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Exhibit
10.23
ACCENTIA,
INC.
2003 STOCK OPTION
PLAN
| 1. |
Purpose. The Accentia, Inc. 2003 Stock Option Plan (the
“Plan”) is established to create an additional
incentive for key employees, directors and consultants or advisors
of Accentia, Inc. and any successor corporations thereto
(collectively referred to as the “Company” ),
and any present or future parent and/or subsidiary corporations of
such corporation (all of whom along with the Company being
individually referred to as a “Participating
Company” and collectively referred to as the
“Participating Company Group” ), to
promote the financial success and progress of the Participating
Company Group. For purposes of the Plan, a parent corporation and a
subsidiary corporation shall be as defined in Sections 424(e) and
424(f) of the Internal Revenue Code of 1986, as amended (the
“Code” ). |
| 2. |
Administration. The Plan shall be administered by the
Board of Directors of the Company (the “Board” )
and/or by a duly appointed committee of the Board having such
powers as shall be specified by the Board. Any subsequent
references herein to the Board shall also mean the committee if
such committee has been appointed and, unless the powers of the
committee have been specifically limited, the committee shall have
all of the powers of the Board granted herein, other than power to
terminate or amend the Plan as provided in Paragraph 12 hereof,
subject to the terms of the Plan and any applicable limitations
imposed by law. All questions of interpretation of the Plan or of
any option granted under the Plan (an “Option” )
shall be determined by the Board, and such determinations shall be
final and binding upon all persons having an interest in the Plan
and/or any Option. Options may be either incentive stock options as
defined in Section 422 of the Code ( “Incentive Stock
Options” ) or nonqualified stock options. Any officer of
a Participating Company shall have the authority to act on behalf
of the Company with respect to any matter, right, obligation, or
election which is the responsibility of or which is allocated to
the Company herein, provided the officer has apparent authority
with respect to such matter, right, obligation, or
election. |
| 3. |
Eligibility. The Options may be granted only to
employees (including officers) and directors of the Participating
Company Group or to individuals who are rendering services as
consultants, advisors or other independent contractors to the
Participating Company Group. The Board, in its sole discretion,
shall determine which persons shall be granted Options (an
“Optionee” ). A director of the Company shall be
eligible to be granted only a nonqualified stock option unless the
director is also an employee of the Company. An individual who is
rendering services as a consultant, advisor, or other independent
contractor shall be eligible to be granted only a nonqualified
stock option. An Optionee may, if otherwise eligible, be granted
additional Options. |
| 4. |
Shares Subject to Option. Options shall be options for
the purchase of the authorized but unissued Common Stock of the
Company (the “Common Stock” ) and authorized but
unissued Series D Convertible Preferred Stock of the Company (the
“Series D Preferred |
Stock” ),
subject to adjustment as provided in Paragraph 10 below. The Common
Stock and the Series D Preferred Stock are collectively referred to
herein as the “Stock.” The maximum number of
shares of Common Stock which may be issued under the Plan is
(
) shares. The maximum number of shares of Series D Preferred Stock
which may be issued under the Plan is
(
). In the event that any outstanding Option for any reason expires
or is terminated or cancelled and/or shares of Stock subject to
repurchase are repurchased by the Company, the shares of Stock
allocable to the unexercised portion of such Option, or such
repurchased shares of Stock, may again be subject to an Option
grant. It is intended that the Plan shall constitute a written
compensatory benefit plan within the meaning of Rule 701
promulgated under the Securities Act of 1933, as amended
(“Rule 701” ), and that the Plan shall
otherwise be administered in compliance with the requirements of
Rule 701. To ensure such compliance, the Board shall maintain a
record of shares of Stock subject to outstanding Options under the
Plan and the exercise price of such Options, plus a record of all
shares of Stock issued upon the exercise of such Options and the
exercise price of such Options.
