EXHIBIT 10.69
AGOURON PHARMACEUTICALS, INC.
(a California Corporation)
1990 NON-STATUTORY STOCK OPTION AGREEMENT
FOR CONSULTANTS
This Option Agreement is entered into between Agouron Pharmaceuticals,
Inc., a California corporation and the Optionee whose name appears on the
Notice of Grant of Stock Option to which this Agreement is an attachment.
1. Recitals.
1.01 The Board of Directors of the Company or its duly authorized
delegates authorized the granting of this Option to Optionee who is a
Consultant to the Company or its Affiliates pursuant to the Agouron
Pharmaceuticals, Inc. 1990 Stock Option Plan.
1.02 This Option Agreement is intended to constitute a non-statutory
stock option, meaning an option which is not an "incentive stock option"
within the meaning of Section 422 of Internal Revenue Code of 1986, as
amended from time to time.
2. Definitions.
In addition to those words and phrases defined above and unless
otherwise required by the context in which they appear, words and phrases
having their initial letters capitalized shall have the following meanings:
2.01 Act. "Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
2.02 Affiliate. "Affiliate" shall mean any corporation defined as a
"parent corporation" or a "subsidiary corporation" by Code Section 424(e)
and (f), respectively.
2.03 Agreement. "Agreement" shall mean this 1990 Non-Statutory
Stock Option Agreement for Consultants (including any schedules, attachments,
documents incorporated by reference, or modifications agreed to in writing
by the Company and Optionee) which sets forth the Optionee's and the
Company's rights and obligations with respect to the Option granted Optionee
by the Board or its duly authorized delegates as described on the Notice of
Grant.
2.04 Board. "Board" shall mean the Board of Directors of the
Company.
2.05 Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
2.06 Company. "Company" shall mean Agouron Pharmaceuticals, Inc., a
California corporation, and any successors or assigns.
2.07 Consultant. "Consultant" shall mean any person who is placed on
the Corporation's Consultants List by the Board or its duly authorized delegates
and who agrees in writing to be included thereon.
2.08 Consultant's Agreement. "Consultant's Agreement" shall mean a
consulting agreement between Optionee and the Company and/or its Affiliates.
2.09 Date of Grant. "Date of Grant" shall mean the Date of Grant set
forth on the Notice of Grant.
2.10 Disability. "Disability" or "Disabled" shall mean the condition
of being "disabled" within the meaning of Section 422(c)(6) of the Code or any
successor provision.
2.11 Expiration Date. "Expiration Date" shall mean the Expiration
Date set forth on the Notice of Grant.
2.12 Fair Market Value. "Fair Market Value" of Stock on a given
date shall mean an amount per share, as determined by the Board or its
delegates by applying any reasonable valuation method determined without
regard to any restriction other than a restriction which, by its terms, will
never lapse. Notwithstanding the preceding, if the Stock is traded upon an
established stock exchange or exchanges or quoted on the over-the-counter
market as reported by the National Association of Securities Dealers
Automated Quotation Systems ("NASDAQ") National Market System, then the "Fair
Market Value" of Stock on a given date per share shall be deemed to be the
average of the highest and lowest selling price per share of the Stock on the
principal stock exchange on which the Stock is then trading or on the over-
the-counter market as reported by NASDAQ National Market System on such
date, or, if there was no trading of the Stock on that day, on the next
preceding day on which there was such a trade; if the Stock is not traded
upon an established stock exchange or quoted on the over-the-counter market
as reported by NASDAQ National Market System but is quoted on the NASDAQ or
a successor quotation system, the "Fair Market Value" of Stock on a given
date shall be deemed to be the mean between the closing representative "bid"
and "ask" prices per share of the Stock on such date as reported by the
NASDAQ or such quotation system, or, if there shall have been no trading of
the Stock on that day, on the next preceding day on which there was such
trading.
2.13 Notice of Grant of Stock Option. "Notice of Grant of Stock
Option" or "Notice of Grant" shall mean the Notice of Grant executed by the
Company and the Optionee to which this Agreement is an attachment.
2.14 Option. "Option" shall mean the right of Optionee to purchase
the number of shares of Stock set forth on the Notice of Grant in accordance
with the terms and conditions of this Agreement.
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2.15 Optionee. "Optionee" shall mean the person whose name is set
forth on the Notice of Grant.
2.16 Option Price. "Option Price" shall mean the price per share of
Stock to be paid by the Optionee upon exercise of the Option, which amount
is set forth on the Notice of Grant.
