Exhibit 10.4



 





Exhibit 10.4




Option No.     




TRANS1 INC.




STOCK OPTION AGREEMENT




     Type of Option (check one): o Incentive           o Nonqualified



     This Stock Option Agreement (the “Agreement”) is entered into as of
                                        , 20     , by and between TranS1 Inc., a Delaware corporation (the
“Company”), and                                          (the “Optionee”) pursuant to the Company’s 2007
Stock Incentive Plan (the “Plan”). Any capitalized term not defined herein
shall have the same meaning ascribed to it in the Plan.



     1. Grant of Option. The Company hereby grants to Optionee an option (the
“Option”) to purchase all or any portion of a total of                                         
(                    ) shares (the “Shares”) of the Common Stock of the Company at a purchase price
of                                          ($                    ) per share (the “Exercise Price”), subject to the
terms and conditions set forth herein and the provisions of the Plan. If the box marked
“Incentive” above is checked, then this Option is intended to qualify as an “incentive stock
option” as defined in Section 422 of the Internal Revenue Code of l986, as amended (the
“Code”). If this Option fails in whole or in part to qualify as an incentive stock option,
or if the box marked “Nonqualified” is checked, then this Option shall to that extent constitute a
nonqualified stock option.



     2. Vesting of Option. The right to exercise this Option shall vest in installments,
and this Option shall be exercisable from time to time in whole or in part as to any vested
installment. This Option shall be vested ___% on _________, following Optionee’s
completion of ______months of Continuous Service, and
thereafter commencing on ___, upon Optionee’s completion of each additional month of
Continuous Service, the remaining _________shares shall vest in ______(___) equal monthly
installments.



     No additional shares shall vest after the date of termination of Optionee’s Continuous
Service, but this Option shall continue to be exercisable in accordance with Section 3 hereof with
respect to that number of shares that have vested as of the date of termination of Optionee’s
Continuous Service.



     3. Term of Option. The right of the Optionee to exercise this Option shall terminate
upon the first to occur of the following:



          (a) the expiration of ten (10) years from the date of this Agreement;




          (b) the expiration of three (3) months from the date of termination of Optionee’s Continuous
Service if such termination occurs for any reason other than permanent disability, death or
voluntary resignation; provided, however, that if Optionee dies during such three-month period the
provisions of Section 3(e) below shall apply;




 









 





          (c) the expiration of one (1) month from the date of termination of Optionee’s Continuous
Service if such termination occurs due to voluntary resignation; provided, however, that if
Optionee dies during such one-month period the provisions of Section 3(e) below shall apply;




          (d) the expiration of one (1) year from the date of termination of Optionee’s Continuous
Service if such termination is due to permanent disability of the Optionee (as defined in Section
22(e)(3) of the Code);




          (e) the expiration of one (1) year from the date of termination of Optionee’s Continuous
Service if such termination is due to Optionee’s death or if death occurs during either the
three-month or one-month period following termination of Optionee’s Continuous Service pursuant to
Section 3(b) or 3(c) above, as the case may be; or




          (f) upon the consummation of a Change in Control, unless such Option is otherwise assumed or
replaced with a new option of comparable value or other New Incentives pursuant to Section 8 below.




     4. Exercise of Option. On or after the vesting of any portion of this Option in
accordance with Sections 2 or 8 hereof, and until termination of the right to exercise this Option
in accordance with Section 3 above, the portion of this Option which has vested may be exercised in
whole or in part by the Optionee (or, after his or her death, by the person designated in Section 5
below) upon delivery of the following to the Company at its principal executive offices:



          (a) a written notice of exercise which identifies this Agreement and states the number of
Shares then being purchased (but no fractional Shares may be purchased);




          (b) a check or cash in the amount of the Exercise Price (or payment of the Exercise Price in
such other form of lawful consideration as the Administrator may approve from time to time under
the provisions of Section 5.4 of the Plan);




          (c) a check or cash in the amount reasonably requested by the Company to satisfy the Company’s
withholding obligations under federal, state or other applicable tax laws with respect to the
taxable income, if any, recognized by the Optionee in connection with the exercise of this Option
(unless the Company and Optionee shall have made other arrangements for deductions or withholding
from Optionee’s wages, bonus or other compensation payable to Optionee, or by the withholding of
Shares issuable upon exercise of this Option or the delivery of Shares owned by the Optionee in
accordance with Section 12.1 of the Plan, provided such arrangements satisfy the requirements of
applicable tax laws); and




          (d) a letter, if requested by the Company, in such form and substance as the Company may
require, setting forth the investment intent of the Optionee, or person designated in Section 5
below, as the case may be.




