1
EXHIBIT 10.042
SUCCEEDING GRANT
ALLERGY XXXXXXXXXX.XXX, INC.
1999 DIRECTORS STOCK OPTION PLAN
DIRECTORS NONQUALIFIED SUCCEEDING STOCK OPTION GRANT
This Stock Option Grant (this "GRANT") is made and entered into as of
the Date of Grant set forth below (the "DATE OF GRANT") by and between Allergy
Xxxxxxxxxx.xxx, Inc., a Delaware corporation (the "COMPANY"), and the Optionee
named below ("OPTIONEE"). Capitalized terms not defined herein shall have the
meanings ascribed to them in the Company's 1999 Directors Stock Option Plan
(the "PLAN").
Optionee:
---------------------------------------------------------
Optionee's Address:
---------------------------------------------------------
---------------------------------------------------------
Total Shares Subject to Option: 5,000
---------------------------------------------------------
Exercise Price Per Share:
---------------------------------------------------------
Date of Grant:
---------------------------------------------------------
Expiration Date:
---------------------------------------------------------
(unless earlier terminated under Section 4 hereof)
1. GRANT OF OPTION. The Company hereby grants to Optionee an option (this
"OPTION") to purchase up to the total number of shares of Common Stock of the
Company set forth above as Total Shares Subject to Option (collectively, the
"SHARES") at the Exercise Price Per Share set forth above (the "EXERCISE
PRICE"), subject to all of the terms and conditions of this Grant and the Plan.
2. EXERCISE AND VESTING OF OPTION. Subject to the terms and conditions of
the Plan and this Grant, this Option shall be exercisable as it vests. Subject
to the terms and conditions of the Plan and this Grant, this Option shall vest
as to twenty-five percent (25%) of the Shares on the first annual anniversary
of the Date of Grant and as to 2.08333% of the Shares on each subsequent
monthly anniversary of the Date of Grant, so long as the Optionee continuously
remains a member of the Board of Directors (a "BOARD MEMBER") or a consultant
of the Company.
3. RESTRICTION ON EXERCISE. This Option may not be exercised unless such
exercise is in compliance with the Securities Act, and all applicable state
securities laws, as they are in effect on the date of exercise, and the
requirements of any stock exchange or national market system on which the
Company's Common Stock may be listed at the time of exercise. Optionee
understands that the Company is under no obligation to register, qualify or
list the Shares with the SEC, any state securities commission or any stock
exchange or national market system to effect such compliance.
4. TERMINATION OF OPTION. Except as provided below in this Section, this
Option shall terminate and may not be exercised if Optionee ceases to be a
Board Member or consultant of the Company. The date on which Optionee ceases to
be a Board Member or consultant of the Company shall be referred to as the
"TERMINATION DATE".
2
4.1 Termination Generally. If Optionee ceases to be a Board Member or
consultant of the Company for any reason except death or disability, then this
Option, to the extent that it has vested as of the Termination Date, may be
exercised by Optionee no later than seven (7) months after the Termination
Date, but in no event later than the Expiration Date.
4.2 Death or Disability. If Optionee ceases to be a Board Member or
consultant of the Company because of the death of Optionee or the disability of
Optionee (whether temporary or permanent, partial or total, as determined by
the Committee) then this Option, to the extent that it has vested as of the
Termination Date, may be exercised by Optionee (or Optionee's legal
representative) no later than twelve (12) months after the Termination Date,
but in no event later than the Expiration Date.
5. MANNER OF EXERCISE.
5.1 Exercise Agreement. This Option shall be exercisable by delivery to
the Company of an executed written Directors Stock Option Exercise Agreement in
the form attached hereto as Exhibit A, or in such other form as may be approved
by the Committee, which shall set forth Optionee's election to exercise some or
all of this Option, the number of Shares being purchased, any restrictions
imposed on the Shares and such other representations and agreements as may be
required by the Company to comply with applicable securities laws.
