EXHIBIT 10.2.1
STOCK OPTION NO: (STK OPT NO)
EMPLOYEE STOCK OPTION AGREEMENT
EMPLOYEE STOCK OPTION AGREEMENT, dated as of (Anniversay Date)
(Grant Year) (this "Agreement"), by and between INHIBITEX, INC., a Delaware
corporation (the "Company"), and (First) (Last), (the "Optionee").
R E C I T A L S :
WHEREAS, the Company has adopted the 2004 Inhibitex, Inc.
Stock Incentive Plan (the "Plan") to provide long-term performance incentives to
those employees, contractors and consultants of the Company and its Subsidiaries
who are largely responsible for the management, growth and protection of the
business of the Company and its Subsidiaries; and
WHEREAS, the Company desires to grant to the Optionee an
option (the "Option") to purchase a number of shares of the common stock, $0.001
par value, of the Company (the "Stock") pursuant to the Plan and on the terms
and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Company and the
Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to final approval by the
Company's Board of Directors, the Company hereby grants to the Optionee,
pursuant to the Plan and on the terms and conditions set forth herein, an Option
to purchase that number of shares of Stock and at the exercise price as set
forth on Schedule A hereto.
(a) The Option hereby granted shall vest in installments
as provided on Schedule A. Notwithstanding the foregoing, in the event of a
Change of Control, if the Optionee has been employed by the Company:
(i) For less than six (6) months on the date of
the Change of Control, the Option shall vest as to that number of whole shares
of Stock (rounding down) as is equal to twenty-five percent (25%) of the number
of outstanding and unvested shares subject to the Option.
(ii) For six (6) months or more but less than
twelve (12) months, the Option shall vest as to that number of whole shares of
Stock (rounding down) as is equal to fifty percent (50%) of the number of
outstanding and unvested shares subject to the Option.
(iii) For twelve (12) months or more but less than
twenty-four (24) months, the Option shall vest as to that number of whole shares
of Stock (rounding down) as is equal to seventy-five percent (75%) of the number
of outstanding and unvested shares subject to the Option.
(iv) For twenty-four (24) months or more, the
Option shall vest as to that number of whole shares of Stock (rounding down) as
is equal to one-hundred percent (100%) of the number of outstanding and unvested
shares subject to the Option.
(b) Any shares of Stock subject to the Option that remain
unvested after a Change of Control shall vest in installments as provided on
Schedule A, except that "the number of shares
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subject to the Option" shall be the number of shares of Stock subject to the
Option that remain outstanding and unvested after the Change of Control, if any.
(c) If so designated on Schedule A hereto, this Option is
intended to be an Incentive Stock Option within the meaning of Section 422 of
the Code.
Section 2. Term of Option. Unless earlier terminated pursuant
to the other provisions herein, the Option hereby granted shall terminate at the
close of business on the date six (6) years from the date of this Agreement (the
"Expiration Date").
(a) In addition, at the close of business on the date the
Optionee's employment with the Company or any Subsidiary terminates for any
reason whatsoever (including, without limitation, by reason of death, Disability
or Retirement) the Option shall terminate as to that number of shares of Stock
as to which the Option is not vested on that date.
(b) If the Optionee's employment is terminated for Cause,
the unexercised portion of the Option will terminate immediately upon the
Optionee's termination of employment.
(c) If the Optionee's employment with the Company or any
Subsidiary terminates for any reason other than Cause, death, Disability or
Retirement, then the Option may be exercised as to the extent vested on the date
of the Optionee's termination of employment at any time prior to the earlier of
the Expiration Date and three (3) months after the date of the Optionee's
termination of employment, and any part of the Option which is not so exercised
within such period shall thereupon terminate.
(d) If the Optionee's employment with the Company or any
Subsidiary terminates by reason of his or her death or Disability, then the
Option may be exercised as to that number of whole shares of Stock as to which
the Option is vested on the date of the Optionee's death or Disability at any
time prior to the earlier of the Expiration Date and twelve (12) months after
the date of the Optionee's death or Disability, and any part of the Option which
is not so exercised within such period shall thereupon terminate.
(e) If the Optionee's employment with the Company or any
Subsidiary terminates by reason of his or her Retirement, the Option may be
exercised as to that number of whole shares of Stock as to which the Option is
vested on the date of the Optionee's termination of employment at any time prior
to the earlier of the Expiration Date and twenty-four (24) months after the date
of the Optionee's Retirement, and any part of the Option which is not so
exercised within such period shall thereupon terminate.
