UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 23, 2015
Aerie Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36152 | 20-3109565 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
135 US Highway 206, Suite 15 Bedminster, New Jersey 07921
(Address of principal executive offices) (Zip code)
Registrant’s telephone number, including area code: (908) 470-4320
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
This Current Report on Form 8-K is being filed with the U.S. Securities and Exchange Commission to file new forms of incentive stock option agreement (together, the “ISO Agreements”) and a form of restricted stock agreement (the “Restricted Stock Agreement”) which will be used in connection with any future grants to named executive officers of Aerie Pharmaceuticals, Inc. (the “Company”) under the Aerie Pharmaceuticals, Inc. Omnibus Incentive Plan (the “Plan”).
The ISO Agreement that will be used in connection with any new hires (included as Exhibit 10.1 to this Current Report on Form 8-K) provides that 25% of the shares of common stock of the Company (“Common Stock”) subject to the option will vest on the first anniversary of the date of grant, and thereafter ratably on each monthly anniversary of the date of grant such that the option will be fully vested on the fourth anniversary of the date of grant. In the event the grantee’s employment with the Company is terminated for any reason, any unvested portion of the option shall be forfeited as of such date; provided, however, that in the event the grantee’s employment is terminated due to death or disability prior to the first anniversary of the date of grant, the option will become vested as of the date of termination with the respect to the number of shares of Common Stock that would have become vested on the first anniversary of the date of grant multiplied by a fraction, the numerator of which is the total number of whole calendar months the grantee remained employed by the Company following the date of grant and the denominator of which is the 12.
The ISO Agreement that will be used in connection with grants to current employees (included as Exhibit 10.2 to this Current Report on Form 8-K) provides that the shares of Common Stock subject to the option will vest ratably on each monthly anniversary of the date of grant such that the option will be fully vested on the fourth anniversary of the date of grant. In the event the grantee’s employment with the Company is terminated for any reason, any unvested portion of the option shall be forfeited as of the date of termination.
Both ISO Agreements provide that in the event the grantee’s employment is terminated without cause in connection with or within the one-year period following a Change in Control (as defined in the Plan), the option shall become fully (100%) vested as of the date of termination. If the grantee’s employment terminates for any reason except death or disability or by the Company for cause, the option, to the extent exercisable by the grantee on the date of termination, may be exercised by the grantee until the earlier of (i) three (3) months after the date on which the grantee’s employment terminated or (ii) the option termination date. Notwithstanding the foregoing, if the grantee’s employment with the Company is terminated for cause, the option may not be exercised after the date on which the grantee’s employment terminated. If the grantee’s employment with the Company is terminated because of the death or disability of the grantee, the option, to the extent exercisable by the grantee on the date on which the grantee’s employment terminated, may be exercised by the grantee (or the grantee’s legal representative) until the earlier of (i) the expiration of twelve (12) months from the date the grantee’s employment terminated or (ii) the option termination date. The grantee’s employment shall be deemed to have terminated on account of death if the grantee dies within three (3) months after the grantee’s termination (other than with respect to a termination for cause).
The Restricted Stock Agreement (included as Exhibit 10.3 to this Current Report on Form 8-K) provides that an award of restricted stock shall vest and the transfer restrictions thereon shall lapse as to 25% of the shares of restricted stock on each anniversary of the vesting commencement date specified in the award agreement such that the award will be fully vested on the fourth anniversary of the vesting commencement date. In the event the grantee’s employment terminates, the grantee shall forfeit all shares of restricted stock that have not yet become vested; provided, however, that in the event the grantee’s employment is terminated (i) without cause or due to death or disability, the transfer restrictions shall lapse and the shares of restricted stock shall vest as to the number of shares of restricted stock that would have vested on the vesting date next following the date of termination (had the grantee’s employment not been terminated), multiplied by a fraction, the numerator of which is the total number of whole calendar months the grantee remained employed by the Company following the vesting date immediately preceding the date of termination and the denominator of which is twelve (12) or (ii) without cause in connection with or within the one-year period following a Change in Control, the transfer restrictions shall lapse and the shares of restricted stock shall vest with respect to all of the shares of restricted stock that are not vested as of the date of termination. Upon the issuance of the shares of restricted stock, the grantee shall be, unless and until such shares of restricted stock are forfeited, entitled to all rights of a common shareholder of the Company, including, without limitation, the right to receive all dividends or other distributions paid or made with respect thereto; provided, however, that any entitlement to or payment of dividends or distributions declared or paid on the shares of restricted stock shall be deferred until such date the shares of restricted stock in respect of which such dividends or distributions were made vest.
The foregoing descriptions of the ISO Agreements and Restricted Stock Agreement are qualified in their entirety by reference to the full texts of the agreements, which are included as Exhibit 10.1, Exhibit 10.2 and 10.3 to this Current Report on Form 8-K and are hereby incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
|
Exhibit |
Description |
|
| 10.1 | Form of Aerie Pharmaceuticals, Inc. Incentive Stock Option Agreement (Cliff Vesting). | |
| 10.2 | Form of Aerie Pharmaceuticals, Inc. Incentive Stock Option Agreement (Monthly Vesting). | |
| 10.3 | Form of Aerie Pharmaceuticals, Inc. Restricted Stock Agreement. | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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AERIE PHARMACEUTICALS, INC. |
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| Date: February 23, 2015 | By: |
/s/ Richard J. Rubino |
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| Richard J. Rubino | ||||||
| Chief Financial Officer | ||||||
EXHIBIT INDEX
|
Exhibit |
Description |
|
| 10.1 | Form of Aerie Pharmaceuticals, Inc. Incentive Stock Option Agreement (Cliff Vesting). | |
| 10.2 | Form of Aerie Pharmaceuticals, Inc. Incentive Stock Option Agreement (Monthly Vesting). | |
| 10.3 | Form of Aerie Pharmaceuticals, Inc. Restricted Stock Agreement. | |
Exhibit 10.1
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAW AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
FORM OF INCENTIVE STOCK OPTION AGREEMENT
Aerie Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), hereby grants to the individual named below an option (the “ Option ”) to purchase certain shares of common stock of the Company pursuant to the Aerie Pharmaceuticals, Inc. Omnibus Incentive Plan, in the manner and subject to the provisions of this Option Agreement. Except as otherwise defined herein, capitalized terms used in this Option Agreement shall have the same definitions as set forth in the Plan.
