STOCK OPTION AND RESTRICTED STOCK AGREEMENT FOR THE GRANT OF NON-QUALIFIED STOCK OPTIONS AND RESTRICTED STOCK UNDER THE PERNIX THERAPEUTICS HOLDINGS, INC. 2009 STOCK INCENTIVE PLAN

EXHIBIT 10.33

STOCK OPTION AND RESTRICTED STOCK AGREEMENT FOR THE GRANT OF
NON-QUALIFIED STOCK OPTIONS AND RESTRICTED STOCK UNDER THE
PERNIX THERAPEUTICS HOLDINGS, INC. 2009 STOCK INCENTIVE PLAN

THIS AGREEMENT is entered into as of Enter Date Here, by and between Pernix Therapeutics Holdings, Inc., a Maryland corporation ("Pernix"), and NAME OF EMPLOYEE (the "Participant").

WHEREAS, the Participant is an officer, director, key employee, consultant or advisor of Pernix or one of its subsidiaries and Pernix considers it desirable and in its best interest that the Participant be given an added incentive to advance the interests of Pernix by possessing an option to purchase shares of the common stock of Pernix, $0.01 par value per share (the "Common Stock") and/or restricted shares of Common Stock in accordance with the Pernix Therapeutics Holdings, Inc. 2009 Stock Incentive Plan (the "Plan"), which was approved by the shareholders of Pernix at the March 8, 2010 special meeting of stockholders. Pernix and its subsidiaries shall be collectively referred to herein as the "Company."

NOW, THEREFORE, in consideration of the premises, it is agreed by and between the parties as follows:

I.
Stock Options

1.1   Grant of Options. Pernix hereby grants to the Participant effective DATE OF OPTION (the "Date of Grant") the right, privilege and option to purchase Number of Shares shares of Common Stock (the "Option") at an exercise price of DOLLAR AMOUNT$ per share (the "Exercise Price"). The Option shall be exercisable at the times specified in Section 1.2 below. With respect to all of the shares subject to the Option, the Option is intended to be a non-qualified stock option.

1.2   Time of Exercise.

  1. Subject to the provisions of the Plan and the other provisions of this Section I, the Option shall be vested and exercisable in the amounts and on the dates provided below, if the Participant continues to be employed by the Company or, with respect to non-employees, continues to perform services to the Company on such date:

    Date Exercisable

    Non-Qualified
    Stock Option
    Shares

    XX-XX-XXXX

    XXX

    XX-XX-XXXX

    XXX

    XX-XX-XXXX

    XXX

    XX-XX-XXXX

    XXX

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  1. The Option shall terminate ten years following the Date of Grant and may terminate earlier in the event of termination of the Participant's services as provided below or a Change of Control of Pernix as provided in the Plan. During Participant's lifetime, the Option may be exercised only by the Participant or the Participant's curator if the Participant has been interdicted.

  2. If the Participant's service with the Company terminates, other than as a result of death or disability within the meaning of Section 22(e)(3) ("Disability") of the Internal Revenue Code of 1986, as amended, (the "Code") or retirement, the Option may be exercised, but only to the extent otherwise exercisable on the date of termination of service, within 90 days following termination of service, but in no event later than ten years after the Date of Grant.

  3. If the Participant's service with the Company is terminated because of Disability or because of retirement, the Option may be exercised, but only to the extent otherwise exercisable on the date of termination of service, within two years from the date of termination of service, but in no event later than ten years after the Date of Grant.

  4. In the event of the Participant's death, the Option may be exercised by the Participant's estate, or by the person to whom such right devolves from him by reason of the Participant's death, but only to the extent otherwise exercisable on the date of death, within two years from the date of death, but in no event later than ten years after the Date of Grant.

  5. The Option shall become fully exercisable upon a Change of Control of Pernix as provided in the Plan.

  6. Any portion of the Option that is not exercisable at the time of termination of service shall be terminated upon termination of service. Any portion of the Option that is exercisable but not exercised within the permitted time period following termination of service provided in this Section I, shall be terminated upon expiration of such permitted time period.

1.3   Method of Exercise of Option.

  1. The Participant may exercise all or a portion of the Option by delivering to the Company a signed written notice of his intention to exercise the Option, specifying therein the number of shares to be purchased. Upon receiving such notice, and after the Company has received full payment of the Exercise Price in accordance with the Plan, including as provided in Section 1.3(b) below, the appropriate officer of the Company shall cause the transfer of title of the shares purchased to Participant on Pernix's stock records and cause to be issued to Participant a stock certificate for the number of shares being acquired. Participant shall not have any rights as a shareholder until the stock certificate is issued to him.

