Exhibit 10.3
[ALTOEN LOGO]
ALTEON INC.
CONSULTANT'S NON-QUALIFIED STOCK OPTION GRANT AGREEMENT
Optionee:_______________________________________________________________________
Address:________________________________________________________________________
Shares Subject to Option:_______________________________________________________
Exercise Price Per Share:_______________________________________________________
Date of Grant:__________________________________________________________________
Expiration Date:________________________________________________________________
Vesting Schedule:
1. Grant of Option. Alteon Inc. (the "Company"), a Delaware corporation,
hereby grants to the consultant named above (the "Optionee") an option (this
"Option") to purchase the total number of shares of common stock of the Company
("Common Stock") set forth above (the "Shares") at the exercise price per share
set forth above (the "Exercise Price"), subject to all of the terms and
conditions set forth herein, under United States securities and tax laws and the
Company's 2005 Stock Plan (the "Plan") which is incorporated herein by
reference. This Option is not intended to qualify as an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended, and shall be considered a non-qualified stock option.
2. Vesting Schedule of Option. Subject to the terms and conditions of the
Plan and this Option, this Option shall vest and become exercisable as set forth
above. Notwithstanding anything to the contrary contained herein, unless
previously terminated pursuant to Section 4 hereof, any portion of this Option
which is not vested and exercisable on the day immediately preceding the
Expiration Date shall vest and become exercisable on such date; provided,
however, that this Option shall expire on the Expiration Date and must be
exercised, if at all, on or before the Expiration Date.
3. Restrictions.
(a) This Option may not be exercised unless such exercise is in
compliance with the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, all applicable state securities laws, and the
requirements of the National Association of Securities Dealers or any stock
exchange upon which the Shares may then be listed, as they are in effect on the
date of exercise.
(b) This Option may not be exercised as to fewer than 100 Shares
unless it is exercised as to all Shares as to which this Option is then
exercisable.
4. Termination of Option.
(a) This Option shall terminate on the Expiration Date and must be
exercised, if at all, on or before the Expiration Date. This Option shall be
subject to earlier termination if the Optionee ceases to be considered a
consultant of the Company. The Optionee shall be considered to be a consultant
of the
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Exhibit 10.3
Company if engaged by the Company or any Affiliate (as defined in the Plan) to
render services and is compensated for such services, including as an advisor.
The payment of a director's fee by the Company shall not render a director a
consultant hereunder. The Administrator (as defined in the Plan) shall have
discretion to determine whether the Optionee has ceased to be a consultant of
the Company or any Affiliate of the Company and the effective date on which such
consulting relationship terminated (the "Termination Date").
(b) If the Optionee ceases to be a consultant to the Company or any
Affiliate of the Company for any reason, except death, Disability (as defined in
the Plan), or termination of the Consultant for "cause" (as defined in the
Plan), this Option, to the extent (and only to the extent) that it would have
been exercisable by the Optionee on the Termination Date, may be exercised by
the Optionee within three months after the Termination Date, but in any event no
later than the Expiration Date. Notwithstanding the foregoing, in the event of
the Optionee's death or Disability within three months after the termination of
consultancy, the Optionee or the Optionee's Survivors may exercise this Option
within one year after the date of the Optionee's termination but in any event no
later than the Expiration Date.
(c) If the Optionee's consultancy with the Company or any Affiliate
of the Company is terminated because of the death or Disability of the Optionee,
this Option may be exercised by the Optionee (or the Optionee's Survivor) within
one year after the Termination Date, but in any event no later than the
Expiration Date. In such event this Option shall be exercisable:
(i) to the extent that this Option has become exercisable but
has not been exercised as of the date of death or Disability; and
(ii) in the event rights to exercise this Option accrue
periodically over time, to the extent of a pro rata portion through the date of
death or Disability of any additional vesting rights that would have accrued on
the next vesting date had the Optionee not died or become Disabled. The
proration shall be based upon the number of days accrued in the current vesting
period prior to the date of death or Disability.
(d) If the Optionee's consultancy with the Company or any Affiliate
of the Company is terminated for "cause" (as defined in the Plan) the right to
exercise all or any portion of this Option shall terminate immediately as of the
time the Optionee is notified his or her consultancy is terminated for cause.
Notwithstanding anything herein to the contrary, if subsequent to an Optionee's
termination but prior to the exercise of this Option, the Board of Directors of
the Company determines that, either prior or subsequent to the Optionee's
termination, the Optionee engaged in conduct which would constitute "cause" then
the Optionee shall immediately cease to have any right to exercise this Option
and this Option shall thereupon terminate.
