EXHIBIT 4.3
NOVADEL PHARMA INC.
NONQUALIFIED STOCK OPTION AGREEMENT
AGREEMENT, made as of this [INSERT DATE], by and between NOVADEL PHARMA
INC., a Delaware corporation, having offices at 00 Xxxxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 (the "Company"), and [INSERT NAME AND ADDRESS] (the
"Optionee").
WHEREAS, on the date hereof the Optionee was [DESCRIBE EVENT]; and,
WHEREAS, the grant of the within Options, which are to vest according to a
schedule contained in this Agreement, have been authorized by the Board of
Directors of the Company (the "Board");
NOW, THEREFORE, it is agreed:
1. DATE OF GRANT. The date of grant of this Option is [INSERT DATE].
2. NATURE OF THE OPTION. This Option is a nonqualified non-plan Option, pursuant
to which Optionee is hereby granted the right, subject to the terms and
conditions hereof, to purchase up to [INSERT NUMBER] shares of the authorized
but unissued common stock, par value $.001 per share, of the Company ("Option
Shares").
3. EXERCISE PRICE. The exercise price is $[INSERT] for each share of Common
Stock.
4. EXERCISABILITY OF OPTION. This Option shall be exercisable during its term as
follows:
4.1 This Option shall vest and become exercisable [DESCRIBE].
4.2 This Option may not be exercised for a fraction of a share.
4.3 The Options granted hereunder shall expire at the close of business
[INSERT DATE].
5. METHOD OF EXERCISE.
5.1 NOTICE TO THE COMPANY. The Option shall be exercised in whole or in
part by written notice in substantially the form attached hereto as Exhibit A
directed to the Company at its principal place of business accompanied by full
payment as hereinafter provided of the exercise price for the number of Option
Shares specified in the notice.
5.2 DELIVERY OF OPTION SHARES. The Company shall deliver a certificate for
the Option Shares to the Optionee as soon as practicable after payment therefor.
5.3 PAYMENT OF PURCHASE PRICE.
5.3.1 CASH PAYMENT. The Optionee shall make all payments by wire
transfer, certified or bank check, in each case payable to the order of the
Company; the Company shall not be required to deliver certificates for Option
Shares until the Company has confirmed the receipt of good and available funds
in payment of the purchase price thereof.
5.3.2 PAYMENT OF WITHHOLDING TAX. Any required withholding tax shall
be paid in cash or certified or bank check or company check.
5.3.3 RESTRICTIONS ON EXERCISE. This Option may not be exercised if
the issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G") as
promulgated by the Federal Reserve Board. As a condition to the exercise of this
Option, the Company may require the Optionee to make any representation and
warranty to the Company as may be required by any applicable law or regulation.
5.3.4 CASHLESS EXERCISE. Notwithstanding the provisions of paragraph
5.3.1, above, the Optionee may, at his discretion, elect to exercise the Options
in whole or in part by receiving Shares equal to the value (as determined below)
of the Options being exercised, in which event the Company shall issue to the
Optionee a number of Shares calculated on the basis of the following formula:
X = Y(A-B)
------
A
Where: X = the number of Shares to be issued to the Optionee
Y = the number of Options to be exercised
A = the current Market Price of one share of Common Stock
calculated as of the last business day immediately
preceding the exercise of the Options
B = the Exercise Price
6. OPTIONEE'S REPRESENTATIONS. The Optionee hereby represents and warrants to
the Company that:
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6.1 INVESTMENT INTENT. The Optionee is acquiring the Option and shall
acquire the Option Shares for his own account and not with a view towards the
distribution thereof;
6.2 OPTION SHARES RESTRICTED. The Optionee understands that the Optionee
must, for an indefinite period of time, bear the economic risk of the investment
in the Option Shares, which cannot be sold by him unless they are registered
under the Securities Act of 1933, as amended (the "1933 Act") or an exemption
therefrom is available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the 1933 Act;
6.3 ACCESS TO INFORMATION. In his position with the Company, the Optionee
has had both the opportunity to ask questions and receive answers from the
officers and directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to obtain
any additional information to the extent the Company possesses or may possess
such information or can acquire it without unreasonable effort or expense
necessary to verify the accuracy of the information contained in the Company's
offering documents.
