Exhibit 10.2


 


BG Medicine, Inc.


 


INCENTIVE STOCK OPTION AGREEMENT 


 


BG
Medicine, Inc., formerly known as Beyond Genomics, Inc., (the “Company”)
hereby grants the following stock option pursuant to its 2001 Stock Option and
Incentive Plan. The terms and conditions attached hereto are also a part
hereof.


 


 


	
  Name of Employee
  (the “Employee”):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date of this
  option grant (“Grant Date”):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Number of shares
  of the Company’s Common Stock subject to this option (“Option Shares”):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Option exercise
  price per share:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Option
  termination date:

  	
   

  	
  10 years from
  Grant Date

  
	
   

  	
   

  	
   

  
	
  Number of Option
  Shares subject to Vesting Schedule (“Unvested Option Shares”):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Vesting Start
  Date:

  	
   

  	
   

  



 


Vesting
Schedule:


 


	
  One year from
  Vesting Start Date:

  	
   

  	
  25% of Unvested
  Option Shares

  
	
   

  	
   

  	
   

  
	
  The last day of
  each successive three month period following the first anniversary of the
  Vesting Start Date:

  	
   

  	
  An additional
  6.25% of Unvested Option Shares until the fourth anniversary of the Vesting
  Start Date

  
	
   

  	
   

  	
   

  
	
  [If the Company
  is acquired in a transaction involving a change of control, vesting shall be
  accelerated by 9 months. A “change of control” shall mean the sale of the
  Company by merger, in which the shareholders of the Company in their capacity
  as such no longer own a majority of the outstanding equity securities of the
  Company (or its successor) or any sale of all or substantially all of the
  assets or capital stock of the Company (other than in a spin-off or similar
  transaction) or any other acquisition of the business of the Company, as
  determined by the Board.]

  



 


	
   

  	
  BG Medicine, Inc.

  
	
   

  	
   

  	
   

  
	
  Signature of
  Employee

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Pieter Muntendam

  
	
  Street Address

  	
  President

  
	
   

  	
   

  	
   

  
	
  City/State/Zip
  Code

  	
   

  
	
   

  	
   

  	
   

  



 

















 


BG Medicine, Inc.


 


INCENTIVE STOCK OPTION AGREEMENT — INCORPORATED TERMS
AND CONDITIONS


 


1.                                       Grant
Under Plan. This option is granted pursuant to and is governed by the
Company’s 2001 Stock Option and Incentive Plan (the “Plan”) and, unless
the context otherwise requires, terms used herein shall have the same meaning
as in the Plan.


 


2.                                       Grant
as Incentive Stock Option. This option is intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code of
1986, as amended, and the regulations thereunder (the “Code”).


 


3.                                       Vesting
of Option if Employment Continues. The Employee may exercise this option on
or after the Grant Date for the number of shares of Common Stock, if any,
indicated on the cover page hereof. If the Employee has remained
continuously employed by the Company from the Grant Date through the dates
listed on the vesting schedule set forth on the cover page hereof,
the Employee may exercise this option for the additional number of shares of
Common Stock in accordance with such vesting schedule. Notwithstanding the
foregoing, the Board may, in its discretion, accelerate the date that any
installment of this option becomes exercisable. The foregoing rights are
cumulative and (subject to Sections 4 or 5 hereof if the Employee ceases to be
employed by the Company) may be exercised only before the date which is 10
years from the Grant Date.