(f) For all purposes of this Agreement, the Optionee's
employment with the Company or any Subsidiary shall terminate at the time when
the employment relationship between the Optionee and the Company or any
Subsidiary is terminated for any reason, which time shall be conclusively
determined from the records of the Company and its Subsidiaries. No termination
of employment shall be deemed to occur (i) when there is a simultaneous
reemployment of an Optionee by the Company or any Subsidiary, (ii) at the
discretion of the Committee, when the severance of employment is temporary or
pursuant to a leave of absence granted by the Company, and (iii) at the
discretion of the Committee, when the termination is followed by the
simultaneous establishment of a consulting relationship by the Company or a
Subsidiary with the Optionee. The Committee, in its absolute discretion, shall
determine the effect of all matters and questions relating to termination of
employment, including, but not by way of limitation, the question of whether a
termination of employment resulted from a discharge for Cause.
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(g) For purposes of this Agreement, "Retirement" shall
mean the cessation of employment with the Company after an Optionee has attained
age fifty-nine and one-half (59 1/2) and completed five (5) or more consecutive
years of service with the Company or any Subsidiary.
(h) For purposes of this Agreement, "Disability" shall
mean "disability" as defined in any employment agreement between the Optionee
and the Company or any Subsidiary, or if not defined therein or if there is no
such agreement, as defined in the Company's long-term disability plan.
Section 3. Manner of Exercise.
(a) To exercise the Option, the Optionee shall provide
notice of such exercise as provided in Annex 1 hereto. In order for the option,
or any part thereof, to be exercised, payment must be received by the Company in
cash or Stock or any combination thereof equal to the product of (i) the
exercise price and (ii) the number of shares of Stock to be purchased at that
time, plus the amount of the withholding taxes estimated in accordance with
Section 6 to be due upon the purchase of such number of shares of Stock, unless
the Committee shall have consented to the making of other arrangements with the
Optionee.
(b) Delivery of the notice of exercise shall constitute
an irrevocable election to purchase the Stock specified in the notice, and the
date on which the Company receives the notice accompanied by payment in full of
the exercise price for the Stock covered by the notice and the applicable
withholding taxes shall be the date as of which the Stock so purchased shall be
deemed to have been issued.
(c) An Optionee may use other Stock that the Optionee has
owned for at least six (6) months as payment of all or any part of the exercise
price, which Stock will be valued at its Fair Market Value as of the date of
exercise.
(d) To exercise the Option upon the Optionee's death, the
persons who acquire the right to exercise the Option must prove to the
Committee's satisfaction that they have duly acquired the Option and that they
have paid (or have provided for payment of) any taxes, such as estate, transfer,
inheritance or death taxes, payable with respect to the Option or to the Stock
to which it relates.
Section 4. Transferability. If the Option hereby granted is
designated on Schedule A as an "Incentive Stock Option," the Option may only be
transferred by will or the laws of descent and distribution and may be exercised
during the Optionee's lifetime only by the Optionee. If this Option is
designated on Schedule A as a "Non-Qualified Stock Option," the Option may be
transferred, without consideration, to immediate family members (i.e., children,
grandchildren or spouse) of the Optionee, to trusts for the benefit of immediate
family members of the Optionee and to partnerships in which the only partners
are immediate family members of the Optionee (collectively referred to as
"Immediate Family Members"); provided that, prior to any such transfer, the
Immediate Family Members enter into an agreement with the Company (in form and
substance satisfactory to the Company) agreeing to be bound by the provisions of
Section 5 of this Agreement. Except as permitted by the preceding sentence, this
Option may only be transferred by will or the laws of descent and distribution
and may be exercised during the Optionee's lifetime only by the Optionee.
Section 5. Right of First Refusal. Before any Stock acquired
pursuant to the exercise of this Option and held by the Optionee or any
transferee (either being sometimes referred to as the "Holder") may be sold or
otherwise transferred (including by gift or by operation of law), the Company
shall have a right of first refusal to purchase the Stock on the terms and
conditions set forth
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below (the "Right of First Refusal"). The certificate representing such acquired
Stock shall contain a legend or notation indicating that the Stock is subject to
the Right of First Refusal.