(e) Nothing in the Plan or this Option shall confer on the Optionee
any right to continue as a consultant with the Company or any Affiliate or limit
in any way the right of the Company or any Affiliate to terminate the Optionee's
consulting relationship at any time, with or without cause.
5. Manner of Exercise.
(a) This Option shall be exercisable by delivery to the Company or
its designee of an executed Stock Option Exercise Notice and Agreement in the
form attached hereto as Exhibit A, or in such other form as may be approved by
the Company, which shall set forth the Optionee's election to exercise this
Option, the number of Shares being purchased, any restrictions imposed on the
Shares and such other representations and agreements regarding the Optionee's
investment intent and access to information as may be required by the Company to
comply with applicable laws. Payment of the purchase price for such Shares shall
be made in accordance with Paragraph 9 of the Plan.
(b) Prior to the issuance of the Shares upon exercise of this
Option, the Optioneee agrees that the Company may withhold, if required by law,
from the Optionee's remuneration, if any, the minimum statutory amount of
federal, state and local withholding taxes attributable to such amount that is
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Exhibit 10.3
considered compensation includable in such person's gross income. At the
Company's discretion, the amount required to be withheld may be withheld in cash
from such remuneration, or in kind from the Shares otherwise deliverable to the
Optionee on exercise of the Option. The Optionee further agrees that, if the
Company does not withhold an amount from the Optionee's remuneration sufficient
to satisfy the Company's income tax withholding obligation, the Optionee will
reimburse the Company on demand, in cash, for the amount under-withheld.
(c) Provided that such notice and payment are in form and substance
satisfactory to the Company, the Company shall issue the Shares registered in
the name of the Optionee or the Optionee's Survivor.
(d) The Optionee acknowledges and agrees that neither the Company,
its shareholders nor its directors and officers, has any duty or obligation to
disclose to the Optionee any material information regarding the business of the
Company or affecting the value of the Shares before, at the time of, or
following a termination of the consultancy of the Optionee by the Company,
including, without limitation, any information concerning plans for the Company
to make a public offering of its securities or to be acquired by or merged with
or into another firm or entity.
6. Compliance with Laws and Regulations. The issuance and transfer of
Shares shall be subject to compliance by the Company and the Optionee with all
applicable requirements of federal and state securities laws and with all
applicable requirements of the National Association of Securities Dealers or any
stock exchange on which the Common Stock may be listed at the time of such
issuance or transfer. The Optionee understands that the Company is under no
obligation to register or qualify the Shares with the Securities and Exchange
Commission, any state securities commission, the National Association of
Securities Dealers or any stock exchange to effect such compliance.
7. Nontransferability of Option. This Option may not be transferred in any
manner other than by will or by the laws of descent and distribution and may be
exercised during the lifetime of the Optionee only by the Optionee. The terms of
this Option shall be binding upon the executors, administrators, successors and
assigns of the Optionee. However, the Optionee, with the approval of the
Administrator, may transfer any portion of this Option for no consideration to
or for the benefit of the Optionee's Immediate Family (including, without
limitation, to a trust for the benefit of the Optionee's Immediate Family or to
a partnership or limited liability company for one or more members of the
Optionee's Immediate Family), subject to such limits as the Administrator may
establish, and the transferee shall remain subject to all the terms and
conditions applicable to this Option prior to such transfer and each such
transferee shall so acknowledge in writing as a condition precedent to the
effectiveness of such transfer. The term "Immediate Family" shall mean the
Optionee's spouse, former spouse, parents, children, stepchildren, adoptive
relationships, sisters, brothers, nieces, nephews and grandchildren (and, for
this purpose, shall also include the Optionee.) The terms of this Option shall
be binding upon the executors, administrators, successors and assigns of the
Optionee.
8. Tax Consequences. The Optionee acknowledges that any income or other
taxes due from him or her with respect to this Option or the Shares issuable
pursuant to this Option shall be the Optionee's responsibility. The Optionee
acknowledges that upon exercise of this Option the Optionee will be deemed to
have taxable income measured by the difference between the then fair market
value of the Shares received upon exercise and the price paid for such Shares
pursuant to this Agreement.
9. No Rights As Stockholder Until Exercise. The Optionee shall have no
rights as a stockholder with respect to Shares subject to this Agreement until
registration of the Shares in the Company's share register in the name of the
Optionee. Except as is expressly provided in the Plan with respect to certain
changes in the capitalization of the Company, no adjustment shall be made for
dividends or similar rights for which the record date is prior to the date of
such registration.
10. Adjustments. The Plan contains provisions covering the treatment of
Options in a number of contingencies such as stock splits and mergers.