     5. Death of Optionee; No Assignment. The rights of the Optionee under this Agreement
may not be assigned or transferred except by will or by the laws of descent and distribution, and
may be exercised during the lifetime of the Optionee only by such Optionee. Any attempt to sell,
pledge, assign, hypothecate, transfer or dispose of this Option in contravention of this Agreement
or the Plan shall be void and shall have no effect. If the Optionee’s Continuous Service



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terminates as a result of his or her death, and provided Optionee’s rights hereunder shall
have vested pursuant to Section 2 hereof, Optionee’s legal representative, his or her legatee, or
the person who acquired the right to exercise this Option by reason of the death of the Optionee
(individually, a “Successor”) shall succeed to the Optionee’s rights and obligations under
this Agreement. After the death of the Optionee, only a Successor may exercise this Option.



     6. Representation of Optionee. Optionee acknowledges receipt of a copy of the Plan
and understands that all rights and obligations connected with this Option are set forth in this
Agreement and the Plan.



     7. Adjustments Upon Changes in Capital Structure. In the event that the outstanding
shares of Common Stock of the Company are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the Company by reason of
a recapitalization, stock split, reverse stock split, reclassification, stock dividend or other
change in the capital structure of the Company, then appropriate adjustment shall be made by the
Administrator to the aggregate number and kind of Shares subject to the unexercised portion of this
Option and to the Exercise Price per share, in order to preserve, as nearly as practical, but not
to increase, the benefits of the Optionee under this Option, in accordance with the provisions of
Section 4.2 of the Plan.



     8. Change in Control. In the event of a Change in Control:



          (a) The vesting of this Option shall accelerate automatically effective as of immediately
prior to the consummation of the Change in Control unless the Options are to be assumed by
the acquiring or successor entity (or parent thereof) or new options under a new stock incentive
program (“New Incentives”) are to be issued in exchange therefor, as provided in subsection (b)
below. If vesting of outstanding Options will accelerate pursuant to this subsection (a), the
Administrator in its discretion may provide, in connection with the Change in Control transaction,
for the purchase or exchange of each Option for an amount of cash or other property having a value
equal to the difference (or “spread”) between: (x) the value of the cash or other property that
the Optionee would have received pursuant to the Change in Control transaction in exchange for the
shares issuable upon exercise of the Option had the Option been exercised immediately prior to the
Change in Control, and (y) the Exercise Price of the Option.




          (b) The vesting of this Option shall not accelerate if and to the extent that: (i)
this Option (including the unvested portion thereof) is to be assumed by the acquiring or successor
entity (or parent thereof) or a new option of comparable value is to be issued in exchange therefor
pursuant to the terms of the Change in Control transaction, or (ii) in the event the consideration
to be received by the stockholders of the Company in connection with the Change in Control does not
consist of securities, this Option (including the unvested portion thereof) is to be replaced by
the acquiring or successor entity (or parent thereof) with other incentives of comparable value
containing such terms and provisions as the Administrator in its discretion may consider equitable.
If this Option is assumed, or if a new option of comparable value is issued in exchange therefor,
then this Option or the new option shall be appropriately adjusted, concurrently with the Change in
Control, to apply to the number and class of securities or other property that the Optionee would
have received pursuant to the Change in Control transaction in exchange for the Shares issuable
upon exercise of this Option had this Option been exercised immediately prior to the Change in
Control, and appropriate adjustment also shall be made to the Exercise Price such that the
aggregate Exercise Price of this Option or the new option shall remain the same as nearly as
practicable.




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          (c) If this Option is assumed by an acquiring or successor entity (or parent thereof) or a New
Incentive is issued in exchange therefor pursuant to the terms of a Change in Control transaction,
the vesting of the Option or the New Incentive shall accelerate if and at such time as the
Optionee’s service as an employee, director, officer, consultant or other service provider to the
acquiring or successor entity (or a parent or subsidiary thereof) is Terminated Without Cause
within twelve (12) months following consummation of the Change in Control.