 


4.                                       Termination
of Employment.


 


(a)                                  Termination
Other Than for Cause. If the Employee ceases to be employed by the Company,
other than by reason of death or disability as defined in Section 5 or
termination for Cause as defined in Section 4(c), no further installments
of this option shall become exercisable, and this option may no longer be
exercised after the passage of 90 days from the Employee’s last day of
employment, but in no event later than the scheduled expiration date. For
purposes hereof, employment shall not be considered as having terminated during
any  leave of absence if such leave of
absence has been approved in writing by the Company and if such written
approval contractually obligates the Company to continue the employment of the
Employee after the approved period of absence; in the event of such an approved
leave of absence, vesting of this option shall be suspended (and the period of
the leave of absence shall be added to all vesting dates) unless otherwise
provided in the Company’s written approval of the leave of absence. For
purposes hereof, employment shall include a consulting arrangement between the
Employee and the Company that immediately follows termination of employment,
but only if so stated in a written consulting agreement executed by the Company
that specifically refers to this option. This option shall not be affected by
any change of employment within or among the Company and its Subsidiaries so
long as the Employee continuously remains an employee of the Company or any
Subsidiary.


 

















 


(b)                                 Termination
for Cause. If the employment of the Employee is terminated for Cause (as
defined in Section 4(c)), this option shall no longer be exercisable from
and after the Employee’s receipt of written notice of such termination.


 


(c)                                  Definition
of Cause. “Cause” shall mean conduct involving one or more of the
following: (i) the substantial and continuing failure of the Employee,
after notice thereof, to render services to the Company in accordance with the
terms or requirements of his or her employment; (ii) disloyalty, gross
negligence, willful misconduct, dishonesty, fraud or breach of fiduciary duty
to the Company;  (iii) deliberate
disregard of the rules or policies of the Company, or breach of an employment
or other agreement with the Company, which results in direct or indirect loss,
damage or injury to the Company; (iv) the unauthorized disclosure of any
trade secret or confidential information of the Company; or (v) the
commission of an act which constitutes unfair competition with the Company or
which induces any customer or supplier to breach a contract with the Company.


 


5.                                       Death;
Disability.


 


(a)                                  Death.
If the Employee dies while in the employ of the Company, this option may be
exercised, to the extent otherwise exercisable on the date of his or her death,
by the Employee’s estate, personal representative or beneficiary to whom this
option has been transferred pursuant to Section 10, only at any time
within 180 days after the date of death, but not later than the scheduled
expiration date.


 


(b)                                 Disability.
If the Employee ceases to be employed by the Company by reason of his or her
disability, this option may be exercised, to the extent otherwise exercisable
on the date of cessation of employment, only at any time within 180 days
after such cessation of employment, but not later than the scheduled expiration
date. For purposes hereof, “disability” means “permanent and total
disability” as defined in Section 22(e)(3) of the Code.


 


6.                                       Partial
Exercise. This option may be exercised in part at any time and from time to
time within the above limits, except that this option may not be exercised for
a fraction of a share.


 


7.                                       Payment
of Exercise Price.


 


(a)           Payment
Options. The exercise price shall be paid by one or any combination of the
following forms of payment that are applicable to this option, as indicated on
the cover page hereof:


 


(i)                                     by
check payable to the order of the Company; or


 


(ii)                                  if
the Common Stock is then traded on a national securities exchange or on the
Nasdaq National Market (or successor trading system), delivery of an 


 


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irrevocable
and unconditional undertaking, satisfactory in form and substance to the
Company, by a creditworthy broker to deliver promptly to the Company sufficient
funds to pay the exercise price, or delivery by the Employee to the Company of
a copy of irrevocable and unconditional instructions, satisfactory in form and
substance to the Company, to a creditworthy broker to deliver promptly to the
Company cash or a check sufficient to pay the exercise price; or


 


(iii)                               subject to Section 7(b) below,
if the Common Stock is then traded on a national securities exchange or on the
Nasdaq National Market (or successor trading system), by delivery of shares of
Common Stock having a fair market value equal as of the date of exercise to the
option price.


 


In the case of (iii) above, fair market value as
of the date of exercise shall be determined as of the last business day for
which such prices or quotes are available prior to the date of exercise and
shall mean (i) the last reported sale price (on that date) of the Common
Stock on the principal national securities exchange on which the Common Stock
is traded, if the Common Stock is then traded on a national securities
exchange; or (ii) the last reported sale price (on that date) of the
Common Stock on the Nasdaq National Market (or successor trading system), if
the Common Stock is not then traded on a national securities exchange.