6.4 TRANSFER RESTRICTIONS. The Optionee is aware that the Company shall
place stop transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an exemption
therefrom as provided herein; and
6.5 LEGENDS. The certificates evidencing the Option Shares shall bear the
following legends:
"The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of
1933. The shares may not be sold or transferred in the absence of
such registration or an exemption therefrom under the 1933 Act."
"The shares represented by this certificate have been acquired
pursuant to a Stock Option Agreement, dated as of [INSERT DATE], a
copy of which is on file with the Company, and may not be
transferred, pledged or disposed of except in accordance with the
terms and
conditions thereof."
7. WITHHOLDING TAX. Not later than the date as of which an amount first becomes
includable in the gross income of the Optionee for Federal income tax purposes
with respect to the Option, the Optionee shall pay to the Company, or make
arrangements satisfactory to the Committee regarding the payment of, any
Federal, state and local taxes of any kind required by law to be withheld or
paid with respect to such amount. The obligations of the Company pursuant to
this Agreement shall be conditional upon such payment or arrangements with the
Company and the Company shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise due to the Optionee
from the Company.
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8. TERMINATION OF [DESCRIBE]. If the Optionee ceases to serve as [DESCRIBE] of
the Company, Optionee may, but only for a period of thirty (30) days after the
date on which Optionee ceased to be a [DESCRIBE] of the Company, exercise this
Option, to the extent Optionee was entitled to exercise it at the date of
termination. If, however, Optionee's [DESCRIBE] is terminated by the Company for
Cause, as commonly defined, this Option shall become void effective upon the act
of termination.
9. DEATH OR INCAPACITY OF OPTIONEE. This Option shall survive the death or
incapacity of the Optionee, and shall bind and enure to the benefit of the
Optionee's heirs, executors, administrators of personal representatives.
10. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in any
manner without the Optionee obtaining the express written consent of the Company
prior to the proposed transfer.
11. EARLY DISPOSITION OF SHARES. [INTENTIONALLY OMITTED]
12. TERM OF OPTION. This Option may not be exercised more than ten (10) years
from the date of grant of this Option, and may be exercised during such term
only in accordance with the terms of this Option Agreement.
13. RESTRICTION ON TRANSFER OF OPTION SHARES. Anything in this Agreement to the
contrary notwithstanding, the Optionee hereby agrees that it shall not sell,
transfer by any means or otherwise dispose of the Option Shares acquired by it
without registration under the 1933 Act, or in the event that they are not so
registered, unless (i) an exemption from the 1933 Act registration requirements
is available thereunder, and (ii) the Optionee has furnished the Company with
notice of such proposed transfer and the Company's legal counsel, in its
reasonable opinion, shall deem such proposed transfer to be so exempt.
14. MISCELLANEOUS.
14.1 NOTICES. All notices, requests, deliveries, payments, demands and
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or sent
by registered or certified mail, or by private courier, return receipt
requested, postage prepaid to the Company at its principal executive office and
to the Optionee at his address set forth above, or to such other address as
either party shall have specified by notice in writing to the other. Notice
shall be deemed duly given hereunder when delivered or mailed as provided
herein.
14.2 LAW PARAMOUNT; CONFLICTS WITH LAW. This Agreement and the Option
shall, in all respects, be subject to the requirements of any applicable law or
regulation, whether or not stated herein. In the event of a conflict between the
provisions of law or regulation and the provisions of this Agreement, the
provisions of law or regulation shall in all respects be controlling.
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14.3 STOCKHOLDER RIGHTS. The Optionee shall not have any of the rights of
a stockholder with respect to the Option Shares until such shares have been
issued after the due exercise of the Option.
14.4 WAIVER. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
14.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended except by writing executed by the Optionee and the Company.
14.6 BINDING EFFECT; SUCCESSORS. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and, to the extent not prohibited
herein, their respective heirs, successors, assigns and representatives. Nothing
in this Agreement expressed or implied, is intended to confer on any person
other than the parties hereto and as provided above, their respective heirs,
successors, assigns and representatives any rights, remedies, obligations or
liabilities.
