Exhibit 10.9
NON-STATUTORY STOCK OPTION
for Non-Employee Directors
Non-transferable
INITIAL OPTION GRANT TO
-----------------------------
(the "Optionee")
the right to purchase from ▇▇▇▇▇ Respiratory Therapeutics, Inc. (the "Company")
-----------
shares of its common stock, $0.01 par value, at the price of $_____ per share
pursuant to and subject to the provisions of the ▇▇▇▇▇ Respiratory Therapeutics,
Inc. Director Compensation Plan (the "Director Compensation Plan"), which is
operated as a subplan of the ▇▇▇▇▇ Respiratory Therapeutics, Inc. 2005 Incentive
Plan (the "Equity Incentive Plan" and, together with the Director Compensation
Plan, the "Plans"), and to the terms and conditions set forth on the following
page.
Unless vesting is accelerated in accordance with the Plans, the Options shall
vest (become exercisable) in accordance with the following schedule:
Anniversary of Grant Date Percent of Option Shares Vested
------------------------- -------------------------------
1st 33%
2nd 66%
3rd 100%
IN WITNESS WHEREOF, ▇▇▇▇▇ Respiratory Therapeutics, Inc., acting by and
through its duly authorized officers, has caused this Certificate to be executed
as of the Grant Date.
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
By: ____________________________________
Its: Authorized Officer
Grant Date: _______________
Accepted by Optionee: __________________
TERMS AND CONDITIONS
1. Grant of Option. ▇▇▇▇▇ Respiratory Therapeutics, Inc. (the "Company")
hereby grants to the Optionee named on Page 1 hereof ("Optionee"), subject to
the restrictions and the terms and conditions set forth in the Plans and in this
award certificate (the "Certificate"), stock options to purchase from the
Company (the "Options"), the number of shares indicated on Page 1 of the
Company's $0.01 par value common stock, at the exercise price per share set
forth on Page 1. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Plans.
2. Vesting of Options. The Options shall vest (become exercisable) in
accordance with the schedule shown on Page 1 of this Certificate.
Notwithstanding the foregoing vesting schedule, all Options shall become fully
vested and exercisable upon (i) the termination of Optionee's service as a
director of the Company due to death, Disability, or termination without Cause,
or (ii) a Change in Control of the Company, if the Options are not assumed by
the surviving company or equitably converted or substituted.
3. Term of Options and Limitations on Right to Exercise. The term of the
Options will be for a period of ten years, expiring at 5:00 p.m., Eastern Time,
on the tenth anniversary of the Grant Date (the "Expiration Date"). To the
extent not previously exercised, the Options will lapse prior to the Expiration
Date upon the earliest to occur of the following circumstances:
(a)Thirty-six months after the termination of Optionee's service as a
director of the Company for any reason other than for Cause;
(b) 5:00 p.m., Eastern Time, on the date of the termination of Optionee's
service as a director of the Company if such termination is for Cause.
Upon Optionee's death, the Options may be exercised by Optionee's
beneficiary designated pursuant to the Plans. If Optionee or his or her
beneficiary exercises an Option after termination of service, the Options may be
exercised only with respect to the Shares that were otherwise vested on
Optionee's termination of service.
4. Exercise of Option. The Options shall be exercised by (a) written notice
directed to the Secretary of the Company or his or her designee at the address
and in the form specified by the Secretary from time to time and (b) payment to
the Company in full for the Shares subject to such exercise (unless the exercise
is a broker-assisted cashless exercise, as described below). If the person
exercising an Option is not Optionee, such person shall also deliver with the
notice of exercise appropriate proof of his or her right to exercise the Option.
Payment for such Shares shall be in (a) cash, (b) Shares previously acquired by
the purchaser, which have been held by the purchaser for such period of time, if
any, as necessary to avoid the recognition of an expense under generally
accepted accounting principles as a result of the exercise of the Options, or
(c) any combination thereof, for the number of Shares specified in such written
notice. The value of surrendered Shares for this purpose shall be the Fair
Market Value on the exercise date. To the extent permitted under Regulation T of
the Federal Reserve Board, and subject to applicable securities laws and any
limitations as may be applied from time to time by the Committee (which need not
be uniform), the Options may be exercised through a broker in a so-called
"cashless exercise" whereby the broker sells the Option Shares on behalf of
Optionee and delivers cash sales proceeds to the Company in payment of the
exercise price. In such case, the date of exercise shall be deemed to be the
date on which notice of exercise is received by the Company and the exercise
price shall be delivered to the Company by the settlement date.
