THE QUIGLEY CORPORATION OPTION AWARD AGREEMENT
THE ▇▇▇▇▇▇▇
CORPORATION
2010 EQUITY COMPENSATION
PLAN
THIS
AGREEMENT (the “Agreement”), is made
effective as of the [DAY] day of [MONTH], [YEAR], (hereinafter called
the “Date of
Grant”), between The ▇▇▇▇▇▇▇ Corporation, a Delaware corporation
(hereinafter called the “Company”), and [NAME] (hereinafter called the
“Participant”):
RECITALS:
WHEREAS,
the Company has adopted The ▇▇▇▇▇▇▇ Corporation 2010 Equity Compensation Plan (the “Plan”), which Plan is
incorporated herein by reference and made a part of this Agreement. Capitalized
terms not otherwise defined herein shall have the same meanings as in the Plan;
and
WHEREAS,
the Committee has determined that it would be in the best interests of the
Company and its shareholders to grant the option provided for herein to the
Participant pursuant to the Plan and the terms set forth herein.
NOW
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
1.
Grant of the
Option. The Company hereby grants to the Participant the right and
option (the “Option”) to purchase,
on the terms and conditions hereinafter set forth, all or any part of an
aggregate of [# OF SHARES]
Shares, subject to adjustment as set forth in the Plan. The purchase
price of the Shares subject to the Option shall be $[PRICE] per Share (the “Option Price”). The
Option is intended to be a non-qualified stock option, and is not intended to be
treated as an option that complies with Section 422 of the Internal Revenue Code
of 1986, as amended.
2.
Vesting.
(a) All
Options granted pursuant to the Plan shall vest and become exercisable in
accordance with the following schedule:
|
First
Anniversary of the Date of Grant
|
[ | %] | ||
|
Second
Anniversary of the Date of Grant
|
[ | %] | ||
|
Third
Anniversary of the Date of Grant
|
[ | %] | ||
|
Fourth
Anniversary of the Date of Grant
|
[ | %] |
(b) All
options shall immediately and fully vest and become exercisable if the
Participant’s employment is terminated by the Company without Cause or the
Participant voluntarily quits for good reason. For this purpose, the
Participant will be deemed to have “good reason” to voluntarily terminate
employment if there is a reduction in his or her base salary; a material
reduction in his or her authority, duties, or responsibilities; or a material
change in the geographic location at which he or she must perform
services.
3.
Exercise of
Option.
(a) Period of Exercise.
Subject to the provisions of the Plan and this Agreement, the Participant may
exercise all or any part of the Vested Portion of the Option at any time prior
to the earliest
to occur of:
(i) the
seventh anniversary of the Date of Grant;
(ii) one
year following the date of the Participant’s termination of Employment due to
death or Disability;
(iii) three
months following the date of the Participant’s termination of Employment by the
Company without Cause or by the Participant for good reason (as defined above);
and
(iv) the
date of the Participant’s termination of Employment by the Company for Cause or
by the Participant for any reason or by the Participant for good reason (as
defined above), death or Disability.
For
purposes of this agreement, “Cause” shall mean
“Cause” as defined in any employment agreement then in effect between the
Participant and the Company or if not defined therein or, if there shall be no
such agreement, (i) the willful failure or refusal by such Participant to
perform his or her duties to the Company or its Affiliates (other than any such
failure resulting from such Participant’s incapacity due to physical or mental
illness), which has not ceased within ten days after a written demand for
substantial performance is delivered to such Participant by the Company, which
demand identifies the manner in which the Company believes that such Participant
has not performed such duties; (ii) the willful engaging by such Participant in
misconduct which is materially injurious to the Company or its Affiliates,
monetarily or otherwise (including breach of any confidentiality or
non-competition covenants to which such Participant is bound); (iii) the
conviction of such Participant of, or the entering of a plea of nolo contendere
by such Participant with respect to, a felony or to any crime which is
materially injurious to the Company or its Affiliates; or (iv) substantial or
repeated acts of dishonesty by such Participant in the performance of his/her
duties to the Company or its Affiliates. The determination of the existence of
Cause shall be made by the Committee in good faith.
- 2
-
(b) Method of
Exercise.
(i)
Subject to Section 3(a), the Vested Portion of the Option may be exercised by
delivering to the Company at its principal office written notice of intent to so
exercise; provided that, the
Option may be exercised with respect to whole Shares only. Such notice shall
specify the number of Shares for which the Option is being exercised and shall
be accompanied by payment in full of the Option Price. The payment of the
Option Price may be made at the election of the Participant (i) in cash or its
equivalent (e.g., by check), (ii) to the extent permitted by the Committee, in
Shares having a Fair Market Value equal to the aggregate Option Price for the
Shares being purchased and satisfying such other requirements as may be imposed
by the Committee; provided, that such Shares have been held by the Participant
for no less than six months (or such other period as established from time to
time by the Committee in order to avoid adverse accounting treatment applying
generally accepted accounting principles), (iii) partly in cash and, to the
extent permitted by the Committee, partly in such Shares, (iv) if there is a
public market for the Shares at such time, through the delivery of irrevocable
instructions to a broker to sell Shares obtained upon the exercise of the Option
and to deliver promptly to the Company an amount out of the proceeds of such
Sale equal to the aggregate option price for the Shares being purchased, or (v)
through a “net settlement” as described in Section 6(c) of the Plan. No
Participant shall have any rights to dividends or other rights of a stockholder
with respect to Shares subject to an Option until the Participant has given
written notice of exercise of the Option, paid in full for such Shares and, if
applicable, has satisfied any other conditions imposed by the Committee pursuant
to the Plan.