2.17 Option Stock. "Option Stock" shall mean the total number of
shares of Stock the Optionee shall be entitled to purchase pursuant to this
Agreement, which number of shares is set forth on the Notice of Grant.
2.18 Plan. "Plan" shall mean the 1990 Agouron Pharmaceuticals, Inc.
Stock Option Plan, as amended from time to time.
2.19 Reporting Person. "Reporting Person" shall mean an Optionee
who is required to file statements relating to his or her beneficial
ownership of Stock with the SEC pursuant to Section 16(a) of the Act.
2.20 Rule 16b-3. "Rule 16b-3" shall mean Rule 16b-3, as amended
from time to time, promulgated by the SEC under the Act, and any successor
thereto.
2.21 SEC. "SEC" shall mean the Securities and Exchange Commission.
2.22 Stock. "Stock" shall mean the no par common stock of the
Company.
2.23 Vesting. "Vesting" shall mean the date(s) when all or a
portion of the Option Stock becomes available for exercise.
2.24 Vesting Schedule. "Vesting Schedule" shall mean the Vesting
Schedule set forth on the Notice of Grant which indicates on what dates all
or a portion of the Option Stock becomes available for exercise.
3. Option.
3.01 Grant. The Company hereby grants to Optionee an Option to
purchase all or any part of the Option Stock on the terms and conditions set
forth in this Agreement. The Date of Grant shall be the Date of Grant set
forth on the Notice of Grant.
3.02 Purchase Price. The purchase price per share of Stock to be
paid upon the exercise of this Option shall be the Option Price set forth on
the Notice of Grant.
3.03 Restrictions on Transfer. This Option may be transferred to a
trust for the benefit of the Optionee or members of his immediate family.
Upon any attempt to sell, assign, encumber or otherwise transfer this Option
in violation of this Agreement, or upon the levy of
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any attachment or similar process upon this Option, this Option shall
immediately become null and void.
3.04 Modifications of Rights. As set forth in Paragraph 6(l) of the
Plan, the Board may modify (including, lowering the Option Price), extend or
renew this Option (to the extent not previously exercised), or accept the
surrender of this Option (to the extent not previously exercised) and
authorize the granting of a new Stock option in substitution therefor;
provided, however, that no modification of this Option shall, without the
consent of the Optionee, alter or impair any existing rights or obligations
of Optionee under this Option.
3.05 Changes in Company's Equity Structure; Recapitalization of
Company. Upon the occurrence of the capital and/or recapitalization
transactions described in Paragraph 6(j) of the Plan, this Option (to the
extent not previously exercised) shall be adjusted or modified as provided
in Paragraph 6(j) of the Plan. Notwithstanding any provision of this
Agreement, the Company reserves the right to:
(a) make or enter into any adjustments, reclassifications,
reorganizations or changes of its capital or business
structure;
(b) merge or consolidate with other entities; or
(c) dissolve, liquidate or sell, or transfer all or any
part of its business or assets.
3.06 Shareholder's Rights. Optionee shall have no rights as a
shareholder with respect to any shares Optionee is entitled to purchase
under this Option until the date of the issuance of a stock certificate for
such shares. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
of issuance of such certificate, except as provided in this Agreement or in
the Plan.
4. Consultant Conditions.
4.01 Consultant's Agreement. Optionee shall be considered to be
engaged by the Company and its Affiliates until the date of termination of
Optionee's engagement under the terms of his Consultant's Agreement. The
Board, in accordance with the terms of Optionee's Consultant's Agreement
shall determine:
(a) whether or when there has been a termination of
Optionee's engagement by the Company and its Affiliates;
(b) if there has been a failure to comply with Optionee's
covenant not to compete obligations; and
(c) the cause of such termination,
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which determination shall be final.
4.02 Covenant Not to Compete. Failure of Optionee to comply with
the covenant not to compete obligations under the terms of his Consultant's
Agreement within thirty (30) days of written notice of such failure shall
cause, on the thirtieth (30th) day after such written notice, the
cancellation of Optionee's right to purchase Option Stock (to the extent not
previously exercised) without further action by the Company.
4.03 Termination for Cause. If Optionee's engagement under the
terms of his Consultant's Agreement is terminated for cause, the right of
Optionee to purchase Option Stock shall only be exercisable for a period of
thirty (30) days after the date of such termination.
5. Exercise.
5.01 Exercise Amounts. Subject to the earlier termination of the
right to exercise this Option as provided under this Agreement, including
Paragraphs 4.02 and 4.03 above, the Optionee shall be entitled to exercise
the amounts of Option Stock, in whole or in part, as set forth in the
Vesting Schedule on the Notice of Grant.
