EXHIBIT 10.4
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Grant Date: April 26, 2004
STOCK OPTION
GRANTED BY
ABLE LABORATORIES, INC.
TO
XXXXXX XXXXX
For valuable consideration, the receipt of which is hereby
acknowledged, Able Laboratories, Inc., a Delaware corporation (hereinafter
together with its subsidiaries, where the context permits, referred to as the
"Company"), hereby grants to the Holder named in Schedule A attached hereto the
following Stock Option:
SECTION 1. GRANT OF OPTION. Subject to the terms and conditions
hereinafter set forth, the Holder is hereby given the right and option to
purchase from the Company shares of the Company's Common Stock, $.01 par value
per share (the "Common Stock"). Schedule A attached hereto and hereby
incorporated herein sets forth with respect to this option (i) its expiration
date, (ii) its exercise price per share, (iii) the maximum number of shares that
the Holder may purchase upon exercise hereof, (iv) the vesting schedule, and (v)
certain other terms and conditions applicable to this option and incorporated
herein. This option shall terminate in all respects, and all rights and options
to purchase shares hereunder shall terminate, ten years from the Grant Date set
forth above. The right to purchase shares hereunder shall be cumulative.
This Option is not issued under the Company's 2003 Stock Incentive Plan
(the "Plan"). However, this Option shall be subject in every respect to the
provisions of the Plan, as the same may be amended from time to time, as fully
if this Option were issued under the Plan. A copy of the Plan is being delivered
herewith, and the Plan is hereby incorporated herein by reference and made a
part hereof. In the event of any conflict or inconsistency between the terms of
this Option and those of the Plan, the terms of the Plan shall govern.
SECTION 2. EXERCISE OF OPTION. This option shall be exercised by the
delivery of written notice to the Company (the "Notice") setting forth the
number of shares with respect to which the option is to be exercised and the
address to which the certificates for such shares are to be mailed, together
with (i) delivery of a personal, certified or bank check or postal money order
payable to the order of the Company for an amount equal to the option price for
the number of shares specified in the Notice, or (ii) with the consent of the
Committee, shares of Common Stock of the Company which (a) either have been
owned by the Holder for more than six (6) months and are not subject to
restrictions under any Plan on the date of surrender or were not acquired,
directly or indirectly, from the Company, and (b) have a fair market value on
the date of surrender not greater than the option price for the shares as to
which such option is being exercised, or (iii) with the consent of the
Committee, delivering to the Company a properly
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executed Notice together with irrevocable instructions to a broker to promptly
deliver to the Company cash or a check payable and acceptable to the Company to
pay the purchase price; provided that in the event the Holder chooses to pay the
purchase price as so provided, the Holder and the broker shall comply with such
procedures and enter into such agreement of indemnity and other agreements as
the Committee shall prescribe as a condition of such payment procedure; provided
that the Company need not act upon such Notice until the Company receives full
payment of the exercise price, or (iv) with the consent of the Committee, any
combination of such methods of payment. For the purpose of the preceding
sentence, the fair market value per share of the Common Stock so delivered to
the Company shall be the closing price per share on the date of delivery as
reported by the Nasdaq Stock Market, Inc. ("Nasdaq") or another automated
quotation system of the National Association of Securities Dealers, Inc. (the
"NASD"), including the OTC Bulletin Board or any successor thereto or, if the
Common Stock is not then quoted on Nasdaq or any such automated quotation
system, on such registered national securities exchange on which the Common
Stock is listed; provided, that, if there is no trading on such date, the fair
market value shall be deemed to be the closing price per share on the last
preceding date on which the Common Stock was traded. If the Common Stock is not
listed on any national registered securities exchange or quoted on Nasdaq or any
sich automated quotation system, the fair market value of the Common Stock shall
be determined in good faith by the Committee.
SECTION 3. CONDITIONS AND LIMITATIONS. The Company, in its discretion,
may file a registration statement on Form S-8 under the Securities Act of 1933,
as amended (the "Securities Act") to register shares of Common Stock reserved
for issuance under this Option. At any time at which such a registration
statement is not in effect, it shall be an additional condition precedent to any
exercise of this option that the Holder shall deliver to the Company a customary
"investment letter" satisfactory to the Company and its counsel in which, among
other things, the Holder shall state that the Holder is purchasing the shares
for investment and acknowledges that they are not freely transferable except in
compliance with state and federal securities laws.