5. Beneficiary Designation. Optionee may, in the manner determined by the
Committee, designate a beneficiary to exercise the rights of Optionee hereunder
and to receive any distribution with respect to the Options upon Optionee's
death. A beneficiary, legal guardian, legal representative, or other person
claiming any rights hereunder is subject to all terms and conditions of this
Certificate and the Plans, and to any additional restrictions deemed necessary
or appropriate by the Committee. If no beneficiary has been designated or
survives Optionee, the Options may be exercised by the legal representative of
Optionee's estate, and payment shall be made to Optionee's estate. Subject to
the foregoing, a beneficiary designation may be changed or revoked by Optionee
at any time provided the change or revocation is filed with the Company.
6. Limitation of Rights. The Options do not confer to Optionee or
Optionee's beneficiary designated pursuant to Paragraph 5 any rights of a
shareholder of the Company unless and until Shares are in fact issued to such
person in connection with the exercise of the Options. Nothing in this
Certificate shall interfere with or limit in any way the right of the Company to
terminate Optionee's service as a director at any time, nor confer upon Optionee
any right to continue service as a director of the Company.
7. Stock Reserve. The Company shall at all times during the term of this
Certificate reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of this Certificate.
8. Restrictions on Transfer and Pledge. No right or interest of Optionee in
the Options may be pledged, encumbered, or hypothecated to or in favor of any
party other than the Company or an Affiliate, or shall be subject to any lien,
obligation, or liability of Optionee to any other party other than the Company
or an Affiliate. The Options are not assignable or transferable by Optionee
other than by will or the laws of descent and distribution or pursuant to a
domestic relations order that would satisfy Section 414(p)(1)(A) of the Code if
such Section applied to an Option under the Plans. The Options may be exercised
during the lifetime of Optionee only by Optionee.
9. Restrictions on Issuance of Shares. If at any time the Committee shall
determine in its discretion, that registration, listing or qualification of the
Shares covered by the Options upon any Exchange or under any foreign, federal,
or local law or practice, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition to the exercise of the
Options, the Options may not be exercised in whole or in part unless and until
such registration, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
10. Plans Control. The terms contained in the Plans are incorporated into
and made a part of this Certificate and this Certificate shall be governed by
and construed in accordance with the Plans. In the event of any actual or
alleged conflict between the provisions of the Plans and the provisions of this
Certificate, the provisions of the Plans shall be controlling and determinative.
In the event of any actual or alleged conflict between the provisions of the two
Plans, the provisions of the Equity Incentive Plan shall be controlling and
determinative.
11. Successors. This Certificate shall be binding upon any successor of the
Company, in accordance with the terms of this Certificate and the Plans.
12. Severability. If any one or more of the provisions contained in this
Certificate is invalid, illegal or unenforceable, the other provisions of this
Certificate will be construed and enforced as if the invalid, illegal or
unenforceable provision had never been included.
13. Notice. Notices and communications under this Certificate must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Company must be addressed to ▇▇▇▇▇ Respiratory Therapeutics, Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Secretary, or any other address
designated by the Company in a written notice to Grantee. Notices to Grantee
will be directed to the address of Grantee then currently on file with the
Company, or at any other address given by Grantee in a written notice to the
Company.
NON-STATUTORY STOCK OPTION
for Non-Employee Directors
Non-transferable
ANNUAL OPTION GRANT TO
-----------------------------
(the "Optionee")
the right to purchase from ▇▇▇▇▇ Respiratory Therapeutics, Inc. (the "Company")
4,000
shares of its common stock, $0.01 par value, at the price of $_____ per share
pursuant to and subject to the provisions of the ▇▇▇▇▇ Respiratory Therapeutics,
Inc. Director Compensation Plan (the "Director Compensation Plan"), which is
operated as a subplan of the ▇▇▇▇▇ Respiratory Therapeutics, Inc. 2005 Incentive
Plan (the "Equity Incentive Plan" and, together with the Director Compensation
Plan, the "Plans"), and to the terms and conditions set forth on the following
page.
Unless vesting is accelerated in accordance with the Plans, the Options shall
vest (become exercisable) at the first annual meeting of the Company's
shareholders after the Grant Date.
IN WITNESS WHEREOF, ▇▇▇▇▇ Respiratory Therapeutics, Inc., acting by and
through its duly authorized officers, has caused this Certificate to be executed
as of the Grant Date.