14.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (without regard to choice of
law provisions).
14.8 HEADINGS. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written.
NOVADEL PHARMA INC.
(a Delaware corporation)
By:______________________________
Xxxx X. Xxxxxxxx, President
_________________________________
Optionee
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EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
_________________________
Date
NovaDel Pharma Inc.
Attention: Board of Directors
RE: NOVADEL PHARMA INC.
PURCHASE OF OPTION SHARES
Gentlemen:
In accordance with the Stock Option Agreement dated as of [INSERT DATE]
("Agreement") between [INSERT NAME] ("Optionee") and Novadel Pharma Inc. (the
"Company"), the Optionee hereby irrevocably elects to exercise the right to
purchase ___________ shares of the Company's common stock, par value $.001 per
share ("Common Stock"), which are being purchased for investment and not for
resale.
As payment for my shares, enclosed is (check and complete applicable
box[es]):
------
a [certified check] [bank check] payable to the order of
"NovaDel Pharma Inc." in the sum of $__________;
------
------
confirmation of wire transfer in the amount of
$__________; and/or
------
------
cashless exercise per paragraph 5.3.4
------
The Optionee hereby represents, warrants to, and agrees with, the Company
that
(i) The Optionee is acquiring the Option Shares for his own account
for investment purposes only and not with a view to, or for the resale in
connection with any "distribution" thereof for purposes of the Securities Act of
1933 (the "1933 Act");
(ii) The Optionee is aware of the Company's business affairs and
financial condition, and have acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire the securities. The
Optionee has received a copy of all reports and documents required to be filed
by the Company with the Commission pursuant to the Securities Exchange Act of
1934 ("Exchange Act") within the last 24 months and all reports issued by the
Company to its stockholders;
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(iii) The Optionee understands that he must bear for an indefinite
period of time the economic risk of an investment in the Option Shares, which
cannot be sold by him unless they are registered under the 1933 Act or an
exemption therefrom is available thereunder and that the Company is under no
obligation to register the Option Shares for sale under the 1933 Act;
(iv) In his position with the Company, the Optionee has had both the
opportunity to ask questions and receive answers from the officers and directors
of the Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional information
to the extent the Company possess or may possess such information or can acquire
it without unreasonable effort or expense necessary to verify the accuracy of
the information obtained pursuant to clause (ii) above;
(v) The Optionee is aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the Option Shares in the
absence of registration under the 1933 Act or an exemption therefrom as provided
herein;
(vi) The Optionee's rights with respect to the Option Shares shall,
in all respects, be subject to the terms and conditions of this Agreement; and
(vii) the certificates evidencing the Option Shares shall bear the
following legends:
"The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of
1933. The shares may not be sold or transferred in the absence of
such registration or an exemption therefrom under said Act."
"The shares represented by this certificate have been acquired
pursuant to a Stock Option Agreement, dated as of [INSERT DATE], a
copy of which is on file with the Company, and may not be
transferred, pledged or disposed of except in accordance with the
terms and conditions thereof."
(viii) The Optionee is familiar with the provisions of Rule 144,
promulgated under the 1933 Act, which, in substance, permits limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions, including, among other
things: (1) the availability of certain public information about the Company;
(2) the resale occurring not less than one year after the party has purchased,
and made full payment within the meaning of Rule 144, for the securities to be
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sold; and, in the case of an affiliate, or of a non-affiliate who has held the
securities less than two years, (3) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under Exchange Act) and the amount of securities
being sold during any three-month period not exceeding the specified limitations
stated in Rule 144, if applicable.
(ix) The Optionee further understands that at the time he decides to
sell the securities there may be no public market upon which to make such a
sale, and that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, the Optionee would be precluded from selling the securities under
Rule 144 even if the one-year minimum holding period is satisfied.
(x) The Optionee further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
1933 Act, or some other registration exemption will be required; and that,
notwithstanding the fact that Rule 144 is not exclusive, the Staff of the SEC
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
____________________________ ____________________________
(Signature) (Address)
______________________________ ______________________________
(Print Name)
______________________________
(Social Security Number)
