EXHIBIT 10.34


 


RESHAPE
LIFESCIENCES INC.

second amended and restated 2003 stock Incentive Plan


 


STOCK
OPTION GRANT NOTICE


 


ReShape Lifesciences
Inc., a Delaware corporation (the “Company”), pursuant to the ReShape Lifesciences Inc. Second Amended
and Restated 2003 Stock Incentive Plan (as may be amended from time to time, the “Plan”), hereby grants
to the individual listed below (the “Optionee”), an option to purchase the number of shares of Common
Stock, par value $0.01 per share, of the Company (the “Shares”), set forth below (the “Option”).
This Option is subject to all of the terms and conditions set forth herein and in the Stock Option Agreement attached hereto as
Exhibit A (the “Option Agreement”) and the Plan, each of which is incorporated herein by
reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Stock Option
Grant Notice (the “Grant Notice”) and the Option Agreement.


 


	Optionee:	[__________]
	Grant Date:	[__________]
	Vesting Commencement Date:	[__________]
	 	 
	Exercise Price per Share:	$[___] /Share
	Total Number of Shares Subject to the Option:	[__________] Shares
	Expiration Date:	[__________]
	 	 
	Vesting Schedule:	[25%] shares will vest on [One-year anniversary of Grant Date], and the remaining [75%] shares will vest in as nearly equal amounts as possible on the last day of each of the next 36 months thereafter.
	Termination:	The Option shall terminate on the Expiration Date set forth above or, if earlier, in accordance with the terms of the Agreement
	Type of Option:	 ̈  Incentive Stock Option       ̈  Non-Qualified Stock Option


 


The undersigned Optionee
acknowledges that he or she has received a copy of this Grant Notice, the Option Agreement and the Plan. As an express condition
to the grant of the Option hereunder, the Optionee agrees to be bound by the terms of this Grant Notice, the Option Agreement and
the Plan. The undersigned Optionee further acknowledges that as of the Grant Date, this Grant Notice, the Option Agreement and
the Plan set forth the entire understanding between the Optionee and the Company regarding the acquisition of stock in the Company
and supersede all prior oral and written agreements on that subject with the exception of (i) options previously granted and
delivered to the Optionee under the Plan, and (ii) any agreements noted in an attachment to this Grant Notice.


 


	ReShape Lifesciences Inc.	 	OPTIONEE
	 	 	 
	By:	 	 	By:	 
	Name:	 	 	Print Name:	 
	Title:	 	 	 	 
	 	 	 	Address:	 
	 	 	 	Email:	 


 






    


     


    

 


EXHIBIT A

TO STOCK OPTION GRANT NOTICE


 


STOCK
OPTION AGREEMENT


 


Pursuant to the Stock
Option Grant Notice (the “Grant Notice”) to which this Stock Option Agreement (this “Agreement”)
is attached, ReShape Lifesciences Inc., a Delaware corporation (the “Company”), has granted to the Optionee
an option (the “Option”) under the ReShape Lifesciences Inc. Second Amended and Restated 2003 Stock Incentive
Plan (as amended from time to time, the “Plan”) to purchase the number of Shares indicated in the Grant
Notice.


 


ARTICLE I.



 


GENERAL


 


1.1            Incorporation
of Terms of Plan. The Option is subject to the terms and conditions of the Plan, which are incorporated herein by reference.
In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.


 


1.2            Defined
Terms. Wherever the following terms are used in this Agreement, they shall have the meanings specified below, unless the context
clearly indicates otherwise. Capitalized terms not specifically defined herein shall have the meanings specified in the Plan and
the Grant Notice.


 


(a)            “Retirement”
shall mean a Separation from Service due to a normal or approved early termination of employment or service pursuant to and in
accordance with an applicable retirement/pension plan, program, policy or practice of the Company or an Affiliate, as determined
by the Company or the Affiliate in its sole discretion.


 


(b)            “Separation
from Service” shall mean the Optionee’s “separation from service” from the Company or any Affiliate
within the meaning of Section 409A(a)(2)(A)(i) of the Code.


 


ARTICLE II.



 


GRANT OF OPTION


 


2.1            Grant
of Option. In consideration of the Optionee’s past and/or continued employment with or service to the Company or any
Affiliate and for other good and valuable consideration, effective as of the Grant Date set forth in the Grant Notice (the “Grant
Date”), the Company irrevocably grants to the Optionee the Option to purchase any part or all of the aggregate number
of Shares set forth in the Grant Notice, upon the terms and conditions set forth in the Plan and this Agreement. Unless designated
as a Non-Qualified Stock Option in the Grant Notice, the Option shall be an Incentive Stock Option to the maximum extent permitted
by law.


