EMPLOYEE STOCK OPTION AGREEMENT
Exhibit 4.3
EMPLOYEE STOCK OPTION AGREEMENT, dated as of (this “Agreement”), by and between
INHIBITEX, INC., a Delaware corporation (the “Company”), and ___ (the “Optionee”).
R E C I T A L S:
WHEREAS, the Company has adopted the Inhibitex, Inc. Amended and Restated 2004 Stock
Incentive Plan, as amended (the “Plan”) to provide long-term performance incentives to those
service providers of the Company and its Subsidiaries who are largely responsible for the
management, growth and protection of the business of the Company and its Subsidiaries; and
WHEREAS, the Company desires to grant to the Optionee an option (the “Option”) to
purchase a number of shares of the common stock, $0.001 par value, of the Company (the “Stock”)
pursuant to the Plan and on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Company and the Optionee, intending to be legally bound, hereby agree as
follows:
Section 1. Grant of Option. The Company hereby grants to the Optionee, pursuant to the
Plan and on the terms and conditions set forth herein, an Option to purchase that number of shares
of Stock and at the exercise price as set forth on Schedule A hereto.
(a) Except as otherwise may be provided in Section 2, the Option hereby granted shall vest in
installments as provided on Schedule A. Notwithstanding the foregoing, in the event of a Change of
Control, and conditioned on the Optionee’s continuous employment with the Company or any Subsidiary
from the date of grant through the date of such Change of Control, if the Optionee has been
employed by the Company:
(i) For less than six (6) months on the date of the Change of Control, the Option
shall vest as to that number of whole shares of Stock (rounding down) as is equal to twenty-five
percent (25%) of the number of unvested shares subject to the Option.
(ii) For six (6) months or more but less than twelve (12) months, the Option shall
vest as to that number of whole shares of Stock (rounding down) as is equal to fifty percent (50%)
of the number of unvested shares subject to the Option.
(iii) For twelve (12) months or more, the Option shall vest as to that number of
whole shares of Stock as is equal to one-hundred percent (100%) of the number of unvested shares
subject to the Option.
(b) If so designated on Schedule A hereto, this Option is intended to be an Incentive Stock
Option within the meaning of Section 422 of the Code.
Section 2. Term of Option. Unless earlier terminated pursuant to the other provisions
herein, the Option hereby granted shall terminate at the close of business on the date referred to
on Schedule A (the “Expiration Date”).
(a) In addition, at the close of business on the date the Optionee’s employment with the
Company or any Subsidiary terminates for any reason whatsoever (other than by reason of death,
Disability (as defined below) or Retirement (as defined below)), the Option shall terminate as to
that number of shares of Stock as to which the Option is not vested on that date.
(b) If the Optionee’s employment is terminated for Cause, the unexercised portion of the
Option (whether or not vested) will terminate immediately upon the Optionee’s termination of
employment.
(c) If the Optionee’s employment with the Company or any Subsidiary terminates for any reason
other than Cause, death, Disability or Retirement, then the Option may be exercised to the extent
vested on the date of the Optionee’s termination of employment at any time prior to the earlier of
the Expiration Date and three (3) months after the date of the Optionee’s termination of
employment, and any part of the Option which is not so exercised within such period shall thereupon
terminate.
(d) If the Optionee’s employment with the Company or any Subsidiary terminates by reason
of his or her death or Disability, then the vesting of the Option shall accelerate such that the
Option may be exercised, as to the entire number of whole shares of Stock that are covered by the
Option on the date of the Optionee’s death or Disability, at any time prior to the earlier of the
Expiration Date and twelve (12) months after the date of the Optionee’s death or Disability, and
any part of the Option which is not so exercised within such period shall thereupon terminate.
(e) If the Optionee’s employment with the Company or any Subsidiary terminates by reason of
his or her Retirement, then the vesting of the Option shall accelerate such that the Option may be
exercised, as to the entire number of whole shares of Stock that are covered by the Option on the
date of the Optionee’s termination of employment, at any time prior to the earlier of the
Expiration Date and twenty-four (24) months after the date of the Optionee’s Retirement, and any
part of the Option which is not so exercised within such period shall thereupon terminate.
(f) For all purposes of this Agreement, the Optionee’s employment with the Company or any
Subsidiary shall terminate at the time when the employment relationship between the Optionee and
the Company or any Subsidiary is terminated for any reason, which time shall be conclusively
determined by the Committee. No termination of employment shall be deemed to occur (i) when there
is a simultaneous reemployment of the Optionee by the Company or any Subsidiary, (ii) at the
discretion of the Committee, when a leave of absence has been granted by the Company, and (iii) at
the discretion of the Committee, when the termination is followed by the simultaneous establishment
of a consulting relationship by the Company or a Subsidiary with the Optionee. The Committee, in
its absolute discretion, shall determine the effect of all matters and questions relating to
termination of employment, including, but not by
way of limitation, the question of whether a termination of employment resulted from a
discharge for Cause.