| 1. | Definitions : |
| (a) | “ Code ” shall mean the Internal Revenue Code of 1986, as amended. (All citations to Sections of the Code are to such Sections as they may from time to time be amended or renumbered.) |
| (b) | “ Company ” shall mean Aerie Pharmaceuticals, Inc., a Delaware corporation, and any successor corporation thereto. |
| (c) | “ Date of Option Grant ” shall mean , 2015. |
| (e) | “ Exercise Price ” shall mean ($ ) per share as may be adjusted from time to time pursuant to the Plan. |
| (f) | “ Number of Option Shares ” shall mean shares of common stock of the Company as adjusted from time to time pursuant to the Plan. |
| (g) | “ Option Term Date ” shall mean the date ten (10) years after the Date of Option Grant. |
| (h) | “ Optionee ” shall mean . |
| (i) | “ Plan ” shall mean the Aerie Pharmaceuticals, Inc. Omnibus Incentive Plan, as may be amended from time to time. |
| 2. | Status of the Option . The Option is intended to be an incentive stock option as described in Section 422 of the Code, but the Company does not represent or warrant that the Option qualifies as such. If the aggregate fair market value of the Shares with respect to which the Option and any other incentive stock option held by the Optionee becomes exercisable (determined without regard to this provision) for the first time during any calendar year, as determined as of the Date of Option Grant and (if applicable) the dates of grant of such other incentive stock options and otherwise in accordance with Section 422(d) of the Code, exceeds One Hundred Thousand Dollars ($100,000), the Option shall be deemed a nonqualified stock option to the extent of such excess. The Optionee should consult with the Optionee’s own tax advisors regarding the tax effects of the Option and the requirements necessary to obtain favorable income tax treatment under Section 422 of the Code. |
| 3. | Administration . All questions of interpretation concerning the Option shall be determined by the Committee and shall be final and binding upon all persons having an interest in the Option. |
| 4. | Exercise of the Option . |
| (a) | Right to Exercise . The Option shall become exercisable as set forth below, subject to the termination provisions of this Option Agreement: |
| (i) | On and after , 2016 , the Option may be exercised to purchase up to 1/4th of the Number of Option Shares. |
| (ii) | On or after the th day of each successive month thereafter, the Option may be exercised to purchase up to an additional 1/48th of the Number of Option Shares. |
| (iii) | The foregoing provisions shall be interpreted such that on or after , 2019, the Option may be exercised to purchase up to 100% of the Number of Option Shares. |
The schedule set forth above is cumulative, so that Shares as to which the Option has become exercisable on and after a date indicated by the schedule may be purchased pursuant to exercise of the Option at any subsequent date prior to termination of the Option. The Option may be exercised at any time and from time to time to purchase up to the number of Shares as to which it is then exercisable.
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| (b) | Method of Exercise . The Option shall be exercised by written notice to the Company in the form of Exhibit A hereto. The written notice must be signed by the Optionee and must be delivered in person or by certified mail, return receipt requested, to the Chief Financial Officer of the Company accompanied by full payment of the exercise price for the number of Shares being purchased. |
| (c) | Restrictions on Grant of the Option and Issuance of Shares . The grant of the Option and the issuance of the Shares upon exercise of the Option shall be subject to compliance with all applicable requirements of federal or state law with respect to such securities. The Option may not be exercised if the issuance of Shares upon such exercise would constitute a violation of any applicable federal or state securities laws or other law or regulations. In addition, no Option may be exercised unless (i) a registration statement under the Securities Act, and any applicable state securities laws shall at the time of exercise of the Option be in effect with respect to the Shares issuable upon exercise of the Option or (ii) in the opinion of legal counsel to the Company, the Shares issuable upon exercise of the Option may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act and any applicable state securities laws. |
THE OPTIONEE IS CAUTIONED THAT THE OPTION MAY NOT BE EXERCISABLE UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS EXERCISABLE PURSUANT TO THE TERMS HEREOF.
As a condition to the exercise of the Option, the Company may require the Optionee to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.