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
By: ____________________________________
Its: Authorized Officer
Grant Date: _______________
Accepted by Optionee: __________________
TERMS AND CONDITIONS
1. Grant of Option. ▇▇▇▇▇ Respiratory Therapeutics, Inc. (the "Company")
hereby grants to the Optionee named on Page 1 hereof ("Optionee"), subject to
the restrictions and the terms and conditions set forth in the Plans and in this
award certificate (the "Certificate"), stock options to purchase from the
Company (the "Options"), the number of shares indicated on Page 1 of the
Company's $0.01 par value common stock, at the exercise price per share set
forth on Page 1. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Plans.
2. Vesting of Options. The Options shall vest (become exercisable) in
accordance with the schedule shown on Page 1 of this Certificate.
Notwithstanding the foregoing vesting schedule, all Options shall become fully
vested and exercisable upon (i) the termination of Optionee's service as a
director of the Company due to death, Disability, or termination without Cause,
or (ii) a Change in Control of the Company, if the Options are not assumed by
the surviving company or equitably converted or substituted.
3. Term of Options and Limitations on Right to Exercise. The term of the
Options will be for a period of ten years, expiring at 5:00 p.m., Eastern Time,
on the tenth anniversary of the Grant Date (the "Expiration Date"). To the
extent not previously exercised, the Options will lapse prior to the Expiration
Date upon the earliest to occur of the following circumstances:
(a)Thirty-six months after the termination of Optionee's service as a
director of the Company for any reason other than for Cause;
(b) 5:00 p.m., Eastern Time, on the date of the termination of Optionee's
service as a director of the Company if such termination is for Cause.
Upon Optionee's death, the Options may be exercised by Optionee's
beneficiary designated pursuant to the Plans. If Optionee or his or her
beneficiary exercises an Option after termination of service, the Options may be
exercised only with respect to the Shares that were otherwise vested on
Optionee's termination of service.
4. Exercise of Option. The Options shall be exercised by (a) written notice
directed to the Secretary of the Company or his or her designee at the address
and in the form specified by the Secretary from time to time and (b) payment to
the Company in full for the Shares subject to such exercise (unless the exercise
is a broker-assisted cashless exercise, as described below). If the person
exercising an Option is not Optionee, such person shall also deliver with the
notice of exercise appropriate proof of his or her right to exercise the Option.
Payment for such Shares shall be in (a) cash, (b) Shares previously acquired by
the purchaser, which have been held by the purchaser for such period of time, if
any, as necessary to avoid the recognition of an expense under generally
accepted accounting principles as a result of the exercise of the Options, or
(c) any combination thereof, for the number of Shares specified in such written
notice. The value of surrendered Shares for this purpose shall be the Fair
Market Value on the exercise date. To the extent permitted under Regulation T of
the Federal Reserve Board, and subject to applicable securities laws and any
limitations as may be applied from time to time by the Committee (which need not
be uniform), the Options may be exercised through a broker in a so-called
"cashless exercise" whereby the broker sells the Option Shares on behalf of
Optionee and delivers cash sales proceeds to the Company in payment of the
exercise price. In such case, the date of exercise shall be deemed to be the
date on which notice of exercise is received by the Company and the exercise
price shall be delivered to the Company by the settlement date.
5. Beneficiary Designation. Optionee may, in the manner determined by the
Committee, designate a beneficiary to exercise the rights of Optionee hereunder
and to receive any distribution with respect to the Options upon Optionee's
death. A beneficiary, legal guardian, legal representative, or other person
claiming any rights hereunder is subject to all terms and conditions of this
Certificate and the Plans, and to any additional restrictions deemed necessary
or appropriate by the Committee. If no beneficiary has been designated or
survives Optionee, the Options may be exercised by the legal representative of
Optionee's estate, and payment shall be made to Optionee's estate. Subject to
the foregoing, a beneficiary designation may be changed or revoked by Optionee
at any time provided the change or revocation is filed with the Company.
6. Limitation of Rights. The Options do not confer to Optionee or
Optionee's beneficiary designated pursuant to Paragraph 5 any rights of a
shareholder of the Company unless and until Shares are in fact issued to such
person in connection with the exercise of the Options. Nothing in this
Certificate shall interfere with or limit in any way the right of the Company to
terminate Optionee's service as a director at any time, nor confer upon Optionee
any right to continue service as a director of the Company.
7. Stock Reserve. The Company shall at all times during the term of this
Certificate reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of this Certificate.
8. Restrictions on Transfer and Pledge. No right or interest of Optionee in
the Options may be pledged, encumbered, or hypothecated to or in favor of any
party other than the Company or an Affiliate, or shall be subject to any lien,
obligation, or liability of Optionee to any other party other than the Company
or an Affiliate. The Options are not assignable or transferable by Optionee
other than by will or the laws of descent and distribution or pursuant to a
domestic relations order that would satisfy Section 414(p)(1)(A) of the Code if
such Section applied to an Option under the Plans. The Options may be exercised
during the lifetime of Optionee only by Optionee.
