NONQUALIFIED STOCK OPTION AGREEMENT ALLION HEALTHCARE, INC. AMENDED AND RESTATED 2002 STOCK INCENTIVE PLAN
EXHIBIT
10.1
ALLION
HEALTHCARE, INC.
AMENDED
AND RESTATED 2002 STOCK INCENTIVE PLAN
[Date]
[Name]
Dear
[Name]:
This
Agreement confirms the grant of an option to you effective [______] (the “Grant
Date”) under the Allion Healthcare, Inc. Amended and Restated 2002 Stock
Incentive Plan (the “Plan”), upon the terms and conditions described herein. A
copy of the Plan is being furnished to you concurrently with the execution
of
this Agreement.
1. Grant
of Option.
Pursuant to action of the Committee under the Plan, Allion Healthcare, Inc.
(the
“Company”) hereby grants to you a nonqualified option to purchase (hereinafter
called the “Option”), subject to the provisions of the Plan and to the terms and
conditions hereinafter set forth, an aggregate of [_____] shares of the Common
Stock of the Company (the “Shares”) at a per share purchase price equal to
$[____]) (the “Exercise Price”). The Option is not intended to qualify as an
Incentive Stock Option within the meaning of the Plan. This grant is a matter
of
separate inducement and is not in lieu of salary or other compensation for
your
services.
2. Vesting
and Exercisability.
(a) Unless
accelerated pursuant to paragraph (b) below, this Option shall become vested
and
exercisable with respect to ____% of the Shares on [_____________]; provided
that you are still employed by the Company on each such vesting
date.
(b) Upon
the
occurrence of a Change in Control, the Committee may determine, in its sole
discretion, that all or a portion of the Option shall become vested and
exercisable, either upon the Change in Control or at such other time or times
as
the Committee determines.
3. Exercise
Requirements and Term.
(a) If
fewer
than the number of Shares then available for purchase pursuant to the Option
are
purchased at any time under this Agreement, you may purchase the remaining
Shares at any subsequent time during the term of the Option. The Option shall
not be exercised for fractional shares. Notation of any partial exercise will
be
made by the Company on Schedule 1 hereto.
(b) The
Option is exercisable by you only while you are in the employ of, or providing
service to, the Company or its subsidiaries as an employee, member of the Board
or independent consultant, except as otherwise provided in section 3(c) below.
(c) The
term
of the Option shall expire, and it shall cease to be exercisable, on the tenth
anniversary of the Grant Date (the “Expiration Date”). To the extent not
previously exercised, the Option will lapse prior to the Expiration Date upon
the earliest to occur of the following dates:
(i) Ninety
(90) days after your employment or service with the Company ceases for any
reason other than (i) for Cause, or (ii) by reason of your death or
Disability.
(ii)
One
(1)
year after your employment or service with the Company ceases by reason of
Disability.
(iii) One
(1)
year after your death after your employment or service with the Company ceases
by reason of your death.
(iv) 5:00
p.m.
Eastern Time, on the date your employment or service with the Company ceases
by
reason of Cause.
4. Method
of Exercise and Payment.
(a) The
Option shall be exercised by written notice, in a form substantially as attached
to this Agreement as Schedule A, delivered or mailed to the Secretary of the
Company at its principal office and specifying the number of Shares as to which
the Option is being exercised and identifying the Option by date of grant.
Payment for such Shares shall be (i) in cash or by certified check, (ii) by
delivery of whole shares of Common Stock owned by you for at least six months
(“Optionee Stock”) in full or partial payment of the Exercise Price, or (iii)
any combination thereof. The value of surrendered Shares for this purpose will
be equal to the Fair Market Value, calculated as provided in the Plan, of such
Optionee Stock as of the close of the business day immediately preceding the
date of delivery of the notice of election to exercise the Option. Any Optionee
Stock being delivered must be accompanied by a duly executed assignment to
the
Company in blank or with stock powers attached, together with a written
representation that such shares of Optionee Stock are owned by you free and
clear of all liens, claims and encumbrances and such other representations
as
the Company shall determine. Only whole shares of Optionee Stock with a Fair
Market Value up to, but not exceeding, the Exercise Price of the Shares as
to
which the Option is being exercised will be accepted hereunder. Delivery of
the
Shares of Optionee Stock may be made at the office of the Company or at the
offices of the transfer agent appointed for the transfer of shares of the
Company. The Committee may, in its discretion, refuse to accept any tendered
payment in the form of Shares, in which case it shall deliver the tender back
to
you and notify you of its refusal. In order to preserve your rights under any
Option, you must, within three business days after such notification, tender
to
the Company the cash or certified check required to pay for the Shares with
respect to which such Option is being exercised.