| 5. |
Time for Granting Options. All Options shall be granted,
if at all, within ten (10) years from the earlier of the date the
Plan is adopted by the Board or the date the Plan is duly approved
by the stockholders of the Company. |
| 6. |
Terms, Conditions and Form of Options. Subject to the
provisions of the Plan, the Board shall determine for each Option
(which need not be identical) the number of shares of Stock for
which the Option is granted, whether the Option is to be treated as
an Incentive Stock Option or as a nonqualified stock option and all
other terms and conditions of the Option not inconsistent with the
Plan. Options granted pursuant to the Plan shall comply with and be
subject to the following terms and conditions: |
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(a) |
Option Price. The option price for each Option shall be
established in the sole discretion of the Board; provided, however,
that (i) the option price per share for an Incentive Stock Option
shall be not less than the fair market value of a share of Stock on
the date of the granting of the Incentive Stock Option and (ii) the
option price per share of an Incentive Stock Option granted to an
Optionee who at the time the Incentive Stock Option is granted owns
stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of a Participating Company
within the meaning of Section 422(b)(6) of the Code (a
“Ten Percent Owner Optionee”) shall be not less
than one hundred ten percent (110%) of the fair market value of a
share of Stock on the date the Option is granted. For this purpose,
“fair market value” means the value assigned to
the stock for a given day by the Board, as determined pursuant to a
reasonable method established by the Board that is consistent with
the requirements of Sections 422 and 424 of the Code and the
regulations thereunder (which method may be changed from time to
time). Notwithstanding the foregoing, an Option (whether an
Incentive Stock Option or a nonqualified stock option) may be
granted by the Board in its discretion with an exercise price lower
than the minimum exercise price set forth above if such Option is
granted pursuant to an assumption or |
2
substitution for another
option in a manner qualifying with the provisions of Section 424(a)
of the Code. Nothing hereinabove shall require that any such
assumption or modification will result in the Option having the
same characteristics, attributes or tax treatment as the Option for
which it is substituted.
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(b) |
Exercise Period of Options . The Board shall have the
power to set the time or times within which each Option shall be
exercisable or the event or events upon the occurrence of which all
or a portion of each Option shall be exercisable and the term of
each Option; provided, however, that (i) no Incentive Stock Option
shall be exercisable after the expiration of ten (10) years after
the date such Incentive Stock Option is granted, (ii) no Incentive
Stock Option granted to a Ten Percent Owner Optionee shall be
exercisable after the expiration of five (5) years after the date
such Incentive Stock Option is granted and (iii) no Incentive Stock
Option shall be exercisable after the date the Optionee’s
employment with the Participating Company Group is terminated for
cause (as determined by the Board in its sole discretion); and
provided, further, an Option shall terminate and cease to be
exercisable no later than three (3) months after the date on which
the Optionee terminates employment with the Participating Company
Group, unless the Optionee’s employment with the
Participating Company Group shall have terminated as a result of
the Optionee’s death or disability (within the meaning of
Section 22(e)(3) of the Code), in which event the Option shall
terminate and cease to be exercisable no later than twelve (12)
months from the date on which the Optionee’s employment
terminated. For this purpose, an Optionee’s employment shall
be deemed to have terminated on account of death if the Optionee
dies within three (3) months following the Optionee’s
termination of employment. |
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(c) |
Payment of Option Price . Payment of the option price
for the number of shares of Stock being purchased pursuant to any
Option shall be made in cash, by check, cash equivalent or in any
other form as may be permitted by the Board in its sole
discretion. |
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(d) |
$100,000 Limitation . The aggregate fair market value,
determined as of the date on which an Incentive Stock Option is
granted, of the shares of Stock with respect to which incentive
stock options (determined without regard to this subparagraph) are
first exercisable during any calendar year (under this Plan or
under any other plan of the Participating Company Group) by any
Optionee shall not exceed $100,000. If such limitation would be
exceeded with respect to an Optionee for a calendar year, the
Incentive Stock Option shall be deemed a nonqualified stock option
to the extent of such excess. |
| 7. |
Standard Form of Stock Option Agreement . All Options
shall be evidenced by a written agreement substantially in the form
of the nonqualified stock option agreement attached hereto as
Exhibit A or the incentive stock option agreement attached
hereto as Exhibit B , as applicable, both of which are
incorporated herein by reference (the “Standard Option
Agreements”) or such other form as shall be approved by
the Board consistent with the terms of this Plan. |
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| 8. |
Transfer of Control . Upon a merger,
consolidation, corporate reorganization, or any transaction in
which all or substantially all of the assets or stock of the
Company are sold, leased, transferred or otherwise disposed of
(other than a mere reincorporation transaction or one in which the
holders of capital stock of the Company immediately prior to such
merger or con |
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