EXHIBIT 99.7
NON-STATUTORY STOCK OPTION
FOR XXXXX TO NON-EMPLOYEE DIRECTORS
Non-transferable
GRANT TO
-----------------------------
(the "Optionee")
the right to purchase from Xxxxx Respiratory Therapeutics, Inc. (the "Company")
-----------
shares of its common stock, $0.01 par value, at the price of $_____ per share
pursuant to and subject to the provisions of the Xxxxx Respiratory Therapeutics,
Inc. Director Compensation Plan (the "Director Compensation Plan"), which is
operated as a subplan of the Xxxxx Respiratory Therapeutics, Inc. 2005 Incentive
Plan (the "Equity Incentive Plan" and, together with the Director Compensation
Plan, the "Plans"), and to the terms and conditions set forth on the following
page.
Unless vesting is accelerated in accordance with the Plans, the Options shall
vest (become exercisable) in accordance with the following schedule, provided
Optionee is a director of the Company on the applicable vesting date:
Anniversary of Grant Date Percent of Option Shares Vested
IN WITNESS WHEREOF, Xxxxx Respiratory Therapeutics, Inc., acting by and through
its duly authorized officers, has caused this Certificate to be executed as of
the Grant Date.
XXXXX RESPIRATORY THERAPEUTICS, INC.
By: _________________________________
Its: Authorized Officer
Grant Date: _______________
Accepted by Optionee:
-------------------------------------
TERMS AND CONDITIONS
1. Grant of Option. Xxxxx Respiratory Therapeutics, Inc. (the "Company")
hereby grants to the Optionee named on Page 1 hereof ("Optionee"), subject to
the restrictions and the terms and conditions set forth in the Plans and in this
award certificate (the "Certificate"), stock options to purchase from the
Company (the "Options"), the number of shares indicated on Page 1 of the
Company's $0.01 par value common stock, at the exercise price per share set
forth on Page 1. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Plans.
2. Vesting of Options. The Options shall vest (become exercisable) in
accordance with the schedule shown on Page 1 of this Certificate.
Notwithstanding the foregoing vesting schedule, all Options shall become fully
vested and exercisable upon (i) the termination of Optionee's service as a
director of the Company due to death, Disability, or termination without Cause,
or (ii) a Change in Control of the Company, if the Options are not assumed by
the surviving company or equitably converted or substituted.
3. Term of Options and Limitations on Right to Exercise. The term of the
Options will be for a period of ten years, expiring at 5:00 p.m., Eastern Time,
on the tenth anniversary of the Grant Date (the "Expiration Date"). To the
extent not previously exercised, the Options will lapse prior to the Expiration
Date upon the earliest to occur of the following circumstances:
(a) Thirty-six months after the termination of Optionee's service as a
director of the Company for any reason other than for Cause;
(b) 5:00 p.m., Eastern Time, on the date of the termination of Optionee's
service as a director of the Company if such termination is for Cause.
Upon Optionee's death, the Options may be exercised by Optionee's
beneficiary designated pursuant to the Plans. If Optionee or his or her
beneficiary exercises an Option after termination of service, the Options may be
exercised only with respect to the Shares that were otherwise vested on
Optionee's termination of service.
4. Exercise of Option. The Options shall be exercised by (a) written
notice directed to the Secretary of the Company or his or her designee at the
address and in the form specified by the Secretary from time to time and (b)
payment to the Company in full for the Shares subject to such exercise (unless
the exercise is a broker-assisted cashless exercise, as described below). If the
person exercising an Option is not Optionee, such person shall also deliver with
the notice of exercise appropriate proof of his or her right to exercise the
Option. Payment for such Shares shall be in (a) cash, (b) Shares previously
acquired by the purchaser, which have been held by the purchaser for such period
of time, if any, as necessary to avoid the recognition of an expense under
generally accepted accounting principles as a result of the exercise of the
Options, (c) withholding of Shares from the Option, but only if such withholding
would not result in the recognition of an expense under generally accepted
accounting principles as a result of the exercise of the Option, or (d) any
combination thereof, for the number of Shares specified in such written notice.
