EXHIBIT 10.1


 


 


Exelixis, Inc.


2000 Equity Incentive Plan


 


Stock Option Agreement


(Incentive and Nonstatutory Stock
Options)


 


Pursuant to your stock option
grant as evidenced by the Certificate of Stock Option Grant on the Smith Barney
Stock Plan Services website (“the Grant Certificate”) and this Stock Option
Agreement, Exelixis, Inc. (the “Company”) has granted you an option under its
2000 Equity Incentive Plan (the “Plan”) to purchase the number of shares of the
Company’s Common Stock indicated in your Grant Certificate at the exercise
price indicated in your Grant Certificate. 
Defined terms not explicitly defined in this Stock Option Agreement but
defined in the Plan shall have the same definitions as in the Plan.


 


The details of your option are
as follows:


 


1.             Vesting.  Subject
to the limitations contained herein, your option will vest as provided in your
Grant Certificate, provided that
vesting will cease upon the termination of your Continuous Service.


 


2.             Number of Shares and
Exercise Price.  The number of shares of Common Stock subject
to your option and your exercise price per share referenced in your Grant Certificate may be adjusted from time
to time for Capitalization Adjustments, as provided in the Plan.


 


3.             Dates of Exercise.  The
option shall be exercisable for shares of Common Stock in one or more
installments as specified in the Grant Certificate.  As your option becomes exercisable for such
installments, those installments shall accumulate, and the option shall remain
exercisable for the accumulated installments until the Expiration Date or
sooner termination of the option term under Section 8 below.


 


4.             ISO Limitation.  If your
option is an incentive stock option, then to the extent that the aggregate Fair
Market Value (determined at the time of grant) of the shares of Common Stock
with respect to which your option plus all other incentive stock options you
hold are exercisable for the first time by you during any calendar year (under
all plans of the Company and its Affiliates) exceeds one hundred thousand
dollars ($100,000), your option(s) or portions thereof that exceed such limit
(according to the order in which they were granted) shall be treated as
nonstatutory stock options.


 


5.             Method of Payment.  Payment
of the exercise price is due in full upon exercise of all or any part of your
option.  You may elect to make payment of
the exercise price in cash or by check or by one or more of the following:


 


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(a)           In the Company’s sole discretion at the time your
option is exercised and provided that at the time of exercise the Common Stock
is publicly traded and quoted regularly in The Wall Street Journal,
pursuant to a program developed under Regulation T as promulgated by the
Federal Reserve Board that, prior to the issuance of Common Stock, results in
either the receipt of cash (or check) by the Company or the receipt of
irrevocable instructions to pay the aggregate exercise price to the Company
from the sales proceeds.


 


(b)           Provided that at the time of exercise the Common
Stock is publicly traded and quoted regularly in The Wall
Street Journal, by delivery of already-owned shares of Common Stock
either that you have held for the period required to avoid a charge to the
Company’s reported earnings (generally six months) or that you did not acquire,
directly or indirectly from the Company, that are owned free and clear of any
liens, claims, encumbrances or security interests, and that are valued at Fair
Market Value on the date of exercise. 
“Delivery” for these purposes, in the sole discretion of the Company at
the time you exercise your option, shall include delivery to the Company of
your attestation of ownership of such shares of Common Stock in a form approved
by the Company.  Notwithstanding the foregoing,
you may not exercise your option by tender to the Company of Common Stock to
the extent such tender would violate the provisions of any law, regulation or
agreement restricting the redemption of the Company’s stock.


 


6.             Whole Shares.  You may
exercise your option only for whole shares of Common Stock.


 


7.             Securities Law
Compliance.  Notwithstanding anything to the contrary
contained herein, you may not exercise your option unless the shares of Common
Stock issuable upon such exercise are then registered under the Securities Act
or, if such shares of Common Stock are not then so registered, the Company has
determined that such exercise and issuance would be exempt from the
registration requirements of the Securities Act.  The exercise of your option must also comply
with other applicable laws and regulations governing your option, and you may
not exercise your option if the Company determines that such exercise would not
be in material compliance with such laws and regulations.


 


8.             Term.  The term
of your option commences on the Date of Grant and expires upon the earliest of the following:


 


(a)           Immediately if termination of your Continuous
Service is for Cause;


 


(b)           three (3) months after the termination of your
Continuous Service for any reason other than your Disability or death, provided
that if during any part of such three- (3-) month period your option is not
exercisable solely because of the condition set forth in the preceding
paragraph relating to “Securities Law Compliance,” your option shall not expire
until the earlier of the Expiration Date or until it shall have been
exercisable for an aggregate period of three (3) months after the termination
of your Continuous Service;


 


(c)           twelve (12) months after the termination of your
Continuous Service due to your Disability;


 


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(d)           eighteen (18) months after your death if you die
either during your Continuous Service or within three (3) months after your
Continuous Service terminates;


 


(e)           the Expiration Date indicated in your Grant Certificate; or


 


(f)            the day before the tenth (10th) anniversary of
the Date of Grant.


