Exhibit 10.69
CURATIVE HEALTH SERVICES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, (this "Agreement") is made and entered into as of
this ___ day of ___ , 200_ by and between CURATIVE HEALTH SERVICES, INC., a
Minnesota corporation (the "Company"), and ___ ("Director"), an individual
resident of the State of ___ .
WITNESSETH, THAT:
WHEREAS, the Company pursuant to its [2001 Broad-Based Stock
Incentive Plan][2000 Stock Incentive Plan] (the "Plan"), wishes to grant this
stock option to Director.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. GRANT OF OPTION TO ACQUIRE COMMON STOCK.
(a) Grant; Effective Date; Option Price. The Company hereby notifies
Director that pursuant to the Plan, Director has been granted, effective as of
(the "Option Effective Date"), the right and option (hereinafter referred to as
the "Option") to purchase, on the terms and conditions set forth herein, all or
any part of an aggregate of ___ shares (the "Shares") of Common Stock, par value
$.01 per share, at a price per share equal to $______ (subject to adjustment as
provided herein, the "Option Price"). The Option is not intended to be an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"). The Company will at all times during the
Term (as defined below) reserve and keep available such number of shares of
Common Stock as will be sufficient to satisfy the requirements of this
Agreement.
(b) Duration and Exercisability of Option; Acceleration; Limitations
on Exercisability.
(i) The Option shall in all events terminate ten (10) years
after the Option Effective Date (such period being referred to herein as (the
"Term")). Subject to the other terms and conditions set forth herein, the Option
shall not be exercisable, in whole or in part, prior to ___ (the "Exercisability
Date"), at which time the Option shall become exercisable with respect to
one-third of the Shares and thereafter shall become exercisable with respect to
the balance of the Shares in equal installments on the last day of each of the
eight successive three (3) month periods following the Exercisability Date;
provided, however, that, notwithstanding the foregoing, the unexercised portion
of the Option shall become immediately exercisable in full (in accordance with
Section 1(d) below) upon (i) the death or disability of Director; or (ii) an
unsuccessful attempt by Director to win re-election to the Board (each of the
events described in clauses (i) and (ii) of this Section 1(b) being hereinafter
referred
to as "Acceleration Event"); provided further, however, that in no event shall
the Option be exercisable following the termination of the Term.
(ii) During the lifetime of Director, the Option shall be
exercisable only by Director (or by Director's proper personal representative or
legal guardian) and shall not be assignable or transferrable by Director other
than by will or the laws of descent and distribution.
(iii) The exercise of all or any part of the Option shall only
be effective at such time that the sale of the Shares of Common Stock issuable
pursuant to such exercise will not violate any state or federal securities or
other laws or the rules of the Nasdaq National Market or any other exchange upon
which the Company's securities may then be trading or quoted. Any other
provision of this Agreement notwithstanding, the Company shall have the right to
designate one or more periods of time, each of which shall not exceed 180 days
in length, during which the Option shall not be exercisable if the Company
determines (in its sole discretion) that such limitation on exercise could in
any way facilitate a lessening of any restriction on transfer pursuant to the
Securities Act of 1933, as amended (the "Act") or any state securities laws with
respect to any issuance of securities by the Company, facilitate the
registration or qualification of any securities by the Company under the Act or
any state securities laws, or facilitate the perfection of any exemption from
the registration or qualification requirements of the Act or any applicable
state securities laws for the issuance or transfer of any securities. Such
limitation on exercise shall not affect the date on which the Option becomes
exercisable or the Term of the Option pursuant to clause (i) of this Section
1(b) in any way other than to limit the periods during which the Option shall be
exercisable.
(c) No Rights as a Shareholder. Director shall have none of the rights of
a shareholder with respect to Shares subject to the Option until such Shares
shall have been issued to Director upon exercise of the Option. No adjustments
will be made for dividends or other distributions or rights if the applicable
record date occurs before a stock certificate is issued pursuant to Director's
exercise of the Option.
(d) Effect of Termination of Board Membership. If Director's membership on
the Board terminates as the result of an Acceleration Event, the unexercised
portion of the Option held at the time of such termination may be exercised in
whole or in part, by Director (or, in the case of Director's death, by the
person or persons (including Director's estate) to whom Director's rights under
the Option shall have passed by will or by laws of descent and distribution), at
any time within one (1) year after the date of such termination (but in no event
after the Term expires) and the Option shall thereafter automatically terminate.
(e) Effect of a Change of Ownership of the Company on the Option.