(a) The Holder of the Stock shall deliver to the Company
a written notice (the "Notice") stating: (i) the Holder's bona fide intention to
sell or otherwise transfer such Stock; (ii) the name of each proposed purchaser
or other transferee ("Proposed Transferee"); (iii) the number of shares of Stock
to be transferred to each Proposed Transferee; and (iv) the bona fide cash price
or other consideration for which the Holder proposes to transfer the Stock (the
"Offered Price"), and the Holder shall offer the Stock at the Offered Price to
the Company.
(b) At any time within fifteen (15) days after receipt of
the Notice, the Company may, by giving written notice to the Holder, elect to
purchase all, but not less than all, of the shares of Stock proposed to be
transferred to any one or more of the Proposed Transferees, at the Offered
Price; provided, however, that if the Offered Price includes consideration other
than cash, the cash equivalent value of the non-cash consideration shall be
determined by the Board of Directors of the Company in good faith.
(c) The Offered Price shall be payable on the terms
established by the Board of Directors of the Company and, at the option of the
Company, the Offered Price may be payable in cash (by check), by cancellation of
all or a portion of any outstanding indebtedness of the Holder to the Company,
or by any combination thereof within fifteen (15) days after receipt of the
Notice or in the manner and at the times set forth in the Notice.
(d) If all of the shares of Stock proposed in the Notice
to be transferred to a given Proposed Transferee are not purchased by the
Company as provided in this Section 5, then the Holder may sell or otherwise
transfer such shares of Stock to such Proposed Transferee at the Offered Price
or at a higher price, provided that such sale or other transfer is consummated
within one hundred twenty (120) days after the date of the Notice, that any such
sale or other transfer is effected in accordance with any applicable securities
laws and that the Proposed Transferee agrees in writing that the provisions of
this Section shall continue to apply to the shares of Stock in the hands of such
Proposed Transferee. If the shares of Stock described in the Notice are not
transferred to the Proposed Transferee within such period, a new Notice shall be
given to the Company, and the Company shall again be offered the Right of First
Refusal before any shares of Stock held by the Holder may be sold or otherwise
transferred.
(e) The Right of First Refusal shall not be applicable to
a transfer of Stock to an Immediate Family Member(s); provided, that, prior to
any such transfer, the Immediate Family Member(s) enters into an agreement with
the Company (in form and substance satisfactory to the Company) agreeing to be
bound by the provisions of this Section 5. The Right of First Refusal shall
terminate as to any shares of Stock upon the first sale of Stock of the Company
to the general public pursuant to a registration statement filed with and
declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act").
Section 6. Withholding Taxes.
(a) At the time of the exercise of all or any part of
this Option, the Optionee shall pay to the Company (or otherwise make
arrangements satisfactory to the Committee for the payment of) the amount of the
Federal, state and local and foreign income and employment taxes required, in
the Company's sole judgment, to be collected or withheld with respect to the
exercise of the Option. Such amount shall be paid to the Company in cash or by
the surrender of that number of whole shares of Stock with a Fair Market Value
(valued on the date of exercise) as shall be equal to, but does not
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exceed, the minimum statutory amounts required to be collected or withheld by
the Company with respect to the exercise of the Option.
(b) If the Option herein granted is designated as an
Incentive Stock Option, then the Optionee agrees that at the time of any
"disqualifying disposition" (as defined in Prop. Treas. Reg. Section
1.422A-1(b)(1)) of the Stock acquired upon exercise of this Option on or after
January 1, 2003, the Optionee shall pay to the Company (or otherwise make
arrangements satisfactory to the Committee for the payment of) the amount of the
Federal, state and local and foreign income and employment taxes required, in
the Company's sole judgment, to be collected or withheld with respect to the
disqualifying disposition of the Stock acquired upon exercise of the Option.
Such amount shall be paid to the Company in cash or by the surrender of that
number of whole shares of Stock with a Fair Market Value (valued on the date of
exercise) as shall be equal to, but does not exceed, the minimum statutory
amounts required to be collected or withheld by the Company with respect to the
exercise of the Option.
Section 7. Lock-Up Period. The Optionee agrees that if so
requested by the Company or any representative of the underwriters (the
"Managing Underwriter") in connection with any registration of the offering of
any securities of the Company under the Securities Act, the Optionee shall not
sell or otherwise transfer any shares of Stock or other securities of the
Company during a period of up to 180 days (the "Market Standoff Period")
following the effective date of a registration statement of the Company filed
under the Securities Act. Such restriction shall apply only to the first
registration statement of the Company to become effective under the Securities
Act that includes securities to be sold on behalf of the Company to the public
in an underwritten public offering under the Securities Act. The Company may
impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such Market Standoff Period.