Provisions in the Plan for adjustment with respect to
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stock subject to Options and the related provisions with respect to successors
to the business of the Company are hereby made applicable hereunder and are
incorporated herein by reference.
11. Interpretation. Any dispute regarding the interpretation of this
Option shall be submitted by the Optionee or the Company forthwith to the
Administrator, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Administrator shall be final and binding on
the Company and on the Optionee.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with the law of the State of Delaware, without giving effect to the
conflict of law principles thereof. For the purpose of litigating any dispute
that arises under this Agreement, the parties hereby consent to exclusive
jurisdiction in New Jersey and agree that such litigation shall be conducted in
the state courts of New Jersey or the federal courts of the United States for
the District of New Jersey.
13. Entire Agreement. The Plan and the Notice and Agreement attached as
Exhibit A are incorporated herein by reference. This Option, the Plan and the
Notice and Agreement constitute the entire agreement of the parties and
supersede all prior undertakings and agreements with respect to the subject
matter hereof.
14. Modifications And Amendments. The terms and provisions of this
Agreement may be modified or amended as provided in the Plan.
15. Waivers And Consents. Except as provided in the Plan, the terms and
provisions of this Agreement may be waived, or consent for the departure
therefrom granted, only by written document executed by the party entitled to
the benefits of such terms or provisions. No such waiver or consent shall be
deemed to be or shall constitute a waiver or consent with respect to any other
terms or provisions of this Agreement, whether or not similar. Each such waiver
or consent shall be effective only in the specific instance and for the purpose
for which it was given, and shall not constitute a continuing waiver or consent.
16. Data Privacy. By entering into this Agreement, the Optionee: (i)
authorizes the Company and each Affiliate, and any agent of the Company or any
Affiliate administering the Plan or providing Plan recordkeeping services, to
disclose to the Company or any of its Affiliates such information and data as
the Company or any such Affiliate shall request in order to facilitate the grant
of options and the administration of the Plan; (ii) waives any data privacy
rights he or she may have with respect to such information; and (iii) authorizes
the Company and each Affiliate to store and transmit such information in
electronic form.
ALTEON INC.
By: ________________________________________
Xxxxxxx X. Xxxx
Title: President and Chief Executive Officer
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Exhibit 10.3
ACCEPTANCE
The Optionee hereby acknowledges receipt of a copy of the Plan, represents that
the Optionee has read and understands the terms and provisions thereof, and
accepts this Option subject to all the terms and provisions of the Plan and this
Option. The Optionee acknowledges that there may be adverse tax consequences
upon exercise of this Option or disposition of the Shares and that the Optionee
should consult a tax adviser prior to such exercise or disposition.
____________________________________________________
Signature Date
6-23
Exhibit 10.3
EXHIBIT A
STOCK OPTION EXERCISE NOTICE AND AGREEMENT
Alteon Inc.
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Secretary
1. Exercise of Option. The undersigned ("Optionee") hereby elects to
exercise his or her option to purchase _________ shares (the "Shares") of the
common stock, $.01 par value, of Alteon Inc. (the "Company"), under and pursuant
to the terms and conditions of the Company's 2005 Stock Plan (the "Plan"), and
the Consultant's Non-Qualified Stock Option Grant Agreement dated
_______________ (the "Option").
2. Representations of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Plan and the Option and agrees to abide by and
be bound by their terms and conditions.
3. Restrictions on Transfer. Optionee understands that the Shares may not
be sold or otherwise transferred unless they are registered under the Securities
Act of 1933, as amended, and applicable state securities acts or unless
exemptions from such registration requirements are available. Optionee
understands that the Company is under no obligation to register the Shares and
that an exemption may not be available or may not permit the Optionee to
transfer Shares in the amounts or at the times proposed by Optionee.
4. Tax Consequences. Optionee understands that Optionee may suffer adverse
tax consequences as a result of Optionee's purchase or disposition of the
Shares. Optionee represents that Optionee has consulted with any tax
consultant(s) Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
5. Delivery of Payment. With this Stock Option Exercise Notice and
Agreement, Optionee is delivering to the Company the aggregate purchase price of
the Shares that Optionee has elected to purchase and has made provision for the
payment of any federal or state withholding taxes required to be paid or
withheld by the Company.
6. Entire Agreement. The Plan and Option are incorporated herein by
reference. This Agreement, the Plan and the Option constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter
hereof, and are governed by New Jersey law except for that body of law
pertaining to conflict of laws.
SUBMITTED BY: ACCEPTED BY:
ALTEON INC.
Optionee: ______________________________ By:_________________________
Social
Security
Number:_________________________________ Name:_______________________
Address:________________________________ Title:______________________
Dated: _________________________________ Dated:______________________
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