| (d) | Fractional Shares . The Company shall not be required to issue fractional Shares upon the exercise of the Option. |
| 5. | Non-Transferability of the Option . The Option may not be assigned or transferred in any manner except by will or by the laws of descent and distribution. |
| 6. | Termination of the Option . Subject to Section 8 of this Option Agreement, the Option shall terminate upon on the first to occur of: (a) the Option Term Date or (b) the last date for exercising the Option following termination of employment as described in this Option Agreement. |
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| 7. | Termination of Employment . In the event the Optionee’s employment Terminates for any reason, the Option shall terminate upon the Optionee’s Termination to the extent it has not become exercisable pursuant to Section 4 hereof or upon the Optionee’s Termination as provided in the following sentence. In the event the Optionee’s employment is Terminated (i) prior to the first anniversary of the Date of Option Grant by the Company without Cause or because of the death or Disability of the Optionee, the Option shall become exercisable as of the date of Termination with respect to the Number of Option Shares that would have vested on the first anniversary of the Date of Option Grant (had the Optionee’s employment not Terminated), multiplied by a fraction, the numerator of which is the total number of whole calendar months the Optionee remained employed by the Company following the Date of Option Grant, and the denominator of which is twelve (12) or (ii) without Cause in connection with or within the one-year period following a Change in Control, the Option shall become fully (100%) exercisable as of the date of Termination. |
| (a) | Post-Termination Exercise Period . If the Optionee Terminates for any reason except death or Disability, the Option, to the extent exercisable by the Optionee on the date on which the Optionee Terminated, may be exercised by the Optionee until the earlier of (i) three (3) months after the date on which the Optionee’s employment Terminated or (ii) the Option Term Date. Notwithstanding the foregoing, if the Optionee’s employment with the Company is Terminated for Cause, the Option may not be exercised after the date on which the Optionee’s employment Terminated. If the Optionee’s employment with the Company is Terminated because of the death or Disability of the Optionee, the Option, to the extent exercisable by the Optionee on the date on which the Optionee Terminated, may be exercised by the Optionee (or the Optionee’s legal representative) until the earlier of (i) the expiration of twelve (12) months from the date the Optionee’s employment Terminated or (ii) the Option Term Date. The Optionee’s employment shall be deemed to have Terminated on account of death if the Optionee dies within three (3) months after the Optionee’s Termination (other than with respect to a Termination for Cause). This paragraph shall be interpreted such that the Option shall not become exercisable as to any additional number of Option Shares after the date on which the Optionee ceases to be an employee of the Company (pursuant to this paragraph) for any reason, notwithstanding any period after such cessation of employment during which the Option may remain exercisable as provided in this paragraph. |
| (b) | Leave of Absence . For purposes hereof, the Optionee’s employment with the Company shall not be deemed to Terminate if the Optionee takes any military leave, sick leave, or other bona fide leave of absence approved by the Company of ninety (90) days or less. In the event of a leave in excess of ninety (90) days, the Optionee’s employment shall be deemed to Terminate on the ninety-first (91st) day of the leave unless the Optionee’s right to reemployment with the Company remains guaranteed by statute or contract. |
| 8. | Corporate Transaction . The provisions of the Plan applicable to a Corporate Transaction (as defined in the Plan) shall apply to the Option. |
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| 9. | Rights as a Stockholder or Employee . The Optionee shall have no rights as a stockholder with respect to any Shares covered by the Option until the date of the issuance of a certificate or certificates for the Shares for which the Option has been exercised. Nothing in the Option shall confer upon the Optionee any right to continue in the employ of the Company or interfere in any way with any right of the Company to terminate the Optionee’s employment at any time. |
| 10. | Notice of Sales Upon Disqualifying Disposition . The Optionee shall dispose of the Shares acquired pursuant to the Option only in accordance with the provisions of this Option Agreement. In addition, the Optionee shall promptly notify the Chief Financial Officer or other appropriate officer of the Company if the Optionee disposes of any of the Shares acquired pursuant to the Option within one (1) year from the date the Optionee exercises all or part of the Option or within two (2) years of the date of grant of the Option. Until such time as the Optionee disposes of such Shares in a manner consistent with the provisions of this Option Agreement, the Optionee shall hold all Shares acquired pursuant to the Option in the Optionee’s name (and not in the name of any nominee) for the one-year period immediately after exercise of the Option and the two-year period immediately after grant of the Option. At any time during the one-year or two-year periods set forth above, the Company may place a legend or legends on any certificate or certificates representing Shares acquired pursuant to the Option requesting the transfer agent for the Company’s stock to notify the Company of any such transfers. The obligation of the Optionee to notify the Company of any such transfer shall continue notwithstanding that a legend has been placed on the certificate or certificates pursuant to the preceding sentence. |
| 11. | Binding Effect . This Option Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. |
| 12. | Termination or Amendment . The Board may terminate or amend this Option Agreement at any time; provided, however, that no such termination or amendment may materially adversely affect the Option or any unexercised portion hereof, as determined in the discretion of the Board, without the consent of the Optionee unless such amendment is required to enable the Option to qualify as an Incentive Stock Option. |
| 13. | Integrated Agreement . This Option Agreement, together with the Plan, constitute the entire understanding and agreement of the Optionee and the Company with respect to the subject matter contained herein, and there are no other agreements, understandings, restrictions, representations, or warranties among the Optionee and the Company with respect to the subject matter contained herein other than those as set forth or provided for herein and therein. To the extent contemplated herein, the provisions of this Option Agreement shall survive any exercise of the Option and shall remain in full force and effect. The terms and conditions included in the Plan are incorporated by reference herein, and to the extent that any conflict may exist between any term or provision of this Option Agreement and any term or provision of the Plan, the term or provision of the Plan shall control. |
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| 14. | Applicable Law . This Option Agreement shall be governed by the laws of the State of Delaware. |
| 15. | Effect of Certain Transactions . Notwithstanding anything to the contrary in this Option Agreement, in the event that the Optionee has entered into a confidentiality, nondisclosure, invention and/or non-competition agreement with the Company and the Optionee is determined, in the reasonable judgment of the Company’s Board of Directors, to have materially breached such agreement, the Optionee shall forfeit any Shares acquired pursuant to the Option and 100% of the Option granted pursuant to this Option Agreement, whether or not exercisable. |
| 16. | Section 409A of the Code . The Exercise Price is intended to be the Fair Market Value of on the Date of Option Grant. Notwithstanding this, the Internal Revenue Service may assert that the fair market value of the common stock of the Company on the Date of Option Grant was greater than the Exercise Price. Under Section 409A of the Code, if the Exercise Price is less than the fair market value of the common stock of the Company as of the Date of Option Grant, this Option may be treated as a form of deferred compensation and the Optionee may be subject to an additional twenty percent (20%) tax, plus interest and possible penalties. The Optionee acknowledges that the Company has advised the Optionee to consult with a tax adviser regarding the potential impact of Section 409A of the Code and that the Company, in the exercise of its sole discretion and without the consent of the Optionee, may amend or modify this Option Agreement in any manner and delay the payment of any amounts payable pursuant to this Option Agreement to the minimum extent necessary to meet the requirements of Section 409A of the Code, as amplified by any Internal Revenue Service or U.S. Treasury Department regulations or guidance as the Company deems appropriate or advisable. |
| AERIE PHARMACEUTICALS, INC. | ||
| By: |
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| Richard J. Rubino | ||
| Chief Financial Officer | ||
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The Optionee represents that the Optionee is familiar with the terms and provisions of this Option Agreement and hereby accepts the Option subject to all of the terms and provisions thereof. The Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board of Directors of the Company made in good faith upon any questions arising under this Option Agreement.
