Exhibit 10.24
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is between Lipid Sciences, Inc., a Delaware corporation
(the "Company"), and the person whose signature is set forth on the signature
page hereof ("Participant").
RECITALS
WHEREAS, the Company has adopted the Lipid Sciences, Inc. 2000 Stock
Option Plan, (the "Plan"), which provides for the grant of incentive stock
options to Employees and other eligible individuals;
WHEREAS, Participant is an Employee and is in a position to contribute
materially to the continued growth and development and the future financial
success of the Company;
WHEREAS, the Company wishes to grant to Participant an incentive stock
option to purchase common stock of the Company (the "Common Stock") on the terms
and conditions specified herein to provide a means for the Participant to
participate in the future growth of the Company and to increase the
Participant's incentive and personal interest in the continued success and
growth of the Company; and
NOW, THEREFORE, the parties agree as follows (any capitalized terms used
herein but not defined herein will have the respective meanings given in the
Plan):
1. Option.
(a) Grant. Subject to the terms and conditions of this Agreement
and the Plan, the Company hereby grants to Participant an Incentive Stock Option
to purchase all or any part of the shares set forth on the signature page
hereof, at the exercise price set forth on the signature page hereof. The Option
is intended to be an "incentive stock option" as defined in Section 422 of the
Code.
(b) Term. The term of the Option will expire at 11:59 p.m. on the
date which is 10 years following the date of grant of the Option.
(c) Vesting. Options will vest as to one hundred thousand
(100,000) shares following the first six (6) continuous months of service with
the Company and the remainder over four and one half years at the rate 1/54th
per month of the total 1,000,000 shares.
2. Exercise. The Option may not be exercised prior to the date it is
vested or after the expiration date. Participant may, subject to the limitations
of this Agreement
and the Plan, exercise all or any portion of the Option that has vested pursuant
to Section 1 hereof by providing written notice of exercise to the Company
specifying the number of shares with respect to which the Option is being
exercised and accompanied by payment of the exercise price for such shares. The
exercise price will be paid in cash, by certified check or cashier's check
payable to the Company, or by the surrender of a whole number of previously
owned shares (free of all adverse claims and duly endorsed in blank by
Participant or accompanied by stock powers duly endorsed in blank) having a Fair
Market Value on the date of exercise equal to the exercise price. Upon full
payment of the exercise price, the Company will promptly deliver to the
Participant a certificate or certificates for the number of Shares in respect of
which the Option has been exercised, legended as described herein and as
required by applicable law. No portion of the Option may be exercised after it
has expired pursuant to Section 1 hereof.
3. Termination of Employment.
(a) If the employment of Participant terminates by reason of
disability, Participant (or his or her legal representative) may exercise any
portion of the Option which has vested pursuant to Section 1 hereof as of the
date of such termination of employment for a period of one year after the date
of such termination of employment and not thereafter; provided, however, that no
Option or portion thereof will be exercisable after it has expired pursuant to
Section 1 hereof. For purposes of this Agreement, the term "disability" will
mean a total and permanent disability as determined by the Board of Directors in
its sole discretion.
(b) If the employment of Participant terminates by reason of
death, Participant's Beneficiary (as hereinafter defined) may exercise the
Option for a period of one year after the date of death and not thereafter;
provided, however, that no Option or portion thereof will be exercisable after
it has expired pursuant to Section 1 hereof. During the period of employment of
the Participant, the Company will provide a term insurance policy on the life of
the Participant in the amount of $500,000, payable upon the death of Participant
to the Beneficiary.
(c) If the employment of Participant is terminated by the Company
without Cause (as hereinafter defined) or is terminated by Participant for any
reason other than death or disability, Participant (or his or her legal
representative) may exercise any portion of the Option which has vested pursuant
to Section 1 hereof as of the date of such termination of employment for a
period of three months after the date of such termination of employment and not
thereafter.
(d) If the employment of the Participant terminates for Cause, the
entire Option (whether vested or non-vested) will immediately be forfeited and
become null and void. For purposes hereof, "Cause" will mean material
nonfeasance, material
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malfeasance or material misfeasance on the part of the Participant which, if
susceptible of cure, will continue after notice of the default and a reasonable
opportunity to cure.
4. Withholding. If any part of this Option is not permitted to be an
Incentive Stock Option under the Code, then the Participant agrees to pay to the
Company such amount as is requested by the Company for the purpose of satisfying
the Company's obligation to withhold federal, state or local taxes in connection
with any exercise of any non-qualified portion of this Option. The Participant
may elect to satisfy such withholding obligation, in whole or in part, (a) by
causing the Company to withhold shares otherwise issuable pursuant to the
exercise of the Option or (b) by delivering to the Company shares already owned
by the Participant. The Shares so delivered or withheld will be a whole number,
have a Fair Market Value equal to such withholding obligation as of the date
that the amount of tax to be withheld is to be determined, will be free of all
adverse claims, and will be duly endorsed in blank by Participant or accompanied
by stock powers duly endorsed in blank.
