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Exhibit
10.33
THE SECURITY REPRESENTED BY THIS
CERTIFICATE HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
ACCENTIA,
INC.
NONQUALIFIED STOCK OPTION
AGREEMENT
Accentia, Inc., a Florida
corporation (the “ Company ”), hereby grants to
the individual named below an option (the “ Option
Agreement ”) to purchase certain shares of [Common
Stock/Series D Convertible Preferred Stock] of the Company pursuant
to the Accentia, Inc. 2003 Stock Option Plan, in the manner and
subject to the provisions of this Option Agreement.
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(a) |
“ Code ” shall mean the Internal Revenue
Code of 1986, as amended. (All references to Sections of the Code
are to such Sections as they may from time to time be amended or
renumbered.) |
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(b) |
“ Company ” shall mean Accentia, Inc., a
Florida corporation, and any successor corporation
thereto. |
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(c) |
“ Date of Option Grant ” shall mean
. |
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(d) |
“ Disability ” shall mean disability within
the meaning of Section 22(e)(3) of the Code, as determined by the
Board in its sole discretion under procedures established by the
Board of Directors of the Company. |
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(e) |
“ Exercise Price ” shall mean
($ .
) per share, as
adjusted from time to time pursuant to Paragraph 9
below. |
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(f) |
“ Number of Option Shares ” shall mean
(
) shares of [Common Stock/Series D Preferred Stock] of the
Company as adjusted from time to time pursuant to Paragraph 9
below. |
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(g) |
“ Option Term Date ” shall mean the date ten
(10) years after the Date of Option Grant. |
(h) “ Optionee
” shall mean
.
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(i) |
“ Participating Company ” shall mean (i) the
Company and (ii) any present or future parent and/or subsidiary
corporation of the Company while such corporation is a parent or
subsidiary of the Company. For purposes of this Option Agreement, a
parent corporation and a subsidiary corporation shall be as defined
in Sections 424(e) and 424(f) of the Code. |
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(j) |
“ Participating Company Group ” shall mean
at any point in time all corporations collectively which are then a
Participating Company. |
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(k) |
“ Plan ” shall mean the Accentia, Inc. 2003
Stock Option Plan, as amended from time to time. |
| 2. |
Nonqualified Stock Option . This Option is intended to
be a nonqualified stock option. The Optionee should consult with
the Optionee’s own tax advisors regarding the tax effects of
this Option. |
| 3. |
Administration . All questions of interpretation
concerning this Option Agreement shall be determined 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 in the Plan, other than the
power to terminate or amend the Plan as provided in Paragraph 12 of
the Plan, subject to the terms of the Plan and any applicable
limitations imposed by law. All determinations by the Board shall
be final and binding upon all persons having an interest in the
Option. 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. |
| 4. |
Exercise and Vesting of the Option . |
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(a) |
Right to Exercise . The Option shall vest and become
exercisable from time to time, subject to the schedule set forth
below, in whole or in part, subject to the termination provisions
of paragraphs 6 and 7 hereof and the Optionee’s agreement
that any shares purchased upon exercise are subject to the
Company’s repurchase rights set forth in Paragraph 11
below. |
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(i) |
On or after
, 200 (the “ Initial Vesting Date
” ), the Option may be exercised to purchase up to
% of the Number of
Option Shares. |
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(ii) |
On or after
the last day of each successive full month of employment by the
Company beginning on or after the Initial Vesting Date, the Option
may be exercised to purchase up to an additional
% of the Number of
Option Shares. This provision shall be interpreted such that on or
after
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the third annual anniversary
date of the Initial Vesting Date, the Option may be exercised to
purchase up to 100% of the Number of Option Shares.
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The schedule set forth above
is cumulative, so that shares as to which the Option has become
exercisable on and after a date indicated by the schedule may be
purchased pursuant to exercise of the Option at any subsequent date
prior to termination of the Option. The Option may be exercised at
any time and from time to time to purchase up to the number of
shares as to which it is then exercisable.
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(b) |
Method of Exercise . The Option shall be exercised by
written notice to the Company in the form of Exhibit A
hereto stating the election to exercise the Option, the Number of
Option Shares for which the Option is being exercised and such
other representations and agreements as to the Optionee’s
investment intent with respect to such shares as may be required by
the Company. The written notice must be signed by the Optionee and
must be delivered in person or by certified or registered mail,
return receipt requested, to the Chief Financial Officer of the
Company, or other authorized representative of the Participating
Company Group, prior to the termination of the Option as set forth
in Paragraph 6 below, accompanied by (i) full payment of the
exercise price for the number of shares being purchased and (ii) an
executed copy, if required herein, of the then current form of
joint escrow instructions referenced below. |
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(c) |
Form of Payment of Option Price . Such payment shall be
made in cash, check or cash equivalent or in any other form as may
be permitted by the Board in its sole discretion. |
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(d) |
Withholding . At the time the Option is exercised, in
whole or in part, or at any time thereafter as requested by the
Company, the Optionee hereby authorizes payroll withholding and
otherwise agrees to make adequate provision for foreign, federal
and state tax withholding obligations of the Company, if any, which
arise in connection with the Option, including, without limitation,
obligations arising upon (i) the exercise, in whole or in part, of
the Option, (ii) the transfer, in whole or in part, of any shares
acquired on exercise of the Option, (iii) the operation of any law
or regulation providing for the imputation of interest, or (iv) the
lapsing of any restriction with respect to any shares acquired on
exercise of the Option. |
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(e) |
Certificate Registration . The certificate or
certificates for the shares as to which the Option shall be
exercised shall be registered in the name of the Optionee, or, if
applicable, the heirs of the Optionee. |
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(f) |
Restrictions on Grant of the Option and Issuance of
Shares . The grant of the Option and the issuance of the shares
upon exercise of the Option shall be subject to compliance with all
applicable requirements of federal or state law with
respect
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to such securities. The
Option may not be exercised if the issuance of shares upon such
exercise would constitute a violation of any applicable federal or
state securities laws or other law or regulations. In addition, no
Option may be exercised unless (i) a registration statement under
the Securities Act of 1933, as amended (the “ Securities
Act ”), shall at the time of exercise of the Option be in
effect with respect to the shares issuable upon exercise of the
Option or (ii) in the opinion of legal counsel to the Company, the
shares issuable upon exercise of the Option may be issued in
accordance with the terms of an applicable exemption from the
registration requirements of the Securities Act.