The undersigned hereby acknowledges receipt of a copy of the Plan.
| Date: |
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EXHIBIT A
Date:
| Aerie Pharmaceuticals, Inc. |
| Attn: Chief Financial Officer |
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| Re: | Exercise of Incentive Stock Option |
Dear Sir or Madam:
Pursuant to the terms and conditions of the Incentive Stock Option Agreement dated as of , (the “ Agreement ”), between (“ Optionee ”) and Aerie Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), Optionee hereby agrees to purchase shares (the “ Shares ”) of the Common Stock of the Company and tenders payment in full for such shares in accordance with the terms of the Agreement.
The Shares are being issued to Optionee in a transaction not involving a public offering and pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “ 1933 Act ”). In connection with such purchase, Optionee represents, warrants and agrees as follows:
| 1. | The Shares are being purchased for the Optionee’s own account and not for the account of any other person, with the intent of holding the Shares for investment and not with the intent of participating, directly or indirectly, in a distribution or resale of the Shares or any portion thereof. |
| 2. | The Optionee is not acquiring the Shares based upon any representation, oral or written, by any person with respect to the future value of, or income from, the Shares, but rather upon independent examination and judgment as to the prospects of the Company. |
| 3. | The Optionee has had complete access to and the opportunity to review all material documents related to the business of the Company, has examined all such documents as the Optionee desired, is familiar with the business and affairs of the Company and realizes that any purchase of the Shares is a speculative investment and that any possible profit therefrom is uncertain. |
| 4. | The Optionee has had the opportunity to ask questions of and receive answers from the Company and its executive officers and to obtain all information necessary for the Optionee to make an informed decision with respect to the investment in the Company represented by the Shares. |
| 5. | The Optionee is able to bear the economic risk of any investment in the Shares, including the risk of a complete loss of the investment, and the Optionee acknowledges that he or she may need to continue to bear the economic risk of the investment in the Shares for an indefinite period. |
| 6. | The Optionee understands and agrees that the Shares are being issued and sold to the Optionee without registration under any state or federal laws relating to the registration of securities, in reliance upon exemptions from registration under appropriate state and federal laws based in part upon the representations of the Optionee made herein. |
| 7. | The Company is under no obligation to register the Shares or to comply with any exemption available for sale of the Shares by the Optionee without registration, and the Company is under no obligation to act in any manner so as to make Rule 144 promulgated under the 1933 Act available with respect to any sale of the Shares by the Optionee. |
| 8. | The Optionee has not relied upon the Company or an employee or agent of the Company with respect to any tax consequences related to exercise of this Option or the disposition of the Shares. The Optionee assumes full responsibility for all such tax consequences and the filing of all tax returns and elections the Optionee may be required to or find desirable to file in connection therewith. |
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Exhibit 10.2
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAW AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
FORM OF INCENTIVE STOCK OPTION AGREEMENT
Aerie Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), hereby grants to the individual named below an option (the “ Option ”) to purchase certain shares of common stock of the Company pursuant to the Aerie Pharmaceuticals, Inc. Omnibus Incentive Plan, in the manner and subject to the provisions of this Option Agreement. Except as otherwise defined herein, capitalized terms used in this Option Agreement shall have the same definitions as set forth in the Plan.
| 1. | Definitions : |
| (a) | “ Code ” shall mean the Internal Revenue Code of 1986, as amended. (All citations to Sections of the Code are to such Sections as they may from time to time be amended or renumbered.) |
| (b) | “ Company ” shall mean Aerie Pharmaceuticals, Inc., a Delaware corporation, and any successor corporation thereto. |
| (c) | “ Date of Option Grant ” shall mean , 2015. |
| (e) | “ Exercise Price ” shall mean ($ ) per share as may be adjusted from time to time pursuant to the Plan. |
| (f) | “ Number of Option Shares ” shall mean shares of common stock of the Company as adjusted from time to time pursuant to the Plan. |
| (g) | “ Option Term Date ” shall mean the date ten (10) years after the Date of Option Grant. |
| (h) | “ Optionee ” shall mean . |
| (i) | “ Plan ” shall mean the Aerie Pharmaceuticals, Inc. Omnibus Incentive Plan, as may be amended from time to time. |
| 2. | Status of the Option . The Option is intended to be an incentive stock option as described in Section 422 of the Code, but the Company does not represent or warrant that the Option qualifies as such. If the aggregate fair market value of the Shares with respect to which the Option and any other incentive stock option held by the Optionee becomes exercisable (determined without regard to this provision) for the first time during any calendar year, as determined as of the Date of Option Grant and (if applicable) the dates of grant of such other incentive stock options and otherwise in accordance with Section 422(d) of the Code, exceeds One Hundred Thousand Dollars ($100,000), the Option shall be deemed a nonqualified stock option to the extent of such excess. The Optionee should consult with the Optionee’s own tax advisors regarding the tax effects of the Option and the requirements necessary to obtain favorable income tax treatment under Section 422 of the Code. |
| 3. | Administration . All questions of interpretation concerning the Option shall be determined by the Committee and shall be final and binding upon all persons having an interest in the Option. |
| 4. | Exercise of the Option . |
| (a) | Right to Exercise . The Option shall become exercisable as set forth below, subject to the termination provisions of this Option Agreement: |
| (ii) | On or after the th day of each successive month thereafter, the Option may be exercised to purchase up to an additional 1/48 th of the Number of Option Shares. |
| (iii) | The foregoing provisions shall be interpreted such that on or after , 2019, the Option may be exercised to purchase up to 100% of the Number of Option Shares. |
The schedule set forth above is cumulative, so that Shares as to which the Option has become exercisable on and after a date indicated by the schedule may be purchased pursuant to exercise of the Option at any subsequent date prior to termination of the Option. The Option may be exercised at any time and from time to time to purchase up to the number of Shares as to which it is then exercisable.
