Exhibit 4.4
VALERA PHARMACEUTICALS, INC.
EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Valera Pharmaceuticals, Inc. (the "Company") hereby grants to
__________ (the "Optionee") an option to purchase a total of 20,000 shares of
Common Stock of the Company (the "Option"), at the price and on the terms set
forth herein, and in all respects subject to the terms, definitions and
provisions of the Valera Pharmaceuticals, Inc. Equity Incentive Plan (the
"Plan") applicable to non-qualified stock options, which terms and provisions
are hereby incorporated by reference herein. Unless the context herein otherwise
requires, the terms defined in the Plan shall have the same meanings when used
herein.
1. NATURE OF THE OPTION. This Option is intended to be a nonstatutory
stock option and is not intended to be an Incentive Stock Option within the
meaning of section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), or to otherwise qualify for any special tax benefits to the Optionee.
2. DATE OF GRANT; TERM OF OPTION. This Option is granted this 27th day
of January 2005, (the "Date of Grant") and it may not be exercised later than
the date that is ten (10) years after the Date of Grant, subject to earlier
termination, as provided in the Plan or Section 6 hereof.
3. OPTION EXERCISE PRICE. The Option exercise price is $1.00 (ONE
DOLLAR) per Share.
4. EXERCISE OF OPTION. This Option shall be exercisable during its
term only in accordance with the terms and provisions of the Plan and this Award
Agreement as follows:
(A) RIGHT TO EXERCISE. The Option shall become exercisable
annually with respect to 25% of the Shares underlying the Option (the "Option
Shares") on each yearly anniversary of January 27, 2005 (the "Vesting Date"), if
the Optionee remains continuously employed by the Company from the Vesting Date
through such anniversary of the Vesting Date.
(B) METHOD OF EXERCISE. The Optionee may exercise this Option by
providing written notice stating the election to exercise this Option. Such
written notice must be signed by the Optionee and must be delivered in person or
by certified mail to the Secretary of the Company or such other person as may be
designated by the Company. The written notice must be accompanied by payment of
the option exercise price in the manner described in Section 4(c), by an
executed Stock Restriction Agreement described in Section 4(f) and by any other
agreements required by the Board or its Committee and/or the terms of the Plan,
which other agreements may restrict the sale or other transfer of the Option
Shares and may include certain additional representations and agreements as to
the Optionee's investment intent with respect to the Option Shares. This Option
will be deemed to be exercised only upon the receipt by the Company of such
written notice, payment of the option exercise price, and duly executed copies
of the Stock Restriction Agreement and any other agreements required by the
Board or its Committee, the terms of the Plan and/or this Award Agreement. The
Optionee will have no right to vote or receive dividends and will have no other
rights as a stockholder with respect to such
Option Shares notwithstanding the exercise of this Option, until the issuance
(as evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate(s) evidencing
Option Shares that are being issued upon exercise of this Option. The
certificate(s) for the Option Shares will be registered in the name of the
Optionee and will contain any legend as may be required under the Plan, this
Award Agreement, and/or applicable law.
(C) METHOD OF PAYMENT. The method of payment of the option
exercise price will be determined by the Board or its Committee and may consist
entirely of cash, certified check, or such other consideration or method of
payment as may be authorized under the Plan.
(D) PARTIAL EXERCISE. This Option may be exercised in whole or in
part; provided, however, that any exercise may apply only with respect to a
whole number of Shares.
(E) RESTRICTIONS ON EXERCISE. This Option may not be exercised if
the issuance of these Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or regulations. In
addition, as a further condition to the exercise of this Option, the Company may
require the Optionee to make any representation or warranty to the Company as
may be required by or advisable under any applicable law or regulation.
(F) STOCK RESTRICTION AGREEMENT. In connection with and as a
condition of exercising this Option, Optionee hereby acknowledges and agrees to
execute a Stock Restriction Agreement (or other agreement restricting Optionee's
rights in the Shares acquired or to be acquired by the exercise of this Option)
by and between Optionee, the Company and/or one or more other holders of equity
securities of the Company in the form that the Company provides at the time of
exercise and as may be amended by the Company in its sole discretion from time
to time.
5. INVESTMENT REPRESENTATIONS. Unless the Shares have been registered
under the Securities Act of 1933, in connection with the acquisition of this
Option, the Optionee represents and warrants to the Company as follows:
(A) The Optionee is acquiring this Option, and upon exercise of
this Option, the Optionee will be acquiring the Shares for investment for his or
her own account, not as a nominee or agent, and not with a view to, or for
resale in connection with, any distribution thereof.
(B) The Optionee has a preexisting business or personal
relationship with the Company or one of its directors, officers or controlling
persons and by reason of his or her business or financial experience, has, and
could be reasonably assumed to have, the capacity to protect his or her
interests in connection with the acquisition of this Option and the Shares.