     9. No Employment Contract Created. Neither the granting of this Option nor the
exercise hereof shall be construed as granting to the Optionee any right with respect to
continuance of employment by the Company or any of its subsidiaries. The right of the Company or
any of its subsidiaries to terminate at will the Optionee’s employment at any time (whether by
dismissal, discharge or otherwise), with or without cause, is specifically reserved.



     10. Rights as Stockholder. The Optionee shall have no rights as a stockholder with
respect to any Shares covered by this Option until such person has duly exercised this Option, paid
the Exercise Price and become a holder of record of the Shares purchased.



     11. “Market Stand-Off” Agreement. Optionee agrees that, if requested by the Company
or the managing underwriter of any proposed public offering of the Company’s securities, Optionee
will not sell or otherwise transfer or dispose of any Shares held by Optionee without the prior
written consent of the Company or such underwriter, as the case may be, during such period of time,
not to exceed 180 days following the effective date of the registration statement filed by the
Company with respect to such offering, as the Company or the underwriter may specify.



     12. Interpretation. This Option is granted pursuant to the terms of the Plan, and
shall in all respects be interpreted in accordance therewith. The Administrator shall interpret
and construe this Option and the Plan, and any action, decision, interpretation or determination
made in good faith by the Administrator shall be final and binding on the Company and the Optionee.



     13. Limitation of Liability for Nonissuance. During the term of the Plan, the Company
agrees at all times to reserve and keep available, and to use its reasonable best efforts to obtain
from any regulatory body having jurisdiction any requisite authority in order to issue and sell,
such number of shares of its Common Stock as shall be sufficient to satisfy its obligations
hereunder and the requirements of the Plan. Inability of the Company to obtain, from any
regulatory body having jurisdiction, authority deemed by the Company’s counsel to be necessary for
the lawful issuance and sale of any shares of its Common Stock hereunder and under the Plan shall
relieve the Company of any liability in respect of the nonissuance or sale of such shares as to
which such requisite authority shall not have been obtained.



     14. Notices. Any notice, demand or request required or permitted to be given under
this Agreement shall be in writing and shall be deemed given when delivered personally or three (3)
days after being deposited in the United States mail, as certified or registered mail, with postage
prepaid, (or by such other method as the Administrator may from time to time deem appropriate), and
addressed, if to the Company, at its principal place of business, Attention: the Chief Financial
Officer, and if to the Optionee, at his or her most recent address as shown in the employment or
stock records of the Company.



     15. Governing Law. The validity, construction, interpretation, and effect of this
Option shall be governed by and determined in accordance with the laws of the State of Delaware.



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     16.  Severability. Should any provision or portion of this Agreement be held to be
unenforceable or invalid for any reason, the remaining provisions and portions of this Agreement
shall be unaffected by such holding.



     17. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be deemed one instrument.



     18. Tax Consequences and Reporting Obligation Upon Sale of Shares. If this Option is
an “incentive stock option,” the tax benefits afforded to incentive stock options will be obtained
by the Optionee only if the Shares received upon exercise of this Option are held for at least one
year after the date of exercise of this Option and two years after the date this Option was granted
to the Optionee. If the Optionee sells or otherwise transfers the Shares before the expiration of
either of these one- or two-year periods, the sale or transfer will be treated for tax purposes as
a “disqualifying disposition,” resulting in the following tax consequences: (a) the Optionee will
not obtain the tax benefits afforded to incentive stock options, (b) the “spread” as of the date of
exercise will be taxed to the Optionee at ordinary income tax rates, and (c) the amount of ordinary
income resulting from the disqualifying disposition will be included in the Optionee’s W-2. These
tax consequences are described in more detail in the prospectus that relates to the Company’s 2007
Stock Incentive Plan, as amended, a copy of which was delivered to the Optionee with this Option.
To assure that the Company has the information necessary to comply with its tax reporting
obligations, Optionee agrees to promptly notify the Company if any Shares are sold or transferred
less than one year after the date of exercise or less than two years after the date this Option was
granted, and report information regarding the disqualifying disposition in accordance with
procedures established by the Company for this purpose.



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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.



	 	 	 	 	 	 	 
	TRANS1 INC.,	 	 	 	OPTIONEE
	a Delaware corporation	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Signature)
	 
	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	(Type or print name)
	 
	 	 	 	 	 	 
	Its:

	 	 	 	 	 	Address:
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 






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