Exhibit 10.2.1
INCENTIVE STOCK OPTION AGREEMENT
METABOLIX, INC.
AGREEMENT made as of the _______, ___ 200_, between Metabolix, Inc. (the
"Company"), a Delaware corporation, and _____________, an employee of the
Company (the "Employee").
WHEREAS, the Company desires to grant to the Employee an Option to purchase
shares of its common stock, $.01 par value per share (the "Shares"), under and
for the purposes set forth in the Company's 2005 Stock Plan (the "Plan");
WHEREAS, the Company and the Employee understand and agree that any terms
used and not defined herein have the same meanings as in the Plan; and
WHEREAS, the Company and the Employee each intend that the Option granted
herein qualify as an ISO.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. GRANT OF OPTION.
The Company hereby grants to the Employee the right and option to purchase
all or any part of an aggregate of _______ Shares, on the terms and conditions
and subject to all the limitations set forth herein, under United States
securities and tax laws, and in the Plan, which is incorporated herein by
reference. The Employee acknowledges receipt of a copy of the Plan.
2. PURCHASE PRICE.
The purchase price of the Shares covered by the Option shall be $______ per
Share, subject to adjustment, as provided in the Plan, in the event of a stock
split, reverse stock split or other events affecting the holders of Shares (the
"Purchase Price"). Payment shall be made in accordance with Paragraph 9 of the
Plan.
3. EXERCISABILITY OF OPTION.
Subject to the terms and conditions set forth in this Agreement and the
Plan, the Option granted hereby shall become exercisable as follows:
[TO BE COMPLETED BY COMPANY FOR EACH
EMPLOYEE]
The foregoing rights are cumulative and are subject to the other terms and
conditions of this Agreement and the Plan.
4. TERM OF OPTION.
The Option shall terminate ten years from the date of this Agreement or, if
the Employee owns as of the date hereof more than 10% of the total combined
voting power of all classes of capital stock of the Company or an Affiliate,
five years from the date of this Agreement, but shall be subject to earlier
termination as provided herein or in the Plan.
If the Employee ceases to be an employee of the Company or of an Affiliate
(for any reason other than the death or Disability of the Employee or
termination of the Employee's employment for "cause" (as defined in the Plan)),
the Option may be exercised, if it has not previously terminated, within three
months after the date the Employee ceases to be an employee of the Company or an
Affiliate, or within the originally prescribed term of the Option, whichever is
earlier, but may not be exercised thereafter. In such event, the Option shall be
exercisable only to the extent that the Option has become exercisable and is in
effect at the date of such cessation of employment.
Notwithstanding the foregoing, in the event of the Employee's Disability or
death within three months after the termination of employment, the Employee or
the Employee's Survivors may exercise the Option within one year after the date
of the Employee's termination of employment, but in no event after the date of
expiration of the term of the Option.
In the event the Employee's employment is terminated by the Employee's
employer for "cause" (as defined in the Plan), the Employee's right to exercise
any unexercised portion of this Option shall cease immediately as of the time
the Employee is notified his or her employment is terminated for "cause," and
this Option shall thereupon terminate. Notwithstanding anything herein to the
contrary, if subsequent to the Employee's termination as an employee, but prior
to the exercise of the Option, the Board of Directors of the Company determines
that, either prior or subsequent to the Employee's termination, the Employee
engaged in conduct which would constitute "cause," then the Employee shall
immediately cease to have any right to exercise the Option and this Option shall
thereupon terminate.
In the event of the Disability of the Employee, as determined in accordance
with the Plan, the Option shall be exercisable within one year after the
Employee's termination of employment
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or, if earlier, within the term originally prescribed by the Option. In such
event, the Option shall be exercisable:
(a) to the extent that the Option has become exercisable but has not
been exercised as of the date of Disability; and
(b) in the event rights to exercise the Option accrue periodically, to
the extent of a pro rata portion through the date of Disability of
any additional vesting rights that would have accrued on the next
vesting date had the Employee not become Disabled. The proration
shall be based upon the number of days accrued in the current
vesting period prior to the date of Disability.