SECTION 4. DELIVERY OF SHARES. Within a reasonable time after receipt
by the Company of the Notice and payment for any shares to be purchased
hereunder and, if required as a condition to exercise, the investment letter
described in Section 3, the Company will deliver or cause to be delivered to the
Holder (or if any other individual or individuals are exercising this option, to
such individual or individuals) at the address specified in the Notice a
certificate or certificates for the number of shares with respect to which the
option is then being exercised, registered in the name or names of the
individual or individuals exercising the option, either alone or jointly with
another person or persons with rights of survivorship, as the individual or
individuals exercising the option shall prescribe in writing to the Company at
or prior to such purchase; provided, however, that if any law or regulation or
order of the Securities and Exchange Commission or other body having
jurisdiction in the premises shall require the Company or the Holder (or the
individual or individuals exercising this option) to take any action in
connection with the shares then being purchased, the date for the delivery of
the certificates for such shares shall be extended for the period necessary to
take and complete such action, it being understood that the Company shall have
no obligation to take and complete any such action. The Company may imprint upon
such certificate the legend set forth in the Plan or such other legends
referencing stock transfer restrictions which counsel for the Company considers
appropriate. Delivery by the Company of the certificates for such shares shall
be deemed effected for all purposes when the Company or a stock transfer agent
of the Company shall have deposited such
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certificates in the United States mail, addressed to the Holder, at the address
specified in the Notice.
SECTION 5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The existence of
this option shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of Common
Stock, or any issue of bonds, debentures, preferred or prior preference stock or
other capital stock ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
If the Company shall effect a stock dividend, stock split or similar
change in capitalization affecting the shares of Common Stock outstanding, in
any such case without receiving compensation therefor in money, services or
property, then the number, class, and price per share of shares of Common Stock
subject to this option shall be appropriately adjusted in such a manner as to
entitle the Holder to receive upon exercise of this option, for the same
aggregate cash consideration, the same total number and class of shares as the
Holder would have received as a result of the event requiring the adjustment had
the Holder exercised this option in full immediately prior to such event.
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
the conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
therefor shall be made with respect to, the number or price of shares of Common
Stock then subject to option.
SECTION 6. EFFECT OF CERTAIN TRANSACTIONS. After a merger of one or
more corporations with or into the Company or after a consolidation of the
Company and one or more corporations in which the stockholders of the Company
immediately prior to such merger or consolidation own after such merger or
consolidation shares representing at least fifty percent (50%) of the voting
power of the Company or the surviving or resulting corporation, as the case may
be, the Holder shall, at no additional cost, be entitled upon exercise of this
option to receive in lieu of the shares of Common Stock as to which this option
was exercisable immediately prior to such event, the number and class of shares
of stock or other securities, cash or property (including, without limitation,
shares of stock or other securities of another corporation or Common Stock) to
which the Holder would have been entitled pursuant to the terms of the agreement
of merger or consolidation if, immediately prior to such merger or
consolidation, the Holder had been the holder of record of a number of shares of
Common Stock equal to the number of shares for which this option shall be so
exercised.
If the Company is merged with or into or consolidated with another
corporation, other than a merger or consolidation in which the stockholders of
the Company immediately prior to such merger or consolidation continue to own
after such merger or consolidation shares representing at least fifty percent
(50%) of the voting power of the Company or the surviving or resulting
corporation, as the case may be, or if the Company is liquidated, or sells or
otherwise disposes of substantially all its assets to another corporation while
this option remains outstanding, then (i) subject to the provisions of clause
(iii) below, after the effective date of such
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merger, consolidation, liquidation, sale or disposition, as the case may be, the
Holder of this option shall be entitled, upon exercise of this option, to
receive, in lieu of the shares of Common Stock as to which this option was
exercisable immediately prior to such event, the number and class of shares of
stock or other securities, cash or property (including, without limitation,
shares of stock or other securities of another corporation or Common Stock) to
which the Holder would have been entitled pursuant to the terms of the merger,
consolidation, liquidation, sale or disposition if, immediately prior to such
event, the Holder had been the holder of a number of shares of Common Stock
equal to the number of shares as to which such option shall be so exercised;
(ii) the Committee may accelerate the time for exercise of this option, so that
from and after a date prior to the effective date of such merger, consolidation,
liquidation, sale or disposition, as the case may be, specified by the
Committee, such accelerated options shall be exercisable in full; or (iii) this
option may be canceled by the Committee as of the effective date of any such
merger, consolidation, liquidation, sale or disposition provided that (x) notice
of such cancellation shall be given to the Holder and (y) the Holder shall have
the right to exercise this option to the extent that the same is then
exercisable or, if the Committee shall have accelerated the time for exercise of
this option pursuant to clause (ii) above, in full during the 10-day period
preceding the effective date of such merger, consolidation, liquidation, sale or
disposition.
SECTION 7. RIGHTS OF HOLDER. No person shall, by virtue of the granting
of this option to the Holder, be deemed to be a holder of any shares purchasable
under this option or to be entitled to the rights or privileges of a holder of
such shares unless and until this option has been exercised with respect to such
shares and they have been issued pursuant to that exercise of this option.
The Company shall, at all times while any portion of this option is
outstanding, reserve and keep available, out of shares of its authorized and
unissued stock or reacquired shares, a sufficient number of shares of its Common
Stock to satisfy the requirements of this option; shall comply with the terms of
this option promptly upon exercise of the option rights; and shall pay all fees
or expenses necessarily incurred by the Company in connection with the issuance
and delivery of shares pursuant to the exercise of this option.
