MATRITECH, INC. MATRITECH, INC. PERFORMANCE-BASED INCENTIVE STOCK OPTION AGREEMENT
EXHIBIT
10.3
MATRITECH,
INC.
MATRITECH,
INC.
Matritech,
Inc. (the “Company”)
hereby grants the following stock option pursuant to its 2006 Equity and
Incentive Plan. The terms and conditions attached hereto are also a
part hereof.
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Name
of optionee (the “Optionee”):
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Date
of this option grant:
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Number
of shares of the Company’s Common Stock subject to this option
(“Shares”):
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Option
exercise price per Share: Closing price the date of the option
award
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Scheduled
expiration date: One year from date of grant
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Performance
triggers for vesting:
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See
Appendix A, attached hereto and incorporated herein by
reference.
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All
vesting is dependent on the continuation of a Business Relationship
with
the Company, as provided
herein.
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This
option satisfies in full all commitments that the Company has to the Optionee
with respect to the issuance of stock, stock options or other equity
securities.
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Matritech,
Inc.
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____________________________________
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Signature
of Optionee
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By:____________________________
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____________________________________
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Name
of Officer:
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Street
Address
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Title:
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____________________________________
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City/State/Zip
Code
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Matritech,
Inc.
INCORPORATED TERMS
AND CONDITIONS
1. Grant
Under Plan. This option is granted pursuant to and is governed by
the Company’s 2006 Equity and Incentive Plan, as amended September 15, 2006 (the
“Plan”) and, unless the context otherwise requires, terms used herein
shall have the same meaning as in the Plan.
2. Grant
as Incentive Stock Option. This option is intended to qualify as
an incentive stock option under Section 422 of the Internal Revenue Code of
1986, as amended, and the regulations thereunder (the
“Code”).
3. Vesting
of Option. The right to purchase the Shares subject to this Option shall
vest in the Optionee only in accordance with the terms of this Agreement. The
vesting criteria, thresholds for vesting, measurement mechanisms and other
vesting standards are set forth on Appendix A, which is incorporated herein
by
reference. If the vesting criterion for any threshold is fully met,
and the Employee has continuously maintained a Business Relationship (as defined
below) with the Company through the measurement date of the criterion, the
portion of the Option relative to that satisfied criterion shall vest and become
exercisable by the Employee. “Business Relationship” means
service to the Company or its successor in the capacity of an employee, officer,
director or consultant.
The
right to purchase Shares may be
exercised only before the date which is one year from the date of this option
grant (the scheduled expiration date set forth on the cover page
hereof).
4. Termination
of Business Relationship.
(a) Termination. If
the Optionee’s Business Relationship with the Company ceases, voluntarily or
involuntarily, with or without cause, no further installments of this option
shall become exercisable, and this option shall expire (may no longer be
exercised) after the passage of three months from the date of termination,
but
in no event later than the scheduled expiration date set forth on the cover
page
hereof. Any determination under this agreement as to the status of a
Business Relationship or other matters referred to above shall be made in good
faith by the Board of Directors of the Company.
(b) Employment
Status. For purposes hereof, with respect to employees of the Company,
employment shall not be considered as having terminated during
any leave of absence if such leave of absence has been approved in
writing by the Company and if such written approval contractually obligates
the
Company to continue the employment of the Optionee after the approved period
of
absence; in the event of such an approved leave of absence, vesting of this
option shall be suspended (and the period of the leave of absence shall be
added
to all vesting dates) unless otherwise provided in the Company’s
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written
approval of the leave of absence. For purposes hereof, a termination of
employment followed by another Business Relationship shall be deemed a
termination of the Business Relationship with all vesting to cease unless the
Company enters into a written agreement related to such other Business
Relationship in which it is specifically stated that there is no termination
of
the Business Relationship under this agreement. This option shall not be
affected by any change of employment within or among the Company and its
Subsidiaries so long as the Optionee continuously remains an employee of the
Company or any Subsidiary.
5. Death;
Disability.
(a) Death. Upon
the death of the Optionee while the Optionee is maintaining a Business
Relationship with the Company, this option may be exercised, to the extent
of
the number of Shares with respect to which the Optionee could have exercised
it
immediately prior to the Optionee’s death, by the Optionee’s estate, personal
representative or beneficiary to whom this option has been transferred pursuant
to Section 10, only at any time within 180 days after the date of
death, but not later than the scheduled expiration date set forth on the cover
page hereof.