In the event of the death of the Employee while an employee of the Company
or of an Affiliate, the Option shall be exercisable by the Employee's Survivors
within one year after the date of death of the Employee or, if earlier, within
the originally prescribed term of the Option. In such event, the Option shall be
exercisable:
(x) to the extent that the Option has become exercisable but has not
been exercised as of the date of death; and
(y) in the event rights to exercise the Option accrue periodically, to
the extent of a pro rata portion through the date of death of any
additional vesting rights that would have accrued on the next
vesting date had the Employee not died. The proration shall be based
upon the number of days accrued in the current vesting period prior
to the Employee's date of death.
5. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Agreement, the Option may be
exercised by written notice to the Company or its designee, in substantially the
form of EXHIBIT A attached hereto. Such notice shall state the number of Shares
with respect to which the Option is being exercised and shall be signed by the
person exercising the Option. Payment of the purchase price for such Shares
shall be made in accordance with Paragraph 9 of the Plan. The Company shall
deliver such Shares as soon as practicable after the notice shall be received,
provided, however, that the Company may delay issuance of such Shares until
completion of any action or obtaining of any consent, which the Company deems
necessary under any applicable law (including, without limitation, state
securities or "blue sky" laws). The Shares as to which the Option shall have
been so exercised shall be registered in the Company's share register in the
name of the person so exercising the Option (or, if the Option shall be
exercised by the Employee and if the Employee shall so request in the notice
exercising the Option, shall be registered in the Company's share register in
the name of the Employee and another person jointly, with right of survivorship)
and shall be delivered as provided above to or upon the written order of the
person exercising the Option. In the event the Option shall be exercised,
pursuant to Section 4 hereof, by any person other than the Employee, such notice
shall be accompanied by appropriate proof of the right of such person to
exercise the Option. All Shares
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that shall be purchased upon the exercise of the Option as provided herein shall
be fully paid and nonassessable.
6. PARTIAL EXERCISE.
Exercise of this Option to the extent above stated may be made in part at
any time and from time to time within the above limits, except that no
fractional share shall be issued pursuant to this Option.
7. NON-ASSIGNABILITY.
The Option shall not be transferable by the Employee otherwise than by will
or by the laws of descent and distribution. The Option shall be exercisable,
during the Employee's lifetime, only by the Employee (or, in the event of legal
incapacity or incompetency, by the Employee's guardian or representative) and
shall not be assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted transfer, assignment, pledge, hypothecation or
other disposition of the Option or of any rights granted hereunder contrary to
the provisions of this Section 7, or the levy of any attachment or similar
process upon the Option shall be null and void.
8. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE.
The Employee 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 Employee. 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.
9. 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 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.
10. TAXES.
The Employee 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 Employee's responsibility.
In the event of a Disqualifying Disposition (as defined in Section 15
below) or if the Option is converted into a Non-Qualified Option and such
Non-Qualified Option is exercised, the Company may withhold from the Employee's
remuneration, if any, the minimum statutory
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amount of federal, state and local withholding taxes attributable to such amount
that is 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
Employee on exercise of the Option. The Employee further agrees that, if the
Company does not withhold an amount from the Employee's remuneration sufficient
to satisfy the Company's income tax withholding obligation, the Employee will
reimburse the Company on demand, in cash, for the amount under-withheld.