6. TERMINATION OF RELATIONSHIP WITH THE COMPANY.
(A) VOLUNTARY TERMINATION. If the Optionee terminates his or her
employment with the Company for any reason other than death or Disability, the
Option (to the extent exercisable at the time of such termination) may be
exercised at any time within ninety (90) days after the date of such
termination. To the extent that the Option is not exercisable at the time of
such termination, or to the extent the Option is not exercised within the time
specified herein, the Option shall terminate.
(B) DISABILITY. If the Optionee's employment by the Company
terminates due to Disability, the Option (to the extent exercisable at the time
of such termination) may be exercised by the Optionee or his or her legal
guardian or representative at any time within twelve (12) months after such
termination. To the extent that the Option is not exercisable on the date of
termination, or to the extent the Option is not exercised within the time
specified herein, the Option shall terminate.
(C) DEATH. If the Optionee's employment by the Company terminates
due to his or her death, the Option (to the extent exercisable at the time of
such death) will remain exercisable for twelve (12) months after the date of
death by the Optionee's estate or by a person who acquired the right to exercise
the Option by bequest or inheritance. To the extent that the Option is not
exercisable on the date of death, or to the extent the Option is not exercised
within the time specified herein, the Option shall terminate.
(D) TERMINATION WITHOUT CAUSE. If the Company terminates
Optionee's employment with the Company without Cause, the Option (to the extent
exercisable at the time of such termination) may be exercised at any time within
thirty (30) days after the date of such termination. To the extent that the
Option is not exercisable at the time of such termination, or to the extent the
Option is not exercised within the time specified herein, the Option shall
terminate.
(E) TERMINATION FOR CAUSE. If the Company terminates Optionee's
employment with the Company for Cause, the Option will then terminate
immediately and automatically, and the Optionee shall have no further rights
therein.
Notwithstanding any other provision of this Section 6, the Option shall not be
exercisable after the expiration of the term set forth in Section 2 hereof.
7. NON-TRANSFERABILITY OF OPTION. This Option may not be sold,
pledged, assigned, hypothecated, gifted, transferred or disposed of in any
manner either voluntarily or involuntarily by operation of law, other than by
will or by the laws of descent or distribution. During the Optionee's lifetime,
this Option is exercisable only by the Optionee (or by such Optionee's legal
guardian or representative as provided in Section 6). Subject to the foregoing
and the terms of the Plan, the terms of this Option will be binding upon the
executors, administrators and heirs of the Optionee, meaning for purposes of
this Award Agreement, both testamentary heirs and heirs by intestacy.
8. NO CONTINUATION OF EMPLOYMENT OR ENGAGEMENT. Neither the Plan nor
this Option shall confer upon any Optionee any right to continue in the service
of the Company
or any of its Subsidiaries or limit, in any respect, the right of the Company to
discharge the Optionee at any time, with or without Cause and with or without
notice.
9. NON-COMPETITION. Notwithstanding any non-competition agreement
previously existing by and between the Optionee and the Company, in
consideration for this Option, the Optionee agrees to the following:
(A) During the Optionee's employment with the Company and for a
period of two (2) years thereafter, Optionee will not, unless acting pursuant
hereto or with the prior written consent of the Board of Directors of the
Company, directly or indirectly, own, manage, operate, join, control, finance or
participate in the ownership, management, operation, control or financing of, or
be connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with, or use or permit his name to be
used in connection with, any business or enterprise, in direct competition with
the Company's business. The Optionee acknowledges and agrees that adherence to
the terms of this Section 9 does not preclude Optionee from earning a livelihood
and that the restrictions contained in this Section 9 are reasonable and
necessary to protect the Company's legitimate interests in the conduct of its
business.
(B) The foregoing restriction shall not be construed to prohibit
the ownership by Optionee of not more than five percent (5%) of any class of
securities of any corporation which is in competition with the Company and which
corporation has a class of securities registered pursuant to the Securities
Exchange Act of 1934, provided that such ownership represents a passive
investment and that neither Optionee nor any group of persons including Optionee
in any way, either directly or indirectly, manages or exercises control of any
such corporation, guarantees any of its financial obligations, otherwise takes
any part in its business, other than exercising his rights as a shareholder, or
seeks to do any of the foregoing.
(C) During the Optionee's employment with the Company and for a
period of two (2) years thereafter, Optionee will not call on or solicit, either
directly or indirectly, any person, firm, corporation or other entity who or
which at the time of Optionee's termination was, or within two (2) years prior
thereto had been, a customer of the Company or any of its affiliates with
respect to the activities prohibited by Section 9 hereof.
