Inducement Option Agreement (Time-Based Option) between the Company and G. Kelly Martin
NON-QUALIFIED STOCK OPTION AGREEMENT
INDUCEMENT STOCK OPTION GRANT (TIME-BASED)
|Name of Optionee:||G. Kelly Martin|
|No. of Option Shares:||575,000|
|Option Exercise Price per Share:||$16.46|
|Grant Date:||April 28, 2020|
|Vesting Commencement Date:||April 28, 2020|
|Expiration Date:||April 27, 2030|
Radius Health, Inc. (the Company) hereby grants to the Optionee named above an option (the Stock Option) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of Common Stock, par value 0.0001 per share (the Stock) of the Company specified above at the Option Exercise Price per Share specified above subject to the terms and conditions set forth herein. This Stock Option is not issued under the Radius Health, Inc. 2018 Stock Option and Incentive Plan, as amended through the date hereof (the Plan) and does not reduce the share reserve under the Plan. However, for purposes of interpreting the applicable provisions of this Stock Options, the terms and conditions of the Plan (other than those applicable to the share reserve) shall govern and apply to this Stock Option as if this Stock Option had actually been issued under the Plan. This Stock Option is not intended to be an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended.
This Stock Option is intended to constitute an employment inducement grant under NASDAQ Listing Rule 5635(c)(4), and consequently is intended to be exempt from the NASDAQ rules regarding stockholder approval of equity compensation plans. This Agreement and the terms and conditions of this Stock Option shall be interpreted in accordance with and consistent with such exemption.
1. Exercisability Schedule. No portion of this Stock Option may be exercised until such portion shall have become exercisable. Except as set forth below, and subject to the discretion of the Administrator (as defined in Section 2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock Option shall vest and become exercisable as to 25% of the number of Option Shares on the first anniversary of the Vesting Commencement Date and as to 1/48th of the number of Option Shares on the same day of each of the 36 consecutive months thereafter, provided that each Option Share which would be fractionally vested shall be cumulated and shall vest on the first vesting date upon which the whole Option Share has cumulated, and provided further that the Optionee has a continuing Service Relationship with the Company or a Subsidiary or any successor entity on such dates.
Once exercisable, this Stock Option shall continue to be exercisable at any time or times prior to the close of business on the Expiration Date, subject to the provisions hereof and of the Plan.
2. Manner of Exercise.
(a) The Optionee may, from time to time on or prior to the Expiration Date of this Stock Option, exercise this Stock Option only by completing the transaction through the Companys administrative agents website or by calling its toll free number, specifying the number of Option Shares being purchased as a result of such exercise, together with payment of the full purchase price for the Option Shares being purchased. The transfer to the Optionee on the records of the Company or of the transfer agent of the Option Shares will be contingent upon (i) the Companys receipt from the Optionee of the full purchase price for the Option Shares, as set forth above, (ii) the fulfillment of any other requirements contained herein or in the Plan or in any other agreement or provision of laws, and (iii) the receipt by the Company of any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations. However, during any period that this Stock Option remains outstanding after the Optionees Service Relationship with the
Company ends, the Optionee may exercise it only to the extent it was exercisable immediately prior to the end of the Optionees Service Relationship. In addition to the procedure for exercising this Stock Option as described in Section 5 of the Plan, the Optionee may elect, upon prior written notice to the Company, to have any employee withholding tax obligations resulting from the exercise of this Stock Option satisfied by a reduction in the number of shares of Stock issuable to the Optionee upon exercise.
(b) The shares of Stock purchased upon exercise of this Stock Option shall be transferred to the Optionee on the records of the Company or of the transfer agent upon compliance to the satisfaction of the Administrator with all requirements under applicable laws or regulations in connection with such transfer and with the requirements hereof and of the Plan. The determination of the Administrator as to such compliance shall be final and binding on the Optionee. The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Stock subject to this Stock Option unless and until this Stock Option shall have been exercised pursuant to the terms hereof, the Company or the transfer agent shall have transferred the shares to the Optionee, and the Optionees name shall have been entered as the stockholder of record on the books of the Company. Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such shares of Stock.
