EXHIBIT 4.9
2001 DIRECTORS' STOCK OPTION PLAN OF
BENTLEY PHARMACEUTICALS, INC.
NONQUALIFIED STOCK OPTION CONTRACT
THIS NONQUALIFIED STOCK OPTION CONTRACT entered into as of _______ __,
200_ between Bentley Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and ______________ (the "Optionee").
W I T N E S S E T H:
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1. The Company, in accordance with the allotment made by the Board of
Directors of the Company or the committee of the Board of Directors designated
to administer the Plan (collectively, the "Administrators") and subject to the
terms and conditions of the 2001 Directors' Stock Option Plan of the Company
(the "Plan"), grants to the Optionee an option to purchase an aggregate of
______ shares of the Common Stock, $.02 par value per share, of the Company
("Common Stock") at an exercise price of $____ per share. This option is not
intended to constitute an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. (a) The term of this option shall be ten (10) years from the date
hereof, subject to earlier termination as provided in the Plan.
(b) Except as provided in Paragraph 4 hereof, this option shall,
provided the Optionee is then a director of the Company, become exercisable on
________.
(c) The right to purchase shares of Common Stock under this option
shall be cumulative, so that if the full number of shares purchasable in a
period shall not be purchased, the balance may be purchased at any time or from
time to time thereafter, but not after the expiration of the option.
Notwithstanding the foregoing, this option may not be exercised at any time in
an amount less than 100 shares (or the remaining shares then covered by and
purchasable under the option if less than 100) and in no event may a fraction of
a share of Common Stock be purchased under this option.
3. This option shall be exercised by giving written notice to the
Company at its then principal office, Attention: Secretary, stating that the
Optionee is exercising the option hereunder, specifying the number of shares
being purchased and accompanied by payment in full of the aggregate purchase
price therefor (a) in cash or by certified check, (b) with the authorization of
the Administrators, with previously acquired shares of Common Stock having an
aggregate fair market value, on the date of exercise, equal to the aggregate
exercise price of all options being exercised, or (c) with the authorization of
the Administrators, any combination of the foregoing.
4. The Company may withhold cash and/or, with the authorization of the
Administrators, shares of Common Stock to be issued to the Optionee in the
amount which the Company determines is necessary to satisfy its obligation to
withhold taxes or other amounts
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incurred by reason of the grant or exercise of this option or the disposition of
the underlying shares of Common Stock. Alternatively, the Company may require
the Optionee to pay the Company such amount in cash promptly upon demand.
5. Notwithstanding the foregoing, this option shall not be exercisable
by the Optionee unless (a) a Registration Statement under the Securities Act of
1933, as amended (the "Securities Act") with respect to the shares of Common
Stock to be received upon the exercise of this option shall be effective and
current at the time of exercise or (b) there is an exemption from registration
under the Securities Act for the issuance of the shares of Common Stock upon
such exercise. The Optionee hereby represents and warrants to the Company that,
unless such a Registration Statement is effective and current at the time of
exercise of this option, the shares of Common Stock to be issued upon the
exercise of this option will be acquired by the Optionee for his own account,
for investment only and not with a view to the resale or distribution thereof.
In any event, the Optionee shall notify the Company of any proposed resale of
the shares of Common Stock issued to him upon exercise of this option. Any
subsequent resale or distribution of shares of Common Stock by the Optionee
shall be made only pursuant to (x) a Registration Statement under the Securities
Act which is effective and current with respect to the sale of shares of Common
Stock being sold or (y) a specific exemption from the registration requirements
of the Securities Act, but in claiming such exemption, the Optionee shall, prior
to any offer of sale or sale of such shares of Common Stock, provide the Company
(unless waived by the Company) with a favorable written opinion of counsel, in
form and substance satisfactory to the Company, as to the applicability of such
exemption to the proposed sale or distribution. Such representations and
warranties shall also be deemed to be made by the Optionee upon each exercise of
this option. Nothing herein shall be construed as requiring the Company to
register the shares subject to this option under the Securities Act.
6. The Company may affix appropriate legends upon the certificates for
shares of Common Stock issued upon exercise of this option and may issue such
"stop transfer" instructions to its transfer agent in respect of such shares as
it determines, in its discretion, to be necessary or appropriate to (a) prevent
a violation of, or to perfect an exemption from, the registration requirements
of the Securities Act, (b) implement the provisions of the Plan or this Contract
or any other agreement between the Company and the Optionee with respect to such
shares of Common Stock or (c) permit the Company to determine the occurrence of
a "disqualifying disposition," as described in Section 421(b) of the Code, of
the shares of Common Stock transferred upon the exercise of this option.
7. Nothing in the Plan or herein shall confer upon the Optionee any
right to continue in the employ of the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or any of its Subsidiaries to terminate such employment at any time for any
reason whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
8. The Company and the Optionee agree that they will both be subject
to and bound by all of the terms and conditions of the Plan, a copy of which is
attached hereto as Exhibit A and made a part hereof. Any capitalized term not
defined herein shall have the
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meaning ascribed to it in the Plan. In the event of a conflict between the terms
of this Contract and the terms of the Plan, the terms of the Plan shall govern.
9. The Optionee represents and agrees that he will comply with all
applicable laws relating to the Plan and the grant and exercise of this option
and the disposition of the shares of Common Stock acquired upon exercise of the
option, including without limitation, federal and state securities and "blue
sky" laws.
10. This option is not transferable by the Optionee otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
11. This Contract shall be binding upon and inure to the benefit of
any successor or assign of the Company and to any heir, distributee, or Legal
Representative entitled to the Optionee's rights hereunder.
12. This Contract shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without regard to the
conflicts of law rules thereof.
13. The invalidity or illegality of any provision herein shall not
affect the validity of any other provision.
14. The Optionee agrees that the Company may amend the Plan and the
options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as
of the day and year first above written.
BENTLEY PHARMCEUTICALS, INC.
By:
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Name:
Title:
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_______________, Optionee
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Address
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