5.2 Payment. Payment for the Shares purchased upon exercise of this
Option may be made (a) in cash or by check; (b) by surrender of shares of
Common Stock of the Company that have been owned by Optionee for more than six
(6) months (and which have been paid for within the meaning of SEC Rule 144
and, if such shares were purchased from the Company by use of a promissory
note, such note has been fully paid with respect to such shares) or were
obtained by the Optionee in the open public market, having a Fair Market Value
equal to the Exercise Price of the Option; (c) by waiver of compensation due or
accrued to Optionee for services rendered; (d) provided that a public market
for the Company's stock exists, through a "same day sale" commitment from the
Optionee and a broker-dealer that is a member of the National Association of
Securities Dealers (an "NASD DEALER") whereby the Optionee irrevocably elects
to exercise the Option and to sell a portion of the Shares so purchased to pay
for the Exercise Price and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the Exercise Price directly to the Company;
(e) provided that a public market for the Company's stock exists, through a
"margin" commitment from the Optionee and an NASD Dealer whereby the Optionee
irrevocably elects to exercise the Option and to pledge the Shares so purchased
to the NASD Dealer in a margin account as security for a loan from the NASD
Dealer in the amount of the Exercise Price, and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward the Exercise Price
directly to the Company; or (f) by any combination of the foregoing.
5.3 Withholding Taxes. Prior to the issuance of the Shares upon exercise
of this Option, Optionee shall pay or make adequate provision for any
applicable federal or state withholding obligations of the Company.
5.4 Issuance of Shares. Provided that such notice and payment are in form
and substance satisfactory to counsel for the Company, the Company shall cause
the Shares to be issued in the name of Optionee or Optionee's legal
representative. To enforce any restrictions on Optionee's Shares, the Committee
may require Optionee to deposit all certificates, together with stock powers or
other instruments of transfer approved by the Committee appropriately endorsed
in blank, with the Company or an agent designated by the Company to hold in
escrow until such restrictions have lapsed or terminated, and the Committee may
cause a legend or legends referencing such restrictions to be placed on the
certificates.
6. NONTRANSFERABILITY OF OPTION. During the lifetime of the Optionee, this
Option shall be exercisable only by Optionee or by Optionee's guardian or legal
representative, unless otherwise permitted by the Committee. This Option may
not be sold, pledged, assigned, hypothecated, transferred or disposed of in any
manner other than by will or by the laws of descent and distribution.
2
3
7. INTERPRETATION. Any dispute regarding the interpretation of this Grant
shall be submitted by Optionee or the Company to the Committee that administers
the Plan, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Committee shall be final and binding on the
Company and on Optionee. Nothing in the Plan or this Grant shall confer on
Optionee any right to continue as a Board Member or to provide services to the
Company as a consultant.
8. ENTIRE AGREEMENT. The Plan and the Directors Stock Option Exercise
Agreement in the form attached hereto as Exhibit A, and the terms and
conditions thereof, are incorporated herein by this reference. This Grant, the
Plan and the Directors Stock Option Exercise Agreement constitute the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersede all prior understandings and agreements with
respect to such subject matter.
ALLERGY XXXXXXXXXX.XXX, INC.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
3
4
ACCEPTANCE OF STOCK OPTION GRANT
Optionee hereby acknowledges receipt of a copy of the Plan, represents
that Optionee has read and understands the terms and provisions thereof, and
accepts this Option subject to all of the terms and conditions of the Plan and
this Grant. Optionee acknowledges that there may be adverse tax consequences
upon exercise of this Option or disposition of the Shares and that Optionee has
been advised by the Company that Optionee should consult a qualified tax
advisor prior to such exercise or disposition.
----------------------------------
, Optionee
------------------------
[ACCEPTANCE SIGNATURE PAGE TO DIRECTORS NONQUALIFIED SUCCEEDING STOCK OPTION
GRANT]
4
5
EXHIBIT A
DIRECTORS STOCK OPTION EXERCISE AGREEMENT
5
6
EXHIBIT A
ALLERGY XXXXXXXXXX.XXX, INC.