11. PURCHASE FOR INVESTMENT.
Unless the offering and sale of the Shares to be issued upon the particular
exercise of the Option shall have been effectively registered under the
Securities Act of 1933, as now in force or hereafter amended (the "1933 Act"),
the Company shall be under no obligation to issue the Shares covered by such
exercise unless and until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall warrant to the Company,
at the time of such exercise, that such person(s) are acquiring such
Shares for their own respective accounts, for investment, and not
with a view to, or for sale in connection with, the distribution of
any such Shares, in which event the person(s) acquiring such Shares
shall be bound by the provisions of the following legend which shall
be endorsed upon the certificate(s) evidencing the Shares issued
pursuant to such exercise:
"The shares represented by this certificate have been taken for
investment and they may not be sold or otherwise transferred by
any person, including a pledgee, unless (1) either (a) a
Registration Statement with respect to such shares shall be
effective under the Securities Act of 1933, as amended, or (b)
the Company shall have received an opinion of counsel
satisfactory to it that an exemption from registration under such
Act is then available, and (2) there shall have been compliance
with all applicable state securities laws;" and
(b) If the Company so requires, the Company shall have received an
opinion of its counsel that the Shares may be issued upon such
particular exercise in compliance with the 1933 Act without
registration thereunder. Without limiting the generality of the
foregoing, the Company may delay issuance of the Shares until
completion of any action or obtaining of any consent, which the
Company deems necessary under any applicable law (including without
limitation state securities or "blue sky" laws).
12. RESTRICTIONS ON TRANSFER OF SHARES.
12.1 The Shares acquired by the Employee pursuant to the exercise of the
Option granted hereby shall not be transferred by the Employee except as
permitted herein.
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12.2 In the event of the Employee's termination of employment for any
reason, the Company shall have the option, but not the obligation, to repurchase
all or any part of the Shares issued pursuant to this Agreement (including,
without limitation, Shares purchased after termination of employment, Disability
or death in accordance with Section 4 hereof). In the event the Company does
not, upon the termination of employment of the Employee (as described above),
exercise its option pursuant to this Section 12.2, the restrictions set forth in
the balance of this Agreement shall not thereby lapse, and the Employee for
himself or herself, his or her heirs, legatees, executors, administrators and
other successors in interest, agrees that the Shares shall remain subject to
such restrictions. The following provisions shall apply to a repurchase under
this Section 12.2:
(i) The per share repurchase price of the Shares to be sold to the
Company upon exercise of its option under this Section 12.2 shall be
equal to the Fair Market Value of each such Share determined in
accordance with the Plan as of the date of termination of employment
provided, however, in the event of a termination by the Company for
"cause" (as defined in the Plan), the per share repurchase price of
the Shares to be sold to the Company upon exercise of its option
under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company's option to repurchase the Employee's Shares in the
event of termination of employment shall be valid for a period of 18
months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to
exercise its option to repurchase the Employee's Shares under this
Section 12.2, the Company shall notify the Employee, or in case of
death, his or her Survivor, in writing of its intent to repurchase
the Shares. Such written notice may be mailed by the Company up to
and including the last day of the time period provided for in
Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and
the time and date on, which payment of the repurchase price is to be
made (the "Closing"). The date specified shall not be less than ten
days nor more than 60 days from the date of the mailing of the
notice, and the Employee or his or her successor in interest with
respect to the Shares shall have no further rights as the owner
thereof from and after the date specified in the notice. At the
Closing, the repurchase price shall be delivered to the Employee or
his or her successor in interest and the Shares being purchased,
duly endorsed for transfer, shall, to the extent that they are not
then in the possession of the Company, be delivered to the Company
by the Employee or his or her successor in interest.
