Item 8: Exhibit 10.33/Non-Qualified Stock Option Agreement, dated March 26, 2001
between the Company and Xxxx Xxxxxxx
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QULAIFIED STOCK OPTION AGREEMENT (this "AGREEMENT") is between
XXXX XXXXXXX (the "GRANTEE") and TCPI, INC., a Florida Company (the "COMPANY").
Each of the Grantee and the Company are also referred to in this agreement as
the "PARTIES."
WHEREAS, the Board of Directors of the Company (the "BOARD OF DIRECTORS")
has authorized the grant to the Grantee, for services to be rendered by the
Grantee as a consultant to the Company pursuant to the terms of a Consulting and
Marketing License Agreement (the "CONSULTING AGREEMENT") between the Company and
the Grantee, of a non-qualified stock option (the "OPTION") to purchase the
dollar amount of shares of the Company's common stock (the "COMMON STOCK")
specified in paragraph 1 of this Agreement, at the price specified in paragraph
1 of this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, the Parties hereby agree as follows:
1. Number of Shares; Exercise Price. Pursuant to action taken by the
Board of Directors, the Company hereby grants to the Grantee, in consideration
of consulting services to be performed for the benefit of the Company pursuant
to the Consulting Agreement, an option ("Option") to purchase $350,000 of shares
("Option Shares") of Common Stock set forth below, at the exercise price set
forth below:
Total Dollar amount: $350,000
Exercise Price or Percentage per Share (in US$): 35% discount from the
average closing bid price of the Company's Common Stock for the ten (10) trading
days prior to the exercise date of the Option Shares.
2. Term. The Option and this Agreement shall expire five (5) years from
the date of this Agreement.
3. Shares Subject to Exercise. The Option shall be immediately
exercisable and shall remain exercisable for the entire Term specified in
Paragraph 2 of this Agreement.
4. Method and Time of Exercise. The Option may be exercised in whole or
from time to time in part by written notice delivered to the Company stating the
number of Option Shares with respect to which the Option is then being
exercised, together with a check or wire to the Company in the amount equal to
the Exercise Price multiplied by the number of Option Shares then being issued
pursuant to the written notice of exercise. Not less than five thousand (5,000)
Option Shares may be purchased upon exercise of the Option at any one time
unless the number of Option Shares for which exercise of the Option is being
made is all of the Option Shares then issuable upon exercise of the Option. Only
whole shares shall be issued upon exercise of the Option.
5. Tax Withholding. As a condition to exercise of the options Grantee
shall be liable to pay to all applicable federal, state and local taxes and
Grantee hereby indemnifies and holds harmless Company from all such taxes,
penalties and interest arising from Grantee failing to pay such taxes.
6. Exercise Following Termination of Consulting Agreement. The Option
shall not terminate as a result of the termination of Grantee's services as a
consultant to the Company pursuant to the Consulting Agreement.
7. Transferability. The Option and this Agreement may not be assigned or
transferred except by will or by the laws of descent and distribution, and with
consent of the Company.
8. Grantee Not a Shareholder. The Grantee shall have no rights as a
shareholder with respect to the Option Shares issued from time to time upon
exercise of the Option until the earlier of: (1) the date of issuance of a stock
certificate or stock certificates to the Grantee applicable to the Option Shares
then issuable to the Grantee upon exercise of the Option and (2) the date on
which the Grantee or his nominee is recorded as owner of such Option Shares on
the Company's stock ledger by the Company's registrar and transfer agent, which
may be the Company.
Except as set forth in paragraph 13 of this Agreement, no adjustment will be
made for dividends or other rights for which the record date is prior to the
earlier of the events described in clauses (1) and (2) of this paragraph.
9. Registration Rights. Upon signing this Agreement, the Company shall
immediately, at the Company's expense, use its best efforts to file with the
Securities and Exchange Commission ("SEC"), a registration statement
("REGISTRATION STATEMENT") on Form S-8 or other comparable form, or if such form
is not then available, such other form of registration statement then available,
in such form as to comply with applicable federal laws for the purpose of
registering or qualifying the Option Shares for public resale by the Grantee
subject to the ability of the Company to register or qualify the Option Shares
under applicable law.
10. Restrictions on Transfer Legend Shares. The Grantee represents and
agrees that, upon the Grantee's exercise of the Option in whole or in part,
unless there is in effect at that time under the Securities Act of 1933 a
registration statement relating to the Option Shares, the Grantee will acquire
the Option Shares for the purpose of investment and not with a view to their
resale or further distribution, and that upon such exercise hereof, the Grantee
will furnish to the Company a written statement to such effect, satisfactory to
the Company in form and substance.
11. Shares Qualified for Listing. Company represents that its Common
Stock is qualified for trading or quotation on a nationally recognized
securities exchange or stock quotation system, including without limitation the
NASDAQ Bulletin Board.
