IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
NONSTATUTORY STOCK OPTION
________________, Optionee:
Alanex Corporation (the "Company"), pursuant to its 1993 Stock Plan
(the "Plan") has this day granted to you, the optionee named above, an option to
purchase shares of the common stock of the Company ("Common Stock"). This option
is not intended to qualify and will not be treated as an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's employees
(including officers), directors or consultants and is intended to comply with
the provisions of Rule 701 promulgated by the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act").
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this
option is ____________. Subject to the limitations contained herein, this option
shall be exercisable with respect to each installment shown below on or after
the date of vesting applicable to such installment, as follows [THE TERMS OF
INDIVIDUAL OPTIONS WILL VARY BUT WILL IN ANY CASE PROVIDE FOR VESTING OF AT
LEAST 20% PER YEAR]:
Number of Shares (Installment) Date of Earliest Exercise (Vesting)
2. (a) The exercise price of this option is
$_______ ($____) per share, being not less than eighty-five (85%) of the Fair
Market Value of the Common Stock on the date of grant of this option.
(b) Payment of the exercise price per share
is due in full in cash (including check) upon exercise of all or any part of
each installment which has become exercisable by you. Notwithstanding the
foregoing, this option may be exercised pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board which results in the
receipt of cash (or check) by the Company prior to the issuance of Common Stock.
3. The minimum number of shares with respect to which this
option may be exercised at any one time is one hundred (100), except (a) as to
an installment subject to exercise, as set forth in paragraph 1, which amounts
to fewer than one hundred (100) shares, in which case, as to the exercise of
that installment, the number of such shares in such installment shall be the
minimum number of shares, and (b) with respect to the final exercise of this
option this minimum shall not apply. In no event may this option be exercised
for any number of shares which would require the issuance of anything other than
whole shares.
4. Notwithstanding anything to the contrary contained herein,
this option may not be exercised unless the shares issuable upon exercise of
this option are then registered under the Act or, if such shares are not then so
registered, the Company has determined that such exercise and issuance would be
exempt from the registration requirements of the Act.
5. The term of this option commences on the date hereof and,
unless sooner terminated as set forth below or in the Plan, terminates on
____________, 2003 (which date shall be no more than ten (10) years from the
date this option is granted). In no event may this option be exercised on or
after the date on which it terminates. This option shall terminate prior to the
expiration of its term as follows: six (6) months after the termination of your
employment with the Company or an Affiliate of the Company (as defined in the
Plan) for any reason or for no reason unless:
(a) such termination of employment is due to
your permanent and total disability (within the meaning of Section 422(c)(6) of
the Code), in which event the option shall terminate on the earlier of the
termination date set forth above or twelve (12) months following such
termination of employment;
(b) such termination of employment is due
to your death, in which event the option shall terminate on the earlier of
the termination date set forth above or twelve (12) months after your death;
or
(c) during any part of such six (6) month
period the option is not exercisable solely because of the condition set
forth in paragraph 4 above, in which event the option shall not terminate
until the earlier of the termination date set forth above or until it shall
have been exercisable for an aggregate period of six (6) months after the
termination of employment; or
(d) exercise of the option within six (6)
months after termination of your employment with the Company or with an
affiliate would result in liability under section 16(b) of the Securities
Exchange Act of 1934, in which case the option will terminate on the earlier of
(i) the termination date set forth above, (ii) the tenth (10th) day after the
last date upon which exercise would result in such liability or (iii) six
(6) months and ten (10) days after the termination of your employment with the
Company or an affiliate.
However, this option may be exercised following termination of
employment only as to that number of shares as to which it was exercisable on
the date of termination of employment under the provisions of paragraph 1 of
this option.
6. (a) This option may be exercised, to the extent specified
above, by delivering a notice of exercise (in a form designated by the Company)
together with the exercise price to the Secretary of the Company, or to such
other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require.
(b) By exercising this option you agree that:
(i) the Company may require you to
enter an arrangement providing for the cash payment by you to the Company of
any tax withholding obligation of the
Company arising by reason of: (1) the exercise of this option; (2) the lapse of
any substantial risk of forfeiture to which the shares are subject at the time
of exercise; or (3) the disposition of shares acquired upon such exercise; and
(ii) the Company (or a representative
of the underwriters) may, in connection with the first underwritten
registration of the offering of any securities of the Company under the Act,
require that you not sell or otherwise transfer or dispose of any shares of
Common Stock or other securities of the Company during such period (not to
exceed one hundred eighty (180) days) following the effective date (the
"Effective Date") of the registration statement of the Company filed under
the Act as may be requested by the Company or the representative of the
underwriters; provided, however, that such restriction shall apply only if,
on the Effective Date, you are an officer, director, or owner of more than
one percent (1%) of the outstanding securities of the Company. For
purposes of this restriction you will be deemed to own securities which (i) are
owned directly or indirectly by you, including securities held for your benefit
by nominees, custodians, brokers or pledgees; (ii) may be acquired by you
within sixty (60) days of the Effective Date; (iii) are owned directly or
indirectly, by or for your brothers or sisters (whether by whole or half blood)
spouse, ancestors and lineal descendants; or (iv) are owned, directly or
indirectly, by or for a corporation, partnership, estate or trust of which you
are a shareholder, partner or beneficiary, but only to the extent of your
proportionate interest therein as a shareholder, partner or beneficiary thereof.