 


2.2            Exercise
Price. The exercise price of the Shares subject to the Option shall be as set forth in the Grant Notice, without commission
or other charge; provided, however, that the exercise price per share of the Shares subject to the Option shall not
be less than 100% of the Fair Market Value of a Share on the Grant Date. Notwithstanding the foregoing, if this Option is an Incentive
Stock Option and the Optionee owns stock possessing more than 10% of the total combined voting power of all classes of stock of
the Company or of its Affiliates as of the Grant Date (a “Greater Than 10% Stockholder”), the exercise
price per share of the Shares subject to the Option shall not be less than 110% of the Fair Market Value of a Share on the Grant
Date.


 



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2.3            Consideration
to the Company. In consideration of the grant of the Option by the Company, the Optionee agrees to render faithful and efficient
services to the Company or any Affiliate. Nothing in the Plan or this Agreement shall confer upon the Optionee any right to continue
in the employ or service of the Company or any Affiliate or shall interfere with or restrict in any way the rights of the Company
and its Affiliates, which rights are hereby expressly reserved, to discharge or terminate the services of the Optionee at any time
for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between
the Company or an Affiliate and the Optionee.


 


ARTICLE III.



 


PERIOD OF EXERCISABILITY


 


3.1            Commencement
of Exercisability.


 


(a)          Subject
to Sections 3.1(b), 3.2, 3.3 and 5.8 hereof, the Option shall become vested and exercisable in such amounts and at such times as
are set forth in the Grant Notice.


 


(b)            No
portion of the Option which has not become vested and exercisable as of the date of the Optionee’s Termination of Service
shall thereafter become vested and exercisable, except as may be otherwise provided by the Committee or as set forth in a written
agreement between the Company and the Optionee.


 


3.2            Duration
of Exercisability. Any installments provided for in the vesting schedule set forth in the Grant Notice are cumulative. Each
such installment which becomes vested and exercisable pursuant to the vesting schedule set forth in the Grant Notice shall remain
vested and exercisable until it becomes unexercisable under Section 3.3 hereof.


 


3.3            Expiration
of Option. The Option may not be exercised to any extent by anyone after the first to occur of the following events:


 


(a)            The
Expiration Date set forth in the Grant Notice;


 


(b)            If
this Option is designated as an Incentive Stock Option and the Optionee is a Greater Than 10% Stockholder as of the Grant Date,
the expiration of five (5) years from the Grant Date;


 


(c)           The
date that is three (3) months from the date of the Optionee’s Termination of Service by the Company without cause or
by the Optionee for any reason (other than due to Retirement, death or disability);


 


(d)           The
expiration of one (1) year from the date of the Optionee’s Termination of Service by reason of the Optionee’s
death or disability;


 


(e)            The
expiration of six (6) months from the date of the Optionee’s Termination of Service by reason of the Optionee’s
Retirement; or


 


(f)            The
start of business on the date of the Optionee’s Termination of Service by the Company for cause.


 


The Optionee acknowledges
that an Incentive Stock Option exercised more than three (3) months after the Optionee’s termination of employment,
other than by reason of death or disability, will be taxed as a Non-Qualified Stock Option.


 






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“Termination
of Service” shall mean:


 


(a) As to a consultant
or independent contractor, the time when the engagement of the Optionee as a consultant or independent contractor to the Company
and its Affiliates is terminated for any reason, with or without cause, including, without limitation, by resignation, discharge,
death or retirement, but excluding terminations where the consultant or independent contractor simultaneously commences or remains
in employment and/or service as an employee and/or Director with the Company or any Affiliate.


 


(b) As to a Non-Employee
Director, the time when an Optionee who is a Non-Employee Director ceases to be a Director for any reason, including, without limitation,
a termination by resignation, failure to be elected, death or retirement, but excluding terminations where the Optionee simultaneously
commences or remains in employment and/or service as an employee, consultant and/or independent contractor with the Company or
any Affiliate.


 


(c) As to an employee,
the time when the employee-employer relationship between the Optionee and the Company and its Affiliates is terminated for any
reason, including, without limitation, a termination by resignation, discharge, death, disability or Retirement, but excluding
terminations where the Optionee simultaneously commences or remains in service as a consultant, independent contractor and/or Director
with the Company or any Affiliate.


