of time, each of which shall not exceed 18 consecutive months in length,
during which this option shall not be exercisable if the Company determines (in
its sole discretion) that
-2-
3
such limitation on exercise could in any way facilitate a lessening of any
restriction on transfer pursuant to the Securities Act or any state securities
laws with respect to any issuance of securities by the Company, facilitate the
registration or qualification of any securities by the Company under the
Securities Act or any state securities laws, or facilitate the perfection of any
exemption from the registration or qualification requirements of the Securities
Act or any applicable state securities laws for the issuance or transfer of any
securities. Such limitation on exercise shall not alter the vesting schedule set
forth in Subsection (a) above other than to limit the periods during which this
option shall be exercisable. The Optionee shall be notified in writing in
advance of any such designation by the Company.
(c) Stockholder Approval. Any other provision of this Agreement
notwithstanding, this option shall not be exercisable at any time prior to the
approval of the Plan by the Company's stockholders.
SECTION 3. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Agreement, this option and the
rights and privileges conferred hereby shall not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and shall not be subject to sale under execution, attachment, levy or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of this option, or of any right or privilege conferred hereby, contrary
to the provisions hereof, or upon any attempted sale under any execution,
attachment, levy or similar process upon the rights and privileges conferred
hereby, this option and the rights and privileges conferred hereby shall
immediately become null and void.
-3-
4
SECTION 4. EXERCISE PROCEDURES.
(a) Notice of Exercise. The Optionee or the Optionee's representative
may exercise this option by giving written notice to the Secretary of the
Company pursuant to Section 12(c). The notice shall specify the election to
exercise this option, the number of Shares for which it is being exercised and
the form of payment (if more than one form is available). The notice shall be
signed by the person exercising this option. In the event that this option is
being exercised by the representative of the Optionee, the notice shall be
accompanied by proof (satisfactory to the Company) of the representative's right
to exercise this option. The Optionee or the Optionee's representative shall
deliver to the Secretary of the Company, at the time of giving the notice,
payment in a form permissible under Section 5 for the full amount of the
Purchase Price.
(b) Issuance of Shares. After receiving a proper notice of exercise, the
Company shall cause to be issued a certificate or certificates for the Shares as
to which this option has been exercised, registered in the name of the person
exercising this option (or in the names of such person and his or her spouse as
community property or as joint tenants with right of survivorship). The Company
shall cause such certificate or certificates to be delivered to or upon the
order of the person exercising this option.
(c) Withholding Taxes. In the event that the Company determines that it
is required to withhold foreign, federal, state or local tax as a result of the
exercise of this option, the Optionee, as a condition to the exercise of this
option, shall make arrangements satisfactory to the Company to enable it to
satisfy all withholding requirements. The Optionee shall also make arrangements
satisfactory to the Company
-4-
5
to enable it to satisfy any withholding requirements that may arise in
connection with the disposition of Shares purchased by exercising this option.
SECTION 5. PAYMENT FOR STOCK.
(a) Cash. All or part of the Purchase Price may be paid in lawful money
of the United States of America.
(b) Surrender of Stock. All or part of the Purchase Price may be paid by
the surrender of Shares in good form for transfer. Such Shares must have been
owned for more than six months by the Optionee or the Optionee's representative
and must have a fair market value (as determined by the Committee) on the date
of exercise of this option which, together with any amount paid in another form
permissible under this Section 5, is equal to the Purchase Price.
(c) Exercise/Sale. All or part of the Purchase Price and any withholding
taxes may be paid by the delivery (on a form prescribed by the Company) of an
irrevocable direction to a securities broker approved by the Company to sell
Shares and to deliver all or part of the sales proceeds to the Company.
(d) Exercise/Pledge. All or part of the Purchase Price and any
withholding taxes may be paid by the delivery (on a form prescribed by the
Company) of an irrevocable direction to pledge Shares to a securities broker or
lender approved by the Company, as security for a loan, and to deliver all or
part of the loan proceeds to the Company.
SECTION 6. TERM AND EXPIRATION.