You further agree that the Company may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until the end of
such period.
7. This option is not transferable, except by will
or by the laws of descent and distribution, and is exercisable during your
life only by you.
8. This option is not an employment contract and nothing in
this option shall be deemed to create in any way whatsoever any obligation on
your part to continue in the employ of the Company, or of the Company to
continue your employment with the Company. In the event that this option is
granted to you in connection with the performance of services as a consultant or
director, references to employment, employee and similar terms shall be deemed
to include the performance of services as a consultant or a director, as the
case may be, provided, however, that no rights as an employee shall arise by
reason of the use of such terms.
9. Any notices provided for in this option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt or, in
the case of notices delivered by the Company to you, five (5) days after deposit
in the United States mail, postage prepaid, addressed to you at the address
specified below or at such other address as you hereafter designate by written
notice to the Company.
10. This option is subject to all the provisions of the Plan,
a copy of which is attached hereto and its provisions are hereby made a part of
this option, including without limitation the provisions of paragraphs 5 and 6
of the Plan relating to option provisions, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan. In the event of any conflict
between the provisions of this option and those of the Plan, the provisions of
the Plan shall control.
Dated the ____ day of _________, 1993.
Very truly yours,
ALANEX CORPORATION
By _______________________________
Duly authorized on behalf of the
Board of Directors
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein and understands that all rights and
liabilities with respect to this option are set forth in the option and the
Plan;
(b) Acknowledges that as of the date of grant of this option,
it sets forth the entire understanding between the undersigned optionee and the
Company and its affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of the following agreements only:
NONE _________
(Initial)
OTHER
___________________________________
___________________________________
___________________________________
(c) Acknowledges receipt of a copy of Section 260.141.11
of Title 10 of the California Code of Regulations.
___________________________________
Optionee
Address:___________________________________
___________________________________
Attachments:
1993 Stock Plan
Regulation 260.141.11
Notice of Exercise
NOTICE OF EXERCISE
Alanex Corporation
3550 General Atomics Court Date of
San Diego, CA 92121 Exercise: _________
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect to purchase
the number of shares for the price set forth below.
Type of option (check one) Incentive __ Nonstatutory __
Stock option dated ___________________
Number of shares as
to which option is
exercised: ___________________
Certificates to be
issued in name of: ___________________
Total exercise price: $__________________
Cash payment delivered
herewith: $__________________
By this exercise, I agree (i) to provide such additional documents as you
may require pursuant to the terms of the 1993 Stock Plan, (ii) to provide for
the payment by me to you (in the manner designated by you) of your withholding
obligation, if any, relating to the exercise of this option, and (iii) if this
exercise relates to an incentive stock option, to notify you in writing within
fifteen (15) days after the date of any disposition of any shares of Common
Stock issued upon exercise of this option that occurs within two (2) years after
the date of grant of this option or within one (1) year after such shares of
Common Stock are issued upon exercise of this option.
I hereby make the following certifications and representations with
respect to the number of shares of Common Stock of the Company listed above (the
"Shares"), which are being acquired by me for my own account upon exercise of
the Option as set forth above:
I acknowledge that the Shares have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are deemed to constitute
"restricted securities" under Rule 701 and "control securities" under Rule 144
promulgated under the Act. I warrant and represent to the Company that I have no
present intention of distributing or selling said Shares, except as permitted
under the Act and any applicable state securities laws.
I further acknowledge that I will not be able to resell the Shares for at
least ninety (90) days after the stock of the Company becomes publicly traded
(i.e., subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934) under Rule 701 and that more restrictive
conditions apply to affiliates of the Company under Rule 144.
I further acknowledge that all certificates representing any of the Shares
subject to the provisions of the Option shall have endorsed thereon appropriate
legends reflecting the foregoing limitations, as well as any legends reflecting
restrictions pursuant to the Company's Articles of Incorporation, Bylaws and/or
applicable securities laws.