(b) Disability. If
the Optionee ceases to maintain a Business Relationship with the Company by
reason of his or her disability, this option may be exercised, to the extent
of
the number of Shares with respect to which the Optionee could have exercised
it
immediately prior to the termination of the Optionee’s Business Relationship
with the Company, only at any time within 180 days after such termination,
but not later than the scheduled expiration date set forth on the cover page
hereof. For purposes hereof, “disability” means “permanent
and total disability” as defined in Section 22(e)(3) of the
Code.
6. Partial
Exercise. This option may be exercised in part at any time and
from time to time within the above limits, except that this option may not
be
exercised for a fraction of a Share.
7. Payment
of Exercise Price.
(a) Payment
Options. The exercise price shall be paid by one or any
combination of the following forms of payment that are applicable to this
option, as indicated on the cover page hereof:
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(i)
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by
cash or check payable to the order of the Company;
or
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(ii)
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subject
to Section 7(b) below, if the Common Stock is then traded on a
national securities exchange or on the Nasdaq Stock Market (or successor
trading system), by delivery of shares of Common Stock having a fair
market value equal as of the date of exercise to the option
price.
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In
the
case of (ii) above, fair market value as of the date of exercise shall be
determined as of the last business day for which such prices or quotes are
available prior to the date of exercise and shall mean (x) the last
reported sale price (on that date) of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common Stock
is
then traded on a national securities exchange; or (y) the last reported
sale price (on that date) of the Common Stock on the Nasdaq Stock Market (or
successor trading system), if the Common Stock is not then traded on a national
securities exchange.
(b) Limitations
on Payment by Delivery of Common Stock. If Section 7(a)(ii) is
applicable, and if the Optionee delivers Common Stock held by the Optionee
(“Old Stock”) to the Company in full or partial payment of the exercise
price and the Old Stock so delivered is subject to restrictions or limitations
imposed by agreement between the Optionee and the Company, an equivalent number
of Shares shall be subject to all restrictions and limitations applicable to
the
Old Stock to the extent that the Optionee paid for the Shares by delivery of
Old
Stock, in addition to any restrictions or limitations imposed by this
agreement. Notwithstanding the foregoing, the Optionee may not pay
any part of the exercise price hereof by transferring Common Stock to the
Company unless such Common Stock has been owned by the Optionee free of any
substantial risk of forfeiture for at least six months.
8. Securities
Laws Restrictions on Resale. Until registered under the Securities Act of
1933, as amended, or any successor statute (the “Securities Act”), the
Shares will be illiquid and will be deemed to be “restricted securities” for
purposes of the Securities Act. Accordingly, such Shares must be sold
in compliance with the registration requirements of the Securities Act or an
exemption therefrom and may need to be held indefinitely. Unless the
Shares have been registered under the Securities Act, each certificate
evidencing any of the Shares shall bear a restrictive legend specified by the
Company.
9. Method
of Exercising Option. Subject to the terms and conditions of this
agreement, this option may be exercised by written notice to the Company at
its
principal executive office, or to such transfer agent as the Company shall
designate. Such notice shall state the election to exercise this
option and the number of Shares for which it is being exercised and shall be
signed by the person or persons so exercising this option. Such
notice shall be accompanied by payment of the full purchase price of such
Shares, and the Company shall deliver a certificate or certificates representing
such Shares as soon as practicable after the notice shall be
received. Such certificate or certificates shall be registered in the
name of the person or persons so exercising this option (or, if this option
shall be exercised by the Optionee and if the Optionee shall so request in
the
notice exercising this option, shall be registered in the name of the Optionee
and another person jointly, with right of survivorship). In the event this
option shall be exercised, pursuant to Section 5 hereof, by any person or
persons other than the Optionee, such notice shall be accompanied by appropriate
proof of the right of such person or persons to exercise this
option.
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10. Option
Not Transferable. This option is not transferable or assignable
except by will or by the laws of descent and distribution. During the
Optionee’s lifetime only the Optionee can exercise this option.
11. No
Obligation to Exercise Option. The grant and acceptance of this
option imposes no obligation on the Optionee to exercise it.
12. No
Obligation to Continue Business Relationship. Neither the Plan,
this agreement, nor the grant of this option imposes any obligation on the
Company to continue the Optionee in employment or other Business
Relationship.
13. No
Severance or Termination Rights. With respect to employees of the
Company, awards under this Plan do not form part of an Optionee’s contract of
employment and do not entitle an Optionee to any benefit other than that granted
under this Plan. Any benefits granted under this Plan are not part of
an Optionee’s ordinary salary, and shall not be considered as part of such
salary for pension purposes or in the event of severance, redundancy or
resignation. If Optionee’s employment is terminated for whatever
reason the Optionee agrees that he or she shall not be entitled by way of
damages for breach of contract, dismissal or compensation for loss of office
or
otherwise to any sum, Shares or other benefits to compensate for the loss or
diminution in value of any actual or prospective right, benefits or expectation
under or in relation to the Plan.