(a) Basic Term. This option shall in any event expire on the date 10
years after the Date of Grant.
-5-
6
(b) Termination of Service (Except by Death). If the Optionee's Service
terminates for any reason other than death, then this option shall expire on the
earliest of the following occasions:
(i) The expiration date determined pursuant to Subsection (a)
above;
(ii) The date 90 days after the termination of the Optionee's
Service for any reason other than Total and Permanent Disability; or
(iii) The date six months after the termination of the
Optionee's Service by reason of Total and Permanent Disability.
The Optionee may exercise all or part of this option at any time before its
expiration under the preceding sentence, but only to the extent that this option
had become exercisable before the Optionee's Service terminated. The balance of
this option shall lapse when the Optionee's Service terminates. In the event
that the Optionee dies after the termination of Service but before the
expiration of this option, all or part of this option may be exercised (prior to
expiration) by the executors or administrators of the Optionee's estate or by
any person who has acquired this option directly from the Optionee by bequest or
inheritance, but only to the extent that this option had become exercisable
before the Optionee's Service terminated.
(c) Death of Optionee. If the Optionee dies as an Employee, then this
option shall expire on the earlier of the following dates:
(i) The expiration date determined pursuant to Subsection (a)
above; or
(ii) The date six months after the Optionee's death.
All or part of this option may be exercised at any time before its expiration
under the
-6-
7
preceding sentence by the executors or administrators of the Optionee's estate
or by any person who has acquired this option directly from the Optionee by
bequest or inheritance, but only to the extent that this option had become
exercisable before the Optionee's death. The balance of this option shall lapse
when the Optionee dies.
(d) Leaves of Absence. For purposes of this Section 6, the Employee
relationship shall be deemed to continue during any period when the Optionee is
on military leave, sick leave or other bona fide leave of absence (to be
determined in the sole discretion of the Committee). However, if the Optionee's
reemployment rights are not guaranteed by statute or by contract, then the
Employee relationship shall not be deemed to continue beyond the 90th day of
such period.
SECTION 7. THE COMPANY'S RIGHT OF FIRST REFUSAL.
(a) Right of First Refusal. In the event that the Optionee or a
Transferee proposes to sell, pledge or otherwise transfer to a third party any
Shares acquired under this Agreement, or any interest in such Shares, the
Company shall have the Right of First Refusal with respect to all (and not less
than all) of such Shares. If the Optionee or Transferee desires to transfer
Shares acquired under this Agreement, the Optionee or Transferee shall give a
written Transfer Notice to the Company describing fully the proposed transfer,
including the number of Shares proposed to be transferred, the proposed transfer
price, the name and address of the proposed new Transferee and proof
satisfactory to the Company that the proposed sale or transfer will not violate
any applicable federal or state securities laws. The Transfer Notice shall be
signed both by the Optionee or Transferee and by the proposed new Transferee and
must constitute a binding commitment of both parties to the transfer of the
Shares. The Company shall
-7-
8
have the right to purchase all, and not less than all, of the Shares on the
terms of the proposal described in the Transfer Notice (subject, however, to any
change in such terms permitted under Subsection (b) below) by delivery of a
notice of exercise of the Right of First Refusal within 30 days after the date
when the Transfer Notice was received by the Company. The Company's rights under
this Subsection (a) shall be freely assignable, in whole or in part.
(b) Transfer of Shares. If the Company fails to exercise its Right of
First Refusal within 30 days after the date when it received the Transfer
Notice, the Optionee or Transferee may, not later than 90 days following receipt
of the Transfer Notice by the Company, conclude a transfer of the Shares subject
to the Transfer Notice on the terms and conditions described in the Transfer
Notice; provided that any such sale is made in compliance with applicable
federal and state securities laws and not in violation of any other contractual
restrictions to which the Optionee is bound. Any proposed transfer on terms and
conditions different from those described in the Transfer Notice, as well as any
subsequent proposed transfer by the Optionee or Transferee, shall again be
subject to the Right of First Refusal and shall require compliance with the
procedure described in Subsection (a) above. If the Company exercises its Right
of First Refusal, the parties shall consummate the sale of the Shares on the
terms set forth in the Transfer Notice within 60 days after the date when the
Company received the Transfer Notice (or within such longer period as may have
been specified in the Transfer Notice); provided, however, that in the event the
Transfer Notice provided that payment for the Shares was to be made in a form
other than lawful money paid at the time of transfer, the Company
-8-
9
shall have the option of paying for the Shares with lawful money equal to the
present value of the consideration described in the Transfer Notice.