12.3 It shall be a condition precedent to the validity of any sale or
other transfer of any Shares by the Employee that the following restrictions be
complied with (except as hereinafter otherwise provided):
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(i) No Shares owned by the Employee may be sold, pledged or otherwise
transferred (including by gift or devise) to any person or entity,
voluntarily, or by operation of law, except in accordance with the
terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares,
the Employee shall give written notice of such intention to the
Company, which notice shall include the name of the proposed
transferee, the proposed purchase price per share, the terms of
payment of such purchase price and all other matters relating to
such sale or transfer and shall be accompanied by a copy of the
binding written agreement of the proposed transferee to purchase the
Shares of the Employee. Such notice shall constitute a binding offer
by the Employee to sell to the Company such number of the Shares
then held by the Employee as are proposed to be sold in the notice
at the monetary price per share designated in such notice, payable
on the terms offered to the Employee by the proposed transferee
(provided, however, that the Company shall not be required to meet
any non-monetary terms of the proposed transfer, including, without
limitation, delivery of other securities in exchange for the Shares
proposed to be sold). The Company shall give written notice to the
Employee as to whether such offer has been accepted in whole by the
Company within 60 days after its receipt of written notice from the
Employee. The Company may only accept such offer in whole and may
not accept such offer in part. Such acceptance notice shall fix a
time, location and date for the closing on such purchase ("Closing
Date") which shall not be less than ten nor more than sixty days
after the giving of the acceptance notice, provided, however, if any
of the Shares to be sold pursuant to this Section 12.3 have been
held by the Employee for less than six months, then the Closing Date
may be extended by the Company until no more than ten days after
such Shares have been held by the Employee for six months. The place
for such closing shall be at the Company's principal office. At such
closing, the Employee shall accept payment as set forth herein and
shall deliver to the Company in exchange therefor certificates for
the number of Shares stated in the notice accompanied by duly
executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee
shall be free to sell all, but not less than all, of the Shares set
forth in his or her notice to the designated transferee at the price
and terms designated in the Employee's notice, provided that (i)
such sale is consummated within six months after the giving of
notice by the Employee to the Company as aforesaid, and (ii) the
transferee first agrees in writing to be bound by the provisions of
this Section 12 so that such transferee (and all subsequent
transferees) shall thereafter only be permitted to sell or transfer
the Shares in accordance with the terms hereof. After the expiration
of such six months, the provisions of this Section 12.3 shall again
apply with respect to any proposed voluntary transfer of the
Employee's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall
not apply to (a) transfers by the Employee to his or her spouse or
children or to a trust for the benefit of his or her spouse or
children, (b) transfers by the Employee to his or her
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guardian or conservator, and (c) transfers by the Employee, in the
event of his or her death, to his or her executor(s) or
administrator(s) or to trustee(s) under his or her will
(collectively, "Permitted Transferees"); provided however, that in
any such event the Shares so transferred in the hands of each such
Permitted Transferee shall remain subject to this Agreement, and
each such Permitted Transferee shall so acknowledge in writing as a
condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company.
Any such waiver may be unconditional or based upon such conditions
as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest
fails to deliver the Shares to be repurchased by the Company under this
Agreement, the Company may elect (a) to establish a segregated account in the
amount of the repurchase price, such account to be turned over to the Employee
or his or her successor in interest upon delivery of such Shares, and (b)
immediately to take such action as is appropriate to transfer record title of
such Shares from the Employee to the Company and to treat the Employee and such
Shares in all respects as if delivery of such Shares had been made as required
by this Agreement. The Employee hereby irrevocably grants the Company a power of
attorney which shall be coupled with an interest for the purpose of effectuating
the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a stock split
on or with respect to any of its Common Stock, or otherwise distribute
securities of the Company to the holders of its Common Stock, the number of
shares of stock or other securities of Company issued with respect to the shares
then subject to the restrictions contained in this Agreement shall be added to
the Shares subject to the Company's rights to repurchase pursuant to this
Agreement. If the Company shall distribute to its stockholders shares of stock
of another corporation, the shares of stock of such other corporation,
distributed with respect to the Shares then subject to the restrictions
contained in this Agreement, shall be added to the Shares subject to the
Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be
subdivided into a greater number of shares or combined into a smaller number of
shares, or in the event of a reclassification of the outstanding shares of
Common Stock of the Company, or if the Company shall be a party to a merger,
consolidation or capital reorganization, there shall be substituted for the
Shares then subject to the restrictions contained in this Agreement such amount
and kind of securities as are issued in such subdivision, combination,
reclassification, merger, consolidation or capital reorganization in respect of
the Shares subject immediately prior thereto to the Company's rights to
repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its
books which shall have been sold, assigned or otherwise transferred in violation
of this Agreement, or to treat as owner of such Shares, or to accord the right
to vote as such owner or to pay dividends to, any person or organization to
which any such Shares shall have been so sold, assigned or otherwise
transferred, in violation of this Agreement.
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12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon
the effective date of the registration of the Shares pursuant to the Securities
Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company
pursuant to the 1933 Act, the Company or its underwriter so requests, the
Employee will agree not to sell any Shares for a period not to exceed 180 days
following the effectiveness of such registration.