 


The Committee, in its
sole discretion, shall determine the effect of all matters and questions relating to any Termination of Service, including, without
limitation, whether a Termination of Service has occurred, whether any Termination of Service resulted from a discharge for cause
and whether any particular leave of absence constitutes a Termination of Service; provided, however, that,
with respect to Incentive Stock Options, unless the Committee determines otherwise, or as otherwise required by applicable law,
a leave of absence, change in status from an employee to an independent contractor or other change in the employee-employer relationship
shall constitute a Termination of Service only if, and to the extent that, such leave of absence, change in status or other change
interrupts employment for the purposes of Section 422(a)(2) of the Code. For purposes of the Plan, an Optionee’s
employee-employer relationship or consultancy relationship shall be deemed to be terminated in the event that the Affiliate employing
or contracting with such Optionee ceases to remain an Affiliate following any merger, sale of stock or other corporate transaction
or event (including, without limitation, a spin-off).


 


3.4            Change
in Control. In the event that a Change in Control occurs, (a) all outstanding Options shall be subject to the agreement
pursuant to which such Change in Control is consummated and (b) the vesting schedule of the Options held by Optionee shall
accelerate such that on the date the Change in Control is completed, 50% of any then-unvested shares subject to the Options held
by Optionee shall immediately vest, irrespective of which of the provisions described in clauses (i) through (v) below
are set forth in the agreement pursuant to which such Change in Control is consummated (except in the case of clause (iv), in which
case 100% of the Options would become vested). Such agreement shall provide for one or more of the following:


 


(i)            The
continuation of such outstanding Options by the Company (if the Company is the surviving corporation).


 


(ii)          The
assumption of such outstanding Options by the surviving corporation or its parent in a manner that complies with Section 424(a) of
the Code (whether or not such Options are Incentive Stock Options).


 






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(iii)            The
substitution by the surviving corporation or its parent of new options for such outstanding Options in a manner that complies with
Section 424(a) of the Code (whether or not such Options are Incentive Stock Options).


 


(iv)            Full
exercisability of such outstanding Options and full vesting of the Shares subject to such Options, followed by the cancellation
of such Options. The full exercisability of such Options and full vesting of the Shares subject to such Options may be contingent
on the closing of such Change in Control. The Optionee shall be able to exercise such Options during a period of not less than
five full business days preceding the closing date of such Change in Control, unless (A) a shorter period is required to permit
a timely closing of such Change in Control and (B) such shorter period still offers the Optionee a reasonable opportunity
to exercise such Options. Any exercise of such Options during such period may be contingent on the closing of such Change in Control.


 


(v)            The
cancellation of such outstanding Options and a payment to the Optionee equal to the excess of (A) the Fair Market Value of
the Shares subject to such Options (whether or not such Options are then exercisable or such Shares are then vested) as of the
closing date of such Change in Control over (B) their aggregate exercise price. Such payment shall be made in the form of
cash, cash equivalents, or securities of the surviving corporation or its parent with a Fair Market Value equal to the required
amount. Such payment may be made in installments and may be deferred until the date or dates when such Options would have become
exercisable or such Shares would have vested. Such payment may be subject to vesting based on the Optionee’s continuing service
to the Company or its affiliates, provided that the vesting schedule shall not be less favorable to the Optionee than the schedule
under which such Options would have become exercisable or such Shares would have vested. If the aggregate exercise price of the
Shares subject to such Options exceeds the Fair Market Value of such Shares, then such Options may be cancelled without making
a payment to the Optionee. For purposes of this Subsection (v), the Fair Market Value of any security shall be determined without
regard to any vesting conditions that may apply to such security.


 


3.5            Special
Tax Consequences. The Optionee acknowledges that, to the extent that the aggregate Fair Market Value (determined as of the
time the Option is granted) of all Shares with respect to which “incentive stock options” (within the meaning of Section 422
of the Code, but without regard to Section 422(d) of the Code), including the Option, are exercisable for the first time
by the Optionee in any calendar year exceeds $100,000, the Option and such other options shall be Non-Qualified Stock Options to
the extent necessary to comply with the limitations imposed by Section 422(d) of the Code. The Optionee further acknowledges
that the rule set forth in the preceding sentence shall be applied by taking the Option and other “incentive stock options”
into account in the order in which they were granted, as determined under Section 422(d) of the Code and the Treasury
Regulations thereunder.


 


ARTICLE IV.