The value of Shares surrendered or withheld for this purpose shall be the Fair
Market Value as of the last trading day immediately prior to the exercise date.
To the extent permitted under Regulation T of the Federal Reserve Board, and
subject to applicable securities laws and any limitations as may be applied from
time to time by the Committee (which need not be uniform), the Options may be
exercised through a broker in a so-called "cashless exercise" whereby the broker
sells the Option Shares on behalf of Optionee and delivers cash sales proceeds
to the Company in payment of the exercise price.
5. Beneficiary Designation. Optionee may, in the manner determined by the
Committee, designate a beneficiary to exercise the rights of Optionee hereunder
and to receive any distribution with respect to the Options upon Optionee's
death. A beneficiary, legal guardian, legal representative, or other person
claiming any rights hereunder is subject to all terms and conditions of this
Certificate and the Plans, and to any additional restrictions deemed necessary
or appropriate by the Committee. If no beneficiary has been designated or
survives Optionee, the Options may be exercised by the legal representative of
Optionee's estate, and payment shall be made to Optionee's estate. Subject to
the foregoing, a beneficiary designation may be changed or revoked by Optionee
at any time provided the change or revocation is filed with the Company.
6. Limitation of Rights. The Options do not confer to Optionee or
Optionee's beneficiary designated pursuant to Paragraph 5 any rights of a
shareholder of the Company unless and until Shares are in fact issued to such
person in connection with the exercise of the Options. Nothing in this
Certificate shall interfere with or limit in any way the right of the Company to
terminate Optionee's service as a director at any time, nor confer upon Optionee
any right to continue service as a director of the Company.
7. Stock Reserve. The Company shall at all times during the term of this
Certificate reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of this Certificate.
8. Restrictions on Transfer and Pledge. No right or interest of Optionee
in the Options may be pledged, encumbered, or hypothecated to or in favor of any
party other than the Company or an Affiliate, or shall be subject to any lien,
obligation, or liability of Optionee to any other party other than the Company
or an Affiliate. The Options are not assignable or transferable by Optionee
other than by will or the laws of descent and distribution or pursuant to a
domestic relations order that would satisfy Section 414(p)(1)(A) of the Code if
such Section applied to an Option under the Plans.
9. Restrictions on Issuance of Shares. If at any time the Committee shall
determine in its discretion, that registration, listing or qualification of the
Shares covered by the Options upon any Exchange or under any foreign, federal,
or local law or practice, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition to the exercise of the
Options, the Options may not be exercised in whole or in part unless and until
such registration, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
10. Plans Control. The terms contained in the Plans are incorporated into
and made a part of this Certificate and this Certificate shall be governed by
and construed in accordance with the Plans. In the event of any actual or
alleged conflict between the provisions of the Plans and the provisions of this
Certificate, the provisions of the Plans shall be controlling and determinative.
In the event of any actual or alleged conflict between the provisions of the two
Plans, the provisions of the Equity Incentive Plan shall be controlling and
determinative.
11. Successors. This Certificate shall be binding upon any successor of
the Company, in accordance with the terms of this Certificate and the Plans.
12. Severability. If any one or more of the provisions contained in this
Certificate is invalid, illegal or unenforceable, the other provisions of this
Certificate will be construed and enforced as if the invalid, illegal or
unenforceable provision had never been included.
13. Notice. Notices and communications under this Certificate must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Company must be addressed to Xxxxx Respiratory Therapeutics, Inc., 000 Xxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000, Attn: Secretary, or any other address
designated by the Company in a written notice to Grantee. Notices to Grantee
will be directed to the address of Grantee then currently on file with the
Company, or at any other address given by Grantee in a written notice to the
Company.