  2. As permitted in the Plan, the Committee has authorized the use of the net exercise procedure described in the Plan for the exercise of the non-qualified stock options granted pursuant to this Agreement.

1.4   Non-Transferability. Unless permitted by the Committee in an amendment to this Agreement as provided in the Plan, the Option granted hereby may not be transferred, assigned, pledged or hypothecated in any manner, by operation of law or otherwise, other than by will or by the laws of descent and distribution and shall not be subject to execution, attachment or similar process.

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II.
Restricted Stock

2.1   Grant of Restricted Stock. Pernix hereby grants to Participant a restricted stock award effective on the Date of Grant of XXXXXX shares of Common Stock (the "Restricted Stock") subject to the terms, conditions, and restrictions set forth in the Plan and in this Agreement.

2.2   Award Restrictions. The period during which the restrictions imposed on the Restricted Stock by the Plan and this Agreement are in effect is referred to herein as the "Restricted Period." During the Restricted Period, the Participant shall be entitled to all rights of a stockholder of Pernix, including the right to vote the shares and to receive all dividends and other distributions declared thereon. The right to vote the Restricted Stock and any right to receive dividends thereon may not be sold, assigned, transferred, exchanged, pledged, hypothecated, or otherwise encumbered during the Restricted Period.

2.3   Vesting Terms.

  1. Types of Restricted Stock. XXXXXX of the shares of Restricted Stock shall vest based on the Participant's continued service with the Company as provided in Section 2.3(b) below (the "Time-Based Restricted Stock").

  2. Time-Based Restricted Stock. The Restricted Period for the Time-Based Restricted Stock shall end and the shares of Time-Based Restricted Stock shall become vested and freely transferable as set forth below, subject to the Participant's continued service with the Company on such dates:

    Percentage of Time-Based
    Restricted Stock

    Vesting Date

    [____]

    [_______ ___, 20___]

    [____]

    [_______ ___, 20___]

    [____]

    [_______ ___, 20___]

    [____]

    [_______ ___, 20___]

  3. All Restricted Stock. The Restricted Period shall end and the Restricted Stock will become fully vested and freely transferable by the Participant or his estate upon the death of the Participant or if the Participant becomes Disabled. Termination of Participant's service to the Company for any other reason prior to the end of the Restricted Period shall result in forfeiture of all Restricted Stock. The shares of Restricted Stock shall also become fully vested and the Restricted Period shall end in the event of a Change of Control of Pernix as provided in the Plan.

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III.
Book Entry

    3.1   The Company's Stock Issuance Records. A book entry in the Company's stock issuance records shall reflect the Restricted Stock as registered in the name of the Participant and that during the Restricted Period the transferability of shares of Restricted Stock is restricted in accordance with the terms and conditions (including conditions of forfeiture) contained in the Plan and this Agreement and that copies of the Plan and Agreement are on file in the office of the Secretary of Pernix.

    3.1   Removal of Restrictions. Upon termination of the Restricted Period with respect to all or a portion of the Restricted Stock, Pernix shall cause the restrictions on transfer reflected in the book entry with respect to such shares to be removed and upon the Participant's request, shall cause a stock certificate without a restrictive legend covering the vested Restricted Stock to be issued in the name of the Participant or his nominee. Upon removal of the restrictive legend from the book entry or upon receipt of a stock certificate without a restrictive legend, the Participant is free to hold or dispose of such shares, subject to applicable securities laws.

IV.
Defined Terms

The definition of all capitalized terms used herein and not otherwise defined herein shall be as provided in the Plan.

V.
Recovery Right of the Company

The Company has the right to recover any Options or Restricted Stock issued under the Plan to the Participant, if (a) the grant, vesting or value of such awards was based on the achievement of financial results that were subsequently the subject of a restatement; (b) the Participant engaged in intentional misconduct that caused or partially caused the need for the restatement; and (c) the effect of the restatement was to decrease the financial results such that such grant would not have been earned or would have had a lesser value. The Participant accepts the Options and the Restricted Stock subject to such recovery rights of the Company and in the event the Company exercises such rights, the Participant shall promptly return the Options (or the shares acquired upon exercise) and the Restricted Stock to the Company upon demand. If the Participant no longer holds the shares subject to the Options or the Restricted Stock at the time of demand by the Company, the Participant shall pay to the Company, without interest, all cash, securities or other assets received by the Participant upon the sale or transfer of such shares. The Company may, if it chooses, effect such recovery by withholding from other amounts due to the Participant by the Company.

