EXHIBIT 4.3
EMPLOYEES AND CONSULTANTS STOCK OPTION AGREEMENT/PLAN
SUPERGEN, INC., a California corporation (the "Company"), hereby grants to
_________________ ("Optionee") a Nonqualified Stock Option (the "Option") to
purchase a total of _______ shares of Common Stock (the "Shares") of the
Company, at the price determined as provided herein.
1. NATURE OF THE OPTION. This Option is intended by the Company and
Optionee to be a "Nonqualified Stock Option" and does not qualify for any
special tax benefits to the Optionee. (See Section 13 below.)
2. EXERCISE PRICE. Subject to Section 11 below, the exercise price is
$_____ for each share of Common Stock subject to this Option for a total
exercise price of $________.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term
as follows:
(i) RIGHT TO EXERCISE.
(a) Subject to Subsections 3(i)(b), (c) and (d) below, ______ of
the total number of shares subject to this Option shall become exercisable on
_____________ and ______ of the total number of shares subject to this Option
shall become exercisable on each anniversary thereafter until all of such shares
are exercisable.
(b) This Option may not be exercised for a fraction of a Share.
(c) In the event of Optionee's death, disability or other
termination of employment or consulting relationship, the exercisability of the
Option is governed by Sections 7, 8 and 9 below, subject to the limitations
contained in subsection 3(i)(d).
(d) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in Section 12 below.
(ii) METHOD OF EXERCISE. This Option shall be exercisable by written
notice in the form attached hereto as EXHIBIT A, which shall state the election
to exercise the Option, the number of Shares in respect of which the Option is
being exercised, and such other representations and agreements as to the
holder's investment intent with respect to such shares of Common Stock as may be
required by the Company. Such written notice shall be signed by Optionee and
shall be delivered in person or by certified mail to the President of the
Company. The written notice shall be accompanied by payment of the exercise
price. The Option shall be deemed exercised only upon receipt by the Company of
such written notice accompanied by the exercise price.
No Shares will be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
4. OPTIONEE'S REPRESENTATIONS AND RESTRICTIONS ON TRANSFER. Optionee
hereby agrees that if so requested by the Company or any representative of the
underwriters in connection with any registration of the offering of any
securities of the Company under the Securities Act of 1933, as amended (the
"Securities Act"), Optionee shall not sell or otherwise transfer any Shares or
other securities of the Company during the 180-day period following the
effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that such restriction shall only apply to the
first registration statement of the Company to become effective under the
Securities Act which includes securities to be sold on behalf of the Company to
the public in an underwritten public offering under the Securities Act. The
Company may impose stop-transfer instructions with respect to securities subject
to the foregoing restrictions until the end of such 180-day period.
5. METHOD OF PAYMENT. Payment of the purchase price shall be made by
cash or check.
6. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such Shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations (Regulation G) as
promulgated by the Federal Reserve Board. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law or regulation.
7. TERMINATION OF RELATIONSHIP. Subject to the provisions of Sections 8
and 9 below, in the event Optionee is no longer an employee or consultant of the
Company, Optionee may, but only within twelve (12) months after the date
Optionee ceases to be an employee or consultant (but in no event later than the
date of expiration of the term of this Option as set forth in Section 12 below),
exercise this Option to the extent that Optionee was entitled to exercise it at
the date of such termination. To the extent that Optionee was not entitled to
exercise the entire Option at the date of such termination, or if Optionee does
not exercise such Option to the extent so entitled within the time specified
herein, the Option shall terminate.
8. DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section 7
above, in the event Optionee ceases to be an employee or consultant of the
Company as a result of Optionee's permanent and total disability (as defined in
Section 22(e)(3) of the Code), Optionee may, but only within six (6) months from
the date such termination (but in no event later than the date of expiration of
the term of this Option as set forth in Section 12 below), exercise this Option
to the extent Optionee was entitled to exercise it at the date of such
termination. Following termination of employment due to disability, to the
extent that Optionee was not entitled to exercise the entire Option at the date
of such termination, or if Optionee
-2-
does not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
9. DEATH OF OPTIONEE. In the event of the death of Optionee, this Option
may be exercised at any time within six (6) months following the date of death
(but in no event later than the date of expiration of the term of this Option as
set forth in Section 12 below) by Optionee's estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only to the
extent the Optionee could exercise the Option at the date of death. If, at the
time of death, the Optionee was not entitled to exercise his or her entire
Option, the unexercisable portion of the Option shall immediately terminate. If
after the death of Optionee, to the extent Optionee's estate or person who
acquired the right to exercise the Option by bequest or inheritance does not
exercise the Option to the extent so entitled within the time specified herein,
the Option shall terminate.
10. NON-TRANSFERABILITY OF OPTION. 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 Optionee only by Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of Optionee.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR
ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, each Optionee shall be notified as
soon as practicable prior to the effective date of such proposed transaction.
The Board in its discretion may provide for an Optionee to have the right to
exercise his or her Option until ten (10) days prior to such transaction as to
all of the Optioned Stock covered thereby, including Shares as to which the
Option would not otherwise be exercisable. In addition, the Board may provide
that any Company repurchase option applicable to any Shares purchased upon
exercise of an Option shall lapse as to all such Shares, provided the proposed
dissolution or liquidation takes place at the time and in the manner
contemplated. To the extent it has not been previously exercised, an Option
will terminate immediately prior to the consummation of such proposed action.
