Exhibit 10.12
Notice of Grant of Stock Options and Option Agreement
| Cytokinetics Incorporated ID: 94-3291317 350 Oyster Point Boulevard South San Francisco, CA 94080 |
First and Last Name Address Line 1 Address Line 2 City, State and Zip Code |
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Unless otherwise defined herein, the terms defined in the Cytokinetics, Incorporated Amended and Restated 2004 Equity Incentive Plan (the “Plan”) shall have the same defined meanings in this Stock Option Award Agreement (the “Agreement”).
You have been granted an option to purchase Common Stock of Cytokinetics, Incorporated, subject to the terms and conditions in the Plan and this Agreement as set forth below. The option that is the object of this grant constitutes an Inducement Award and the shares of Common Stock underlying the options are Inducement Shares, in each case, within the meaning of the EIP Plan.
Option Number: |
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Plan: |
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ID: |
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Date of Grant: |
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Exercise Price Per Share: |
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Total Number of Shares Granted: |
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Total Exercise Price: |
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Type of Option: |
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Expiration Date: |
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Vesting Schedule: |
| 1/4th of the Option shall vest on the 1-year anniversary of the Date of Grant. Thereafter, 1/36th of the Option shall vest on the same day of the month as the Date of Grant in the first subsequent month to the 1-year anniversary of the Date of Grant, and an additional 1/36th of the Option shall vest in each subsequent month (on the same day of the month as the Date of Grant) for an additional 35 months. |
By Participant’s electronic acceptance and the electronic signature of the Company's representative below, the Participant and the Company agree that this Option is granted under and governed by the terms and conditions of the Amended and Restated 2004 Equity Incentive Plan (the “Plan”) and this Option Agreement. Participant has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of the Plan and Option Agreement. Participant acknowledges that as of the Date of Grant, this Notice of Grant, the Option Agreement, and the Plan set forth the entire understanding between the Participant and the Company regarding this Option and supersede all prior oral and written agreements, promises and/or representations on that subject with the exception of (i) options previously granted and delivered to Participant, (ii) any compensation recovery policy that is adopted by the Company or is otherwise required by applicable law and (iii) any written employment or severance arrangement that would provide for vesting acceleration of this Option upon the terms and conditions set forth therein. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and Option Agreement. Participant further agrees to notify the Company upon any change in the residence address indicated above.
By accepting this Option, Participant consents to receive such documents by electronic delivery and to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
CYTOKINETICS, INC.: |
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Robert I. Blum |
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President and Chief Executive Officer |
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I. AGREEMENT
The Administrator hereby grants to the individual named in the Notice of Grant attached as Part I of this Agreement (the “Participant”) an option (the “Option”) to purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per share set forth in the Notice of Grant (the “Exercise Price”), subject to the terms and conditions of the Plan, which is incorporated herein by reference. Subject to Section 16(b) of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Option Agreement, the terms and conditions of the Plan will prevail.
This Option will be treated as a Nonstatutory Stock Option (“NSO”) and is not intended to have the tax-favored provisions of Section 422 of the Code.
This Option is an Inducement Award granted pursuant to Section 2(e) of the Plan. Any Shares purchased upon the exercise of the Option will be considered Inducement Shares, as defined in the Plan.
Right to Exercise. This Option is exercisable during its term in accordance with the Vesting Schedule set out in the Notice of Grant and the applicable provisions of the Plan and this Option Agreement. Vesting will stop immediately when Participant ceases to be a Service Provider. Participant may exercise this Option only for whole shares of Common Stock.
Method of Exercise. This Option is exercisable (1) on-line, using the website of the captive broker selected by the Company (an “On-line Notice”); or (2) by delivery of a completed written exercise notice, the form of which is attached as Exhibit A (an “Exercise Notice”) identifying the date of this Option Agreement, the number of Shares in respect of which the Option is being exercised (the “Exercised Shares”) and the purchase price and method of exercise of the Exercised Shares. Any Exercise Notice will be completed by the Participant and delivered in person, by certified mail, or by such other method as determined from time to time by the Administrator of the Company. Any Exercise Notice must be accompanied by payment of the aggregate exercise price as to all Exercised Shares together with full payment for any applicable withholding taxes or an election of a “net exercise”. Upon the delivery of (i) an On-line Notice, or (ii) an Exercise Notice to the Company, with any required payments, this Option will be deemed to be exercised as to the Exercised Shares.