 


If your option is an incentive
stock option, note that, to obtain the federal income tax advantages associated
with an “incentive stock option,” the Code requires that at all times beginning
on the date of grant of your option and ending on the day three (3) months
before the date of your option’s exercise, you must be an employee of the
Company or an Affiliate, except in the event of your death or Disability.  The Company has provided for extended
exercisability of your option under certain circumstances for your benefit but
cannot guarantee that your option will necessarily be treated as an “incentive
stock option” if you continue to provide services to the Company or an
Affiliate as a Consultant or Director after your employment terminates or if
you otherwise exercise your option more than three (3) months after the date
your employment terminates.


 


9.             Exercise.


 


(a)           You may exercise the your option during its term
by delivering a Cash Letter of Authorization or other appropriate form (in a
form designated by the Company) together with the exercise price to the
Secretary of the Company, or to such other person as the Company may designate,
during regular business hours, together with such additional documents as the
Company may then require.


 


(b)           By exercising your option you agree that, as a
condition to any exercise of your option, the Company may require you to enter
into an arrangement providing for the payment by you to the Company of any tax
withholding obligation of the Company arising by reason of (1) the exercise of
your option, (2) the lapse of any substantial risk of forfeiture to which the
shares of Common Stock are subject at the time of exercise, or (3) the
disposition of shares of Common Stock acquired upon such exercise.


 


(c)           If your option is an incentive stock option, by
exercising your option you agree that you will notify the Company in writing
within fifteen (15) days after the date of any disposition of any of the shares
of the Common Stock issued upon exercise of your option that occurs within two
(2) years after the date of your option grant or within one (1) year after such
shares of Common Stock are transferred upon exercise of your option.


 


10.          Transferability.  Your
option is not transferable, except by will or by the laws of descent and
distribution, and is exercisable during your life only by you.  Notwithstanding the foregoing, by delivering
written notice to the Company, in a form satisfactory to the Company, you may
designate a third party who, in the event of your death, shall thereafter be
entitled to exercise your option.


 


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11.          Option not a Service
Contract.  Your option is not an employment or service
contract, and nothing in your option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company
or an Affiliate, or of the Company or an Affiliate to continue your
employment.  In addition, nothing in your
option shall obligate the Company or an Affiliate, their respective
shareholders, Boards of Directors, Officers or Employees to continue any
relationship that you might have as a Director or Consultant for the Company or
an Affiliate.


 


12.          Withholding Obligations.


 


(a)           At the time you exercise your option, in whole or
in part, or at any time thereafter as requested by the Company, you hereby
authorize withholding from payroll and any other amounts payable to you, and
otherwise agree to make adequate provision for (including by means of a
“cashless exercise” pursuant to a program developed under Regulation T as
promulgated by the Federal Reserve Board to the extent permitted by the
Company), any sums required to satisfy the federal, state, local and foreign
tax withholding obligations of the Company or an Affiliate, if any, which arise
in connection with your option.


 


(b)           Upon your request and subject to approval by the
Company, in its sole discretion, and compliance with any applicable conditions
or restrictions of law, the Company may withhold from fully vested shares of
Common Stock otherwise issuable to you upon the exercise of your option a
number of whole shares of Common Stock having a Fair Market Value, determined
by the Company as of the date of exercise, not in excess of the minimum amount
of tax required to be withheld by law. 
If the date of determination of any tax withholding obligation is
deferred to a date later than the date of exercise of your option, share
withholding pursuant to the preceding sentence shall not be permitted unless
you make a proper and timely election under Section 83(b) of the Code, covering
the aggregate number of shares of Common Stock acquired upon such exercise with
respect to which such determination is otherwise deferred, to accelerate the
determination of such tax withholding obligation to the date of exercise of
your option.  Notwithstanding the filing
of such election, shares of Common Stock shall be withheld solely from fully
vested shares of Common Stock determined as of the date of exercise of your
option that are otherwise issuable to you upon such exercise.  Any adverse consequences to you arising in
connection with such share withholding procedure shall be your sole
responsibility.


 


(c)           You may not exercise your option unless the tax
withholding obligations of the Company and/or any Affiliate are satisfied.  Accordingly, you may not be able to exercise
your option when desired even though your option is vested, and the Company
shall have no obligation to issue a certificate for such shares of Common Stock
or release such shares of Common Stock from any escrow provided for herein.


 


13.          Notices.  Any
notices provided for in your option or the Plan shall be given in writing and
shall be deemed effectively given upon receipt or, in the case of notices
delivered by mail by the Company to you, five (5) days after deposit in the
United States mail, postage prepaid, addressed to you at the last address you
provided to the Company.


 


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14.          Governing Plan Document.  Your
option is subject to all the provisions of the Plan, the provisions of which
are hereby made a part of your option, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan.  In the event of any conflict between the
provisions of your option and those of the Plan, the provisions of the Plan
shall control.


 


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