12.10 The Employee acknowledges and agrees that neither the Company, its
shareholders nor its directors and officers, has any duty or obligation to
disclose to the Employee 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 employment of the Employee 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.
12.11 All certificates representing the Shares to be issued to the
Employee pursuant to this Agreement shall have endorsed thereon a legend
substantially as follows: "The shares represented by this certificate are
subject to restrictions set forth in an Incentive Stock Option Agreement dated
_________, 200__ with this Company, a copy of which Agreement is available for
inspection at the offices of the Company or will be made available upon
request."
13. NO OBLIGATION TO EMPLOY.
The Company is not by the Plan or this Option obligated to continue the
Employee as an employee of the Company or an Affiliate. The Employee
acknowledges: (i) that the Plan is discretionary in nature and may be suspended
or terminated by the Company at any time; (ii) that the grant of the Option is a
one-time benefit which does not create any contractual or other right to receive
future grants of options, or benefits in lieu of options; (iii) that all
determinations with respect to any such future grants, including, but not
limited to, the times when options shall be granted, the number of shares
subject to each option, the option price, and the time or times when each option
shall be exercisable, will be at the sole discretion of the Company; (iv) that
the Employee's participation in the Plan is voluntary; (v) that the value of the
Option is an extraordinary item of compensation which is outside the scope of
the Employee's employment contract, if any; and (vi) that the Option is not part
of normal or expected compensation for purposes of calculating any severance,
resignation, redundancy, end of service payments, bonuses, long-service awards,
pension or retirement benefits or similar payments.
14. OPTION IS INTENDED TO BE AN ISO.
The parties each intend that the Option be an ISO so that the Employee (or
the Employee's Survivors) may qualify for the favorable tax treatment provided
to holders of Options that meet the standards of Section 422 of the Code. Any
provision of this Agreement or the Plan which conflicts with the Code so that
this Option would not be deemed an ISO is null and void and any ambiguities
shall be resolved so that the Option qualifies as an ISO. Nonetheless, if the
Option is determined not to be an ISO, the Employee understands that neither
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the Company nor any Affiliate is responsible to compensate him or her or
otherwise make up for the treatment of the Option as a Non-qualified Option and
not as an ISO. The Employee should consult with the Employee's own tax advisors
regarding the tax effects of the Option and the requirements necessary to obtain
favorable tax treatment under Section 422 of the Code, including, but not
limited to, holding period requirements.
15. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION.
The Employee agrees to notify the Company in writing immediately after the
Employee makes a Disqualifying Disposition of any of the Shares acquired
pursuant to the exercise of the Option. A Disqualifying Disposition is defined
in Section 424(c) of the Code and includes any disposition (including any sale)
of such Shares before the later of (a) two years after the date the Employee was
granted the Option or (b) one year after the date the Employee acquired Shares
by exercising the Option, except as otherwise provided in Section 424(c) of the
Code. If the Employee has died before the Shares are sold, these holding period
requirements do not apply and no Disqualifying Disposition can occur thereafter.
16. NOTICES.
Any notices required or permitted by the terms of this Agreement or the
Plan shall be given by recognized courier service, facsimile, registered or
certified mail, return receipt requested, addressed as follows:
If to the Company:
Metabolix, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Controller
If to the Employee, at the address set forth below his or her signature below,
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given upon
the earlier of receipt, one business day following delivery to a recognized
courier service or three business days following mailing by registered or
certified mail.
17. 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 the
Commonwealth of Massachusetts and agree that such litigation shall be conducted
in the courts of Middlesex County, Massachusetts or the federal courts of the
United States for the District of Massachusetts.
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18. BENEFIT OF AGREEMENT.
Subject to the provisions of the Plan and the other provisions hereof, this
Agreement shall be for the benefit of and shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
19. ENTIRE AGREEMENT.
This Agreement, together with the Plan, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement not expressly set forth in this Agreement shall affect or
be used to interpret, change or restrict, the express terms and provisions of
this Agreement, provided, however, in any event, this Agreement shall be subject
to and governed by the Plan.