(c) Binding Effect. The Company's Right of First Refusal shall inure to
the benefit of its successors and assigns and shall be binding upon any
Transferee of the Shares.
(d) Additional Shares or Substituted Securities. In the event of the
declaration of a stock dividend, the declaration of an extraordinary dividend
payable in a form other than stock, a stock split, an adjustment in conversion
ratio, a recapitalization or a similar transaction affecting the Company's
outstanding securities without receipt of consideration, any new, substituted or
additional securities or other property which are by reason of such transaction
distributed with respect to any Shares subject to this Section 7 or into which
such Shares thereby become convertible shall immediately be subject to this
Section 7. Appropriate adjustments to reflect the distribution of such
securities or property shall be made to the number and/or class of the Shares
subject to this Section 7.
(e) Termination of Right of First Refusal. Any other provision of this
Section 7 notwithstanding, in the event that Stock is listed on an established
stock exchange or is quoted regularly on the NASDAQ System at the time when the
Optionee or Transferee desires to transfer Shares, the Company shall have no
Right of First Refusal, and the Optionee or Transferee shall have no obligation
to comply with the procedures prescribed by Subsections (a), (b) and (c) above.
(f) Transfer by Will or Intestate Succession. This Section 7 shall not
apply to a transfer by will or intestate succession, provided that the
Transferee agrees in writing on a form prescribed by the Company to be bound by
this Agreement.
-9-
10
(g) Transfer to Trust. The Optionee shall have the right to transfer all
or any portion of the Optionee's interest in the Shares issued and delivered
under this Agreement, to a trust established by the Optionee for the benefit of
the Optionee or the Optionee's spouse or children, without being subject to the
provisions of this Section 7, provided that the trustee on behalf of such trust
shall agree in writing on a form prescribed by the Company to be bound by this
Agreement.
(h) Termination of Rights as Stockholder. If the Company makes
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Shares to be purchased in accordance with
the provisions of this Section 7, then from and after such time the person from
whom such Shares are to be purchased shall no longer have any rights as a holder
of such Shares (other than the right to receive payment of such consideration in
accordance with this Agreement). Such Shares shall be deemed to have been
purchased in accordance with the applicable provisions hereof, whether or not
the certificate(s) therefor have been delivered as required by this Agreement.
(i) Legend. All certificates representing Shares purchased under this
Agreement shall be endorsed with the following legend:
"THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT BETWEEN THE
COMPANY AND THE REGISTERED HOLDER OF THE SHARES (OR THE
PREDECESSOR IN INTEREST TO THE SHARES). SUCH AGREEMENT GRANTS
CERTAIN RIGHTS OF FIRST REFUSAL UPON AN ATTEMPTED TRANSFER OF
THE SHARES. THE SECRETARY OF THE COMPANY WILL UPON WRITTEN
REQUEST
-10-
11
FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT
CHARGE."
SECTION 8. LEGALITY OF INITIAL ISSUANCE.
No Shares shall be issued upon the exercise of this option unless and
until the Company has determined that:
(a) It and the Optionee have taken any actions required to register the
Shares under the Securities Act or to perfect an exemption from the registration
requirements thereof;
(b) Any applicable listing requirement of any stock exchange on which
Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been
satisfied.
SECTION 9. NO REGISTRATION RIGHTS.
The Company may, but shall not be obligated to, register or qualify the
sale of Shares under the Securities Act or any other applicable law. The Company
shall not be obligated to take any affirmative action in order to cause the sale
of Shares under this Agreement to comply with any law.