 


(b)                                 Limitations
on Payment by Delivery of Common Stock. If Section 7(a)(iii) is
applicable, and if the Employee delivers Common Stock held by the Employee (“Old
Stock”) to the Company in full or partial payment of the exercise price and
the Old Stock so delivered is subject to restrictions or limitations imposed by
agreement between the Employee and the Company, an equivalent number of Option
Shares shall be subject to all restrictions and limitations applicable to the
Old Stock to the extent that the Employee paid for the Option Shares by
delivery of Old Stock, in addition to any restrictions or limitations imposed
by this Agreement. Notwithstanding the foregoing, the Employee may not pay any
part of the exercise price hereof by transferring Common Stock to the Company
unless such Common Stock has been owned by the Employee free of any substantial
risk of forfeiture for at least six months.


 


8.                                       Securities
Laws Restrictions on Resale. Until registered under the Securities Act of
1933, as amended, or any successor statute (the “Securities Act”), the
Option Shares will be of an illiquid nature and will be deemed to be “restricted
securities” for purposes of the Securities Act. Accordingly, such shares
must be sold in compliance with the registration requirements of the Securities
Act or an exemption therefrom. Unless the Option Shares have been registered
under the Securities Act, each certificate evidencing any of the Option Shares
shall bear a legend substantially as follows:


 


“The
shares represented by this certificate are subject to restrictions on transfer
and may not be sold, exchanged, transferred, pledged, hypothecated or otherwise
disposed of except in accordance with and subject to all the terms and
conditions 


 


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of a
certain Incentive Stock Option Agreement dated as of April 15, 2004, a
copy of which the Company will furnish to the holder of this certificate upon
request and without charge.”


 


9.                                       Method
of Exercising Option. Subject to the terms and conditions of this
Agreement, this option may be exercised by written notice to the Company at its
principal executive office, or to such transfer agent as the Company shall
designate. Such notice shall state the election to exercise this option and the
number of Option Shares for which it is being exercised and shall be signed by
the person or persons so exercising this option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares as
soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Employee
and if the Employee shall so request in the notice exercising this option,
shall be registered in the name of the Employee and another person jointly,
with right of survivorship). In the event this option shall be exercised,
pursuant to Section 5 hereof, by any person or persons other than the
Employee, such notice shall be accompanied by appropriate proof of the right of
such person or persons to exercise this option.


 


10.                                 Option
Not Transferable. This option shall not be sold, assigned, transferred,
pledged or otherwise encumbered by the Employee, either voluntarily or by
operation of law, except by will or by the laws of descent and distribution. During
the Employee’s lifetime only the Employee can exercise this option.


 


11.                                 No
Obligation to Exercise Option. The grant and acceptance of this option
imposes no obligation on the Employee to exercise it.


 


12.                                 No
Obligation to Continue Employment. Neither the Plan, this Agreement, nor
the grant of this option imposes any obligation on the Company to continue the
Employee in employment.


 


13.                                 Adjustments.
Except as is expressly provided in the Plan with respect to certain changes in
the capitalization of the Company, no adjustment shall be made for dividends or
similar rights for which the record date is prior to such date of exercise.


 


14.                                 Withholding
Taxes. If the Company in its discretion determines that it is obligated to
withhold any tax in connection with the exercise of this option, or in
connection with the transfer of, or the lapse of restrictions on, any Common
Stock or other property acquired pursuant to this option, the Employee hereby
agrees that the Company may withhold from the Employee’s wages or other
remuneration the appropriate amount of tax. At the discretion of the Company,
the amount required to be withheld may be withheld in cash from such wages or
other remuneration or in kind from the Common Stock or other property otherwise
deliverable to the Employee on exercise of this option. The Employee further
agrees that, if the Company does not withhold an amount from the Employee’s
wages or other remuneration sufficient to satisfy the 


 


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withholding obligation of
the Company, the Employee will make reimbursement on demand, in cash, for the
amount underwithheld.


