HUDSON HEALTH SCIENCES, INC. FORM OF AWARD AGREEMENT EVIDENCING THE GRANT OF A STOCK OPTION
Exhibit
10.1
▇▇▇▇▇▇
HEALTH SCIENCES,
INC.
FORM
OF AWARD AGREEMENT EVIDENCING
THE
GRANT OF A STOCK OPTION
This
Agreement (this "Agreement") made as of February 15, 2004 (the "Grant Date"),
between ▇▇▇▇▇▇ Health Sciences, Inc., a Delaware corporation (the
"Company"),
and ________________
("Grantee"), having an address,
____________________________________________________.
SECTION
1. Grant
of Option.
The
Company hereby grants to Grantee, as of the Grant Date, a Stock Option (the
“Option”) to purchase an aggregate of __________ (__________) shares (the
"Option Shares") of common stock of the Company, par value $0.001 per share
(the
"Common Stock"), at an exercise price of ______________ ($_____) per share
(the
“Option Price”) subject to adjustment and the other terms and conditions set
forth herein.
SECTION
2. Exercise
of Option.
(a)
General.
(i) Subject
to the earlier termination of the Option as provided herein, the Option may
be
exercised by written notice to the Company at any time and from time to time
after the Grant Date; provided,
however,
that
the Option shall not be exercisable for more than the number of shares which
are
vested in accordance herewith at the time of exercise. The exercise of this
Option and the issuance of Option Shares upon such exercise shall be subject
to
compliance by the Company and Grantee with all applicable requirements of
law.
The inability of the Company to obtain approval from any regulatory body
having
authority deemed by the Company to be necessary to the lawful issuance and
sale
of any Common Stock pursuant to this Option shall relieve the Company of
any
liability with respect to the non-issuance or sale of the Common Stock as
to
which such approval shall not have been obtained. The Option shall be exercised
by the delivery to the Company prior to the Expiration Date (as defined below)
of (A) a written notice of intent to purchase a specific number of Option
Shares
subject to the option in accordance with the terms hereof and (B) payment
in
full of the aggregate Option Price of such specific number of Option Shares
to
be received.
(ii) Payment
of the Option Price may be made by any one or more of the following
means:
(A) cash,
check, or wire transfer;
(B) with
the
approval of the Company, Option Shares that have vested and are exercisable,
valued at their fair market value on the date of exercise;
(b)
Vesting.
The
Options shall vest in ____ annual installments, with ___ vesting on the first
anniversary date of this Agreement and the remaining ____ vesting on the
second
anniversary date of this Agreement.
(c) Early
Expiration of Option.
In the
event of Grantee's death, any vested portion of the Option granted hereunder
that has not been exercised as of the date of such termination shall
automatically expire, if not exercised beforehand, on the earlier of the
ninetieth (90th)
day
following the date of such termination or the Expiration Date (as defined
below).
(d) Normal
Expiration of Option.
This
Option shall not be exercisable after the tenth anniversary of the Grant
Date
(the "Expiration Date").
SECTION
3. Exercise
of Option and Conditions to Exercise.
This
Option may not be exercised by Grantee unless the following conditions are
met:
(a) Notice.
This
Option shall be exercised by delivering written notice in the form attached
hereto as Exhibit I to the Company at its principal office addressed to the
attention of its Secretary. Such notice shall specify the number of shares
of
Common Stock with respect to which the Option is being exercised and shall
be
signed by Grantee. This Option may not be exercised for a fraction of a share
of
Common Stock;
(b) Securities
Requirements.
Legal
counsel for the Company must be satisfied at the time of exercise that the
issuance of Option Shares upon exercise will be in compliance with the
Securities Act of 1933, as amended (the "1933 Act") and applicable United
States
federal, state, local and foreign laws; and
(c) Payment
of Exercise Price.
Grantee
must pay at the time of exercise the full purchase price for the shares of
Common Stock being acquired hereunder as described in Section 2(i) in cash
or
its equivalent, (ii) to the extent permitted by the Committee, in the form
of
unrestricted Common Stock already owned by Grantee valued at its fair market
value on the date of exercise or (iii) pursuant to such other method as the
Committee may approve from time to time.
SECTION
4. Transferability.
(a)
General.
This
Option may not be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of by Grantee, except by will or the laws of descent and
distribution (in which case, the transferee shall succeed to the rights and
obligations of Grantee hereunder) and is exercisable during Grantee's lifetime
only by Grantee or his or her guardian or legal representative. If Grantee
or
anyone claiming under or through Grantee attempts to violate this Section
4,
such attempted violation shall be null and void and without effect, and the
Company's obligation hereunder shall terminate. If at the time of Grantee's
death this Option has not been fully exercised, Grantee's estate or any person
who acquires the right to exercise this Option by bequest or inheritance
or by
reason of Grantee's death may exercise this Option in accordance with and
with
respect to the number of shares set forth in Section 3 above. The applicable
requirements of Section 2 above must be satisfied in full at the time of
any
exercise.
(b)
Lock-up.