No Shares will be issued pursuant to the exercise of this Option unless such issuance and exercise comply with Applicable Laws. Assuming such compliance, for income tax purposes the Exercised Shares will be considered transferred to Participant on the date the Option is exercised with respect to such Exercised Shares.
Non-Exempt Employees.
If Participant is an Employee eligible for overtime compensation under the Fair Labor Standards Act of 1938, as amended (that is, a “Non-Exempt Employee”), and except as otherwise provided in the Plan, Participant may not exercise this Option until Participant has been a Service Provider for at
least six (6) months measured from the Date of Grant, even if Participant has already been an Employee for more than six (6) months. Consistent with the provisions of the Worker Economic Opportunity Act, Participant may exercise this Option as to any vested portion prior to such six (6) month anniversary in the case of (i) Participant’s death or disability, (ii) a Change in Control or (iii) Participant’s “retirement” (as defined in the Company’s benefit plans).
Payment of the aggregate Exercise Price may be made by any of the following methods at the election of Participant, subject to the limitations described in this section:
This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Participant only by Participant. The terms of the Plan and this Option Agreement will be binding upon the executors, administrators, heirs, successors and assigns of Participant.
This Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Option Agreement.
This Option shall be exercisable for three months after Participant ceases to be a Service Provider, unless such termination is due to Participant’s death or Disability, in which case this Option shall be exercisable for one (1) year after Participant ceases to be Service Provider; provided, however, that the Option will terminate immediately if the Participant ceases to be a Service Provider due to a termination for Cause. Notwithstanding the foregoing, in no event may this Option be exercised after the Term/Expiration Date as provided above.
Withholding Taxes. In those cases where taxes are required to be withheld at the time of Option exercise, Participant is responsible to make, and hereby agrees to make, appropriate arrangements with the Company (or the Parent or Subsidiary employing or retaining Participant) for the full satisfaction of all Federal, state, and local income and employment tax withholding requirements applicable to the
Option exercise as provided in Section 11 of the Plan, including to the extent authorized at the time of exercise, through a “net exercise” arrangement. Participant acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver Shares if such withholding amounts are not delivered at the time of exercise. Participant acknowledges that the Company cannot provide tax advice, and that it is the responsibility of Participant to determine any withholding tax or other tax liability that may arise from the exercise of the Option. Participant further acknowledges that the Company has recommended that Participant seek the advice of a tax advisor before exercising the Option, in whole or in part.
The Plan is incorporated herein by reference. The Plan and this Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof, and may not be modified adversely to Participant's interest except by means of a writing signed by the Company and Participant. This Option Agreement is governed by the laws of the State of California, as applied to residents of California with regard to transactions occurring within California, and without regard to principles of conflicts laws.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS AN EMPLOYEE, CONSULTANT OR NON-EMPLOYEE DIRECTOR AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER). PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE, CONSULTANT OR NON-EMPLOYEE DIRECTOR FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE WITH PARTICIPANT'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE PARTICIPANT'S RELATIONSHIP AS AN EMPLOYEE, CONSULTANT OR NON-EMPLOYEE DIRECTOR AT ANY TIME, WITH OR WITHOUT CAUSE.
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EXHIBIT A
CYTOKINETICS INCORPORATED
AMENDED AND RESTATED 2004 EQUITY INCENTIVE PLAN
EXERCISE NOTICE
Cytokinetics Incorporated
350 Oyster Point Boulevard
South San Francisco, CA 94080
Attention: Stock Plan Administrator
(other forms of delivery and methods of delivery may be available on-line)
check, bank draft or money order delivered herewith: |
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Value of _______ Shares pursuant to net exercise: |
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Submitted by: |
| Accepted by: | ||
PURCHASER: |
| CYTOKINETICS, INC. | ||
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