(c) In no event may a fraction of a share be exercised or acquired.
(d) Notwithstanding any other provision hereof or of the Plan, no portion of this Stock Option shall be exercisable after the Expiration Date hereof.
3. Termination of Service Relationship. If the Optionees Service Relationship with the Company or a Subsidiary or any successor entity is terminated, the period within which to exercise the Stock Option may be subject to earlier termination as set forth below.
(a) Termination Due to Death. If the Optionees Service Relationship terminates by reason of the Optionees death, any portion of this Stock Option outstanding on such date, to the extent exercisable on the date of death, may thereafter be exercised by the Optionees legal representative or legatee for a period of 12 months from the date of death or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of death shall terminate immediately and be of no further force or effect.
(b) Termination Due to Disability. If the Optionees Service Relationship terminates by reason of the Optionees disability (as determined by the Administrator), any portion of this Stock Option outstanding on such date, to the extent exercisable on the date of such termination of the Service Relationship, may thereafter be exercised by the Optionee for a period of 12 months from the date of disability or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of disability shall terminate immediately and be of no further force or effect.
(c) Termination for Cause. If the Optionees Service Relationship terminates for Cause, any portion of this Stock Option outstanding on such date shall terminate immediately and be of no further force and effect. For purposes hereof, Cause shall have the meaning set forth in the Employment Agreement (as such term is defined below).
(d) Other Termination. If the Optionees Service Relationship terminates for any reason other than the Optionees death, the Optionees disability or Cause, and unless otherwise determined by the Administrator, any portion of this Stock Option outstanding on such date may be exercised, to the extent exercisable on the date of termination, for a period of three months from the date of termination or until the Expiration Date, if earlier. Except as set forth in Section 4 below, any portion of this Stock Option that is not exercisable on the date of termination shall terminate immediately and be of no further force or effect.
The Administrators determination of the reason for termination of the Optionees Service Relationship shall be conclusive and binding on the Optionee and his or her representatives or legatees.
4. Vesting Upon Certain Qualifying Terminations. Notwithstanding the provisions of Sections 1 or 3 above, this Stock Option shall vest and become exercisable as follows:
(a) Termination by the Company without Cause or by the Optionee for Good Reason Outside the Change of Control Period. If the Optionees Service Relationship is terminated by the Company without Cause or by the Optionee for Good Reason (as each term is defined in the Optionees employment agreement dated April 24, 2020 by and between the Optionee and the Company, as the same may be amended from time to time (the Employment Agreement)) outside of the 12-month period following the occurrence of the first event constituting a Change of Control (as defined in the Plan) (the Change of Control Period), subject to the Optionees execution and non-revocation of a separation agreement and release in a form and manner reasonably satisfactory to the Company (the Separation Agreement and Release):
(i) If the date the Optionees Service Relationship is terminated (the Date of Termination) is within the twenty-four (24)-month period following the effective date of the Employment Agreement, the portion of this Stock Option that would have vested in the twelve (12)-month period following the Date of Termination had the Optionee remained a service provider to the Company for such period shall immediately accelerate and become fully exercisable as of the later of (A) the Date of Termination or (B) the effective date of the Separation Agreement and Release (the Accelerated Vesting Date); and
(ii) If the Date of Termination is after the twenty-four (24)-month period following the effective date of the Employment Agreement, any unvested portion of this Stock Option as of the Date of Termination shall immediately accelerate and become fully exercisable as of the Accelerated Vesting Date.
(b) Termination by the Company without Cause or by the Optionee for Good Reason within the Change of Control Period. If the Optionees employment is terminated by the Company without Cause or by the Optionee for Good Reason (as each term is defined in the Employment Agreement) within the Change of Control Period, subject to the Optionees execution and non-revocation of a Separation Agreement and Release:
(i) Any unvested portion of the Stock Option as of the Date of Termination shall immediately accelerate and become fully exercisable as of the Accelerated Vesting Date.