12. Notices. All notices to the Company shall be addressed to the Company
at the principal office of the Company at the address and facsimile number set
forth on the signature page of this Agreement, and all notices to the Grantee
shall be addressed to the Grantee at the address and facsimile number of the
Grantee set forth on the signature page of this Agreement or, if different, the
last address and facsimile number of file with the Company, or to such other
address and facsimile number as either may designate to the other in writing. A
notice shall be deemed to be duly given if and when enclosed in a properly
addressed sealed envelope deposited, postage prepared and followed by facsimile
to the addressee. In lieu of giving notice by mail as aforesaid, written notices
under this Agreement may be given by personal delivery to the Grantee or to the
Company (as the case may be) by nationally recognized courier or overnight
delivery service.
13. Adjustments. If there is any change in the capitalization of the
Company after the date of this Agreement affecting in any manner the number of
kind of outstanding share of Common Stock of the Company, whether by stock
dividend, stock split, reclassification or recapitalization of such stock, or
because the Company has merged or consolidated with one or more other
corporations (and provided the Option does not thereby terminate pursuant to
paragraph 14 of this Agreement), then the number and kind of shares then subject
to the Option and the exercise price to be paid for the Option Shares shall be
appropriately adjusted by the Board of Directors; PROVIDED HOWEVER, that in no
event shall adjustment result in the Company being required to sell or issue any
fractional shares. Any such adjustment shall be made without change in the
aggregate exercise price applicable to the unexercised portion of the Option,
but with an appropriate adjustment to the exercise price of each Option Share or
other unit of security then covered by the Option and this Agreement.
14. Cessation of Corporate Existence. Notwithstanding any other provision
of this Agreement, in the event of the reorganization, merger or consolidation
of the Company with one or more corporations as a result of which the Company is
not the surviving corporation, or the sale of substantially all the assets of
the Company or of more than fifty percent (50%) of the then outstanding stock of
the Company to another corporation or other entity in a single transaction, the
Option granted hereunder shall terminate, PROVIDED HOWEVER, that not later than
five (5) days before the effective date of such merger or consolidation or sale
of assets in which the Company is not the surviving corporation, the surviving
corporation may, but shall not be so obligated to, tender to the Grantee an
option to purchase a number of shares of capital stock of the surviving
corporation equal to the number of Option Shares then issuable upon exercise of
the Option, and such new option or options for shares of the surviving
corporation shall contain such terms, conditions and provisions as shall be
required substantially to preserve the rights and benefits of the Options and
this Agreement.
15. Risk of Investment. The Grantee hereby acknowledges that he is aware
of the HIGH DEGREE OF RISK of the securities underlying this Option Grant.
Grantee acknowledges that he has performed a due diligence investigation with
respect the securities underlying this Option Grant and has sought accounting,
legal and tax advice, which the Grantee deems appropriate. Company directs the
attention of Optionee to the fact that the Company is furnishing together with
this Non-qualified Stock Option Agreement the following documents (a)
Preliminary Proxy statement filed with the Securities Exchange Commission on
Xxxxx 0, 0000, (x) Prospectus dated
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December 12, 2000 and supplement thereto dated December 20, 2000, (c) Form 10-Q
for the quarterly period ended September 30, 2000 and (d) Form 10-K Annual
Report for the fiscal year ended December 31, 1999. Grantee acknowledges that
more current information is available through the Securities and Exchange
Commission XXXXX reporting system. The purpose of the above mentioned documents
is to furnish Grantee with information concerning the business and risk factors
relating to the Company.
16. Miscellaneous.
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(a) Entire Agreement. This Agreement and the Consulting
Agreement contain the entire agreement between the Parties, and may not
be waived, amended, modified or supplemented except by agreement in
writing signed by the Party against whom enforcement of any waiver,
amendment, modification or supplement is sought. Waiver of or failure to
exercise any rights provided by this Agreement and the Consulting
Agreement in any respect shall not be deemed a waiver of any further or
future rights.
(b) Governing Law. This Agreement shall be construed under the
internal laws of the State of New York, and the Parties agree that the
exclusive jurisdiction for any litigation or arbitration arising from
this Agreement shall be in New York City, New York.
(c) Counterpart. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which when
taken together shall constitute one agreement.
(d) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s)
shall be excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were excluded and shall be
enforceable in accordance with its terms.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date set forth below.
Date: March 26, 2001 OPTIONEE:
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Social Security Number: XXX-XX-XXX
Address for Notices:
X.X. Xxx 0000
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Xxxxxxx, XX 00000
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TCPI, INC.
By: /s/ Xxxxxxx Block, Ph.D.
----------------------------
Xxxxxxx Block, Ph.D.
President and Chief Executive Officer
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