1999 DIRECTORS STOCK OPTION PLAN (THE "PLAN")
DIRECTORS STOCK OPTION EXERCISE AGREEMENT
I hereby elect to purchase the number of shares of Common Stock of
ALLERGY XXXXXXXXXX.XXX, INC. (the "COMPANY") as set forth below:
Optionee:
-------------------------------------------------
Number of Shares Purchased:
-------------------------------
Social Security Number:
-----------------------------------
Purchase Price per Share:
---------------------------------
Address:
--------------------------------------------------
Aggregate Purchase Price:
---------------------------------
Date of Stock:
--------------------------------------------
Option Grant:
---------------------------------------------
Type of Stock Option:
-------------------------------------
Exact Name of Title to Shares:
----------------------------
Nonqualified Stock Option:
--------------------------------
1. DELIVERY OF PURCHASE PRICE. Optionee hereby delivers to the Company the
Aggregate Purchase Price, to the extent permitted in the Directors Nonqualified
Stock Option Grant referred to above (the "GRANT") as follows (check as
applicable and complete):
[ ] in cash or by check in the amount of $___________________________,
receipt of which is acknowledged by the Company;
[ ] by delivery of _______________________ fully-paid, nonassessable
and vested shares of the Common Stock of the Company owned by Optionee
for at least six (6) months prior to the date hereof (and which have
been paid for within the meaning of SEC Rule 144), or obtained by
Optionee in the open public market, and owned free and clear of all
liens, claims, encumbrances or security interests, valued at the
current Fair Market Value of $ _________________ per share;
[ ] by the waiver hereby of compensation due or accrued to Optionee
for services rendered in the amount of
$ ______________________________ ;
[ ] through a "same-day-sale" commitment, delivered herewith, from
Optionee and the NASD Dealer named therein, in the amount of
$ _____________________________ ; or
[ ] through a "margin" commitment, delivered herewith from Optionee
and the NASD Dealer named therein, in the amount of
$ ___________________________ .
2. MARKET STANDOFF AGREEMENT. Optionee, if requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, agrees not to
sell or otherwise transfer or dispose of any Common Stock (or other securities)
of the Company held by Optionee during the period requested by the managing
underwriter following the effective date of a registration statement of the
Company filed under the Securities Act, provided that all officers and
directors of the Company are required to enter into similar agreements. Such
agreement shall be in writing in a form satisfactory to the Company and such
underwriter. The Company may impose stop-transfer instructions with respect to
the shares (or other securities) subject to the foregoing restriction until the
end of such period.
6
7
3. TAX CONSEQUENCES. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX
CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF THE SHARES.
OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX CONSULTANT(S)
OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE
SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
4. ENTIRE AGREEMENT. The Plan and the Grant are incorporated herein by
reference. This Agreement, the Plan and the Grant constitute the entire
agreement of the parties and supersede in their entirety all prior
understandings and agreements of the Company and Optionee with respect to the
subject matter hereof, and are governed by Georgia law except for that body of
law pertaining to conflict of laws.
DATE:
----------------------------- ---------------------------------------
SIGNATURE OF OPTIONEE
7
8
ALLERGY XXXXXXXXXX.XXX, INC.
1999 DIRECTORS STOCK OPTION PLAN
SPOUSE'S CONSENT
I acknowledge that I have read the foregoing Directors Stock Option
Exercise Agreement (the "AGREEMENT") and that I know its contents. I hereby
consent to and approve all of the provisions of the Agreement and agree that
the shares of the Common Stock of Allergy Xxxxxxxxxx.Xxx, Inc. purchased
thereunder (the "SHARES") and any interest I may have in such Shares are
subject to all the provisions of the Agreement. I will take no action at any
time to hinder operation of the Agreement on these Shares or any interest I may
have on them.
Date:
----------------------------
------------------------------------
SIGNATURE OF OPTIONEE'S SPOUSE
------------------------------------
SPOUSE'S NAME - TYPED OR PRINTED
------------------------------------
OPTIONEE'S NAME - TYPED OR PRINTED
8