Notwithstanding the installment exercise provision set forth in Section 1(b)(i)
above and subject to the other terms and conditions set forth herein, each
Option shall become immediately exercisable in full on the date of a "change of
control" as hereinafter defined. A "change of control" shall mean any of the
following:
(i) A sale of all or substantially all of the assets of the Company;
(ii) The acquisition of more than 50% of the Common Stock of the
Company (with all classes or series thereof treated as a single class) by any
person or group of persons, except a Permitted Shareholder as hereinafter
defined, acting in Concert. A "Permitted Shareholder" means a holder, as of the
Effective Date of Common Stock;
(iii) A reorganization of the Company wherein the holders of Common
Stock of the Company receive stock in another company, a merger of the Company
with another company wherein there is an 50% or greater change in the ownership
of the Common Stock of the Company as a result of such merger, or any other
transaction in which the Company (other than as the parent corporation) is
consolidated for federal income tax purposes or is eligible to be consolidated
for federal income tax purposes with another corporation;
(iv) In the event that the Common Stock is traded on an established
securities market: (A) a public announcement that any person has acquired or has
the right to acquire beneficial ownership of more than 50% of the then
outstanding Common Stock and for this purpose the terms "person" and "beneficial
ownership" shall have the meanings provided in Section 13(d) of the Securities
and Exchange Act of 1934, as amended, or related rules promulgated by the
Securities and Exchange Commission, or (B) the commencement of or public
announcement of an intention to make a tender offer or exchange offer for more
than 50% of the then outstanding Common Stock; or
(v) The Board, in its sole and absolute discretion, determines that
there has been a sufficient change in the share ownership of the Company to
constitute a change of effective ownership or control of the Company.
(f) Manner of Exercise.
(i) The Option can be exercised only by Director or other proper
party by delivering within the Term written notice to the Company at its
principal office. The notice shall state the number of Shares as to which the
Option is being exercised and be accompanied by payment in full of the Option
Price for all Shares designated in the notice.
(ii) Director may pay the Option Price in cash, by check (bank
check, certified check or personal check), by money order or, with the approval
of the Company, (A) by delivering to the Company for cancellation shares of
Common Stock with a fair market value as of the date of exercise equal to the
Option Price or the portion thereof being paid by tendering such shares, or (B)
by delivering to the Company a combination of cash, and shares of Common Stock
with an aggregate fair market value and a principal amount equal to the Option
Price; provided, however, that the Option Price may not be paid by the delivery
of shares of Common Stock more frequently than once every six (6) months. For
purposes of this Agreement, the fair market value of the Common Stock as of any
date shall be the fair market value as reasonably determined by the Company.
(iii) The Shares issued pursuant to exercise of the Option may be
subject to
restrictions on transfer under applicable federal or state securities laws.
Stock certificates issued pursuant to exercise of the Option shall bear an
appropriate legend referring to the restrictions applicable to such shares.
(g) Adjustments. If the Common Stock capitalization of the Company is
increased, decreased or changed into, or exchanged for, a different number or
kind of Shares or securities of the Company, whether through merger,
consolidation, reorganization, recapitalization, reclassification, stock
dividend, stock split, combination of shares, exchange of shares, change in
corporate structure or the like, then, in accordance with Section 4(c) of the
Plan, an appropriate and proportionate adjustment shall be made in the number,
kind, and per share exercise price of the Shares subject to any unexercised
portion of the Option.
2. MISCELLANEOUS.
(a) The Plan. The grant of the Option provided for herein is made pursuant
to the Plan and is subject to its terms. The Plan is available for inspection
during business hours at the principal offices of the Company and a copy of the
Plan may be obtained by Director through a request in writing therefor directed
to the Secretary of the Company.
(b) Taxes. In order to provide the Company with the opportunity to claim
the benefit of any income tax deduction which may be available to it upon the
grant or exercise of the Option, and in order to comply with all applicable
federal or state income tax laws or regulations, the Company may take such
action as it deems appropriate to insure that, if necessary, all applicable
federal or state payroll, withholding, income or other taxes are withheld or
collection from Director. Director may elect to satisfy his federal and state
income tax withholding obligations, if any, upon exercise of the option by (i)
having the Company withhold a portion of the Shares otherwise to be delivered
upon exercise of the Option having a fair market value equal to the amount of
federal and state income tax required to be withheld upon such exercise, in
accordance with the rules of the Company; or (ii) delivering to the Company
shares of Common Stock other than the Shares issuable upon exercise of the
Option with a fair market value equal to such taxes, in accordance with the
rules established from time to time by the Company.
(c) Waivers. No waiver at any time or any term or provision of this
Agreement shall be construed as a waiver of any other term or provision of this
Agreement and a waiver at any time of any term or provision of this Agreement
shall not be construed as a waiver at any subsequent time or the same term or
provision.
(d) Headings. All headings set forth in this Agreement are intended for
convenience only and shall not control or affect the meaning, construction or
effect of this Agreement or of any of the provisions hereof.
(e) Counterparts. This Agreement may be executed via facsimile
transmission signature and
in counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
(f) Board of Director and Committee Determinations. All matters to be
determined by the Board of Directors of the Company or any committee thereof
pursuant to the terms of this Agreement shall be determined by the members of
the Board or such duly authorized committee without the vote of Director.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of __________________.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT
as of the date first written above.
CURATIVE HEALTH SERVICES, INC.
By:
--------------------------------
Name:
Title:
-----------------------------------
Name:
Title: DIRECTOR