9. Restrictions on Issuance of Shares. If at any time the Committee shall
determine in its discretion, that registration, listing or qualification of the
Shares covered by the Options upon any Exchange or under any foreign, federal,
or local law or practice, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition to the exercise of the
Options, the Options may not be exercised in whole or in part unless and until
such registration, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
10. Plans Control. The terms contained in the Plans are incorporated into
and made a part of this Certificate and this Certificate shall be governed by
and construed in accordance with the Plans. In the event of any actual or
alleged conflict between the provisions of the Plans and the provisions of this
Certificate, the provisions of the Plans shall be controlling and determinative.
In the event of any actual or alleged conflict between the provisions of the two
Plans, the provisions of the Equity Incentive Plan shall be controlling and
determinative.
11. Successors. This Certificate shall be binding upon any successor of the
Company, in accordance with the terms of this Certificate and the Plans.
12. Severability. If any one or more of the provisions contained in this
Certificate is invalid, illegal or unenforceable, the other provisions of this
Certificate will be construed and enforced as if the invalid, illegal or
unenforceable provision had never been included.
13. Notice. Notices and communications under this Certificate must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Company must be addressed to ▇▇▇▇▇ Respiratory Therapeutics, Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Secretary, or any other address
designated by the Company in a written notice to Grantee. Notices to Grantee
will be directed to the address of Grantee then currently on file with the
Company, or at any other address given by Grantee in a written notice to the
Company.
RESTRICTED STOCK UNIT AWARD CERTIFICATE
for Non-Employee Directors
Non-transferable
GRANT TO
-----------------------------
("Grantee")
by ▇▇▇▇▇ Respiratory Therapeutics, Inc. (the "Company") of
[_________]
restricted stock units convertible into shares of its common stock, par
value $0.01 (the "Restricted Stock Units")
pursuant to and subject to the provisions of the ▇▇▇▇▇ Respiratory Therapeutics,
Inc. Director Compensation Plan (the "Director Compensation Plan"), which is
operated as a subplan of the ▇▇▇▇▇ Respiratory Therapeutics, Inc. 2005 Incentive
Plan (the "Equity Incentive Plan" and, together with the Director Compensation
Plan, the "Plans"), and to the terms and conditions set forth on the following
page.
Unless vesting is accelerated in accordance with the Plans, the Restricted Stock
Units shall vest (become non-forfeitable) on the first annual shareholders
meeting next following the Grant Date.
IN WITNESS WHEREOF, ▇▇▇▇▇ Respiratory Therapeutics, Inc. has caused this
Certificate to be executed as of the Grant Date, as indicated below.
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
By: ____________________________________
Its: Authorized Officer
Grant Date: _______________
Accepted by Optionee: __________________
TERMS AND CONDITIONS
1. Grant of Restricted Stock Units. The ▇▇▇▇▇ Respiratory Therapeutics,
Inc. (the "Company") hereby grants to the Grantee named on page 1 hereof,
subject to the restrictions and the terms and conditions set forth in the Plans
and in this award certificate (this "Certificate"), the number of restricted
stock units indicated on page 1 hereof (the "Restricted Stock Units") which
represent the right to receive an equal number of Shares of the Company's Stock
on the terms set forth in this Certificate. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such terms in the
Plans.
2. Vesting of Restricted Stock Units. The Restricted Stock Units have been
credited to a bookkeeping account on behalf of Grantee. The Restricted Stock
Units will vest and become non-forfeitable on the earliest to occur of the
following (the "Vesting Date"):
(a) the first annual shareholders meeting next following the Grant Date; or
(b) the termination of ▇▇▇▇▇▇▇'s service as a director of the Company due
to death, Disability, or termination without Cause; or
(c) a Change in Control of the Company, if the Restricted Stock Units are
not assumed by the surviving company or equitably converted or substituted.
If ▇▇▇▇▇▇▇'s service as a director terminates prior to the Vesting Date for any
reason other than as described in (b) or (c) above, Grantee shall forfeit all
right, title and interest in and to the Restricted Stock Units as of the date of
such termination and the Restricted Stock Units will be reconveyed to the
Company without further consideration or any act or action by Grantee. Any
reference herein to ▇▇▇▇▇▇▇'s termination of service shall be interpreted to
mean Grantee's "separation from service" as defined in Code Section 409A and
Treasury regulations and guidance with respect to such law.