Grantee
hereby agrees to be subject to a lock-up period of 180 days or such longer
period of time as may be requested by a managing underwriter in connection
with
and following any public offering, which may be imposed by the Company or
the
managing underwriter(s) of such offering; provided,
that in
the event of the death or Disability of Grantee, any heirs of Grantee shall
not
be bound by such lock-up. In addition, during such lock-up period Grantee
will
not directly or indirectly, through related parties or otherwise, purchase,
trade, offer, pledge, sell, contract to sell or to purchase or sell “short” or
“short against the box” (as those terms are generally understood in the
securities markets), or otherwise dispose of or acquire, any securities of
the
Company or options in respect of such securities.
SECTION
5. Administration.
Any
action taken or decision made by the Company or the Board or its delegates
arising out of or in connection with the construction, administration,
interpretation or effect of this Agreement shall lie within its sole and
absolute discretion, as the case may be, and shall be final, conclusive and
binding on Grantee and all persons claiming under or through Grantee. By
accepting this grant, Grantee and each person claiming under or through Grantee
shall be conclusively deemed to have indicated acceptance and ratification
of,
and consent to, any action taken under by the Company or the Board or its
delegates.
SECTION
6. No
Rights as Stockholder.
Unless
and until a certificate or certificates representing shares of Common Stock
shall have been issued to Grantee (or any person acting under Section 4 above)
pursuant to an exercise hereunder, Grantee shall not be or have any of the
rights or privileges of a stockholder of the Company with respect to shares
of
Common Stock acquirable upon exercise of the Option.
SECTION
7. Investment
Representation.
Grantee
hereby acknowledges that the shares of Common Stock which Grantee may acquire
by
exercising the Option shall be acquired for investment without a view to
distribution, within the meaning of the 1933 Act, and shall not be sold,
transferred, assigned, pledged or hypothecated in the absence of an effective
registration statement for the shares of Common Stock under the 1933 Act
and
applicable states securities laws or an applicable exemption from the
registration requirements of the 1933 Act and any applicable state securities
laws. Grantee also agrees that the shares of Common Stock which Grantee may
acquire by exercising the Option will not be sold or otherwise disposed of
in
any manner which would constitute a violation of any applicable securities
laws,
whether federal or state and that the certificate representing the shares
of
Common Stock shall contain a legend to such effect.
SECTION
8. Listing
and Registration of Common Stock.
The
Company, in its discretion, may postpone the issuance and/or delivery of
shares
of Common Stock upon any exercise of this Option until completion of such
stock
exchange listing, or registration, or other qualification of such shares
under
any state and/or federal law, rule or regulation as the Company may reasonably
in good faith consider appropriate.
SECTION
9. Notices.
Any
notice hereunder to the Company shall be addressed to the Company at ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, Attention: Secretary,
and any notice hereunder to Grantee shall be addressed to Grantee at Grantee's
last address on the records of the Company, subject to the right of either
party
to designate at any time hereafter in writing some other address. Any notice
shall be deemed to have been duly given when delivered personally, one day
following dispatch if sent by reputable overnight courier, fees prepaid,
or
three days following mailing if sent by registered mail, return receipt
requested, postage prepaid and addressed as set forth above.
SECTION
10. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of any successors
to
the Company and all persons lawfully claiming under Grantee.
SECTION
11. Governing
Law.
This
Agreement shall be governed by the substantive laws, but not the choice of
law
rules, of the State of Delaware.
IN
WITNESS WHEREOF, the Company and Grantee have executed this Agreement as
of the
date first above written.
| ▇▇▇▇▇▇ HEALTH SCIENCES, INC. | ||
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Name: |
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| Title: | ||
Grantee
has reviewed this Option Agreement in their entirety, has had an opportunity
to
obtain the advice of counsel prior to executing this Option Agreement and
fully
understands all provisions of this Option Agreement. Grantee hereby agrees
to
accept as binding, conclusive and final all decisions or interpretations
of the
Board upon any questions arising under this Agreement.
| GRANTEE | ||
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Name: |
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EXHIBIT
I
NOTICE
OF
EXERCISE OF STOCK OPTION
Reference
is hereby made to the Award Agreement (the “Award Agreement”) dated as of
[___________ ___, 20__], between [ ]
and
▇▇▇▇▇▇ Health Sciences, Inc., a Delaware corporation (the “Company”). The
undersigned hereby notifies the Company that the undersigned elects to purchase
___________ shares of the Company’s Common Stock (the “Purchased Shares”) at the
option exercise price of $[___] per share (the “Exercise Price”) pursuant to
that certain option (the “Option”) granted to me on [___________ ___,
20__].
Concurrently
with the delivery of this Exercise Notice to the Secretary of the Company,
the
undersigned shall pay to the Company the Exercise Price for the Purchased
Shares
in accordance with the provisions of the undersigned’s agreement with the
Company evidencing this Option and shall deliver whatever additional documents
may be required by such agreement as a condition for exercise to effect the
payment of the Exercise Price for the Purchased Shares if the Common Stock
is
registered under Section 12(g) of the Securities Exchange Act of
1934).
Date: ____________________
_________________________________
Grantee
Address:
___________________________
___________________________________
___________________________________
Print
name in exact manner
it
is to
appear on the
stock
certificate: ________________________
Address
to which certificate
is
to be
sent, if different
from
address
above: ________________________
________________________
________________________
Social
Security Number ________________________