20. MODIFICATIONS AND AMENDMENTS.
The terms and provisions of this Agreement may be modified or amended as
provided in the Plan.
21. 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.
22. DATA PRIVACY.
By entering into this Agreement, the Employee: (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.
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23. CONSENT OF SPOUSE.
If the Employee is married as of the date of this Agreement, the Employee's
spouse shall execute a Consent of Spouse in the form of EXHIBIT B hereto,
effective as of the date hereof. Such consent shall not be deemed to confer or
convey to the spouse any rights in the Shares that do not otherwise exist by
operation of law or the agreement of the parties. If the Employee marries or
remarries subsequent to the date hereof, the Employee shall, not later than 60
days thereafter, obtain his or her new spouse's acknowledgement of and consent
to the existence and binding effect of Section 12.2 of this Agreement by such
spouse's executing and delivering a Consent of Spouse in the form of Exhibit B.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and the Employee has hereunto set his or her hand,
all as of the day and year first above written.
METABOLIX, INC.
By:
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and CEO
-----------------------------------------
Employee:
------------
Address:
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EXHIBIT A
[FORM FOR UNREGISTERED SHARES]
NOTICE OF EXERCISE OF INCENTIVE STOCK OPTION
To: Metabolix, Inc.
Ladies and Gentlemen:
I hereby exercise my Incentive Stock Option to purchase ___________ shares
(the "Shares") of the common stock, $.01 par value, of Metabolix, Inc. (the
"Company"), at the exercise price of $____ per share, pursuant to and subject to
the terms of that certain Incentive Stock Option Agreement between the
undersigned and the Company dated _________, 200_.
I am aware that the Shares have not been registered under the Securities
Act of 1933, as amended (the "1933 Act"), or any state securities laws. I
understand that the reliance by the Company on exemptions under the 1933 Act is
predicated in part upon the truth and accuracy of the statements by me in this
Notice of Exercise.
I hereby represent and warrant that (1) I have been furnished with all
information which I deem necessary to evaluate the merits and risks of the
purchase of the Shares; (2) I have had the opportunity to ask questions
concerning the Shares and the Company and all questions posed have been answered
to my satisfaction; (3) I have been given the opportunity to obtain any
additional information I deem necessary to verify the accuracy of any
information obtained concerning the Shares and the Company; and (4) I have such
knowledge and experience in financial and business matters that I am able to
evaluate the merits and risks of purchasing the Shares and to make an informed
investment decision relating thereto.
I hereby represent and warrant that I am purchasing the Shares for my own
personal account for investment and not with a view to the sale or distribution
of all or any part of the Shares.
I understand that because the Shares have not been registered under the
1933 Act, I must continue to bear the economic risk of the investment for an
indefinite time and the Shares cannot be sold unless the Shares are subsequently
registered under applicable federal and state securities laws or an exemption
from such registration requirements is available.
I agree that I will in no event sell or distribute or otherwise dispose of
all or any part of the Shares unless (1) there is an effective registration
statement under the 1933 Act and applicable state securities laws covering any
such transaction involving the Shares or (2) the Company receives an opinion of
my legal counsel (concurred in by legal counsel for the
A-1
Company) stating that such transaction is exempt from registration or the
Company otherwise satisfies itself that such transaction is exempt from
registration.
I consent to the placing of a legend on my certificate for the Shares
stating that the Shares have not been registered and setting forth the
restriction on transfer contemplated hereby and to the placing of a stop
transfer order on the books of the Company and with any transfer agents against
the Shares until the Shares may be legally resold or distributed without
restriction.
I understand that at the present time Rule 144 of the Securities and
Exchange Commission (the "SEC") may not be relied on for the resale or
distribution of the Shares by me. I understand that the Company has no
obligation to me to register the sale of the Shares with the SEC and has not
represented to me that it will register the sale of the Shares.