Section 8. Rights in Stock Before Issuance and Delivery. No
person shall be entitled to become a stockholder of the Company, unless and
until such Stock has been issued (or deemed to have been issued) to such person
as fully paid Stock.
Section 9. No Right to Employment. Nothing contained herein
shall be construed to confer on the Optionee any right to continue as an
employee of the Company or to derogate from any right of the Company to retire,
request the resignation of or discharge the Optionee, or to lay off or require a
leave of absence of the Optionee, with or without pay, at any time, with or
without Cause.
Section 10. Qualifications to Exercise. Anything in this
Agreement to the contrary notwithstanding, in no event may the Option be
exercisable if the Company shall, at any time and in its sole discretion,
determine that (a) the listing, registration or qualification of any shares of
Stock otherwise deliverable upon such exercise, upon any securities exchange or
under any state or federal law, or (b) the consent or approval of any regulatory
body, is necessary or desirable in connection with such exercise. In such event,
such exercise shall be held in abeyance and shall not be effective unless and
until such listing, registration, qualification or approval shall have been
effected or obtained free of any conditions not acceptable to the Company.
Section 11. Conditions to Transfer. Unless the issuance of the
shares of Stock upon the exercise of the Option has been registered under the
Securities Act, the Committee may require as a condition to the right to
exercise the Option hereunder that the Company receive from the person
exercising the Option representations, warranties and agreements, at the time of
any such exercise, to the effect that the shares of Stock are being purchased
for investment only and without any present intention to sell or otherwise
distribute such shares of Stock and that such shares of Stock will not be
disposed of in transactions which, in the opinion of counsel to the Company,
would violate the
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registration provisions of the Securities Act and the rules and regulations
thereunder. The certificate issued to evidence such shares of Stock shall bear
appropriate legends summarizing these restrictions on the disposition thereof
and the restriction on transferability contained in Section 5 hereof.
Section 12. Entire Agreement. This Agreement and the Plan
contain the entire agreement between the parties hereto with respect to the
matters contemplated herein and supersede all prior agreements or understandings
among the parties related to such matters.
Section 13. Binding Effect. Subject to the restrictions on
transfer herein set forth, this Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and upon the Optionee and
his or her assigns, heirs, executors, administrators and legal representatives.
Section 14. Amendment or Modification; Waiver. This Agreement
may be amended, modified, superseded, canceled, renewed or extended, and the
terms or covenants hereof may be waived, only by a written instrument executed
on behalf of the Company (as authorized by the Committee) and the Optionee.
Section 15. Governing Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
Section 16. Defined Terms. Capitalized terms used in this
Agreement and not otherwise defined herein have the meaning ascribed to them in
the Plan.
Section 17. The Plan. The Optionee acknowledges having
received a copy of the Plan. The Option herein granted is subject to all of the
terms and provisions of the Plan, all of which are hereby incorporated herein by
reference. In the event of any inconsistency between the provisions of this
Agreement and the provisions of the Plan, the provisions of the Plan shall
govern.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
COMPANY:
INHIBITEX, INC.
By:
------------------------------------
Name:
Title:
OPTIONEE:
By:
------------------------------------
(First)(Last)
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SCHEDULE A
to
STOCK OPTION AGREEMENT
between
Inhibitex, Inc.
and
(First) (Last)
Dated: (Anniversary Date) (Grant Year)
Stock Option No. (Stk Opt No)
1. Number of Shares Subject to Option: (Shares Granted) shares of stock.
2. Type of Option: X Incentive Stock Option
---------
Non-Qualified Stock Option
---------
3. Exercise Price: $ per share.
--------
4. Grant Date: (Anniversary Date) (Grant Year)
5. Vesting: Anniversary of Grant Date Percent Vested
------- ------------------------- --------------
(Anniversary Date) 2006 25%
(Anniversary Date) 2007 25%
(Anniversary Date) 2008 25%
(Anniversary Date) 2009 25%
6. Expiration Date: (Anniversary Date) 2011
COMPANY:
INHIBITEX, INC.
By:
------------------------------------
Name:
Title:
OPTIONEE:
By:
------------------------------------
(First) (Last)
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