EXHIBIT 10.33
[ATHEROGENICS, INC. LOGO]
2004 EQUITY OWNERSHIP PLAN
EQUITY OWNERSHIP AGREEMENT
(EMPLOYEES)
FOR
-------------------------------
RELATING TO
INCENTIVE STOCK OPTIONS
ATHEROGENICS, INC.
2004 EQUITY OWNERSHIP PLAN
EQUITY OWNERSHIP AGREEMENT
(EMPLOYEES)
THIS AGREEMENT is entered into between AtheroGenics, Inc. ("Company"),
a Georgia corporation and ___________________ ("Grantee").
WITNESSETH:
WHEREAS, the Board of Directors ("Board") of the Company has approved
the grant of STOCK OPTIONS to selected Participants pursuant to the
AtheroGenics, Inc. 2004 Equity Ownership Plan ("Plan"); and
WHEREAS, the Grantee has been selected to receive Incentive Stock
Options under the Plan;
NOW, THEREFORE, in consideration of the above premises, the Company
and the Grantee agree as follows:
X. XXXXX OF STOCK OPTIONS
Subject to the terms and conditions set forth herein and in the Plan,
which is attached hereto (or has previously been provided to Grantee) and made
a part hereof, the Grantee is hereby awarded, effective _____________, ______
(the "Grant Date"), Incentive Stock Options to purchase _____ shares of Stock
of the Company (the "Options"). For purposes of this Agreement, the Vesting
Commencement Date of the Options is
--------------, -------.
II. EXERCISE PRICE
Each Option granted above shall have an Exercise Price of $_______ per
share, which is equal to the Fair Market Value of a share of Stock of the
Company (as defined in the Plan) as of the Grant Date.
III. VESTING
The Grantee may exercise only those Options which are Vested and have
not yet expired as set forth in Section IV. Except as specified in the special
rules which follow, Options granted under this Agreement become Vested in
accordance with Schedule A attached. (For purposes of determining the Monthly
Anniversary of the Vesting Commencement Date of an Option, if the Vesting
Commencement Date occurs on the 29th, 30th or 31st day of the month, and the
month during which the Monthly Anniversary is to be determined does not contain
such a 29th, 30th or 31st day, respectively, the last day of such month shall
be considered the Monthly Anniversary of the Vesting Commencement Date.)
Notwithstanding the Vesting set forth in Schedule A, and subject to
the terms of the Plan, the following special rules apply with regard to the
Options granted under this Agreement:
(a) In the event of the Disability of the Grantee while employed by the
Company, the Options granted herein will become 100% Vested on the
date the Grantee incurs a Termination of Employment because of
Disability.
(b) In the event of the death of the Grantee while employed by the
Company, the Options granted herein will become 100% Vested on the
date of death.
(c) In the event of the Voluntary Resignation of the Grantee, no further
Options will become Vested after the Termination of Employment.
(d) In the event of the Involuntary Termination of the Grantee, no further
Options will become Vested after the Termination of Employment.
(e) In the event of Termination of Employment of the Grantee for Cause, no
further Options will become Vested after the Termination of
Employment.
(f) In the event of a Change of Control followed by a Constructive
Discharge or Involuntary Termination of the Grantee within twenty-four
(24) months following the Change of Control, the Options granted
herein will become 100% Vested.
(g) In the event of the Grantee's Termination of Employment for any reason
other than those specified in (a) through (f) above, no further
Options will become Vested after the date of such Termination of
Employment.
(h) Additionally, the Administrator may accelerate the Vesting of the
Grantee's Options if the Administrator determines that it is in the
best interests of the Company.
IV. EXERCISE
The Expiration Date of the Options granted herein is the date
immediately preceding the tenth anniversary of the Grant Date. Prior to a
Termination of Employment, the Grantee may exercise any Vested Options until
the Options' Expiration Date. The Grantee's ability to exercise any Vested
Options following a Termination of Employment is as follows:
(a) In the event the Grantee dies prior to a Termination of Employment or
within six (6) months following a Termination of Employment because of
Disability, the Grantee or the legal representative of such Grantee's
estate acting on the Grantee's behalf may exercise any Vested Options
for a period of six (6) months following the death (but not later than
the Expiration Date of the Options, if shorter).