 


EXERCISE OF OPTION


 


4.1            Person
Eligible to Exercise. Except as provided in Section 4.2 hereof, during the lifetime of the Optionee, only the Optionee
may exercise the Option or any portion thereof. After the death of the Optionee, any exercisable portion of the Option may, prior
to the time when the Option becomes unexercisable under Section 3.3 hereof, be exercised by the deceased Optionee’s
beneficiary or by any person empowered to do so under the deceased Optionee’s will or under the then-applicable laws of descent
and distribution, subject to Section 6(h)(iv) of the Plan.


 






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4.2          Partial
Exercise. Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised in whole
or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.3 hereof.
However, the Option shall not be exercisable with respect to fractional shares.


 


4.3         Manner
of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the stock administrator
of the Company (or any other person or entity designated by the Company) of all of the following prior to the time when the Option
or such portion thereof becomes unexercisable under Section 3.3 hereof:


 


(a)            A
written or electronic notice complying with the applicable rules established by the Committee stating that the Option, or
a portion thereof, is exercised. The notice shall be signed by the Optionee or other person then-entitled to exercise the Option
or such portion of the Option;


 


(b)         Full
payment of the exercise price and applicable withholding taxes for the Shares with respect to which the Option, or portion thereof,
is exercised, in a manner permitted by Section 4.4 hereof;


 


(c)          Any
other representations or documents as may be required in the Committee’s sole discretion to effect compliance with all applicable
provisions of the Securities Act, the Exchange Act, any other federal, state or foreign securities laws or regulations, the rules of
any securities exchange, national market system or automated quotation system on which the Shares are listed, quoted or traded
or any other applicable law; and


 


(d)          In
the event the Option or portion thereof shall be exercised pursuant to Section 4.1 hereof by any person or persons other than
the Optionee, appropriate proof of the right of such person or persons to exercise the Option (as determined by the Committee in
its sole discretion).


 


Notwithstanding any
of the foregoing, the Company shall have the right to specify all conditions of the manner of exercise, which conditions may vary
by country and which may be subject to change from time to time.


 


4.4          Method
of Payment. Payment of the exercise price shall be by any of the following, or a combination thereof, at the election of the
Optionee:


 


(a)            Cash;


 


(b)            Check;


 


(c)            Delivery
of a written or electronic notice that the Optionee has placed a market sell order with a broker with respect to Shares then issuable
upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale
to the Company in satisfaction of the aggregate exercise price; provided, that payment of such proceeds is then made to
the Company upon settlement of such sale;


 


(d)            With
the consent of the Committee, surrender of other Shares which have been held by the Optionee for such period of time as may be
required by the Committee in order to avoid adverse accounting consequences and having a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the Shares with respect to which the Option or portion thereof is being exercised;


 






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(e)            With
the consent of the Committee, surrendered Shares issuable upon the exercise of the Option having a Fair Market Value on the date
of exercise equal to the aggregate exercise price of the Shares with respect to which the Option or portion thereof is being exercised;
or


 


(f)            With
the consent of the Committee, such other form of legal consideration as may be acceptable to the Committee.


 


4.5            Conditions
to Issuance of Stock Certificates. The Shares deliverable upon the exercise of the Option, or any portion thereof, may be either
previously authorized but unissued Shares, treasury Shares or issued Shares which have been purchased on the open market. Such
Shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any certificates or make any
book entries evidencing Shares purchased upon the exercise of the Option or portion thereof prior to fulfillment of the conditions
set forth in Section 6 of the Plan.


 


4.6            Rights
as Stockholder. The holder of the Option shall not be, nor have any of the rights or privileges of, a stockholder of the Company,
including, without limitation, voting rights and rights to dividends, in respect of any Shares purchasable upon the exercise of
any part of the Option unless and until such Shares shall have been issued by the Company to such holder (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for a dividend
or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 6(e) of
the Plan.


 


ARTICLE V.


 


OTHER
PROVISIONS


 


5.1            Administration.
The Committee shall have the power to interpret the Plan and this Agreement as provided in the Plan. All interpretations and determinations
made by the Committee in good faith shall be final and binding upon the Optionee, the Company and all other interested persons.


 


5.2            Transferability
of Option. Without limiting the generality of any other provision hereof, the Option shall be subject to the restrictions on
transferability set forth in Section 6(h)(iv) of the Plan.


 


5.3            Adjustments.
The Optionee acknowledges that the Option is subject to modification and termination in certain events as provided in this Agreement
and Section 4(c) of the Plan.