5.02 Additional Adjustments. Notwithstanding the terms of Paragraph
5.01 of this Agreement, the Board in its sole and exclusive discretion may
provide for conditions for the exercise of this Option and/or modify the
Vesting Schedule set forth on the Notice of Grant; provided, however, the
Board may only modify the conditions for the exercise of this Option and/or
modify the Vesting Schedule to provide for a more restrictive Vesting
Schedule with the consent of Optionee, if such modification alters or
impairs any existing rights or obligations of Optionee under this Option.
5.03 Cumulative Exercise Rights. If the Optionee does not exercise
in any one year period the full number of shares to which he is then
entitled to exercise, he may exercise those shares in any subsequent year
prior to the Expiration Date of this Option as set forth on the Notice of
Grant, or such later date subsequently approved by the Board or its
delegates.
5.04 Expiration of Exercise Rights. Subject to the provisions of
Paragraph 5.08, in no event shall this Option be exercisable after the
Expiration Date or such later date subsequently approved by the Board or its
delegates.
5.05 Fractional Shares. This Option shall not be exercisable with
respect to any fractional shares of the Stock.
5.06 Exercise Procedure. This Option shall be exercised by the
giving of written notice of exercise to the Company which specifies the
number of shares of Stock to be purchased, accompanied by payment (in
accordance with the terms of Paragraph 6(d) of the Plan) of the aggregate
Option Price for the shares of Stock being purchased, such payment to be
made in any combination of:
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(a) United States cash currency;
(b) a cashier's or certified check to the order of the
Company;
(c) a personal check acceptable to the Company;
(d) to the extent permitted by the Board, shares of Stock
(including previously owned Stock or Stock issuable in
connection with the Option exercise), properly endorsed
to the Company, whose Fair Market Value on the date of
exercise equals the aggregate Option Price of the Option
being exercised; or
(e) to the extent agreed to by the Board, the Optionee's
entering into an agreement with the Company whereby a
portion of the Optionee's Options are terminated and
where the "built-in gain" on any Options which are
terminated as part of such agreement equals the
aggregate Option Price of the Option being exercised.
"Built-in gain" means the excess of the aggregate Fair
Market Value of any Stock otherwise issuable on exercise
of a terminated Option, over the aggregate Option Price
otherwise due the Company on such exercise.
The Board (in accordance with the terms of Paragraph 6(d) of the Plan) may
provide such assistance to the Optionee to facilitate the exercise of this
Option as it deems appropriate; provided, however, that the Board, as a
prerequisite to providing such assistance, may require satisfaction of any
rules or conditions it deems appropriate. Shares of Stock used to pay the
Option Price shall be valued at their Fair Market Value on the date of
exercise. The Optionee's notice of exercise shall also be accompanied by
payment (in accordance with the terms of Paragraph 6(p) of the Plan) of the
amount of federal and state income and employment taxes that the Company is
required to collect from Optionee because of the exercise of the Option.
5.07 Exercise During Life. Subject to the provisions of Paragraphs
4.02, 4.03 and 5.08, during Optionee's lifetime, this Option shall be
exercisable only by Optionee either:
(a) while Optionee is engaged by the Company or its
Affiliates under the terms of his Consultant's
Agreement;
(b) within three (3) months after the date on which
Optionee's engagement terminates for reasons other than
"termination for cause" under the terms of his
Consultant's Agreement and as provided in Paragraph
4.03 of this Agreement; or
(c) within one (1) year after the date on which the
Optionee's engagement terminates due to a Disability
under the terms of his Consultant's Agreement;
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provided, however, that in no event shall the period of exercise be extended
beyond the Expiration Date or such later date subsequently approved by the
Board or its delegates. Unless the Board or its delegates otherwise agree,
if Optionee is entitled to purchase shares of Stock after the termination of
Optionee's engagement under his Consultant's Agreement, the number of shares
of Stock Optionee may so purchase shall be limited to the number of shares of
Stock Optionee was entitled to purchase as of such date of termination.
5.08 Exercise After Death. If Optionee dies while engaged by the
Company or its Affiliates under the terms of his Consultant's Agreement or
within a period of three (3) months after the date such engagement
terminates, but prior to the complete exercise of this Option, the Option may
be exercised within one (1) year from the date of Optionee's death, but:
(a) only by a personal representative of Optionee, or by any
person or persons who shall have acquired the Option
directly from the Optionee by bequest or inheritance;
and
(b) only as to the number of shares of Stock that Optionee
was entitled to purchase under this Option on the date
of Optionee's death.