 


15.                                 Restrictions
on Transfer; Company’s Right of First Refusal.


 


(a)                                  Exercise
of Right. Option Shares may not be transferred without the Company’s
written consent except by will, by the laws of descent and distribution or in
accordance with the further provisions of this Section 15. If the Employee
desires to transfer all or any part of the Option Shares to any person other
than the Company (an “Offeror”), the Employee shall:  (i) obtain in writing an irrevocable and
unconditional bona fide offer (the “Offer”)
for the purchase thereof from the Offeror; and (ii) give written notice
(the “Option Notice”) to the Company setting forth the Employee’s desire
to transfer such shares, which Option Notice shall be accompanied by a
photocopy of the Offer and shall set forth at least the name and address of the
Offeror and the price and terms of the Offer. Upon receipt of the Option
Notice, the Company shall have an assignable option to purchase any or all of
such Option Shares (the “Company Option Shares”) specified in the Option
Notice, such option to be exercisable by giving, within 15 days after receipt
of the Option Notice, a written counter-notice to the Employee. If the Company
elects to purchase any or all of such Company Option Shares, it shall be
obligated to purchase, and the Employee shall be obligated to sell to the
Company, such Company Option Shares at the price and terms indicated in the
Offer within 30 days from the date of delivery by the Company of such
counter-notice.


 


(b)                                 Sale
of Option Shares to Offeror. The Employee may, for 60 days after the
expiration of the 15-day option period as set forth in Section 15(a), sell
to the Offeror, pursuant to the terms of the Offer, any or all of such Company
Option Shares not purchased or agreed to be purchased by the Company or its
assignee; provided, however, that the Employee
shall not sell such Option Shares to such Offeror if such Offeror is a
competitor of the Company and the Company gives written notice to the Employee,
within 15 days of its receipt of the Option Notice, stating that the Employee
shall not sell his or her Option Shares to such Offeror; and provided, further, that prior to the sale of such Option
Shares to an Offeror, such Offeror shall execute an agreement with the Company
pursuant to which such Offeror agrees to be subject to the restrictions set
forth in this Section 15. If any or all of such Option Shares are not sold
pursuant to an Offer within the time permitted above, the unsold Option Shares
shall remain subject to the terms of this Section 15.


 


(c)                                  Failure
to Deliver Option Shares. If the Employee fails or refuses to deliver on a
timely basis duly endorsed certificates representing Company Option Shares to
be sold to the Company or its assignee pursuant to this Section 15, the
Company or its assignee shall have the right to deposit the purchase price for
such Company Option Shares in a special account with any bank or trust company,
giving notice of such deposit to the Employee, whereupon such Company Option
Shares shall be deemed to have been purchased by the Company or its assignee,
as the case may be. All such monies shall be held by the bank or trust company
for the benefit of the Employee. All monies deposited 


 


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with
the bank or trust company but remaining unclaimed for two years after the date
of deposit shall be repaid by the bank or trust company to the Company on
demand, and the Employee shall thereafter look only to the Company for payment.


 


(d)                                 Transactions
Exempt from the Company’s Right of First Refusal and Transfer Restrictions.
The following transactions shall be exempt from the first refusal rights of the
Company and the transfer restrictions set forth in this Section 15:


 


(i)                                     a
transfer of Option Shares to or for the benefit of any spouse, child,
grandchild, parent, grandparent, sibling, aunt or uncle (each, a “Family Member”)
of the Employee, or to a trust for their benefit;


 


(ii)                                  any
transfer pursuant to an effective registration statement filed by the Company
under the Securities Act;


 


(iii)                               any transfer in
connection with an Acquisition of the Company; and


 


(iv)                              a
transfer of Option Shares to a Family Member pursuant to the laws of descent
and distribution;


 


provided,
however, that in the case of a transfer pursuant to clause (i) or (iv) above,
such transferee shall execute an agreement with the Company pursuant to which
such transferee agrees to be subject to the restrictions set forth in this Section 15,
and provided, further, that without the Company’s written consent subsequent
transfers of such transferred Option Shares, other than by will or by the laws
of descent and distribution, shall be prohibited.