(g) For purposes of this Agreement, “Disability” shall mean “disability” as defined in
any employment agreement between the Optionee and the Company or any Subsidiary, or if not defined
therein or if there is no such agreement, as defined in the Company’s long-term disability plan.
(h) For purposes of this Agreement, “Retirement” shall mean the cessation of employment with
the Company or any Subsidiary (other than due to death or for Cause) after an Optionee has attained
age sixty-four (64) and completed five (5) or more consecutive years of service with the Company or
any Subsidiary.
Section 3. Manner of Exercise.
(a) To exercise the Option, the Optionee shall provide written notice of such exercise in the
form provided in Annex 1 hereto to the Secretary of the Company at the Company’s then principal
office. The notice shall specify the number of shares of Stock for which the Option is being
exercised and shall be accompanied by a payment to the Company in full of the aggregate exercise
price (in accordance with the procedures set forth in Annex 1), plus the amount of the withholding
taxes determined by the Company to be due upon the purchase of such number of shares of Stock
(unless the Committee shall have consented to the making of other arrangements with the Optionee
with respect to the payment of such withholding taxes or unless the Plan authorizes another such
arrangement). In addition, if the Optionee, at the time of exercise, is subject to the reporting
requirements under Section 16 of the Exchange Act, the Optionee may direct the Company to retain
shares of Stock that the Optionee would otherwise receive in connection with the exercise of the
Option to pay the exercise price of the Option.
(b) Delivery of the notice of exercise shall constitute an irrevocable election to
purchase the Stock specified in the notice, and the date on which the Company receives the notice
accompanied by payment in full of the exercise price for the Stock covered by the notice and the
applicable withholding taxes shall be the date as of which the Stock so purchased shall be deemed
to have been issued.
(c) To exercise the Option upon the Optionee’s death, the persons who acquire the right
to exercise the Option must prove to the Committee’s satisfaction that they have duly acquired the
Option and that they have paid (or have provided for payment of) any taxes, such as estate,
transfer, inheritance or death taxes, payable with respect to the Option or to the Stock to which
it relates.
Section 4. Transferability. If the Option hereby granted is designated on Schedule A
as an “Incentive Stock Option,” the Option may be transferred only by will or the laws of descent
and distribution and may be exercised during the Optionee’s lifetime only by the Optionee. If this
Option is designated on Schedule A as a “Non-Qualified Stock Option,” the Option may be transferred
in accordance with the terms of the Plan, without consideration, to immediate family members (i.e.,
children, grandchildren or spouse) of the Optionee, to trusts for the benefit of
immediate family members of the Optionee and to partnerships in which the only partners are
immediate family members of the Optionee.
Section 5. Withholding Taxes.
(a) At the time of the exercise of all or any part of this Option, the Optionee shall pay to
the Company (or otherwise make arrangements satisfactory to the Committee for the payment of) the
amount of the Federal, state, local and foreign income, employment and other taxes required, in the
Company’s sole judgment, to be collected or withheld with respect to the exercise of the Option.
Such amount shall be paid to the Company in cash, by the surrender of that number of whole shares
of Stock with a Fair Market Value (valued on the date of exercise) as shall be equal to, but does
not exceed, the minimum statutory amounts required to be collected or withheld by the Company with
respect to the exercise of the Option or as provided in Section 9(c) of the Plan, if applicable.
(b) If the Option herein granted is designated as an Incentive Stock Option, then the
Optionee agrees that at the time of any “disqualifying disposition” (within the meaning of Section
422 of the Code and the regulations thereunder), the Optionee shall notify the Company of such
disqualifying disposition and shall pay to the Company (or otherwise make arrangements satisfactory
to the Committee for the payment of) the amount of the Federal, state, local and foreign income,
employment and other taxes required, in the Company’s sole judgment, to be collected or withheld
with respect to the disqualifying disposition of the Stock acquired upon exercise of the Option.
Such amount shall be paid to the Company as provided in Section 5(a) above.
Section 6. Lock-Up Period. The Optionee agrees that, if so requested by the Company or
any representative of the underwriters (the “Managing Underwriter”) in connection with any firm
commitment underwritten public offering of any securities of the Company under the Securities Act
of 1933, as amended (the “Securities Act”), the Optionee shall not sell or otherwise transfer any
shares of Stock or other securities of the Company (other than any securities of the Company being
registered in such offering) or enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the Stock, without the prior
written consent of the Company and the Managing Underwriter, commencing on the initial date that
securities are offered for sale under such offering and continuing for up to 180 days (the “Market
Standoff Period”) thereafter or such greater period, not to exceed an additional twenty (20) days,
in order to permit the underwriters to issue research reports in compliance with NASD Rule
2711(f)(4). The Optionee further agrees to execute promptly such agreements as may be reasonably
requested by the Managing Underwriter in connection with such offering that are not inconsistent
with this Section and that are deemed reasonably necessary by such Managing Underwriter to further
evidence or to give further effect hereto. The Company may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until the end of such Market Standoff
Period.