-3-
(c) MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the assets
of the Company, each outstanding Option shall be assumed or an equivalent option
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. In the event that the successor corporation refuses to
assume or substitute for the Option, the Optionee shall have the right to
exercise the Option as to all of the Optioned Stock, including Shares as to
which it would not otherwise be exercisable. If an Option is exercisable in
lieu of assumption or substitution in the event of a merger or sale of assets,
the Board shall notify the Optionee that the Option shall be fully exercisable
for a period of fifteen (15) days from the date of such notice, and the Option
shall terminate upon the expiration of such period. For the purposes of this
paragraph, the Option shall be considered assumed if, following the merger or
sale of assets, the Option confers the right to purchase or receive, for each
Share of Optioned Stock subject to the Option immediately prior to the merger or
sale of assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of Common Stock
for each Share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided, however, that if
such consideration received in the merger or sale of assets was not solely
common stock of the successor corporation or its Parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Option, for each Share of Optioned Stock
subject to the Option, to be solely common stock of the successor corporation or
its Parent equal in fair market value to the per share consideration received by
holders of Common Stock in the merger or sale of assets.
12. TERM OF OPTION. This Option may not be exercised more than ten (10)
years from the date of grant of this Option, and may be exercised during such
term only in accordance with the terms of this Option.
13. TAX CONSEQUENCES. Set forth below is a brief summary as of the date
of this Option of some of the federal and California tax consequences of
exercise of this Option and disposition of the Shares. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING
OF THE SHARES. OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
(i) EXERCISE OF NONQUALIFIED STOCK OPTION. There may be a regular
federal income tax liability and a California income tax liability upon the
exercise of the Option. The Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the fair market value of the Shares on the date of exercise over the
Exercise Price.
(ii) DISPOSITION OF SHARES. If Shares are held for at least one year,
any gain realized on disposition of the Shares will be treated as long-term
capital gain for federal and California income tax purposes.
-4-
DATE OF GRANT: SUPERGEN, INC.
------------------
By:
-------------------------------------
Title:
-----------------------------------
-5-
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
SECTION 3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE OR
CONSULTANT OF THE COMPANY AT THE WILL OF THE COMPANY. OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT SHALL CONFER UPON
OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF SERVICES AS AN EMPLOYEE OR
CONSULTANT OF THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE'S
RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S SERVICES AS AN EMPLOYEE OR
CONSULTANT AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee has reviewed this Option in its entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option
and fully understands all provisions of the Option. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
Dated:
-----------------
--------------------------------------
-----------------------------, Optionee
Residence Address:
--------------------------------------
--------------------------------------
-6-
EXHIBIT A
EXERCISE NOTICE
SUPERGEN, INC.
6450 Hollis Street
Emeryville, California 94608
Attention: President
1. EXERCISE OF OPTION. Effective as of today, ____________________,the
undersigned ("Optionee") hereby elects to exercise Optionee's option to purchase
_________ shares of the Common Stock (the "Shares") of SUPERGEN, INC. (the
"Company") under and pursuant to the Company's Employees and Consultants Stock
Option Agreement/Plan dated __________________ (the "Option Agreement").
2. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understands the Option Agreement and agrees to abide by and
be bound by its terms and conditions.
3. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions of this
Exercise Notice and the Option Agreement (the "Agreement"), Optionee shall have
all of the rights of a shareholder of the Company with respect to the Shares
from and after the date that Optionee delivers full payment of the exercise
price until such time as Optionee disposes of the Shares. Upon exercise of the
Shares, Optionee shall have no further rights as a holder of the Shares so
purchased except the right to receive payment for the Shares so purchased in
accordance with the provisions of this Agreement, and Optionee shall forthwith
cause the certificate(s) evidencing the Shares so purchased to be surrendered to
the Company for transfer or cancellation.
4. TAX CONSULTATION. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
5. MARKET STANDOFF AGREEMENT. Optionee hereby agrees that if so
requested by the Company or any representative of the underwriters in connection
with any registration of the offering of any securities of the Company under the
1933 Act, Optionee shall not sell or otherwise transfer any Shares or other
securities of the Company during the 180-day period following the effective date
of a registration statement of the Company filed under the 1933 Act; provided,
however, that such restriction shall only apply to the first registration
statement of the Company to become effective under the 1933 Act which includes
securities to be sold on behalf of the Company to the public in an underwritten
public offering under the 1933 Act. The Company may impose stop-transfer
instructions with respect to securities subject to the foregoing restrictions
until the end of such 180-day period.
6. MISCELLANEOUS. The Company may assign any of its rights under this
Agreement, and this Agreement shall inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Agreement shall be binding upon Optionee and his or her heirs,
executors, administrators, successors and assigns. Any dispute regarding the
interpretation of this
Agreement shall be submitted by Optionee or by the Company forthwith to the
Company's Board of Directors, which shall review such dispute at its next
regular meeting. The resolution of such a dispute by the Board shall be final
and binding on the Company and on Optionee. Should any provision of this
Agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at the address such party may designate in
writing from time to time to the other party. The parties agree to execute such
further instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this Agreement. Optionee
herewith delivers to the Company the full exercise price for the Shares. The
Option Agreement is incorporated herein by reference. This Agreement
constitutes the entire agreement of the parties and supersedess in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof. This Agreement is governed by California
law except for that body of law pertaining to conflict of laws.
Submitted by: Accepted by:
OPTIONEE: SUPERGEN, INC.
-----------------------
- ---------------------------------- By:
(Signature) ----------------------------
Its:
---------------------------
Address: Address:
- --------------------------------- 6450 Hollis Street
- --------------------------------- Emeryville, California 94608
-2-