 


5.4            Tax
Consultation. The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the grant, vesting
and/or exercise of the Option, and/or with the purchase or disposition of the Shares subject to the Option. The Optionee represents
that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition
of such shares and that the Optionee is not relying on the Company for any tax advice.


 


5.5            Notification
of Disposition. If this Option is designated as an Incentive Stock Option, the Optionee shall give prompt notice to the Company
of any disposition or other transfer of any Shares acquired under this Agreement if such disposition or transfer is made (a) within
two (2) years from the Grant Date with respect to such Shares or (b) within one (1) year after the transfer of such
Shares to the Optionee. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash,
other property, assumption of indebtedness or other consideration, by the Optionee in such disposition or other transfer.


 






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5.6         Optionee’s
Representations. The Optionee shall, if required by the Company, concurrently with the exercise of all or any portion of this
Option, make such written representations as are deemed necessary or appropriate by the Company and/or the Company’s counsel.


 


5.7            Section 409A.
This Agreement and the Grant Notice shall be interpreted in accordance with the requirements of Section 409A of the Code.
The Committee may, in its discretion, adopt such amendments to the Plan, this Agreement or the Grant Notice or adopt other policies
and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Committee
determines are necessary or appropriate to comply with the requirements of Section 409A of the Code or an available exemption
thereof; provided, however, that the Committee shall have no obligation to take any such action(s) or to indemnify
any person from failing to do so.


 


5.8         Amendment,
Suspension and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to time by the Committee or the Board; provided, however, that,
except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall
adversely affect the Option in any material way without the prior written consent of the Optionee.


 


5.9            Not
a Contract of Service Relationship. Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue
to serve as an employee, Director, consultant or other service provider of the Company or any of its Affiliates or shall interfere
with or restrict in any way the rights of the Company and its Affiliates, which rights are hereby expressly reserved, to discharge
or terminate the services of the Optionee at any time for any reason whatsoever, with or without cause, except to the extent expressly
provided otherwise in a written agreement between the Company or an Affiliate and the Optionee.


 


5.10           Limitations
Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if the Optionee is
subject to Section 16 of the Exchange Act, then the Plan, the Option and this Agreement shall be subject to any additional
limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment
to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted
by applicable law, this Agreement shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.


 


5.11        Conformity
to Securities Laws. The Optionee acknowledges that the Plan and this Agreement are intended to conform to the extent necessary
with all provisions of the Securities Act and the Exchange Act, and any and all regulations and rules promulgated by the Securities
and Exchange Commission thereunder, as well as all applicable state securities laws and regulations. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Option is granted and may be exercised, only in such a manner as to conform
to such laws, rules and regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be deemed
amended to the extent necessary to conform to such laws, rules and regulations.


 


5.12           Limitation
on the Optionee’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This
Agreement creates only a contractual obligation on the part of the Company as to amounts payable and shall not be construed as
creating a trust. The Plan, in and of itself, has no assets. The Optionee shall have only the rights of a general unsecured creditor
of the Company and its Affiliates with respect to amounts credited and benefits payable, if any, with respect to the Option, and
rights no greater than the right to receive the Common Stock as a general unsecured creditor with respect to Options, as and when
payable hereunder.


 






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5.13            Successors
and Assigns. The Company or any Affiliate may assign any of its rights under this Agreement to single or multiple assignees,
and this Agreement shall inure to the benefit of the successors and assigns of the Company and its Affiliates. Subject to the restrictions
on transfer set forth in this Article V, this Agreement shall be binding upon the Optionee and his or her heirs, executors,
administrators, successors and assigns.


 


5.14            Entire
Agreement. The Plan, the Grant Notice and this Agreement (including all Exhibits thereto, if any) constitute the entire agreement
of the parties and supersede in their entirety all prior undertakings and agreements of the Company and its Affiliates and the
Optionee with respect to the subject matter hereof.


 


5.15           Notices.
Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of the Secretary
of the Company at the Company’s principal office, and any notice to be given to the Optionee shall be addressed to the Optionee
at the Optionee’s last address reflected on the Company’s records. Any notice shall be deemed duly given when sent
via email or when sent by reputable overnight courier or by certified mail (return receipt requested) through the United States
Postal Service.


 


5.16            Governing
Law. The laws of the State of Minnesota shall govern the interpretation, validity, administration, enforcement and performance
of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.


 


5.17            Titles.
Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.


 



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