(b) In the event the Grantee incurs a Termination of Employment because of
Disability, the Grantee or, if Grantee is legally incapacitated,
Grantee's legal representative acting on the Grantee's behalf may
exercise any Vested Options for a period of six (6) months following
the date of the Termination of Employment because of Disability (but
not later than the Expiration Date of the Options, if shorter).
(c) In the event the Grantee incurs a Termination of Employment for Cause,
the Grantee shall have no further right to exercise any Option granted
hereunder effective with the Company's delivery (or deemed delivery)
of notice to the Grantee of such Termination of Employment for Cause.
(d) In the event that the Grantee incurs a Termination of Employment for
any reason not specified in (a) through (c) above, the Grantee may
exercise any Vested Options for a period of thirty (30) days following
the date of the Grantee's Termination of Employment (but not later
than the Expiration Date of the Options, if shorter).
Neither Grantee nor any other person entitled to exercise the Options
under the terms of the Plan shall be, or have any of the rights or privileges
of, a shareholder of the Company in respect to any shares of Stock issuable
upon exercise of the Option, unless and until the Exercise Price for such
shares has been paid in full.
V. DISPOSITIONS OF STOCK
The Grantee, by acceptance hereof, hereby represents, warrants and
agrees that, upon exercise of this Option, unless the shares of stock are then
covered by an effective registration statement under the Securities Act of
1933, as amended (the "Act"):
(a) the Stock is being acquired for investment and not with a view towards
the public distribution or resale thereof;
(b) the Grantee will not sell, transfer or assign any Stock except in
compliance with the Act and the rules and regulations thereunder;
(c) the certificate representing the Stock may bear an appropriate
restrictive legend; and
(d) the transfer agent of the Company may place a stop transfer notation
with respect to the shares in the Stock transfer books of the Company.
VI. NOTICE AND PAYMENT
Subject to the limitations set forth in this Agreement, the Grantee
may exercise Options granted under this Agreement by delivering written notice
to the Company, on a form provided by the Company, specifying the number of
shares of Stock to be purchased. The Exercise Price of any Option shall be
payable to the Company in full at the time of exercise of the Option (i) in
cash or its equivalent, (ii) by delivery or deemed
delivery (based on an attestation of the ownership thereof) of previously
acquired Stock which has been held by the Grantee for at least six (6) months
having a Fair Market Value on the date of exercise equal to the total Exercise
Price, (iii) by a combination of cash and previously acquired stock or (iv) if
available, by irrevocably authorizing a third party to sell shares of Stock
acquired upon exercise of the Option (or a sufficient portion of such shares)
and remit to the Company a sufficient portion of the proceeds to pay the entire
exercise price.
VII. GENERAL
Administration. Administration of this agreement will be governed by
the terms and conditions set forth in the Plan in effect on the Grant Date.
That document is incorporated in this Agreement in its entirety.
Notices. Every notice or other communication relating to the Agreement
shall be in writing, and shall be mailed to or delivered to the party for whom
it is intended at such address as may from time to time be designated by such
party. Unless and until some other address is so designated, all notices or
communications by the Grantee to the Company shall be mailed to AtheroGenics,
Inc., 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief
Executive Officer. All notices by the Company to the Grantee may be delivered
to the Grantee personally or may be mailed to the Grantee at the address shown
on the records of the Company.
Withholding. The Company shall deduct from any payment of any kind due
to the Grantee, any federal, state or local taxes of any kind required by law
to be withheld with respect to the exercise of the Options or require the
Grantee to remit an additional amount in cash or its equivalent to pay for such
withholding as a condition of receiving Stock under this Agreement; provided,
however, that upon notice to the Administrator, the Grantee may, when
available, authorize the sale of Vested Option shares in accordance with clause
(iv) of Section VI to pay the relevant tax withholding (but in such case, the
number of such Vested Option shares authorized for sale for withholding
purposes shall be limited to no more than the number necessary to pay the
minimum amount of withholding mandated by applicable law).