| (b) | Method of Exercise . The Option shall be exercised by written notice to the Company in the form of Exhibit A hereto. The written notice must be signed by the Optionee and must be delivered in person or by certified mail, return receipt requested, to the Chief Financial Officer of the Company accompanied by full payment of the exercise price for the number of Shares being purchased. |
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| (c) | Restrictions on Grant of the Option and Issuance of Shares . The grant of the Option and the issuance of the Shares upon exercise of the Option shall be subject to compliance with all applicable requirements of federal or state law with respect to such securities. The Option may not be exercised if the issuance of Shares upon such exercise would constitute a violation of any applicable federal or state securities laws or other law or regulations. In addition, no Option may be exercised unless (i) a registration statement under the Securities Act, and any applicable state securities laws shall at the time of exercise of the Option be in effect with respect to the Shares issuable upon exercise of the Option or (ii) in the opinion of legal counsel to the Company, the Shares issuable upon exercise of the Option may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act and any applicable state securities laws. |
THE OPTIONEE IS CAUTIONED THAT THE OPTION MAY NOT BE EXERCISABLE UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS EXERCISABLE PURSUANT TO THE TERMS HEREOF.
As a condition to the exercise of the Option, the Company may require the Optionee to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.
| (d) | Fractional Shares . The Company shall not be required to issue fractional Shares upon the exercise of the Option. |
| 5. | Non-Transferability of the Option . The Option may not be assigned or transferred in any manner except by will or by the laws of descent and distribution. |
| 6. | Termination of the Option . Subject to Section 8 of this Option Agreement, the Option shall terminate upon on the first to occur of: (a) the Option Term Date or (b) the last date for exercising the Option following termination of employment as described in this Option Agreement. |
| 7. | Termination of Employment . In the event the Optionee’s employment Terminates for any reason, the Option shall terminate upon the Optionee’s Termination to the extent it has not become exercisable pursuant to Section 4 hereof or upon the Optionee’s Termination as provided in the following sentence. In the event the Optionee’s employment is Terminated without Cause in connection with or within the one-year period following a Change in Control, the Option shall become fully (100%) exercisable as of the date of Termination. |
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| (a) | Post-Termination Exercise Period . If the Optionee Terminates for any reason except death or Disability, the Option, to the extent exercisable by the Optionee on the date on which the Optionee Terminated, may be exercised by the Optionee until the earlier of (i) three (3) months after the date on which the Optionee’s employment Terminated or (ii) the Option Term Date. Notwithstanding the foregoing, if the Optionee’s employment with the Company is Terminated for Cause, the Option may not be exercised after the date on which the Optionee’s employment Terminated. If the Optionee’s employment with the Company is Terminated because of the death or Disability of the Optionee, the Option, to the extent exercisable by the Optionee on the date on which the Optionee Terminated, may be exercised by the Optionee (or the Optionee’s legal representative) until the earlier of (i) the expiration of twelve (12) months from the date the Optionee’s employment Terminated or (ii) the Option Term Date. The Optionee’s employment shall be deemed to have Terminated on account of death if the Optionee dies within three (3) months after the Optionee’s Termination (other than with respect to a Termination for Cause). This paragraph shall be interpreted such that the Option shall not become exercisable as to any additional number of Option Shares after the date on which the Optionee ceases to be an employee of the Company (pursuant to this paragraph) for any reason, notwithstanding any period after such cessation of employment during which the Option may remain exercisable as provided in this paragraph. |
| (b) | Leave of Absence . For purposes hereof, the Optionee’s employment with the Company shall not be deemed to Terminate if the Optionee takes any military leave, sick leave, or other bona fide leave of absence approved by the Company of ninety (90) days or less. In the event of a leave in excess of ninety (90) days, the Optionee’s employment shall be deemed to Terminate on the ninety-first (91st) day of the leave unless the Optionee’s right to reemployment with the Company remains guaranteed by statute or contract. |
| 8. | Corporate Transaction . The provisions of the Plan applicable to a Corporate Transaction (as defined in the Plan) shall apply to the Option. |
| 9. | Rights as a Stockholder or Employee . The Optionee shall have no rights as a stockholder with respect to any Shares covered by the Option until the date of the issuance of a certificate or certificates for the Shares for which the Option has been exercised. Nothing in the Option shall confer upon the Optionee any right to continue in the employ of the Company or interfere in any way with any right of the Company to terminate the Optionee’s employment at any time. |
| 10. |
Notice of Sales Upon Disqualifying Disposition . The Optionee shall dispose of the Shares acquired pursuant to the Option only in accordance with the provisions of this Option Agreement. In addition, the Optionee shall promptly notify the Chief Financial Officer or other appropriate officer of the Company if the Optionee disposes of any of the Shares acquired pursuant to the Option within one (1) year from the date the Optionee exercises all or part of the Option or within two (2) years of the date of grant of the |
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| Option. Until such time as the Optionee disposes of such Shares in a manner consistent with the provisions of this Option Agreement, the Optionee shall hold all Shares acquired pursuant to the Option in the Optionee’s name (and not in the name of any nominee) for the one-year period immediately after exercise of the Option and the two-year period immediately after grant of the Option. At any time during the one-year or two-year periods set forth above, the Company may place a legend or legends on any certificate or certificates representing Shares acquired pursuant to the Option requesting the transfer agent for the Company’s stock to notify the Company of any such transfers. The obligation of the Optionee to notify the Company of any such transfer shall continue notwithstanding that a legend has been placed on the certificate or certificates pursuant to the preceding sentence. |
| 11. | Binding Effect . This Option Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. |