 


(e)                                  Expiration
of Company’s Right of First Refusal and Transfer Restrictions. The first refusal
rights of the Company and the transfer restrictions set forth in this Section 15
shall expire as to Option Shares on the tenth anniversary of the date of this
Agreement.


 


16.                                 Early
Disposition. The Employee agrees to notify the Company in writing immediately
after the Employee transfers any Option Shares, if such transfer occurs on or
before the later of (a) the date that is two years after the date of this
Agreement or (b) the date that is one year after the date on which the
Employee acquired such Option Shares. The Employee also agrees to provide the
Company with any information concerning any such transfer required by the
Company for tax purposes.


 


17.                                 Lock-up
Agreement. The Employee agrees that in the event that the Company effects
an initial underwritten public offering of Common Stock registered under the
Securities Act, the Option Shares may not be sold, offered for sale or
otherwise disposed of, directly or indirectly, without the prior written
consent of the managing underwriter(s) of the offering, for such period of time
after the execution of an underwriting agreement in connection with such
offering that all of the Company’s then directors and executive officers agree
to be similarly bound.


 


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18.                                 Arbitration.
Any dispute, controversy, or claim arising out of, in connection with, or
relating to the performance of this Agreement or its termination shall be
settled by arbitration in the Commonwealth of Massachusetts, pursuant to the rules then
obtaining of the American Arbitration Association. Any award shall be final,
binding and conclusive upon the parties and a judgment rendered thereon may be
entered in any court having jurisdiction thereof.


 


19.                                 Provision
of Documentation to Employee. By signing this Agreement the Employee
acknowledges receipt of a copy of this Agreement and a copy of the Plan.


 


20.                                 Miscellaneous.


 


(a)                                  Notices.
All notices hereunder shall be in writing and shall be deemed given when sent
by certified or registered mail, postage prepaid, return receipt requested, if
to the Employee, to the address set forth below or at the address shown on the
records of the Company, and if to the Company, to the Company’s principal
executive offices, attention of the Corporate Secretary.


 


(b)                                 Entire
Agreement; Modification. This Agreement constitutes the entire agreement
between the parties relative to the subject matter hereof, and supersedes all
proposals, written or oral, and all other communications between the parties
relating to the subject matter of this Agreement. This Agreement may be
modified, amended or rescinded only by a written agreement executed by both
parties.


 


(c)                                  Fractional
Shares. If this option becomes exercisable for a fraction of a share
because of the adjustment provisions contained in the Plan, such fraction shall
be rounded down.


 


(d)                                 Issuances
of Securities; Changes in Capital Structure. Except as expressly provided
herein or in the Plan, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares subject to this option. No adjustments need be made
for dividends paid in cash or in property other than securities of the Company.
If there shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
combination or exchange of shares, liquidation, spin-off, split-up or other
similar change in capitalization or event, 
the restrictions contained in this Agreement shall apply with equal
force to additional and/or substitute securities, if any, received by the
Employee in exchange for, or by virtue of his or her ownership of, Option
Shares, except as otherwise determined by the Board.


 


(e)                                  Severability.
The invalidity, illegality or unenforceability of any provision of this
Agreement shall in no way affect the validity, legality or enforceability of
any other provision.


 


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(f)                                    Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, subject to
the limitations set forth in Section 10 hereof.


 


(g)                                 Governing
Law. This Agreement shall be governed by and interpreted in accordance with
the laws of the Commonwealth of Massachusetts, without giving effect to the
principles of the conflicts of laws thereof.


 


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