Section 7. Rights in Stock Before Issuance and Delivery. The Optionee shall not have
any rights as a stockholder of the Company with respect to the Stock underlying the Option unless
and until such Stock has been issued to the Optionee as fully paid Stock.
Section 8. No Right to Employment. Nothing contained herein shall be construed to
confer on the Optionee any right to continue as an employee of the Company or to derogate from any
right of the Company to retire, request the resignation of or discharge the Optionee, or to lay off
or require a leave of absence of the Optionee, with or without pay, at any time, for any reason.
Section 9. Qualifications to Exercise. Anything in this Agreement to the contrary
notwithstanding, in no event may the Option be exercisable if the Company shall, at any time and in
its sole discretion, determine that (a) the listing, registration or qualification of any shares of
Stock otherwise deliverable upon such exercise, upon any securities exchange or under any state or
federal law, or (b) the consent or approval of any regulatory body, is necessary or desirable in
connection with such exercise. In such event, such exercise shall be held in abeyance and shall not
be effective unless and until such listing, registration, qualification or approval shall have been
effected or obtained free of any conditions not acceptable to the Company (regardless of any
termination of the Option prior to such listing, registration, qualification or approval).
Section 10. Conditions to Transfer. Unless the issuance of the shares of Stock upon
the exercise of the Option has been registered under the Securities Act, the Committee may require
as a condition to the right to exercise the Option hereunder that the Company receive from the
person exercising the Option representations, warranties and agreements, at the time of any such
exercise, to the effect that the shares of Stock are being purchased for investment only and
without any present intention to sell or otherwise distribute such shares of Stock and that such
shares of Stock will not be disposed of in transactions which, in the opinion of counsel to the
Company, would violate the registration provisions of the Securities Act and the rules and
regulations thereunder. The certificate issued to evidence such shares of Stock shall bear
appropriate legends summarizing these restrictions on the disposition thereof.
Section 11. Entire Agreement. This Agreement and the Plan contain the entire agreement
between the parties hereto with respect to the matters contemplated herein and supersede all prior
agreements or understandings among the parties related to such matters.
Section 12. Binding Effect. Subject to the restrictions on transfer herein set forth,
this Agreement shall be binding upon and inure to the benefit of the Company and its successors and
assigns and upon the Optionee and his or her permitted transferees, heirs, executors,
administrators and legal representatives.
Section 13. Amendment; Termination; Waiver. This Agreement may be amended or
terminated, and the terms or covenants hereof may be waived, only by a written instrument executed
on behalf of the Company (as authorized by the Committee) and the Optionee.
Section 14. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to the principles of
conflicts of law thereof.
Section 15. Defined Terms. Capitalized terms used in this Agreement and not otherwise
defined herein have the meaning ascribed to them in the Plan.
Section 16. The Plan. The Optionee acknowledges having received a copy of the Plan.
The Option herein granted is subject to all of the terms and provisions of the Plan, all of which
are hereby incorporated herein by reference. In the event of any inconsistency between the
provisions of this Agreement and the provisions of the Plan, the provisions of the Plan shall
govern.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set
forth above.
| INHIBITEX, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| OPTIONEE |
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SCHEDULE A
Name of Optionee:
|
||
Option Number: |
||
Date of Grant:
|
, 20___ | |
Option Exercise Price:
|
$ per share | |
Number of Shares Subject to Option:
|
The Option is designated as an ___ Incentive Stock Option ___ Non-Qualified Stock Option.
Vesting Terms: On each of the first 4 anniversaries of the date of grant of this Option, the
Option shall vest and become exercisable as to that number of whole shares (rounding down) as is
equal to 25% of the number of shares subject to the Option (as set forth above), subject to the
Optionee’s continuous employment with the Company or a Subsidiary from the date of grant through
and including such vesting date.
Expiration Date:
| By: | ||||
| Xxxxxxx X. Xxxxx | ||||
| President & CEO | ||||
| OPTIONEE: |
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ANNEX 1
FORM OF ELECTION TO EXERCISE
(To be executed upon exercise of Option).
The undersigned hereby elects to exercise the right pursuant to the stock option agreement between
the undersigned and Inhibitex, Inc. (the “Company”), dated as of , 20___ (the “Option
Agreement”), to purchase shares of Stock, $0.001 par value per share (the “Shares”).
Choose one or more of the following options:
| Cash payment for Shares in the amount of $ . | ||
| Payment for Shares through a cashless exercise arrangement. The undersigned’s broker must forward the amount of cash necessary to purchase the Shares. Such broker will receive the Shares, and will forward the net proceeds of the cashless exercise to the undersigned. | ||
| If permitted by the Option Agreement, payment for Shares by having the Company retain Shares that the undersigned would otherwise receive in connection with the exercise. |
The undersigned requests that certificates for the Shares be registered in the
name of the undersigned.
Dated: , 20___
Optionee
Social Security Number