3. Conversion to Stock. Unless the Restricted Stock Units are forfeited
prior to the Vesting Date as provided in Paragraph 2 above, the Restricted Stock
Units will be converted on the Vesting Date to Deferred Stock Units, which in
turn shall be converted to actual Shares of Stock on the date that is six (6)
months after the date the Grantee ceases to serve as a director of the Company
in any capacity (the "Conversion Date"). Stock certificates evidencing the
conversion of the Deferred Stock Units into shares of Stock shall be registered
on the books of the Company in the Grantee's name as of the Conversion Date and
delivered to the Grantee as soon as practical thereafter.
4. Dividend Equivalents. If and when dividends or other distributions are
paid with respect to the Stock while the Restricted Stock Units or Deferred
Stock Units are outstanding, the dollar amount or fair market value of such
dividends or distributions with respect to the number of shares of Stock then
underlying the Restricted Stock Units or Deferred Stock Units shall be converted
into additional Restricted Stock Units or Deferred Stock Units in Grantee's
name, based on the Fair Market Value of the Stock as of the date such dividends
or distributions were payable, and such additional Restricted Stock Units or
Deferred Stock Units shall be subject to the same transfer restrictions as apply
to the Restricted Stock Units or Deferred Stock Units with respect to which they
relate. Upon conversion of the Deferred Stock Units into shares of Stock at the
Conversion Date or any applicable deferral termination date, Grantee will obtain
full voting and other rights as a shareholder of the Company.
5. Changes in Capital Structure. The provisions of Article 15 of the Equity
Incentive Plan shall apply to this award and are incorporated herein by
reference. Without limiting the foregoing, in the event the Stock shall be
changed into or exchanged for a different number or class of shares of stock or
securities of the Company or of another company, whether through reorganization,
recapitalization, statutory share exchange, reclassification, stock split-up,
combination of shares, merger or consolidation, or otherwise, there shall be
substituted for each share of Stock then underlying a Restricted Stock Unit or
Deferred Stock Unit subject to this Certificate the number and class of shares
into which each outstanding share of Stock shall be so exchanged.
6. Restrictions on Transfer and Pledge. Restricted Stock Units are not
assignable or transferable. Deferred Stock Units are not assignable or
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order. Neither Restricted Stock Units
nor Deferred Stock Units may be pledged, hypothecated or otherwise encumbered to
or in favor of any party other than the Company or an Affiliate, or be subjected
to any lien, obligation or liability of grantee to any other party other than
the Company or an Affiliate.
7. Limitation of Rights. Neither the Restricted Stock Units nor the
Deferred Stock Units confer to Grantee or Grantee's beneficiary any rights of a
shareholder of the Company unless and until shares of Stock are in fact issued
to such person in connection with the Restricted Stock Units and the Deferred
Stock Units. Nothing in this Certificate shall interfere with or limit in any
way the right of the Company to terminate ▇▇▇▇▇▇▇'s service as a director at any
time, nor confer upon Grantee any right to continue as a director of the
Company.
8. Amendment. The Committee may amend, modify or terminate this Certificate
without approval of Grantee; provided, however, that such amendment,
modification or termination shall not, without Grantee's consent, reduce or
diminish the value of this Award. Notwithstanding anything herein to the
contrary, the Committee may, without ▇▇▇▇▇▇▇'s consent, amend or interpret this
Certificate to the extent necessary to comply with Section 409A of the Code and
Treasury regulations and guidance with respect to such law.
9. Plans Control. The terms contained in the Plans are incorporated into
and made a part of this Certificate and this Certificate shall be governed by
and construed in accordance with the Plans. In the event of any actual or
alleged conflict between the provisions of the Plans and the provisions of this
Certificate, the provisions of the Plans shall be controlling and determinative.
In the event of any actual or alleged conflict between the provisions of the two
Plans, the provisions of the Equity Incentive Plan shall be controlling and
determinative.
10. Successors. This Certificate shall be binding upon any successor of the
Company, in accordance with the terms of this Certificate and the Plans.
11. Severability. If any one or more of the provisions contained in this
Certificate is deemed to be invalid, illegal or unenforceable, the other
provisions of this Certificate will be construed and enforced as if the invalid,
illegal or unenforceable provision had never been included.
12. Notice. Notices and communications under this Certificate must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Company must be addressed to ▇▇▇▇▇ Respiratory Therapeutics, Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Secretary, or any other address
designated by the Company in a written notice to Grantee. Notices to Grantee
will be directed to the address of Grantee then currently on file with the
Company, or at any other address given by Grantee in a written notice to the
Company.
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