exv10w8



 







Exhibit 10.8




Asthmatx, Inc.

1340 Space Park Way

Mountain View, CA 94043




[Date]




[Name of Employee]

[Address]




Re: Vesting Acceleration on Acquisition — Amendment of Option Agreements.



Dear                     :




     The Board of Directors of Asthmatx, Inc. (the “Company”) has determined that in order to
provide employees of the Company with appropriate equity compensation in the event that they are
terminated in connection with an acquisition, all existing and future stock option agreements with
certain employees under the Company’s 2003 Stock Option Plan (each an “Option Agreement”) should be
amended to provide employees with a specified amount of vesting acceleration in such a situation.



     Summary of the Acceleration Amendment.



     A description of the acceleration amendment is as follows. However, this description is only
a summary and the actual terms shall be as set forth below under “Acceleration Amendment.”



     As amended, each of your existing and any future Option Agreements that may be awarded to you
will provide that, in the event that your employment is terminated without cause (including poor
performance) or you otherwise resign for certain specified reasons (all as described below) within
12 months after the Company is acquired, then vesting under each Option Agreement you have will
automatically accelerate so that the total percentage of vested shares will be equal to the sum of
(i) 50% of all option shares, plus (ii) 50% of all option shares multiplied by a fraction, the
numerator of which is the number of whole months that you have been continuously employed by the
Company (and the Company’s successor, if applicable) and the denominator of which is 48 months, all
on the terms and conditions set forth in more detail below. Such vesting acceleration will also be
automatically provided in the event that the corporation that acquires the Company elects not to
assume or otherwise substitute equivalent options for the Option Agreement.



     An example of the operation of this accelerated vesting is as follows: Assume that an
employee who was hired on January 1, 2004 has an option exercisable for a total of 10,000 shares,
the Company is acquired on November 30, 2004 and the employee is terminated without cause on
February 28, 2005. In that hypothetical case, 14 months



 









 







would have passed from the date that the employee was hired until his/her termination. Without
vesting acceleration, the option would (assuming vesting commenced effective as of the employee’s
hire date) be vested as to 2,916 of the original 10,000 shares (14/48ths (29.16%) of 10,000 =
2,916). However, as a result of the vesting acceleration provided for here (and in lieu of regular
vesting) the option will instead be vested upon termination as to 6,458 shares (i.e., (50% x
10,000) + (14/48 x (50% x 10,000)) = 6,458).



     Acceleration Amendment



     In order to implement the foregoing, each existing Option Agreement you have and any future
Option Agreements that may be awarded to you are hereby amended to provide that, in the event that
(i) you are “Terminated” (as defined below) or “Resign for a Specified Reason” (as defined below)
within twelve (12) months after a “Corporate Transaction” (as defined below), or (ii) the successor
entity of any such “Corporate Transaction” or its parent fails to assume the Option Agreement or
substitute a similar option, then in lieu of the existing vesting provided for in the Option
Agreement, the aggregate total number of shares issued and issuable under the Option Agreement that
are vested and exercisable shall automatically be accelerated to a number that is equal to (50% x
A) + [(B / 48) x (50% x A)].



     For purposes of the foregoing formula:



	 	 	 	 	 	 	 
	 

	 	A
	 	=
	 	The total number of shares originally issuable upon
exercise in full of the Option Agreement on the date it was granted
(as such number may be adjusted for any subsequent stock splits,
reverse stock splits, stock dividends, or like events).
	 
	 	 	 	 	 	 
	 

	 	B
	 	=
	 	The total number of full months that you have been
continuously employed by the Company (including any successor of the
Company following the Corporate Transaction).







As used herein, a “Corporate Transaction” means (i) a consolidation, merger,
reorganization or other transaction or series of related transactions involving
the Company in which the holders of the Company’s outstanding voting stock
immediately prior to such transaction or series of related transactions own,
immediately after such transaction or series of related transactions, securities
representing less than fifty percent (50%) of the voting power of the corporation
or other entity surviving such transaction or series of related transactions, as a
result of voting stock of the Company held by them immediately prior to such
transaction or series of related transactions (excluding any transaction whose
primary purpose is to raise funds for the Company through the sale of stock or
other securities), (ii) a dissolution or liquidation of the Company, or (iii) the
sale of substantially all of the assets of the Company.



 









 






As used herein, “Terminated” means a termination of your employment for any
reason other than (1) “Cause” (as defined in the 2003 Stock Option Plan
that was provided to you with your Option Agreement), or (2) because your job
performance is below the level of performance reasonably expected by your employer
for your position (as determined by your employer in good faith). “Terminated”
does not include your employment merely being transferred to any parent,
subsidiary or affiliate of the corporation employing you.




As used herein, “Resign for a Specified Reason” means a voluntary resignation by
you as a result of (and within thirty (30) days of) being notified by the Company,
the successor corporation or its parent of (1) a material reduction in your base
salary from your base salary prior to the Corporate Transaction, or (2) of a
relocation of the Company’s offices that you are required to work at to a location
more than thirty (30) miles from the Company’s principal offices immediately prior
to the closing of the Corporate Transaction.



     Please sign below where indicated to confirm your acceptance of the foregoing amendment to
each existing and any future Option Agreement held by you. By signing below, you and the Company
also agree that:



     (a) Other than as expressly amended in this letter agreement, the terms and conditions of each
Option Agreement remain in full force and effect.



     (b) This letter, together with each Option Agreement held by you (or that may be awarded to
you in the future) and the “Plan” (as defined in the Option Agreement) sets forth the entire
agreement of the parties with respect to the subject matter hereof and supercedes any and all prior
agreements and undertakings with respect to the subject matter hereof.



	 	 	 
	 

	 	Very Truly Yours,
	 
	 	 
	 

	 	Glendon French
	 

	 	President
	Agreed and Accepted