VI.
Withholding Taxes

6.1   Options. At any time that the Participant is required to pay to the Company an amount required to be withheld under applicable income tax laws in connection with the exercise of an Option, the Participant may satisfy this obligation in whole or in part by electing (the "Election") to deliver currently owned shares of Common Stock or to have the Company withhold from the distribution shares of Common Stock, in each case having a value equal to the minimum statutory amount required to be withheld. Notwithstanding the terms of the Plan, the Committee shall not have the right to disapprove of an Election. The value of the shares to be delivered or withheld shall be based on the Fair Market Value of the Common Stock on the date that the amount of tax to be withheld shall be determined (the "Tax Date"). Each Election must be made prior to the Tax Date.

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6.2   Restricted Stock. At any time that the Participant is required to pay to the Company an amount required to be withheld under the applicable income tax laws in connection with the lapse of restrictions on Restricted Stock, unless the Participant has previously provided the Company with payment of all applicable withholding taxes, the Company shall withhold from the shares of Restricted Stock on which the restrictions are lapsing shares with a value equal to the minimum statutory amount required to be withheld. The value of the shares to be withheld shall be based on the Fair Market Value of the Common Stock on the Tax Date.

VII.
No Contract of Employment Intended

Nothing in this Agreement shall confer upon the Participant any right to continue in the employment of the Company, or to interfere in any way with the right of the Company to terminate the Participant's employment or service relationship with the Company at any time.

VIII.
Binding Effect

This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators and successors.

IX.
Amendment, Modification or Termination

The Committee may amend, modify or terminate any outstanding Option at any time prior to exercise and any Restricted Stock at any time prior to vesting in any manner not inconsistent with the terms of the Plan. Notwithstanding the foregoing, no amendment, modification or termination may materially impair the rights of an Participant hereunder without the consent of the Participant.

X.
Inconsistent Provisions

The Options and Restricted Stock granted hereby are subject to the provisions of the Plan, as in effect on the date hereof and as it may be amended. In the event any provision of this Agreement conflicts with such a provision of the Plan, the Plan provision shall control. The Participant acknowledges that a copy of the Plan was distributed to the Participant and that the Participant was advised to review such Plan prior to entering into this Agreement. The Participant waives the right to claim that the provisions of the Plan are not binding upon the Participant and the Participant's heirs, executors, administrators, legal representatives and successors.

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XI.
Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of Louisiana.

XII.
Severability

If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall at any time or to any extent be invalid, illegal or unenforceable in any respect as written, the Participant and Pernix intend for any court construing this Agreement to modify or limit such provision so as to render it valid and enforceable to the fullest extent allowed by law. Any such provision that is not susceptible of such reformation shall be ignored so as to not affect any other term or provision hereof, and the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid, illegal or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.

XIII.
Entire Agreement; Modification

The Plan and the Agreement contain the entire agreement between the parties with respect to the subject matter contained herein. The Agreement may not be modified without the approval of the Committee and the Participant, except as provided in the Plan, as it may be amended from time to time in the manner provided therein, or in this Agreement, as it may be amended from time to time. Any oral or written agreements, representations, warranties, written inducements, or other communications with respect to the subject matter contained herein made prior to the execution of the Agreement shall be void and ineffective for all purposes.

XIV.
Section 83(b) Election

The Participant has reviewed with the Participant's own tax advisors the federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant's own tax liability that may arise as a result of the transactions contemplated by this Agreement. The Participant understands that the Participant may elect to be taxed at the time the shares of Restricted Stock are granted by filing an election under Section 83(b) of the Code with the IRS within thirty days from the Date of Grant and providing a copy to the Company. The Participant acknowledges that it is the Participant's sole responsibility and not the Company's to file timely the election under Section 83(b), even if the Participant requests the Company or its representatives to make this filing on the Participant's behalf.

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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of the day and year first above written.

Pernix Therapeutics Holdings, Inc.

_________________________________
Name of EMPLOYEE

________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, VP
Corporate Controller

 

 

 

 

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Filed: March 28th, 2017