EXHIBIT 10.2(b)
FORM OF NQ OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT _____ SHARES OF COMMON STOCK,
NO. _____ $.0001 PAR VALUE PER SHARE
SYNTA PHARMACEUTICALS CORP.
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As of _________ (the "Grant Date"), Synta Pharmaceuticals Corp. (the
"Company"), a Delaware corporation, grants to _______________ (the
"Participant") the right and option (the "Option") to purchase up to _________
shares of the Common Stock, $.0001 par value per share, of the Company (the
"Shares") at a purchase price of $________ per share (the "Purchase Price") and
on the terms and subject to the conditions set forth in the Company's 0000 Xxxxx
Xxxx (xxx "Xxxx"), Xxxxxx Xxxxxx securities and tax laws and this Agreement. For
the purpose of this Agreement, the initial vesting date shall be ____________
("Initial Vesting Date").
THIS AGREEMENT, WHICH INCLUDES THE TERMS AND CONDITIONS ATTACHED HERETO,
DOES NOT SET FORTH ALL OF THE TERMS AND CONDITIONS OF THE PLAN, WHICH IS HEREBY
INCORPORATED INTO AND MADE A PART OF THIS AGREEMENT BY REFERENCE. ANY TERMS USED
AND NOT DEFINED HEREIN HAVE THE SAME MEANINGS AS IN THE PLAN. THE PARTICIPANT
ACKNOWLEDGES THAT HE OR SHE HAS RECEIVED A COPY OF THE PLAN FROM THE COMPANY AND
HAS CAREFULLY READ THE TERMS AND CONDITIONS OF THE PLAN AND THE ATTACHED TERMS
AND CONDITIONS WHICH MAKE UP A PART OF THIS AGREEMENT.
SYNTA PHARMACEUTICALS CORP.
By:
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Xxxx Xxxxxxx
President and CEO
1. GRANT OF OPTION.
The Company hereby grants to the Participant, as of the Grant Date, the
right and option to purchase all or any part of the aggregate number of Shares
set forth on the signed cover page of this Agreement, 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 Participant acknowledges receipt of a copy of the Plan.
2. PURCHASE PRICE.
The purchase price of the Shares covered by the Option shall be the
Purchase Price set forth on the cover page of this Agreement, 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. Payment shall be
made in accordance with Section 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 in cumulative
installments of (i) 25% of the Shares on the Initial Vesting Date, and (ii)
6.25% of the Shares on the last day of each successive three-month period
thereafter. Notwithstanding the foregoing, the Option shall become vested and
exercisable in accordance with the terms and conditions set forth in Sections
24B and F of the Plan.
4. TERM OF OPTION.
The Option shall terminate ten years from the date of this Agreement, but
shall be subject to earlier termination as provided herein or in the Plan.
If the Participant ceases to be an employee or consultant of the Company
or of an Affiliate (for any reason other than the death or Disability of the
Participant or termination of the Participant 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 Participant ceases to be an employee or
consultant of the Company or of 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 service.
Notwithstanding the foregoing, in the event of the Participant's
Disability or death within three months after the termination of service, the
Participant or the Participant's Survivors may exercise the Option within one
year after the date of the Participant's termination of service, but in no event
after the date of expiration of the term of the Option.
In the event the Participant's service is terminated by the Company or by
an Affiliate for "cause" (as defined in the Plan), the Participant's right to
exercise any unexercised portion of this Option shall cease immediately as of
the time the Participant is notified his or her service is terminated for
"cause," and this Option shall thereupon terminate. Notwithstanding anything
herein to the contrary, if subsequent to the Participant's termination, but
prior to the exercise of the Option, the Board of Directors of the Company
determines that, either prior or subsequent to the Participant's termination,
the Participant engaged in conduct which would constitute "cause" (as defined in
the Plan), then the Participant shall immediately cease to have any right to
exercise the Option and this Option shall thereupon terminate.
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In the event of the Disability of the Participant, as determined in
accordance with the Plan, the Option shall be exercisable within one year after
the Participant's termination of service 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 Participant 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 Participant while an employee or
consultant of the Company or of an Affiliate, the Option shall be exercisable by
the Participant's Survivors within one year after the date of death of the
Participant 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 Participant not died. The proration shall be
based upon the number of days accrued in the current vesting period
prior to the Participant'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 Section 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 Participant and if the Participant shall so request in the
notice exercising the Option, shall be registered in the Company's share
register in the name of the Participant 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
Participant, such notice shall be accompanied by appropriate proof of the right
of such person to exercise the Option. All Shares 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.
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7. NON-ASSIGNABILITY.
The Option shall not be transferable by the Participant otherwise than by
will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act or the rules thereunder. However, the
Participant, with the approval of the Administrator, may transfer the Option for
no consideration to or for the benefit of the Participant's Immediate Family
(including, without limitation, to a trust for the benefit of the Participant's
Immediate Family or to a partnership or limited liability company for one or
more members of the Participant'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 the Option prior to such transfer and
each such transferee shall so acknowledge in writing as a condition precedent to
the effectiveness of such transfer. Except as provided in the previous sentence,
the Option shall be exercisable, during the Participant's lifetime, only by the
Participant (or, in the event of legal incapacity or incompetency, by the
Participant'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. The term "Immediate Family" shall mean the Participant's spouse, former
spouse, parents, children, stepchildren, adoptive relationships, sisters,
brothers, nieces, nephews and grandchildren (and, for this purpose, shall also
include the Participant).
8. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE.
The Participant 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 Participant. 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 Participant acknowledges that upon exercise of the Option the
Participant 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. The Participant
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
Participant's responsibility.
The Participant agrees that the Company may withhold from the
Participant's remuneration, if any, the minimum statutory 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
Participant on exercise of the Option. The Participant further agrees that, if
the Company does not withhold an amount from the Participant's remuneration
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sufficient to satisfy the Company's income tax withholding obligation, the
Participant 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 Participant pursuant to the exercise of
the Option granted hereby shall not be transferred by the Participant except as
permitted herein.
12.2 If, in connection with a registration statement filed by the Company
pursuant to the 1933 Act, the Company or its underwriter so requests, the
Participant will agree not to sell any Shares for a period not to exceed 210
days following the effectiveness of such registration.
12.3 The Participant acknowledges and agrees that neither the Company,
its shareholders nor its directors and officers, has any duty or obligation to
disclose to the Participant 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 service of the Participant 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.
13. NO OBLIGATION TO MAINTAIN RELATIONSHIP.
The Company is not by the Plan or this Option obligated to continue the
Participant as an employee or consultant of the Company or of an Affiliate. The
Participant acknowledges: (i) that the
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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 Participant'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
Participant'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. 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:
Synta Pharmaceuticals Corp.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Stock Plan Administrator
If to the Participant, the Participant's Company email address or the mailing
address provided to the Company on the Participant's application or resume, 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.
15. 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.
16. 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.
17. 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
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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.
18. MODIFICATIONS AND AMENDMENTS.
The terms and provisions of this Agreement may be modified or amended as
provided in the Plan.
19. 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.
20. DATA PRIVACY.
By entering into this Agreement, the Participant: (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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EXHIBIT A
NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION
TO: Synta Pharmaceuticals Corp.
Ladies and Gentlemen:
I hereby exercise my Non-Qualified Stock Option to purchase _________
shares (the "Shares") of the common stock, $.0001 par value, of Synta
Pharmaceuticals Corp. (the "Company"), at the exercise price of $________ per
share, pursuant to and subject to the terms of that certain Non-Qualified 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:
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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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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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Participant (signature)
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Print Name
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Date
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Social Security Number
A-1