I further agree that, if required by the Company (or a representative of
the underwriters) in connection with the first underwritten registration of the
offering of any securities of the Company under the Act, I will not sell or
otherwise transfer or dispose of any shares of Common Stock or other securities
of the Company during such period (not to exceed one hundred eighty (180) days)
following the effective date of the registration statement of the Company filed
under the Act (the "Effective Date") as may be requested by the Company or the
representative of the underwriters; provided, however, that such restriction
shall apply only if, on the Effective Date, you are an officer, director, or
owner of more than one percent (1%) of the outstanding securities of the
Company. For purposes of this restriction I will be deemed to own securities
that (i) are owned directly or indirectly by me, including securities held for
my benefit by nominees, custodians, brokers or pledgees; (ii) may be acquired by
me within sixty (60) days of the Effective Date; (iii) are owned directly or
indirectly, by or for my brothers or sisters (whether by whole or half blood),
spouse, ancestors and lineal descendants; or (iv) are owned, directly or
indirectly, by or for a corporation, partnership, estate or trust of which I am
a shareholder, partner or beneficiary, but only to the extent of my
proportionate interest therein as a shareholder, partner or beneficiary thereof.
I further agree that the Company may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until the end of
such period.
Very truly yours,
-----------------------
STATE OF CALIFORNIA - CALIFORNIA ADMINISTRATIVE CODE
TITLE 10. Investment - Chapter 3. Commissioner of Corporations
260.141.11: RESTRICTION ON TRANSFER. (a) The issuer of any security upon which a
restriction on transfer has been imposed pursuant to Sections 260.102.6,
260.141.10 or 260.534 shall cause a copy of this section to be delivered to each
issuee or transferee of such security at the time the certificate evidencing the
security is delivered to the issuee or transferee.
(b) It is unlawful for the holder of any such security to consummate a sale or
transfer of such security, or any interest therein, without the prior written
consent of the Commissioner (until this condition is removed pursuant to Section
260.141.12 of these rules), except:
(1) to the issuer;
(2) pursuant to the order or process of any court;
(3) to any person described in Subdivision (i) of Section 25102
of the Code or Section 260.105.14 of these rules;
(4) to the transferor's ancestors, descendants or spouse, or any
custodian or trustee for the account of the transferor or the
transferor's ancestors, descendants, or spouse; or to a
transferee by a trustee or custodian for the account of the
transferee or the transferee's ancestors, descendants or
spouse;
(5) to holders of securities of the same class of the same issuer;
(6) by way of gift or donation inter vivos or on death;
(7) by or through a broker-dealer licensed under the Code (either
acting as such or as a finder) to a resident of a foreign
state, territory or country who is neither domiciled in this
state to the knowledge of the broker-dealer, nor actually
present in this state if the sale of such securities is not in
violation of any securities law of the foreign state,
territory or country concerned;
(8) to a broker-dealer licensed under the Code in a principal
transaction, or as an underwriter or a member of an
underwriting syndicate or selling group;
(9) if the interest sold or transferred is a pledge or other lien
given by the purchaser to the seller upon a sale of the
security for which the Commissioner's written consent is
obtained or under this rule not required;
(10) by way of a sale qualified under Sections 25111, 25112, 25113,
or 25121 of the Code, of the securities to be transferred,
provided that no order under Section 25140 or Subdivision (a)
of Section 25143 is in effect with respect to such
qualification;
(11) by a corporation to a wholly owned subsidiary of such
corporation, or by a wholly owned subsidiary of a
corporation to such corporation;
(12) by way of an exchange qualified under Section 25111, 25112 or
25113 of the Code, provided that no order under Section 25140
or Subdivision (a) of Section 25143 is in effect with respect
to such qualification;
(13) between residents of foreign states, territories or
countries who are neither domiciled nor actually present in
this state;
(14) to the State Controller pursuant to the Unclaimed Property
Law or to the administrator of the unclaimed property
law of another state; or
(15) by the State Controller pursuant to the Unclaimed Property Law
or by the administrator of the unclaimed property law of
another state if, in either such case, such person (i)
discloses to potential purchasers at the sale that transfer of
the securities is restricted under this rule, (ii) delivers to
each purchaser a copy of this rule, and (iii) advises the
Commissioner of the name of each purchaser;
(16) by a trustee to a successor trustee when such transfer does
not involve a change in the beneficial ownership of
the securities;
(17) by way of an offer and sale of outstanding securities in an
issuer transaction that is subject to the qualification
requirement of Section 25110 of the Code but exempt from that
qualification requirement by subdivision (f) of Section 25102;
provided that any such transfer is on the condition that any
certificate evidencing the security issued to such transferee
shall contain the legend required by this section.
(c) The certificates representing all such securities subject to such a
restriction on transfer, whether upon initial issuance or upon any
transfer thereof, shall bear on their face a legend, prominently
stamped or printed thereon in capital letters of not less than 10-point
size, reading as follows:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS
SECURITY, OR ANY INTEREST THEREIN, OR TO RECEIVE ANY
CONSIDERATION THEREFOR, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE
OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S
RULES."