5. Nonalienation. Participant will have no rights to sell, assign,
transfer, pledge, or otherwise alienate the Option under this Agreement, except
by will or by the laws of descent, and any such attempted sale, assignment,
transfer, pledge or other conveyance will be null and void. The Option will be
exercisable during the Participant's lifetime only by the Participant (or his or
her legal representative).
6. Beneficiary. The person whose name appears on the signature page
hereof after the caption "Beneficiary" or any successor designated by
Participant in accordance herewith (the person who is Participant's Beneficiary
at the time of his or her death is referred to as the "Beneficiary") will be
entitled to exercise the Option, to the extent it is exercisable, after the
death of Participant. Participant may from time to time revoke or change his or
her Beneficiary designation without the consent of any prior Beneficiary by
filing a new designation with the Board of Directors. The last such designation
received by the Board of Directors will be controlling; provided, however, that
no designation, or change or revocation thereof, will be effective unless
received by the Board of Directors prior to Participant's death, and in no event
will any designation be effective as of a date prior to such receipt. If no
Beneficiary designation is in effect at the time of Participant's death, or if
no designated Beneficiary survives Participant or if such designation conflicts
with law, Participant's estate will be entitled to exercise the Option, to the
extent it is exercisable after the death of Optionee. If the Board of Directors
is in doubt as to the right of any person to exercise the Option, the Company
may refuse to recognize such exercise, without liability for any interest or
dividends on the underlying Shares, until the Board of Directors determines the
person entitled to exercise the Option, or the Company may file an interpleader
action with any court of appropriate jurisdiction and such application will be a
complete discharge of the liability of the Company therefor.
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7. Securities Law Restrictions. Participant acknowledges that he is
acquiring the Option and the shares purchasable pursuant to the Option for
investment purposes only and not with a view to resale or other distribution
thereof to the public in violation of the Securities Act of 1933, as amended
(the "Act"). Participant agrees and acknowledges with respect to any shares that
have not been registered under the Act, that (i) Participant will not sell or
otherwise dispose of such shares except pursuant to an effective registration
statement under the Act and any applicable state securities laws, or in a
transaction which in the opinion of counsel for the Company, is exempt from such
registration, and (ii) a legend will be placed on the certificates for the
shares to such effect.
8. Limited Interest.
(a) The grant of the Option will not be construed as giving
Participant any interest other than as provided in this Agreement.
(b) Participant will have no rights as a shareholder as a result
of the grant of the Option, until the Option is exercised, the exercise price is
paid, and the shares are issued thereunder.
(c) The grant of the Option will not confer on Participant any
right to continue as an employee, nor interfere in any way with the right of the
Company to terminate the Participant's employment at any time.
(d) The grant of the Option will not affect in any way the right
or power of the Company to make or authorize any or all adjustments,
recapitalizations, reorganizations, or other changes in the Company's capital
structure or its business, or any merger, consolidation or business combination
of the Company, or any issuance or modification of any term, condition, or
covenant of any bond, debenture, debt, preferred stock or other instrument ahead
of or affecting the shares or the rights of the holders thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business or any other Company act or proceeding, whether
of a similar character or otherwise.
9. Right of First Refusal. The shares purchasable pursuant to the
Option are subject to a right of first refusal as described in this Section.
a. Right of First Refusal Transfer Notice. If at any time the
Participant proposes to transfer the shares to one or more
third parties under an understanding with a third party (a
"Transfer"), then the Participant will give the Company and
each other stockholder written notice of Participant's
intention to make the Transfer (the "Transfer Notice"), which
Transfer Notice must include (i) a description of the shares
to be transferred ("Offered Shares"), (ii) the identity of the
prospective
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transferee(s), and (iii) the consideration and the material
terms and conditions upon which the proposed Transfer is to be
made. The Transfer Notice will certify that Participant has
received a firm offer from the prospective transferee(s) and
in good faith believes a binding agreement for the Transfer is
obtainable on the terms set forth in the Transfer Notice. The
Transfer Notice will also include a copy of any written
proposal, term sheet or letter of intent or other agreement
relating to the proposed Transfer.
b. Company's Option. The Company has an option for a period of
ten (10) days from receipt of the Transfer Notice to elect to
purchase the Offered Shares at the same price and subject to
the same material terms and conditions as described in the
Transfer Notice. The Company may exercise this purchase option
and purchase all (or a portion of) the Offered Shares by
notifying Participant in writing before expiration of the ten
(10) day period as to the number of shares it wishes to
purchase. If the Company gives Participant notice that it
desires to purchase the shares, then payment of the Offered
Shares will be by check or wire transfer, against delivery of
the Offered Shares to be purchased at a place agreed upon
between the parties and at the time of the scheduled closing
therefor, which will be no later than forty-five (45) days
after the Company's receipt of the Transfer Notice, unless the
Transfer Notice contemplated a later closing with the
prospective third party transferee(s) or unless the value of
the purchase price has not yet been established. If the
Company fails to purchase all of the Offered Shares by
exercising the option granted in this Section within the
period provided, the Offered Shares will be subject to the
options granted to the other stockholders.