| 12. | Termination or Amendment . The Board may terminate or amend this Option Agreement at any time; provided, however, that no such termination or amendment may materially adversely affect the Option or any unexercised portion hereof, as determined in the discretion of the Board, without the consent of the Optionee unless such amendment is required to enable the Option to qualify as an Incentive Stock Option. |
| 13. | Integrated Agreement . This Option Agreement, together with the Plan, constitute the entire understanding and agreement of the Optionee and the Company with respect to the subject matter contained herein, and there are no other agreements, understandings, restrictions, representations, or warranties among the Optionee and the Company with respect to the subject matter contained herein other than those as set forth or provided for herein and therein. To the extent contemplated herein, the provisions of this Option Agreement shall survive any exercise of the Option and shall remain in full force and effect. The terms and conditions included in the Plan are incorporated by reference herein, and to the extent that any conflict may exist between any term or provision of this Option Agreement and any term or provision of the Plan, the term or provision of the Plan shall control. |
| 14. | Applicable Law . This Option Agreement shall be governed by the laws of the State of Delaware. |
| 15. | Effect of Certain Transactions . Notwithstanding anything to the contrary in this Option Agreement, in the event that the Optionee has entered into a confidentiality, nondisclosure, invention and/or non-competition agreement with the Company and the Optionee is determined, in the reasonable judgment of the Company’s Board of Directors, to have materially breached such agreement, the Optionee shall forfeit any Shares acquired pursuant to the Option and 100% of the Option granted pursuant to this Option Agreement, whether or not exercisable. |
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| 16. | Section 409A of the Code . The Exercise Price is intended to be the Fair Market Value of on the Date of Option Grant. Notwithstanding this, the Internal Revenue Service may assert that the fair market value of the common stock of the Company on the Date of Option Grant was greater than the Exercise Price. Under Section 409A of the Code, if the Exercise Price is less than the fair market value of the common stock of the Company as of the Date of Option Grant, this Option may be treated as a form of deferred compensation and the Optionee may be subject to an additional twenty percent (20%) tax, plus interest and possible penalties. The Optionee acknowledges that the Company has advised the Optionee to consult with a tax adviser regarding the potential impact of Section 409A of the Code and that the Company, in the exercise of its sole discretion and without the consent of the Optionee, may amend or modify this Option Agreement in any manner and delay the payment of any amounts payable pursuant to this Option Agreement to the minimum extent necessary to meet the requirements of Section 409A of the Code, as amplified by any Internal Revenue Service or U.S. Treasury Department regulations or guidance as the Company deems appropriate or advisable. |
| AERIE PHARMACEUTICALS, INC. | ||
| By: |
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| Richard J. Rubino | ||
| Chief Financial Officer | ||
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The Optionee represents that the Optionee is familiar with the terms and provisions of this Option Agreement and hereby accepts the Option subject to all of the terms and provisions thereof. The Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board of Directors of the Company made in good faith upon any questions arising under this Option Agreement.
The undersigned hereby acknowledges receipt of a copy of the Plan.
| Date: |
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EXHIBIT A
Date:
Aerie Pharmaceuticals, Inc.
Attn: Chief Financial Officer
| Re: | Exercise of Incentive Stock Option |
Dear Sir or Madam:
Pursuant to the terms and conditions of the Incentive Stock Option Agreement dated as of , (the “ Agreement ”), between (“ Optionee ”) and Aerie Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), Optionee hereby agrees to purchase shares (the “ Shares ”) of the Common Stock of the Company and tenders payment in full for such shares in accordance with the terms of the Agreement.
The Shares are being issued to Optionee in a transaction not involving a public offering and pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “ 1933 Act ”). In connection with such purchase, Optionee represents, warrants and agrees as follows:
| 1. | The Shares are being purchased for the Optionee’s own account and not for the account of any other person, with the intent of holding the Shares for investment and not with the intent of participating, directly or indirectly, in a distribution or resale of the Shares or any portion thereof. |
| 2. | The Optionee is not acquiring the Shares based upon any representation, oral or written, by any person with respect to the future value of, or income from, the Shares, but rather upon independent examination and judgment as to the prospects of the Company. |
| 3. | The Optionee has had complete access to and the opportunity to review all material documents related to the business of the Company, has examined all such documents as the Optionee desired, is familiar with the business and affairs of the Company and realizes that any purchase of the Shares is a speculative investment and that any possible profit therefrom is uncertain. |
| 4. | The Optionee has had the opportunity to ask questions of and receive answers from the Company and its executive officers and to obtain all information necessary for the Optionee to make an informed decision with respect to the investment in the Company represented by the Shares. |
| 5. | The Optionee is able to bear the economic risk of any investment in the Shares, including the risk of a complete loss of the investment, and the Optionee acknowledges that he or she may need to continue to bear the economic risk of the investment in the Shares for an indefinite period. |
| 6. | The Optionee understands and agrees that the Shares are being issued and sold to the Optionee without registration under any state or federal laws relating to the registration of securities, in reliance upon exemptions from registration under appropriate state and federal laws based in part upon the representations of the Optionee made herein. |
| 7. | The Company is under no obligation to register the Shares or to comply with any exemption available for sale of the Shares by the Optionee without registration, and the Company is under no obligation to act in any manner so as to make Rule 144 promulgated under the 1933 Act available with respect to any sale of the Shares by the Optionee. |
| 8. | The Optionee has not relied upon the Company or an employee or agent of the Company with respect to any tax consequences related to exercise of this Option or the disposition of the Shares. The Optionee assumes full responsibility for all such tax consequences and the filing of all tax returns and elections the Optionee may be required to or find desirable to file in connection therewith. |
| Signature: |
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| Printed Name: | ||
| Address: |
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Exhibit 10.3
AERIE PHARMACEUTICALS, INC.