5.09 Exercise of Option Prior to Vesting. The Board, in its sole
and exclusive discretion, may permit the Optionee to exercise this Option
prior to the date this Option is otherwise exercisable, provided the Stock
issued on such exercise is subject to repurchase rights which expire pro rata
as the Option would otherwise have become exercisable.
5.10 Non-Sequential Exercise Permitted. Subject to the exercise
limitations set forth herein, this Option shall be exercisable
notwithstanding the fact that there is an outstanding incentive stock option
or non-statutory stock option for the purchase of Stock of the Company which
was granted before this Option was granted, and no subsequently-granted
incentive stock option shall fail to be exercisable solely because this
Option remains outstanding.
5.11 Legends. Certificates for shares of Stock acquired upon
exercise of this Option may contain such legends and transfer restrictions as
the Company shall deem reasonably necessary or desirable to:
(a) assure the satisfaction of any liability that the
Company may or will have incurred for withholding of any
federal and state income and employment taxes;
(b) facilitate compliance by the Company with any federal or
state laws or regulations, including, without
limitation, legends restricting transfer of the Stock
until there has been compliance with federal and state
securities laws;
(c) assure notice of the Company's repurchase rights under
Paragraph 5.09 of this Agreement; or
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(d) assure notice of such other restrictions as may be
imposed on the Stock under the terms of this Agreement.
6. Conflict Between Plan and Agreement.
This Agreement, including the Option and Optionee's rights hereunder,
is subject to and governed by the Plan. Any conflict between the terms and
provisions of this Agreement and the terms and provisions of the Plan shall
be governed by the terms and provisions of the Plan.
7. Investment Intent.
This Option is granted on the condition that Optionee's purchase of
Stock shall be for investment purposes for Optionee's own account and not
with a view to resale or distribution. The Company shall not, upon the
exercise of this Option, be required to issue or deliver shares of Stock or
certificates therefor if, in the opinion of counsel for the Company, such
issuance or delivery would be in violation of, or would not comply with, any
applicable state or federal securities law, regulation or rule.
8. Notices.
8.01 In Writing. All notices, demands, requests, declarations,
service of process, or other communications permitted or required under this
Agreement or applicable law shall be in writing.
8.02 Delivery. All such communications may be served personally or
may be sent by registered or certified mail, return receipt requested,
postage prepaid and addressed to either Optionee or the Company at the
addresses appearing at the top of the Notice of Grant, or at such other
address as either party shall have communicated to the other pursuant to
this Paragraph 8.02. All such communications shall be deemed effectively
delivered upon personal service or three (3) days after deposit in the
United States Mail.
9. Miscellaneous.
9.01 Successors and Assigns. Except as otherwise provided in this
Agreement, this Agreement shall inure to the benefit of only the Company,
Optionee and their respective successors or assigns.
9.02 No Right to be a Consultant. Nothing contained in this
Agreement shall be construed as giving Optionee any right to be retained as a
consultant for the Company.
9.03 Severability. If any provision or provisions of this Agreement
are adjudged to be, for any reason, unenforceable, illegal or void, the
remainder of the provisions shall remain in full force and effect.
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9.04 Integration. This Agreement and the Notice of Grant to which
this Agreement is an attachment constitute the entire understanding of the
parties concerning this Option. Except as otherwise provided, any changes,
modifications, variations, or subordinations pertaining to this Agreement
and the Notice of Grant are invalid, unless stated in writing and executed
by the Company and Optionee.
9.05 Governing Law. This Agreement and the Option granted hereby
shall be governed by the laws of the State of California.
9.06 Attorneys' Fees. If either party brings an action or seeks to
enforce or interpret any of the terms or provisions of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees
and costs, in addition to any other remedy it may be awarded.
9.07 Counterparts. This Agreement may be executed in counterparts,
and the counterparts shall constitute the whole instrument.
9.08 Titles for Convenience; Gender; and Plurals. Titles of
articles and paragraph headings are for convenience only and shall not affect
the construction or interpretation of this Agreement, or any portion thereof.
Whenever required by the context hereof, the singular shall include the
plural, and vice versa; the masculine gender shall include the feminine and
neuter, and vice versa.
9.09 Consultants List. Consultant's execution of this Agreement
indicates his written agreement to be placed on the Company's Consultants
List.
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