(b) It
shall
be a condition to the Company’s obligation to deliver Common Stock upon exercise
of any portion of the Option that you pay, or make provisions satisfactory
to
the Company, for the payment of any taxes which the Company or any subsidiary
is
obligated to withhold or collect with respect to such exercise or otherwise
with
respect to the Option.
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5. Transferability.
Your
rights under the Option may not be transferred or encumbered by you, except
by
will or the laws of descent and distribution, and this Option may be only
exercised by you during your lifetime.
6. Registration.
The
exercise of this Option and the delivery of Shares hereunder will be subject
to
the completion of any registration or qualification of the Option or the Shares
under state or federal securities laws, the requirements of any stock exchange
or similar organization, or under any ruling or regulation of any governmental
body or national securities exchange that the Company determines to be
applicable.
7. Restrictions
on Shares.
You
agree that, in connection with any registration of the Company's securities,
upon the request of the Company or the underwriters managing any public offering
of the Company's securities, you will not sell or otherwise dispose of any
Shares without the prior written consent of the Company or such underwriters,
as
the case may be, for such period of time (not to exceed 180 days) after the
effective date of such registration requested by such managing underwriters
and
subject to all restrictions as the Company or the underwriters may
specify.
8. Incorporation
of Plan Provisions.
This
Agreement is made pursuant to the Plan and is subject to all the terms and
provisions of the Plan as if the same were fully set forth herein. Capitalized
terms not otherwise defined herein shall have the meanings set forth for such
terms in the Plan. In the event of any actual or alleged conflict between the
provisions of the Plan and the provisions of this Agreement, the provisions
of
the Plan shall be controlling and determinative.
9. Limitation
of Rights.
You
shall not be, nor have any of the rights or privileges of, a shareholder of
the
Company in respect of any Shares purchasable upon the exercise of the Option,
including any rights regarding voting or payment of dividends, unless and until
a certificate representing such Shares has been delivered to you. Nothing in
this Agreement shall interfere with or limit in any way the right of the Company
or any affiliate to terminate your employment or service at any time, nor confer
upon you any right to continue in the employ or service of the Company or any
affiliate.
10. Miscellaneous.
This
Agreement: (a) shall be binding upon and inure to the benefit of any successor
of the Company and your successors, assigns and estate, including your
executors, administrators and trustees; (b) shall be governed by the laws of
the
State of Delaware and any applicable laws of the United States; and (c) may
not
be amended except in writing and signed by both parties hereto.
3
To
confirm your acceptance of the foregoing, please sign and return one copy of
this Agreement to Xxxxxxx X. Xxxxx, Allion Healthcare, Inc.
| ALLION HEALTHCARE, INC. | ||
| |
|
|
| By: | ||
|
Xxxxxxx X. Xxxxx |
||
| Chairman, Chief Executive Officer and President | ||
ACCEPTED
AND AGREED:
Date:
___________________
4
SCHEDULE
A
NONQUALIFIED
STOCK OPTION EXERCISE FORM
|
(Date)
|
||
| Allion Healthcare, Inc. | ||
| Attention: Xxxxx X. Xxxxxxx, Secretary | ||
Dear
Sir/Madam:
The
undersigned elects to exercise the Option to purchase ______ shares of the
Common Stock of Allion Healthcare, Inc. (the “Company”) under and pursuant to
the NonQualified Stock Option Agreement (the “Agreement”) between the Company
and the undersigned dated as of _________.
Delivered
herewith in payment of the option price is: (1) a
certified check in the amount of $_________; and/or (2) certificates for ___
shares of common stock of the Company, valued at $_________ with appropriate
stock powers attached thereto, which shares have been owned by the undersigned
for at least six months and are free and clear of all liens, claims and
encumbrances.
I
hereby
authorize the Company or any subsidiary corporation by which I am serving to
withhold from any cash compensation paid to me, or in my behalf, an amount
sufficient to discharge any Federal, State and local wage withholding taxes
imposed on the Company, or the subsidiary corporation by which I am employed,
in
respect of my exercise of the Option. I agree that the Company, or the
subsidiary corporation by which I am employed, may, in its discretion, hold
the
stock certificate to which I am entitled upon exercise of the Option, as
security for the payment of the aforementioned withholding tax liability, until
cash sufficient to pay that liability has been accumulated.
| Optionee |
5
SCHEDULE
1
NOTATION
AS TO PARTIAL EXERCISE
|
Date
of
Exercise
|
Number
of
Shares
Purchased
|
Balance
of
Shares
on
Option
|
Company
Secretary
or
Ass’t. Secretary
Signature
|
Notation
Date
|
||||
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