Termination of Employment Followed by Consultant Service. In the event
that the Grantee incurs a Termination of Employment followed within thirty (30)
days by the commencement of a period of service as a consultant to the Company,
the Administrator, in its sole discretion, may specify by resolution at the
time of such transition that, for purposes of this Agreement, the Grantee's
Termination of Employment shall be disregarded, and from and after the date of
the Grantee's Termination of Employment, the provisions of this Agreement shall
be administered and interpreted as if the phrase "Termination of Employment"
were replaced by the phrase "Termination of Affiliation". In such a case, this
Option will be converted from an Incentive Stock Option to a Non-Qualified
Stock Option. In the event that the Grantee subsequently incurs a Termination
of Affiliation followed within thirty (30) days by the commencement of a new
period of service as an employee or a director of the Company, the
Administrator, in its sole discretion, may specify by resolution at the time of
such transition that, for purposes of
this Agreement, the Grantee's Termination of Affiliation shall be disregarded,
and from and after the date of the Grantee's Termination of Affiliation, the
provisions of this Agreement shall be administered and interpreted as
originally written (except that the Option will be considered a Non-Qualified
Stock Option). Notwithstanding anything in this Agreement to the contrary, in
any case in which the Administrator exercises its authority under this
paragraph, conflicting provisions of this Agreement shall be deemed modified to
reflect the action of the Administrator, and the transition period between the
Termination of Affiliation and the commencement of a period of service as a
consultant for the Company shall be deemed to be continuing service for all
purposes under this Agreement.
Interpretation. This Agreement is subject in all respects to the terms
of the Plan, and in the event that any provision of the Agreement shall be
inconsistent with the terms of the Plan, then the terms of the Plan shall
govern. Any question of interpretation arising under this Agreement shall be
determined by the Administrator and its determinations shall be final and
conclusive upon all parties in interest. All capitalized terms in this
Agreement which are defined in the Plan shall have the same definition for
purposes of this Agreement as they have in the Plan.
Counterparts. This Agreement may be executed in one or more
counterparts, each counterpart of which will be regarded for all purposes as an
original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the _____ day of ______________, 20_______.
ATHEROGENICS, INC.:
By:___________________________________
Name:_________________________________
Title:________________________________
GRANTEE:
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SCHEDULE A
VESTING SCHEDULE
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COMPLETE CALENDAR INCREMENTAL CUMULATIVE
MONTHS VESTING VESTING
COMMENCING ON OR
AFTER VESTING
COMMENCEMENT DATE
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1 0% 0%
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2 0% 0%
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3 0% 0%
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4 0% 0%
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5 0% 0%
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6 0% 0%
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7 0% 0%
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8 0% 0%
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9 0% 0%
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10 0% 0%
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11 0% 0%
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12 25% 25%
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13 2% 27%
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14 2% 29%
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15 2% 31%
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16 2% 33%
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17 2% 35%
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18 2% 37%
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19 2% 39%
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20 2% 41%
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21 2% 43%
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22 2% 45%
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23 2% 47%
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24 3% 50%
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25 2% 52%
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26 2% 54%
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27 2% 56%
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28 2% 58%
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29 2% 60%
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30 2% 62%
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31 2% 64%
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32 2% 66%
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33 2% 68%
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34 2% 70%
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35 2% 72%
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36 3% 75%
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37 2% 77%
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38 2% 79%
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39 2% 81%
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40 2% 83%
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41 2% 85%
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42 2% 87%
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43 2% 89%
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44 2% 91%
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45 2% 93%
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46 2% 95%
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47 2% 97%
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48 3% 100%
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[ATHEROGENICS, INC. LOGO]
2004 EQUITY OWNERSHIP PLAN
EQUITY OWNERSHIP AGREEMENT
(DIRECTORS)
FOR
--------------------------------
RELATING TO
NON-QUALIFIED STOCK OPTIONS
ATHEROGENICS, INC.
2004 EQUITY OWNERSHIP PLAN
EQUITY OWNERSHIP AGREEMENT
(DIRECTORS)
THIS AGREEMENT is entered into between AtheroGenics, Inc. ("Company"),
a Georgia corporation and _______________ ("Grantee").