SECTION 10. SECURITIES LAW RESTRICTIONS ON TRANSFER.
(a) Restrictions. Regardless of whether the offering and sale of Shares
under the Plan have been registered under the Securities Act or have been
registered or qualified under the securities laws of any state, the Company at
its discretion may impose restrictions upon the sale, pledge or other transfer
of such Shares (including the placement of appropriate legends on stock
certificates) if, in the judgment of the Company and its counsel, such
restrictions are necessary or desirable in order to achieve
-11-
12
compliance with the Securities Act, the securities laws of any state or any
other law or with restrictions imposed by the Company's underwriters.
(b) Investment Intent at Grant. The Optionee represents and agrees that
the Shares to be acquired upon exercising this option will be acquired for
investment, and not with a view to the sale or distribution thereof.
(c) Investment Intent at Exercise. In the event that the sale of Shares
under the Plan is not registered under the Securities Act but an exemption is
available which requires an investment representation or other representation,
the Optionee shall represent and agree at the time of exercise that the Shares
being acquired upon exercising this option are being acquired for investment,
and not with a view to the sale or distribution thereof, and shall make such
other representations as are deemed necessary or appropriate by the Company and
its counsel.
(d) Legend. All certificates evidencing Shares acquired under this
Agreement in an unregistered transaction shall bear the following restrictive
legend (and such other restrictive legends as are required or deemed advisable
under the provisions of any applicable law):
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
(e) Removal of Legends. If, in the opinion of the Company and its
counsel, any legend placed on a stock certificate representing Shares sold under
this Agreement is no longer required, the holder of such certificate shall be
entitled to exchange such
-12-
13
certificate for a certificate representing the same number of Shares but lacking
such legend.
(f) Administration. Any determination by the Company and its counsel in
connection with any of the matters set forth in this Section 10 shall be
conclusive and binding on the Optionee and all other persons.
SECTION 11. SHARES AND ADJUSTMENTS.
(a) General. In the event of a subdivision of the outstanding Shares, a
declaration of a dividend payable in Shares, a declaration of a dividend payable
in a form other than Shares in an amount that has a material effect on the value
of Shares, a combination or consolidation of the outstanding Shares into a
lesser number of Shares, a recapitalization, a spinoff, a reclassification or a
similar occurrence, the Committee shall make appropriate adjustments in one or
both of (i) the number of Shares covered by this option or (ii) the Exercise
Price.
(b) Mergers; Consolidations. In the event that the Company is a party to
a merger or consolidation, outstanding Options shall be subject to the agreement
of merger or consolidation. Such agreement may provide for the assumption of
outstanding Options by the surviving corporation or its parent or for their
continuation by the Company (if the Company is the surviving corporation). In
the event the Company is not the surviving corporation and the surviving
corporation will not assume the outstanding Options, the agreement of merger or
consolidation may provide for payment of a cash settlement for exercisable
Options equal to the difference between the amount to be paid for one Share
under such agreement and the Exercise Price and for the cancellation of Options
not exercised or settled, in either case without the Optionees' consent.
-13-
14
(c) Reservation of Rights. Except as provided in this Section 11, the
Optionee shall have no rights by reason of (i) any subdivision or consolidation
of shares of stock of any class, (ii) the payment of any dividend or (iii) any
other increase or decrease in the number of shares of stock of any class. Any
issue by the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or Exercise Price of the
Shares subject to this option. The grant of this option shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
SECTION 12. MISCELLANEOUS PROVISIONS.
(a) Rights as a Stockholder. Neither the Optionee nor the Optionee's
representative shall have any rights as a stockholder with respect to any Shares
subject to this option until the Optionee or the Optionee's representative is
entitled, pursuant to the terms of this option, to receive such Shares.
(b) No Employment Rights. Nothing in this Agreement shall be construed
as giving the Optionee the right to be retained as an Employee. The Company
reserves the right to terminate the Optionee's Service at any time, with or
without cause.