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THE OPTIONEE IS CAUTIONED
THAT THE OPTION MAY NOT BE EXERCISABLE UNLESS THE FOREGOING
CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE
TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS
VESTED.
As a condition to the
exercise of the Option, the Company may require the Optionee to
satisfy any qualifications that may be necessary or appropriate, to
evidence compliance with any applicable law or regulation and to
make any representation or warranty with respect thereto as may be
requested by the Company.
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(g) |
Fractional Shares . The Company shall not be required to
issue fractional shares upon the exercise of the
Option. |
| 5. |
Non-Transferability of the Option . The Option may be
exercised during the lifetime of the Optionee only by the Optionee
and may not be assigned or transferred in any manner except by will
or by the laws of descent and distribution. |
| 6. |
Termination of the Option . The Option shall terminate
and may no longer be exercised on the first to occur of (a) the
Option Term Date as defined above, (b) the last date for exercising
the Option following termination of employment as described in
Paragraph 7 below, or (c) upon a Transfer of Control as described
in Paragraph 8 below. |
| 7. |
Termination of Employment. |
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(a) |
Termination of the Option. If the Optionee ceases to be
an employee of the Participating Company Group for any reason
except death or Disability, the Option, to the extent unexercised
and exercisable by the Optionee on the date on which the Optionee
ceased to be an employee, may be exercised by the Optionee within
three (3) months after the date on which the Optionee’s
employment terminates, but in any event no later than the Option
Term Date. If the Optionee’s employment with the
Participating Company Group is terminated because of the death or
Disability of the Optionee, the Option, to the extent unexercised
and
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exercisable by the Optionee
on the date on which the Optionee ceased to be an employee, may be
exercised by the Optionee (or the Optionee’s legal
representative) at any time prior to the expiration of twelve (12)
months from the date the Optionee’s employment terminated,
but in any event no later than the Option Term Date. The
Optionee’s employment shall be deemed to have terminated on
account of death if the Optionee dies within three (3) months after
the Optionee’s termination of employment. This Paragraph
shall be interpreted such that the Option ceases to vest on the
date on which the Optionee ceases to be an employee of the
Participating Company Group (pursuant to this Paragraph 7) for any
reason, notwithstanding any period after such cessation of
employment during which the Option may remain exercisable as
provided in this Paragraph 7.
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(b) |
Termination of Employment Defined. For purposes of this
Paragraph 7, the Optionee’s employment shall be deemed to
have terminated either upon an actual termination of employment or
upon the Optionee’s employer ceasing to be a Participating
Company. |
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(c) |
Exercise Prevented by Law. Except as provided in this
Paragraph 7, the Option shall terminate and may not be exercised
after the Optionee’s employment with the Participating
Company Group terminates unless the exercise of the Option in
accordance with this Paragraph 7 is prevented by the provisions of
Paragraph 4(f) above. If the exercise of the Option is so
prevented, the Option shall remain exercisable until three (3)
months after the date the Optionee is notified by the Company that
the Option is exercisable, but in any event no later than the
Option Term Date. |
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(d) |
Optionee Subject to Section 16(b). Notwithstanding the
foregoing, if the exercise of the Option within the applicable time
periods set forth above would subject the Optionee to suit under
Section 16(b) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), the Option shall remain
exercisable until the earliest to occur of (i) the tenth (10
th ) day following the date on which the Optionee
would no longer be subject to such suit, (ii) the one hundred and
ninetieth (190 th ) day after the Optionee’s termination of
employment, or (iii) the Option Term Date. |
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(e) |
Leave of Absence. For purposes hereof, the
Optionee’s employment with the Participating Company Group
shall not be deemed to terminate if the Optionee takes any military
leave, sick leave, or other bona fide leave of absence approved by
the Company of ninety (90) days or less. In the event of a leave in
excess of ninety (90) days, the Optionee’s employment shall
be deemed to terminate on the ninety-first (91 st
) day of the
leave unless the Optionee’s right to reemployment with the
Participating Company Group remains guaranteed by statute or
contract. |
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(f) |
Directors,
Consultants and Advisors. In the event an Optionee is a
director or consultant or advisor but not an employee of a
Participating Company at the time the Option is granted,
termination of the Optionee’s status as a director
or
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consultant or advisor of the
Participating Company shall be deemed to be termination of the
Optionee’s employment.
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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
consolidation continue to hold at least a majority of the voting
power of the surviving corporation) (a “Transfer of
Control” ), then any unexercisable portion of an
outstanding Option shall become immediately exercisable as of a
date prior to the Transfer of Control, which date shall be
determined by the Board in its sole discretion. The exercise of any
Option that was permissible solely by reason of this Paragraph 8
shall be conditioned upon the consummation of the Transfer of
Control. The Board may further determine, in its sole discretion,
to provide that any Options whi |
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