(c) Tolling of Termination of Stock Option. Notwithstanding anything to the contrary contained in this Section 4, any termination of the unvested portion of this Stock Option to be accelerated pursuant to this Section 4 that would otherwise occur on the Date of Termination in the absence of this Agreement will be delayed to effect the terms of this Section 4 and such termination will subsequently occur if the vesting pursuant to this subsection does not occur due to the absence of the Separation Agreement and Release becoming fully effective within the time period set forth therein. Notwithstanding the foregoing, no additional vesting of this Stock Option shall occur during the period between the Date of Termination and the Accelerated Vesting Date.
5. Incorporation of Plan. As set forth above, this Stock Option is not granted pursuant to the Plan. However, for purposes of interpreting the provisions of this Stock Option, the terms and conditions of the Plan (other than those applicable to the share reserve, but including the powers of the Administrator set forth in Section 2(b) of the Plan) shall govern and apply to this Stock Option as if this Stock Option had actually been issued under the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
6. Transferability. This Agreement is personal to the Optionee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution. This Stock Option is exercisable, during the Optionees lifetime, only by the Optionee, and thereafter, only by the Optionees legal representative or legatee.
7. Tax Withholding. The Optionee shall, not later than the date as of which the exercise of this Stock Option becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Company shall have the authority to cause the required tax withholding obligation to be satisfied, in whole or in part, by withholding from shares of Stock to be issued to the Optionee a number of shares of Stock with an aggregate Market Value that would satisfy the minimum withholding amount due.
8. No Obligation to Continue Service Relationship. Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Agreement to continue the Optionees Service Relationship with the Company or a Subsidiary or any successor entity, and neither the Plan nor this Agreement shall interfere in any way with the right of the Company or any Subsidiary to terminate the Optionees Service Relationship at any time.
9. Integration. This Agreement constitutes the entire agreement between the parties with respect to this Stock Option and supersedes all prior agreements and discussions between the parties concerning such subject matter.
10. Data Privacy Consent. In order to administer the Plan and this Agreement and to implement or structure future equity grants, the Company, its subsidiaries and affiliates and certain agents thereof (together, the Relevant Companies) may process any and all personal or professional data, including but not limited to Social Security or other identification number, home address and telephone number, date of birth and other information that is necessary or desirable for the administration of the Plan and/or this Agreement (the Relevant Information). By entering into this Agreement, the Optionee (i) authorizes the Company to collect, process, register and transfer to the Relevant Companies all Relevant Information; (ii) waives any privacy rights the Optionee may have with respect to the Relevant Information; (iii) authorizes the Relevant Companies to store and transmit such information in electronic form; and (iv) authorizes the transfer of the Relevant Information to any jurisdiction in which the Relevant Companies consider appropriate. The Optionee shall have access to, and the right to change, the Relevant Information. Relevant Information will only be used in accordance with applicable law.
11. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Optionee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing.
12. Acceptance of Option. The Optionee must execute this Agreement by logging on to the Companys administrative agents website for the Plan. IF THE OPTIONEE DOES NOT ELECTRONICALLY ACCEPT THIS STOCK OPTION THROUGH THE WEBSITE WITHIN THIRTY (30) DAYS FOLLOWING THE GRANT DATE AND THEREBY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE PLAN, THEN THE OPTIONEE WILL BE DEEMED TO HAVE DECLINED THE STOCK OPTION AND THE STOCK OPTION WILL BE NULL AND VOID (AND THE OPTIONEE WILL HAVE NO RIGHTS WITH RESPECT TO THE STOCK OPTION).
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed instrument as of the date first above written.
RADIUS HEALTH, INC.
|By: /s/ Owen Hughes||/s/ G. Kelly Martin|
|Name: Owen Hughes||Signature of Optionee|
|Title: Chairman of the Board of Directors|