(c) Notice. Any notice required or permitted by the terms of this
Agreement shall be given in writing and shall be deemed effective upon personal
delivery to the party to be notified (or upon the date of attempted delivery
where delivery is refused) or, if sent by telecopier, telex, telegram, or other
facsimile means, upon receipt of appropriate confirmation of receipt, or upon
deposit with the United States Postal
-14-
15
Service, by registered or certified mail, or next day air courier, with postage
and fees prepaid and addressed to the party entitled to such notice at the
address shown below such party's signature on this Agreement, or at such other
address as such party may designate by 10 days' advance written notice to the
other party to this Agreement.
(d) Entire Agreement. This Agreement and the Plan constitute the entire
contract between the parties hereto with regard to the subject matter hereof.
(e) Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, as such laws are applied
to contracts entered into and performed in such State.
SECTION 13. DEFINITIONS.
(a) "Agreement" shall mean this Incentive Stock Option Agreement.
(b) "Board" shall mean the Board of Directors of the Company, as
constituted from time to time.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Committee" shall mean the committee of the Board described in
section 3 of the Plan or, if none has been appointed, the full Board.
(e) "Date of Grant" shall mean the date on which the Committee resolved
to grant this option, which is also the date as of which this Agreement is
entered into.
(f) "Employee" shall mean any individual who is a common-law employee of
the Company or of a Subsidiary.
(g) "Exercise Price" shall mean the amount for which one Share may be
purchased upon exercise of this option, as specified in Section 1(a).
-15-
16
(h) "Fair Market Value" shall mean the fair market value of a Share, as
determined by the Committee in good faith. Such determination shall be
conclusive and binding on all persons.
(i) "Incentive Stock Option" shall mean an employee incentive stock
option described in section 422(b) of the Code.
(j) "Plan" shall mean the 1992 Stock Plan of Ixsys, Inc., as in effect
on the Date of Grant.
(k) "Purchase Price" shall mean the Exercise Price multiplied by the
number of Shares with respect to which this option is being exercised.
(l) "Right of First Refusal" shall mean the Company's right of first
refusal described in Section 7.
(m) "Securities Act" shall mean the Securities Act of 1933, as amended.
(n) "Service" shall mean service as an Employee.
(o) "Share" shall mean one share of Stock, as adjusted in accordance
with Section 11 (if applicable).
(p) "Stock" shall mean the Common Stock ($.001 par value) of the
Company.
(q) "Subsidiary" shall mean any corporation, if the Company and/or one
or more other Subsidiaries own not less than 50% of the total combined voting
power of all classes of outstanding stock of such corporation.
(r) "Total and Permanent Disability" shall mean that the Optionee is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted, or can be expected to last, for a continuous period
of not less than one year.
-16-
17
(s) "Transferee" shall mean any person to whom the Optionee has directly
or indirectly transferred any Share acquired under this Agreement.
(t) "Transfer Notice" shall mean the notice of a proposed transfer of
Shares described in Section 7.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf by its officer duly authorized to act on behalf of the Committee,
and the Optionee has personally executed this Agreement.
OPTIONEE IXSYS, INC.
___________________________ By ___________________________
Optionee's Address: Company's Address:
___________________________ 3550 General Atomics Court
Suite L-103
___________________________ Xxx Xxxxx, XX 00000
-17-
18
ACKNOWLEDGMENT OF RECEIPT OF COPY
OF SECTION 260.141.11 OF
THE CALIFORNIA CORPORATE
SECURITIES RULES
Pursuant to the grant to the undersigned of an option to purchase shares
of Common Stock of Ixsys, Inc., under that Incentive Stock Option Agreement
dated as of _____________, 199_, the undersigned hereby acknowledges that he or
she received a copy of section 260.141.11 of the California Corporation
Securities Rules as required by subsection (a) thereof, and that such receipt
occurred at the same time as the undersigned entered into the aforementioned
Incentive Stock Option Agreement.
------------------------------
-18-
