EXHIBIT 10.02
[ATHEROGENICS, INC. LOGO]
2004 EQUITY OWNERSHIP PLAN
EQUITY OWNERSHIP AGREEMENT
RELATING TO
NON-QUALIFIED STOCK OPTIONS
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ATHEROGENICS, INC.
2004 EQUITY OWNERSHIP PLAN
EQUITY OWNERSHIP AGREEMENT
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
"Date of Grant"), Non-Qualified Stock Options to purchase ____________ shares of
Stock of the Company. For purposes of this Agreement, the Vestment Commence 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. 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:
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(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 Date of Xxxxx. Prior to a
Termination of Employment or 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 Employment or Termination
of Affiliation is as follows:
(a) In the event the Grantee dies prior to a Termination of
Employment or Termination of Affiliation or within six (6) months following a
Termination of Employment or Termination of Affiliation because of Disability,
the Grantee or the legal representative of such Xxxxxxx's estate acting on the
Grantee's behalf may exercise any Vested Options for a period of six (6) months
following death (but not later than the Expiration Date of the Options, if
shorter);
(b) In the event the Grantee incurs a Termination of Employment or
Termination of Affiliation because of Disability, the Grantee or, if Grantee is
legally incapacitated, Xxxxxxx'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 or Termination of Affiliation because
of Disability (but not later than the Expiration Date of the Options, if
shorter).
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(c) In the event that the Grantee incurs a Termination of
Employment or 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 Employment or Termination of Affiliation for Cause; or
(d) In the event that the Grantee incurs a Termination of
Employment or 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 Employment
or 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.
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.
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VII. GENERAL
Administration. Administration of this agreement will be governed by
the terms and conditions set forth in the Plan in effect on the Date of Grant.
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, XX 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 Affiliation or Employment Followed by Other Service. In
the event that the Grantee incurs a Termination of Affiliation or Termination of
Employment, as applicable, 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 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. 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
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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 ___________, 2_____.
ATHEROGENICS, INC.
By:
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Name:
----------------------------
Title:
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GRANTEE:
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SCHEDULE A
VESTING SCHEDULE
COMPLETE CALENDAR INCREMENTAL CUMULATIVE
MONTHS VESTING VESTING
COMMENCING ON OR
AFTER VESTING
COMMENCEMENT DATE
----------------- ----------- ----------
1 0% 0%
2 0% 0%
3 0% 0%
4 0% 0%
5 0% 0%
6 0% 0%
7 0% 0%
8 0% 0%
9 0% 0%
10 0% 0%
11 0% 0%
12 25% 25%
13 2% 27%
14 2% 29%
15 2% 31%
16 2% 33%
17 2% 35%
18 2% 37%
19 2% 39%
20 2% 41%
21 2% 43%
22 2% 45%
23 2% 47%
24 3% 50%
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25 2% 52%
26 2% 54%
27 2% 56%
28 2% 58%
29 2% 60%
30 2% 62%
31 2% 64%
32 2% 66%
33 2% 68%
34 2% 70%
35 2% 72%
36 3% 75%
37 2% 77%
38 2% 79%
39 2% 81%
40 2% 83%
41 2% 85%
42 2% 87%
43 2% 89%
44 2% 91%
45 2% 93%
46 2% 95%
47 2% 97%
48 3% 100%
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