SECTION 8. TRANSFER AND TERMINATION. This option is not transferable by
the Holder otherwise than by will or under the laws of descent and distribution.
The granting of this option shall not impose upon the Company any obligation to
employ or to continue to employ the Holder. The right of the Company to
terminate the employment of the Holder shall not be diminished or affected by
reason of the fact that this option has been granted to such Holder or by any
provision of the Employment Agreement dated as of April 26, 2004 by and between
the Company and the Holder (the "Employment Agreement").
This Option is exercisable, during the Holder's lifetime, only by the
Holder, and by the Holder only while the Holder is an employee of the Company,
except as provided in the Employment Agreement.
SECTION 9. WITHHOLDING OF TAXES
9.1 ELECTION AS TO METHOD OF SATISFYING WITHHOLDING OBLIGATION.
At the Holder's election, the amount required to be withheld may be satisfied,
in whole or in part, by (a) authorizing the Company to withhold from shares of
Common Stock to be issued pursuant to the
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exercise of such Non-Statutory Option a number of shares with an aggregate fair
market value that would satisfy the minimum withholding amount due with respect
to such exercise, or (b) transferring to the Company shares of Common Stock that
have been purchased by the Holder on the open market or have been beneficially
owned by the Holder for a period of at least six months and are not then subject
to restrictions under any Plan and with an aggregate fair market value that
would satisfy the minimum withholding amount due.
9.2 AGREEMENT TO REIMBURSE COMPANY FOR WITHHOLDING OBLIGATION.
The Company shall have the right to deduct from payments of any kind otherwise
due to the Holder any federal, state or local taxes of any kind required by law
to be withheld with respect to shares issued upon exercise of this Option. Prior
to delivery of any Common Stock pursuant to the terms of this Option, the Board
has the right to require that the Holder remit to the Company an amount
sufficient to satisfy any minimum tax withholding obligation.
SECTION 11. NOTICE. Any notice to be given to the Company hereunder
shall be deemed sufficient if addressed to the Company and delivered by hand or
by mail to the Chief Financial Officer of the Company, 0 Xxxxxxxxx Xxxxx, Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000, or such other address as the Company may hereafter
designate.
Any notice to be given to the Holder hereunder shall be deemed
sufficient if addressed to and delivered in person to the Holder or when
deposited in the mail, postage prepaid, addressed to the Holder at the Holder's
address last furnished to the Company.
SECTION 12. GOVERNMENT AND OTHER REGULATIONS. This option is subject to
all laws, regulations and orders of any governmental authority which may be
applicable thereto and, notwithstanding any of the provisions hereof, the Holder
agrees that the Holder will not exercise the option granted hereby nor will the
Company be obligated to issue or sell any shares of stock hereunder if the
exercise thereof or the issuance or sale of such shares, as the case may be,
would constitute a violation by the Holder or the Company of any such law,
regulation or order or any provision thereof. The Company shall not be obligated
to take any affirmative action in order to cause the exercise of this option or
the issuance or sale of shares pursuant hereto to comply with any such law,
regulation, order or provision.
SECTION 13. GOVERNING LAW. This option shall be governed by, and
construed and enforced in accordance with, the substantive laws of the State of
Delaware.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf as of the date first written above.
Able Laboratories, Inc.
By: /s/Xxxxxxxxx X. Xxxxxxx
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Its: Chief Executive Officer
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SCHEDULE A
ABLE LABORATORIES, INC.
STOCK OPTION
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Date of Xxxxx: April 26, 2004
Name of Xxxxxx: Xxxxxx Xxxxx
Address:
Social Security Number: ____________
Maximum number of shares for which
this Option is exercisable: 300,000
Exercise (purchase) price per share: $19.16
Expiration date of this Option: April 26, 2014
Vesting schedule: Option is exercisable as to 75,000
shares as of the date hereof. An
additional 25,000 shares shall vest
on each of the 18, 24, 30 and 36
month anniversaries of the date of
grant; the remaining shares will
vest in quarterly installments of
12,500 shares each on the last date
of each calendar quarter beginning
with the first full calendar
quarter after the 36-month
anniversary of the grant date.
OTHER TERMS AND CONDITIONS: (1) The Holder agrees that in the event of the
filing of a registration statement under the Securities Act by the Company, upon
request of the Company or the underwriters managing any underwritten offering of
the Company's securities, the Holder shall agree in writing that for a period of
time not to exceed one hundred eighty (180) days from the effective date of any
registration of securities of the Company the Holder will not sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of any shares of Common Stock issued pursuant to the exercise of this option
without the prior written consent of the Company or such underwriters, as the
case may be.
The undersigned Holder acknowledges receipt of the stock option of which this
Schedule A is a part.
/s/ Xxxxxx Xxxxx
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Holder's Signature
Print Name: Xxxxxx Xxxxx
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