10. MARKET STAND-OFF. The Optionee agrees that, in connection with any
public offering by the Company of its equity securities pursuant to a
registration statement filed under the Securities Act, not to sell, make any
short sale of, loan, hypothecate, pledge, grant any option for the purchase of
or otherwise dispose of any Shares without the prior written consent of the
Company or its underwriters, for such period of time from the effective date of
such registration as may be requested by the Company or such underwriters.
11. WITHHOLDING. The Company reserves the right to withhold, in
accordance with any applicable laws, from any consideration payable or property
transferable to Optionee any taxes required to be withheld by federal, state or
local law as a result of the grant or exercise of this Option or the sale or
other disposition of the Shares. If the amount of any consideration payable to
the Optionee is insufficient to pay such taxes or if no consideration is payable
to the Optionee, upon the request of the Company, the Optionee (or such other
person entitled to
exercise this Option pursuant to Section 6 hereof) will pay to the Company an
amount sufficient for the Company to satisfy any federal, state or local tax
withholding requirements applicable to and as a condition to the grant or
exercise of this Option or the sale or other disposition of the Shares issued
upon the exercise of this Option.
12. THE PLAN. The Optionee has received a copy of the Plan (a copy of
which is attached hereto), has read the Plan and is familiar with its terms, and
hereby accepts the Option subject to all of the terms and provisions of the
Plan, as amended from time to time. Pursuant to the Plan, the Board or its
Committee is authorized to interpret the Plan and to adopt rules and regulations
not inconsistent with the Plan as it deems appropriate. The Optionee hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Board or its Committee upon any questions arising under
the Plan.
13. SPOUSAL CONSENT. As a condition to the effectiveness of the grant
of the Option, the Grantee's SPOUSE (if any) is required to execute the attached
"Consent of Spouse."
14. GOVERNING LAW. This Award Agreement will be construed in
accordance with the laws of the State of Delaware, without regard to the
application of the principles of conflicts of laws.
15. AMENDMENT. Subject to the provisions of the Plan, this Award
Agreement may be amended at any time by the Company or its delegate; provided,
however, that any modification or amendment of this Award Agreement which
adversely affects the Optionee shall require the written consent of the
Optionee.
16. ENTIRE AGREEMENT. This Award Agreement, together with the Plan and
the other exhibits attached thereto or hereto, represents the entire agreement
between the parties hereto relating to the subject matter hereof, and merges and
supersedes all prior and contemporaneous discussions, agreements and
understandings of every nature relating to the award of Options to Optionee by
the Company.
IN WITNESS WHEREOF, this Award Agreement has been executed by the
parties on the: 27th day of January, 2005.
VALERA PHARMACEUTICALS, INC.
BY:
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NAME:
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TITLE: PRESIDENT AND CEO
OPTIONEE
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SIGNATURE
__________
THIS OPTION AND THE SECURITIES WHICH MAY BE PURCHASED UPON EXERCISE OF THIS
OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE NOT BEEN ACQUIRED
WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, ASSIGNED, EXCHANGED,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF, BY
GIFT OR OTHERWISE, OR IN ANY WAY ENCUMBERED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
ANY APPLICABLE STATE SECURITIES LAWS, OR A SATISFACTORY OPINION OF COUNSEL
SATISFACTORY TO VALERA PHARMACEUTICALS, INC. THAT REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT AND UNDER APPLICABLE STATE SECURITIES LAWS.
ACKNOWLEDGMENT
The Optionee acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto, and represents that he or she has read and is familiar with the
terms and provisions thereof and hereby accepts this Option subject to all of
the terms and provisions of the Award Agreement and the Valera Pharmaceuticals,
Inc. Equity Incentive Plan (the "Plan"). The Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Board or
the Committee upon any questions arising under the Plan.
Date: ----------------------------------------
---------------------- Signature of Optionee
__________
CONSENT OF SPOUSE
I,____________________________________, spouse of _________, have read the
foregoing Non-Qualified Stock Option Agreement (the "Agreement"). I am aware by
the terms of the Agreement, among other things, my spouse agrees to sell certain
of his/her shares of the capital stock of the Company, including my community
property or other interest therein (if any), upon certain events and that
transfer of such shares is otherwise restricted. I hereby consent to such sale
and to such restrictions, approve of the provisions of the Agreement, and agree
that if I pre-decease my spouse, the successors of my community property or
other interest (if any) in such shares will hold such shares subject to the
provisions of the Agreement. In consideration of the grant of shares of VALERA
PHARMACEUTICALS, INC. as set forth in that Agreement, I hereby appoint my spouse
as my attorney-in-fact with respect to the exercise of any rights under the
Agreement and agree to be bound by the provisions of the Agreement insofar as I
may have any rights in said Agreement or any shares issued pursuant thereto
under the community property laws or similar laws relating to marital property.
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SIGNATURE OF SPOUSE
DATE
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