I understand the terms and restrictions on the right to dispose of the
Shares set forth in the 2004 Employee, Director and Consultant Stock Plan and
the Incentive Stock Option Agreement, both of which I have carefully reviewed. I
consent to the placing of a legend on my certificate for the Shares referring to
such restriction and the placing of stop transfer orders until the Shares may be
transferred in accordance with the terms of such restrictions.
I have considered the Federal, state and local income tax implications of
the exercise of my Option and the purchase and subsequent sale of the Shares.
I am paying the option exercise price for the Shares as follows:
----------
Please issue the stock certificate for the Shares (check one):
/ / to me; or
/ / to me and ________________, as joint tenants with right of survivorship
and mail the certificate to me at the following address:
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A-2
My mailing address for shareholder communications, if different from the
address listed above is:
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Very truly yours,
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Employee (signature)
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Print Name
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Date
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Social Security Number
A-3
EXHIBIT A
[FORM FOR REGISTERED SHARES]
NOTICE OF EXERCISE OF INCENTIVE STOCK OPTION
IMPORTANT NOTICE: This form of Notice of Exercise may only be used at such time
as the Company has filed a Registration Statement with the Securities and
Exchange Commission under which the issuance of the Shares for which this
exercise is being made is registered and such Registration Statement remains
effective.
TO: Metabolix, Inc.
Ladies and Gentlemen:
I hereby exercise my Incentive Stock Option to purchase _________ shares
(the "Shares") of the common stock, $.01 par value, of Metabolix, Inc. (the
"Company"), at the exercise price of $________ per share, pursuant to and
subject to the terms of that certain Incentive Stock Option Agreement between
the undersigned and the Company dated _______________, 200_.
I understand the nature of the investment I am making and the financial
risks thereof. I am aware that it is my responsibility to have consulted with
competent tax and legal advisors about the relevant national, state and local
income tax and securities laws affecting the exercise of the Option and the
purchase and subsequent sale of the Shares.
I am paying the option exercise price for the Shares as follows:
----------
Please issue the Shares (check one):
/ / to me; or
/ / to me and ____________________________, as joint tenants with right of
survivorship,
at the following address:
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-----------------------------------------------------
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A-1
My mailing address for shareholder communications, if different from the
address listed above, is:
-----------------------------------------------------
-----------------------------------------------------
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Very truly yours,
-----------------------------------------
Employee (signature)
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Print Name
-----------------------------------------
Date
-----------------------------------------
Social Security Number
A-2
EXHIBIT B
CONSENT OF SPOUSE
I, ____________________________, spouse of _____________________________,
acknowledge that I have read the Incentive Stock Option Agreement dated as of
_______________, 200__ (the "Agreement") to which this Consent is attached as
Exhibit B and that I know its contents. Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Agreement. I am
aware that by its provisions the Shares granted to my spouse pursuant to the
Agreement are subject to a right of repurchase in favor of Metabolix, Inc. (the
"Company") and that, accordingly, the Company has the right to repurchase up to
all of the Shares of which I may become possessed as a result of a gift from my
spouse or a court decree and/or any property settlement in any domestic
litigation.
I hereby agree that my interest, if any, in the Shares subject to the
Agreement shall be irrevocably bound by the Agreement and further understand and
agree that any community property interest I may have in the Shares shall be
similarly bound by the Agreement.
I agree to the repurchase right described in Section 12.2 of the Agreement
and I hereby consent to the repurchase of the Shares by the Company and the sale
of the Shares by my spouse or my spouse's legal representative in accordance
with the provisions of the Agreement. Further, as part of the consideration for
the Agreement, I agree that at my death, if I have not disposed of any interest
of mine in the Shares by an outright bequest of the Shares to my spouse, then
the Company shall have the same rights against my legal representative to
exercise its rights of repurchase with respect to any interest of mine in the
Shares as it would have had pursuant to the Agreement if I had acquired the
Shares pursuant to a court decree in domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN THE
AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL
GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH
GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I
WILL WAIVE SUCH RIGHT.
Dated as of the _______ day of ________________, 200__.
-----------------------------------------
Print name:
B-1