WITNESSETH:
WHEREAS, the Board of Directors ("Board") of the Company has approved
the grant of STOCK OPTIONS to selected Participants pursuant to the
AtheroGenics, Inc. 2004 Equity Ownership Plan ("Plan"); and
WHEREAS, the Grantee has been selected to receive Non-Qualified Stock
Options under the Plan;
NOW, THEREFORE, in consideration of the above premises, the Company
and the Grantee agree as follows:
X. XXXXX OF STOCK OPTIONS
Subject to the terms and conditions set forth herein and in the Plan,
which is attached hereto (or has previously been provided to Grantee) and made
a part hereof, the Grantee is hereby awarded, effective _________________ (the
"Grant Date"), Non-Qualified Stock Options to purchase ___________ shares of
the Stock of the Company (the "Option"). For purposes of this Agreement, the
Vesting Commencement Date of the Options is
---------------.
II. EXERCISE PRICE
Each Option granted above shall have an Exercise Price of $___________
per share.
III. VESTING
The Grantee may exercise only those Options which are Vested and have
not yet expired as set forth in Section IV. All Options granted under this
Agreement Vest 1/2 per month for 12 months, beginning one month after the Grant
Date.
IV. EXERCISE
The Expiration Date of the Options granted herein is the date
immediately preceding the tenth anniversary of the Grant Date. Prior to a
Termination of Affiliation, the Grantee may exercise any Vested Options until
the Options' Expiration Date. The Grantee's ability to exercise any Vested
Options following a Termination of Affiliation is as follows:
1
(a) In the event the Grantee dies prior to a Termination of Affiliation or
within six (6) months following a Termination of Affiliation because
of Disability, the Grantee or the legal representative of such
Grantee's estate acting on the Grantee's behalf may exercise any
Vested Options for a period of six (6) months following the Grantee's
death (but not later than the Expiration Date of the Options, if
shorter).
(b) In the event the Grantee incurs a Termination of Affiliation because
of Disability, the Grantee or, if Grantee is legally incapacitated,
Grantee's legal representative acting on the Grantee's behalf may
exercise any Vested Options for a period of six (6) months following
the date of the Termination of Affiliation because of Disability (but
not later than the Expiration Date of the Options, if shorter).
(c) In the event the Grantee incurs a Termination of Affiliation for
Cause, the Grantee shall have no further right to exercise any Option
granted hereunder effective with the Company's delivery (or deemed
delivery) of notice to the Grantee of such Termination of Affiliation
for Cause.
(d) In the event that the Grantee incurs a Termination of Affiliation for
any reason not specified in (a) through (c) above, the Grantee may
exercise any Vested Options for a period of thirty (30) days following
the date of the Grantee's Termination of Affiliation (but not later
than the Expiration Date of the Options, if shorter).
Neither Grantee nor any other person entitled to exercise the Options under the
terms of the Plan shall be, or have any of the rights or privileges of, a
shareholder of the Company in respect to any shares of Stock issuable upon
exercise of the Option, unless and until the Exercise Price for such shares has
been paid in full.
V. DISPOSITIONS OF STOCK
The Grantee, by acceptance hereof, hereby represents, warrants and
agrees that, upon exercise of this Option, unless the shares of Stock are then
covered by an effective registration statement under the Securities Act of
1933, as amended (the "Act"):
(a) the Stock is being acquired for investment and not with a view towards
the public distribution or resale thereof;
(b) the Grantee will not sell, transfer or assign any Stock except in
compliance with the Act and the rules and regulations thereunder;
(c) the certificate representing the Stock may bear an appropriate
restrictive legend; and
(d) the transfer agent of the Company may place a stop transfer notation
with respect to the shares in the Stock transfer books of the Company.