c. Additional Transfer Notice. Subject to the Company's right set
forth in Section 9(b), if Participant proposes a Transfer,
then, after the Company has declined to purchase all, or a
portion of, the Offered Shares, the Stockholder will give each
other stockholder an "Additional Transfer Notice" that
includes all of the information and certifications required in
a Transfer Notice and will additionally identify the Offered
Shares that the Company has declined to purchase (the
"Remaining Shares") and briefly describe the other
stockholders' rights of first refusal and co-sale rights with
respect to the proposed Transfer.
d. Other Stockholders' Option. The other stockholders have an
option for a period of twenty (20) days from the receipt of
the Additional
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Transfer Notice from Participant set forth in Section 9(c) to
elect to purchase their respective pro rata shares of the
Remaining Shares at the same price and subject to the same
material terms and conditions as described in the Additional
Transfer Notice. Each of the other stockholders may exercise
the purchase option and, thereby, purchase all or any portion
of his, her or its pro rata share (with any reallotments as
provided below) of the Remaining Shares, by notifying
Participant and the Company in writing, before expiration of
the twenty (20) day period as to the number of such shares
that he, she, or it wishes to purchase (including any
reallotment). Each of the other stockholders' pro rata share
of the Remaining Shares will be a fraction of the Remaining
Shares, of which the number of shares of Common stock owned by
the other stockholder on the date of the Transfer Notice will
be the numerator and the total number of shares of Common
Stock held by the other stockholder and all other stockholders
on the date of the Transfer Notice will be the denominator.
Each of the other stockholders will have a right of
reallotment that, if any of the stockholders fails to exercise
the right to purchase its full pro rata share of the Remaining
Shares, the other participating stockholders may exercise an
additional right to purchase, on a pro rata basis, the
Remaining Shares not previously purchased. Each stockholder is
entitled to apportion Remaining Shares to be purchased among
its partners and affiliates, provided that the stockholder
notifies Participant of this allocation. If a stockholder
gives Participant notice that it desires to purchase its pro
rata share of the Remaining Shares and, as the case may be ,
its reallotment, then payment for the Remaining Shares will be
by check or wire transfer, against delivery of the Remaining
Shares to be purchased at a place agreed upon between the
parties and at the time of the scheduled closing, which will
be no later than forty-five (45) days after the Company's
receipt of the Transfer Notice, unless the Transfer Notice
contemplated a later closing with the prospective third party
transferee(s) or unless the value of the purchase price has
not yet been established.
e. The value of the shares purchasable pursuant to the Option
will be established by reference to the bona fide third party
offer or if the consideration is other than cash, the
Company's Board of Directors will determine the value of the
shares.
f. Legend. Each existing or replacement certificate for shares
now owned or hereafter acquired by the other stockholders will
bear the following legend upon its face: The sale, pledge,
hypothecation,
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assignment, or transfer of the securities represented by this
certificate is subject to the terms and conditions of a right
of first refusal between the stockholder and the corporation
described in the Incentive Stock Option Agreement. Copies of
this agreement may be obtained upon written request to the
secretary of the corporation.
g. This right of first refusal terminates on the earlier of (i)
the quotation of the Common Stock on the Nasdaq Small Cap or
National Market System and (ii) the closing of the Company's
sale of all or substantially all of its assets or the
acquisition of the Company by another entity by means of
merger, consolidation, or other transaction or series of
related transactions resulting in the exchange of the
outstanding shares of the Company's capital stock such that
the stockholders of the Company prior to the transaction own,
directly or indirectly, less than 50% of the voting power of
the surviving entity.
10. Lock-up. Participant may not, without the prior written consent of
the Company's Board of Directors, during the period commencing on the date that
the Common Stock begins trading on Nasdaq and ending on the date two years after
the beginning trading date (i) lend, offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, otherwise transfer or dispose
of, directly or indirectly, any shares of the Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock (whether such
shares or any such securities are then owned by Participant or are thereafter
acquired), or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i) and (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. In order to enforce the covenant in this Section, the Company
may imposed stop-transfer instructions with respect to the shares of Participant
until the end of the relevant period.
11. Incorporation by Reference. The terms of the Plan to the extent not
stated herein are expressly incorporated herein by reference and in the event of
any conflict between this Agreement and the Plan, the Plan will govern.
12. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California.
13. Amendment. This Agreement may not be amended, modified, terminated
or otherwise altered except by the written consent of the parties hereto.
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14. Counterparts. This Incentive Stock Option Agreement may be executed
in one or more counterparts, each of which will be deemed to be an original but
all of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed
by its duly authorized officer and its corporate seal hereunto affixed, and the
Optionee has hereunto affixed his or her hand, all on the day and year set forth
below.
LIPID SCIENCES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Xxxxxxxxxxx X. Xxxxxxx
Chairman of the Board
("Company")
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
("Participant")
No. of Shares: 1,000,000 Grant Date: June 1, 2000
Exercise Price Per Share: $3.50 Initial Exercise Date: December 1, 2000
Date of Agreement: June 1, 2000 Option Expiration Date: June 1, 2010
Beneficiary: Address of Beneficiary:
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Beneficiary Tax Identification No.:
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