2013 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT (this “ Agreement ”) effective as of the date of grant set forth on the signature page hereto (the “ Date of Grant ”), is between Aerie Pharmaceuticals, Inc., a Delaware corporation (together with its successors, the “ Company ”), and the individual whose name is set forth on the signature page hereto (the “ Grantee ”).
1. Grant of Restricted Stock . The Company hereby grants to the Grantee, and the Grantee hereby accepts from the Company, the number of shares of Restricted Stock set forth on the signature page hereto (subject to adjustment as provided in Section 12.1 of the Aerie Pharmaceuticals, Inc. 2013 Omnibus Incentive Plan (the “ Plan ”)), on the terms and conditions set forth in this Agreement and the Plan, a copy of which is being delivered to the Grantee concurrently herewith and is made a part hereof as if fully set forth herein. Except as otherwise defined herein, capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
2. Rights of Grantee . The Grantee shall have all of the rights of a shareholder with respect to the shares of Restricted Stock (whether or not the restrictions thereon shall have lapsed), including the right to vote the shares of Restricted Stock and the right, subject to Section 6 hereof, to receive dividends thereon) once (a) the Company has issued the shares to the Grantee, and (b) the Grantee’s name has been entered as a shareholder of record on the books of the Company. Notwithstanding the foregoing, prior to the vesting of the shares of Restricted Stock pursuant to Section 3 hereof, the Grantee shall not be entitled to transfer, sell, pledge, hypothecate or assign the shares of Restricted Stock (collectively, the “ Transfer Restrictions ”) and the shares of Restricted Stock shall be subject to forfeiture as provided in Section 5 hereof.
3. Vesting and Lapse of Restrictions . Except as otherwise provided herein, the Transfer Restrictions on the shares of Restricted Stock shall lapse and the shares of Restricted Stock granted hereunder shall vest, with respect to 25% of the shares of Restricted Stock beginning on the first anniversary of the Vesting Commencement Date (set forth on the signature page attached hereto) and to an additional 25% of the shares on each of the next three anniversaries of the Vesting Commencement Date thereafter (each, a “ Vesting Date ”), provided that the Grantee continues in employment on each respective Vesting Date.
4. Issuance of Shares . Subject to Section 7.11, the shares of Restricted Stock shall be issued to the Grantee, either by book entry registration or issuance of a stock certificate, but in no event shall shares of Restricted Stock be delivered to the Grantee prior to the date the shares have become vested and the Transfer Restrictions have lapsed pursuant to Section 3 hereof.
5. Employment Termination . Except as provided in the next sentence, in the event the Grantee’s employment Terminates, the Grantee shall forfeit all shares of Restricted Stock that have not yet become vested pursuant to Section 3 hereof. In the event the Grantee’s employment is Terminated (i) without Cause or due to death or Disability, the Transfer Restrictions shall lapse and the Restricted Stock granted hereunder shall vest as to the number of shares of Restricted Stock that would have vested on the Vesting Date next following the date of
Termination (had the Grantee’s employment not been Terminated), multiplied by a fraction, the numerator of which is the total number of whole calendar months the Grantee remained employed by the Company following the Vesting Date immediately preceding the date of Termination, and the denominator of which is twelve (12) or (ii) without Cause in connection with or within the one-year period following a Change in Control, the Transfer Restrictions shall lapse and the Restricted Stock granted hereunder shall vest with respect to all of the shares of Restricted Stock that are not vested as of the date of Termination. Upon the forfeiture of any shares of Restricted Stock pursuant to this Section 5, the Grantee shall have no further rights with respect thereto, including the right to the payment of any dividends in respect of such shares that have been deferred pursuant to Section 6.
6. Dividend Rights . Upon the issuance of the shares of Restricted Stock and the entry of the Grantee’s name as a shareholder of record on the books of the Company, the Grantee shall be, unless and until such shares of Restricted Stock are forfeited pursuant to Section 5 of this Agreement, entitled to all rights of a common shareholder of the Company, including, without limitation, the right to receive all dividends or other distributions paid or made with respect thereto; provided, however, that any entitlement to or payment of dividends or distributions declared or paid on the shares of Restricted Stock shall be deferred until such date the shares of Restricted Stock in respect of which such dividends or distributions were made vest pursuant to this Agreement. Any such deferred dividends shall be held by the Company for the account of the Grantee and shall be paid to the Grantee, with no interest thereon, as promptly as practicable following the date on which the shares of Restricted Stock in respect of which such dividends or distributions were made vest pursuant to this Agreement.
7. Miscellaneous .
7.1. Acknowledgment . The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof as the same may be amended from time to time. The Grantee hereby acknowledges that the Grantee has reviewed the Plan and this Agreement and understands the Grantee’s rights and obligations thereunder and hereunder. The Grantee also acknowledges that the Grantee has been provided with such information concerning the Company, the Plan, and this Agreement as the Grantee and the Grantee’s advisors have requested.