14. Adjustments. 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 such date of
exercise.
15. Withholding
Taxes. If the Company in its discretion determines that it is
obligated to withhold any tax in connection with the grant, vesting or exercise
of this option, or in connection with the transfer of, or the lapse of
restrictions on, any Common Stock or other property acquired pursuant to this
option, the Optionee hereby agrees that the Company may withhold from the
Optionee’s wages or other remuneration the appropriate amount of tax. At the
discretion of the Company, the amount required to be withheld may be withheld
in
cash from such wages or other remuneration or in kind from the Common Stock
or
other property otherwise deliverable to the Optionee on exercise of this
option. The Optionee further agrees that, if the Company does not
withhold an amount from the Optionee’s wages or other remuneration sufficient to
satisfy the withholding obligation of the Company, the Optionee will make
reimbursement on demand, in cash, for the amount underwithheld.
16. Early
Disposition. The Optionee agrees to notify the Company in writing
immediately after the Optionee transfers any Shares, if such transfer occurs
on
or before the later of (a) the date that is two years after the date of
this agreement or (b) the date that is one year after the date on which the
Optionee acquired such Shares. The Optionee also agrees to provide
the Company with any information concerning any such transfer required by the
Company for tax purposes. The Company may, at its option, require
that a restrictive legend be included on any certificate representing Shares
which have been held by an Optionee for less than two years
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from
the
date of this agreement or less than one year from the date on which the Optionee
acquired such Shares.
17. Provision
of Documentation to Optionee. By signing this agreement the
Optionee acknowledges receipt of a copy of this agreement and a copy of the
Plan.
18. Transfer
of Data Waiver. By signing this agreement the Optionee
acknowledges that in order to perform its requirements under the Plan, the
Company may process personal data and/or sensitive personal data about the
Optionee. Such data includes, but is not limited to, the information
provided in this grant package and any changes thereto, other appropriate
personal and financial data about the Optionee, and information about the
Optionee’s participation in the Plan and Shares exercised under the Plan from
time to time. The Optionee hereby gives explicit consent to the
Company to process any such personal data and/or sensitive personal
data. The Optionee also gives explicit consent to the Company to
transfer any such personal data and/or sensitive personal data outside the
country in which the Optionee works and to the United States. The
legal persons for whom the personal data is intended include the Company and
any
of its subsidiaries, the outside plan administrator as selected by the Company
from time to time, and any other person that the Company may find in its
administration of the Plan appropriate. By signing this agreement,
the Optionee acknowledges that he has been informed of his right of access
to
and correction of personal data by contacting the local Human Resources
Representative. Optionee further acknowledges that the transfer of
the information outlined here is important to the administration of the Plan
and
failure to consent to the transmission of such information may limit or prohibit
participation under the Plan.
19. Miscellaneous.
(a) Notices. All
notices hereunder shall be in writing and shall be deemed given when sent by
mail, if to the Optionee, to the address set forth below or at the address
shown
on the records of the Company, and if to the Company, to the Company’s principal
executive offices, attention of the Corporate Secretary.
(b) Entire
Agreement; Modification. This agreement constitutes the entire
agreement between the parties relative to the subject matter hereof, and
supersedes all proposals, written or oral, and all other communications between
the parties relating to the subject matter of this agreement. This agreement
may
be modified, amended or rescinded only by a written agreement executed by both
parties.
(c) Fractional
Shares. If this option becomes exercisable for a fraction of a Share because
of the adjustment provisions contained in the Plan, such fraction shall be
rounded down.
(d) Issuances
of Securities; Changes in Capital Structure. Except as expressly provided
herein or in the Plan, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to,
the
number or price of Shares subject to this option. No adjustments need
be made for dividends paid in cash or in
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property
other than securities of the Company. If there shall be any change in the Common
Stock of the Company through merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, combination or exchange of
shares, spin-off, split-up or other similar change in capitalization or event,
the restrictions contained in this agreement shall apply with equal force to
additional and/or substitute securities, if any, received by the Optionee in
exchange for, or by virtue of his or her ownership of, Shares, except as
otherwise determined by the Board.
(e) Severability. The
invalidity, illegality or unenforceability of any provision of this agreement
shall in no way affect the validity, legality or enforceability of any other
provision.
(f) Successors
and Assigns. This agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
subject to the limitations set forth in Section 10 hereof.
(g) Governing
Law. This agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware, without giving effect to
the
principles of the conflicts of laws thereof.
Appendix
A
To
the
extent that this option does not vest, the Shares shall be restored to the
Company’s 2006 Equity and Incentive Plan pool.