(ii)
Notwithstanding any other provision of the Plan or this Agreement to the
contrary, the Option may not be exercised prior to the completion of any
registration or qualification of the Option or the Shares under applicable state
and federal securities or other laws, or under any ruling or regulation of any
governmental body or national securities exchange that the Committee shall in
its sole discretion determine to be necessary or advisable.
(iii)
Upon the Company’s determination that the Option has been validly exercised as
to any of the Shares, the Company shall issue certificates in the Participant’s
name for such Shares. However, the Company shall not be liable to the
Participant for damages relating to any delays in issuing the certificates to
him, any loss of the certificates, or any mistakes or errors in the issuance of
the certificates or in the certificates themselves.
(iv) In
the event of the Participant’s death, the Vested Portion of the Option shall
remain exercisable by the Participant’s executor or administrator, or the person
or persons to whom the Participant’s rights under this Agreement shall pass by
will or by the laws of descent and distribution as the case may be, to the
extent set forth in Section 3(a). Any heir or legatee of the Participant shall
take rights herein granted subject to the terms and conditions
hereof.
4.
Change of
Control. Upon a Change of Control (as defined by the Plan), the
terms of the Plan shall apply. Notwithstanding the foregoing, the Options
granted hereby shall become immediately exercisable in full upon the occurrence
of a Change of Control.
- 3
-
5.
Option
Recovery. If the Committee determines that the Participant (a) engaged
in conduct that constituted Cause as defined in Section 3(a) of this Agreement
at any prior to the Participant’s termination of services, (b) engaged in
conduct during the 6 month period after the Participant’s termination of
services that would have constituted Cause if the Participant had not ceased to
provide services, or (c) violates the terms of any non-compete agreement,
non-solicitation agreement, confidentiality agreement, or any other restriction
on the Participant’s post-termination activities established under any agreement
with the Company or other Company policy or arrangement during the 6 months
after the Participant’s ceases to provide services to the Company, then (i) any
Option held by the Participant shall immediately terminate, and the Participant
shall automatically forfeit all Shares underlying any exercised portion of an
Option for which the Company has not yet delivered the Share certificates, upon
refund by the Company of the Exercise Price paid by the Participant for such
Shares and (ii) the Participant shall return any Shares received upon exercise
of this Option or repay to the Company any proceeds received from the sale of
other disposition of the Shares transferred pursuant to this Option less the
Exercise Price. Upon any exercise of an Option, the Company may withhold
delivery of share certificates pending resolution of an inquiry that could lead
to a finding resulting in a forfeiture under this Section.
6.
No Right to Continued
Employment. The granting of the Option evidenced hereby and this
Agreement shall impose no obligation on the Company or any Affiliate to continue
the Employment of the Participant and shall not lessen or affect the Company’s
or its Affiliate’s right to terminate the Employment of such
Participant.
7.
Legend on
Certificates. The certificates representing the Shares purchased by
exercise of the Option shall be subject to the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which such Shares are listed, and any applicable Federal or state laws, and the
Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
8.
Transferability. The
Option may not be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by the Participant otherwise than by will or by the
laws of descent and distribution, and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance. No such permitted transfer
of the Option to heirs or legatees of the Participant shall be effective to bind
the Company unless the Committee shall have been furnished with written notice
thereof and a copy of such evidence as the Committee may deem necessary to
establish the validity of the transfer and the acceptance by the transferee or
transferees of the terms and conditions hereof. During the Participant’s
lifetime, the Option is exercisable only by the Participant.
9.
Withholding. The
Participant may be required to pay to the Company or any Affiliate and the
Company shall have the right and is hereby authorized to withhold, any
applicable withholding taxes in respect of the Option, its exercise or any
payment or transfer under or with respect to the Option and to take such other
action as may be necessary in the opinion of the Committee to satisfy all
obligations for the payment of such withholding taxes.
10. Securities
Laws. Upon the acquisition of any Shares pursuant to the
exercise of the Option, the Participant will make or enter into such written
representations, warranties and agreements as the Committee may reasonably
request in order to comply with applicable securities laws or with this
Agreement.
- 4
-
11. Notices. Any
notice necessary under this Agreement shall be addressed to the Company in care
of its Secretary at the principal executive office of the Company and to the
Participant at the address appearing in the personnel records of the Company for
the Participant or to either party at such other address as either party hereto
may hereafter designate in writing to the other. Any such notice
shall be deemed effective upon receipt thereof by the addressee.
12. Choice of
Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Delaware without regard to conflicts of
laws.
13. Option Subject to
Plan. By entering into this Agreement the Participant agrees
and acknowledges that the Participant has received and read a copy of the
Plan. The Option is subject to the Plan. The terms and
provisions of the Plan, as they may be amended from time to time, are hereby
incorporated herein by reference. In the event of a conflict between
any term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and
prevail.
14. Signature in
Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
[Signatures on next
page.]
- 5
-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be effective as of
the day and year first above written.
|
The
▇▇▇▇▇▇▇ Corporation
|
||
|
Name:
|
||
|
Title:
|
||
|
Participant
|
||
|
Name:
|
||
|
Title:
|
||
- 6
-