2
VI. NOTICE AND PAYMENT
Subject to the limitations set forth in this Agreement, the Grantee
may exercise Options granted under this Agreement by delivering written notice
to the Company, on a form provided by the Company, specifying the number of
shares of Stock to be purchased. The Exercise Price of any Option shall be
payable to the Company in full at the time of exercise of the Option (i) in
cash or its equivalent, (ii) by delivery or deemed delivery (based on an
attestation of the ownership thereof) of previously acquired Stock which has
been held by the Grantee for at least six (6) months having a Fair Market Value
on the date of exercise equal to the total Exercise Price, (iii) by a
combination of cash and previously acquired stock or (iv) if available, by
irrevocably authorizing a third party to sell shares of Stock acquired upon
exercise of the Option (or a sufficient portion of such shares) and remit to
the Company a sufficient portion of the proceeds to pay the entire exercise
price.
VII. GENERAL
Administration. Administration of this agreement will be governed by
the terms and conditions set forth in the Plan in effect on the Grant Date.
That document is incorporated in this Agreement in its entirety.
Notices. Every notice or other communication relating to the Agreement
shall be in writing, and shall be mailed to or delivered to the party for whom
it is intended at such address as may from time to time be designated by such
party. Unless and until some other address is so designated, all notices or
communications by the Grantee to the Company shall be mailed to AtheroGenics,
Inc., 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief
Executive Officer. All notices by the Company to the Grantee may be delivered
to the Grantee personally or may be mailed to the Grantee at the address shown
on the records of the Company.
Withholding. The Company shall deduct from any payment of any kind due
to the Grantee, any federal, state or local taxes of any kind required by law
to be withheld with respect to the exercise of the Options or require the
Grantee to remit an additional amount in cash or its equivalent to pay for such
withholding as a condition of receiving Stock pursuant to this Agreement;
provided, however, that upon notice to the Administrator, the Grantee may, when
3
available, authorize the sale of Vested Option shares in accordance with clause
(iv) of Section VI to pay the relevant tax withholding (but in such case, the
number of such Vested Option shares authorized for sale for withholding
purposes shall be limited to no more than the number necessary to pay the
minimum amount of withholding mandated by applicable law).
Termination of Affiliation Followed by Consultant or Employment
Service. In the event that the Grantee incurs a Termination of Affiliation
followed within thirty (30) days by the commencement of a period of service as
a consultant to the Company, the Administrator, in its sole discretion, may
specify by resolution at the time of such transition that, for purposes of this
Agreement, the Grantee's Termination of Affiliation shall be disregarded. In
the event that the Grantee incurs a Termination of Affiliation followed within
thirty (30) days by the commencement of a period of service as an employee of
the Company, the Grantee's Termination of Affiliation shall be disregarded, and
from and after the date of the Grantee's Termination of Affiliation, the
provisions of this Agreement shall be administered and interpreted as if the
phrase "Termination of Affiliation" were replaced by the phrase "Termination of
Employment". In the event that the Grantee subsequently incurs a Termination of
Employment followed within thirty (30) days by the commencement of a new period
of service as an employee or a director of the Company, the Administrator, in
its sole discretion, may specify by resolution at the time of such transition
that, for purposes of this Agreement, the Grantee's Termination of Employment
shall be disregarded, and from and after the date of the Grantee's Termination
of Employment, the provisions of this Agreement shall be administered and
interpreted as originally written. Notwithstanding anything in this Agreement
to the contrary, in any case in which the Administrator exercises its authority
under this paragraph, conflicting provisions of this Agreement shall be deemed
modified to reflect the action of the Administrator, and the transition period
between the Termination of Affiliation or Termination of Employment and the
commencement of a period of further service with the Company shall be deemed to
be continuing service for all purposes under this Agreement.
Interpretation. This Agreement is subject in all respects to the terms
of the Plan, and in the event that any provision of the Agreement shall be
inconsistent with the terms of the Plan, then the terms of the Plan shall
govern. Any question of interpretation arising under this Agreement shall be
determined by the Administrator and its determinations shall be final and
conclusive upon all parties in interest. All capitalized terms in this
Agreement which are defined in the Plan shall have the same definition for
purposes of this Agreement as they have in the Plan.
Counterparts. This Agreement may be executed in one or more
counterparts, each counterpart of which will be regarded for all purposes as an
original.
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the _____ day of __________, -----.
ATHEROGENICS, INC.:
By:_____________________________________
Name:___________________________________
Title:__________________________________
GRANTEE:
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