7.2. Resolution of Disputes . Any dispute or disagreement which may arise under, or as a result of, or which may in any way relate to, the interpretation, construction or application of this Agreement shall be determined by the Committee, in good faith, whose determination shall be final, binding, and conclusive for all purposes.
7.3. Governing Law; Compliance with Law; Venue; Service of Process; Waiver of Jury Trials .
(a) Governing Law . This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any applicable principles of conflict of laws that would cause the laws of another State to otherwise govern this Agreement.
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(b) Compliance with Law. Notwithstanding anything herein to the contrary, the Company shall not be required to issue shares pursuant to the exercise of any Award granted under this Agreement and the Plan unless such exercise and issuance comply with all applicable laws, including, without limitation, all applicable federal and state securities laws.
7.4. Enforcement . The parties acknowledge and agree that irreparable damage would occur in the event that any of the parties’ obligations under this Agreement were not performed in accordance with its specific terms or were otherwise breached. The parties acknowledge and agree that each of the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement. Each of the parties, in such Person’s sole discretion, may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief (without posting a bond or other security) in order to enforce and prevent any violation of the provisions of this Agreement
7.5. Severability . Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but the invalidity or unenforceability of any provision or portion of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision or portion of any provision, in any other jurisdiction. In addition, should a court determine that any provision or portion of any provision of this Agreement is not reasonable or valid, either in period of time, geographical area, or otherwise, the parties hereto agree that such provision should be interpreted and enforced to the maximum extent which such court deems reasonable or valid.
7.6. Notice . Unless otherwise provided herein, all notices, requests, and other communications provided for under the terms of this Agreement shall be in writing. Any notice, request, or other communication hereunder shall be sent by (a) personal delivery (including receipted courier service) or overnight delivery service, (b) facsimile during normal business hours, with confirmation of receipt, to the number indicated, (c) reputable commercial overnight delivery service courier, or (d) registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below:
| (i) | If to the Company, to: |
Aerie Pharmaceuticals, Inc.
135 US Highway 206, Suite 15
Bedminster, New Jersey 07921
Attention: Richard J. Rubino
Facsimile: (908) 470-4329
Telephone: (908) 470-4320
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
Attention: Steven G. Scheinfeld, Esq.
Facsimile: 212-859-4000
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(ii) If to the Grantee, at the most recent address or facsimile number contained in the books and records of the Company.
Each such notice, request and other communication will be effective (x) if delivered by hand, overnight courier or registered or certified mail, when such delivery is made at the address specified in this Section 7.6 or (y) if delivered by facsimile, when such facsimile is transmitted to the facsimile number specified in this Section 7.6 and appropriate confirmation is received. Any party may change its facsimile number or its address to which notices, requests, and other communications hereunder are to be delivered by giving the other parties hereto notice in the manner herein set forth.
7.7. Binding Effect; Assignment; Third-Party Beneficiaries . This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and any of their respective successors, personal representatives, and permitted assigns who agree in writing to be bound by the terms hereof. Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by the Grantee without the prior written consent of the Company.
7.8. Amendments and Waivers . This Agreement and any of the provisions hereof may be amended, waived (either generally or in a particular instance and either retroactively or prospectively), modified or supplemented, in whole or in part, only by written agreement signed by the Company, upon approval of the Committee, and by the Grantee; provided , that, the observance of any provision of this Agreement may be waived in writing by the party that will lose the benefit of such provision as a result of such waiver. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach, except as otherwise explicitly provided for in such waiver. Except as otherwise expressly provided herein, no failure on the part of any party to exercise, and no delay in exercising, any right, power, or remedy hereunder, or otherwise available in respect hereof at law or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power, or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
7.9. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
7.10. Entire Agreement . This Agreement and the Plan constitute the entire agreement, and supersede all prior agreements and understandings, oral and written, between the parties hereto with respect to the Award granted hereby.
7.11. Withholding . The Grantee shall be responsible for the satisfaction of applicable withholding obligations, and the delivery of certificates or evidence of book entry registration representing vested shares to the Grantee shall be subject to the satisfaction of such obligations.
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The Grantee agrees to indemnify the Company against any federal, state, and local withholding taxes for which the Company may be liable in connection with the Grantee’s acquisition, ownership, or disposition of any Common Stock.
7.12. No Right to Continued Employment . This Agreement shall not confer upon the Grantee any right with respect to continuance of employment by the Company or any Affiliate, nor shall it interfere in any way with the right of the Company or any Affiliate thereof to terminate the Grantee’s employment at any time.
7.13. General Interpretive Principles . Whenever used in this Agreement, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. The headings of the sections, paragraphs, subparagraphs, clauses, and subclauses of this Agreement are for convenience of reference only and shall not in any way affect the meaning or interpretation of any of the provisions hereof. Unless otherwise specified, the terms “hereof,” “herein” and similar terms refer to this Agreement as a whole, and references herein to Sections refer to Sections of this Agreement. Words of inclusion shall not be construed as terms of limitation herein, so that references to “include,” “includes,” and “including” shall not be limiting and shall be regarded as references to non-exclusive and non-characterizing illustrations.
7.14. Signature in Counterparts . This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, effective as of the Date of Grant.
| AERIE PHARMACEUTICALS, INC. | ||
| By: |
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| Name: | ||
| Title: | ||
Agreed and acknowledged as of the Date of Grant:
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| Name: | [ ] | |||||
| Grantee’s Name: | [ ] | |||
| Date of Grant: | [ ] | |||
| Vesting Commencement Date | [ ] | |||
| Number of Shares Subject to the Award: | [ ] |
[Signature Page to Restricted Stock Agreement]