1
Exhibit 10.30
NONSTATUTORY STOCK OPTION
_______________________, Optionee:
ALANEX CORPORATION (the "Company") has this day granted to you, the
optionee named above, an option to purchase shares of the common stock of the
Company ("Common Stock"). This option is not intended to qualify as and will not
be treated as an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's employees
(including officers, directors and consultants) and is intended to comply with
the provisions of Rule 701 promulgated by the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act") and to satisfy the
requirements of Section 25102(f) of the California Corporate Securities Law of
1968, as amended.
The details of your option are as follows:
1. NUMBER OF OPTION SHARES AND VESTING. The total number of shares of
Common Stock subject to this option is __________________ (________). Subject to
the limitations contained herein, this option shall vest and become exercisable
[INSERT VESTING SCHEDULE].
2. (a) EXERCISE PRICE. The exercise price of this option is
_____________ ($_______) per share.
(b) METHOD OF PAYMENT. Payment of the exercise price per share is
due in full upon exercise of all or any part of each installment which has
accrued to you. You may elect, to the extent permitted by applicable statutes
and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in cash (including
check) at the time of exercise;
(ii) Payment pursuant to a program developed under Regulation T
as promulgated by the Federal Reserve Board which, prior to the issuance of
Common Stock, results in either the receipt of cash (or check) by the Company or
the receipt of irrevocable instructions to pay the aggregate exercise price to
the Company from the sales proceeds;
1.
2
(iii) Provided that at the time of exercise the Company's Common
Stock is publicly traded and quoted regularly in the Wall Street Journal,
payment by delivery of already-owned shares of Common Stock, held for the period
required to avoid a charge to the Company's reported earnings, and owned free
and clear of any liens, claims, encumbrances or security interests, which Common
Stock shall be valued at its fair market value on the date of exercise of the
option, or portion thereof, granted hereunder;
(iv) Provided that the option exercise price for the
installment, or portion thereof, being purchased is at least one thousand
dollars ($1,000), payment pursuant to the deferred payment alternative as
described in paragraph 2(c) hereof; or
(v) Payment by a combination of the methods of payment permitted
by subparagraph 2(b)(i) through 2(b)(iv) above.
(C) CONDITIONS OF DEFERRED PAYMENT. In the event that you elect to
make payment of the exercise price pursuant to the deferred payment alternative:
(i) Not less than twenty-five percent (25%) of the aggregate
exercise price shall be due at the time of exercise, not less than twenty-five
percent (25%) of said exercise price, plus accrued interest, shall be due each
year after the date of exercise, and final payment of the remainder of the
exercise price, plus accrued interest, shall be due three (3) years from the
date of exercise or, at the Company's election, upon termination of your
employment with the Company or an affiliate of the Company;
(ii) Interest shall be payable at least annually and shall be
charged at the minimum rate of interest necessary to avoid the treatment as
interest, under any applicable provisions of the Code, of any portion of any
amounts other than amounts stated to be interest under the deferred payment
arrangement; and
(iii) In order to elect the deferred payment alternative, you
must, as a part of your written notice of exercise, give notice of the election
of this payment alternative and, in order to secure the payment of the deferred
exercise price to the Company hereunder, if the Company so requests, you must
tender to the Company a promissory note and a security agreement covering the
purchased shares, both in form and substance satisfactory to the Company, and
such other or additional documentation as the Company may request.
3. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Act or, if such
shares are not then so registered, the Company has determined that such exercise
and issuance would be exempt from the registration requirements of the Act. You
represent that you (i) are an officer or
2.
3
director of the Company, or (ii) have a preexisting personal or business
relationship with the Company or one or more of its officers, directors, or
controlling persons, or (iii) by reason of your business or financial experience
or the business or financial experience of your professional advisors who are
unaffiliated with and who are not directly or indirectly compensated by the
Company or any affiliate of the Company, you have the capacity to protect your
own interests in connection with the grant of this option. You also represent
that you are acquiring this option for your own account and not with a view to
or for sale in connection with any distribution of this security. You also
represent that you have acquired this option unaccompanied by the publication of
any advertisement. The Company may, upon advice of counsel to the Company, place
legends on stock certificates issued pursuant to the exercise of this option as
such counsel deems necessary and appropriate in order to comply with applicable
securities laws, including, but not limited to, legends restricting the transfer
of stock.
4. MINIMUM EXERCISE. The minimum number of shares with respect to which
this option may be exercised at any one time is one hundred (100), except (a) as
to an installment subject to exercise, as set forth in paragraph 1, which
amounts to fewer than one hundred (100) shares, in which case, as to the
exercise of that installment, the number of shares in such installment shall be
the minimum number of shares, and (b) with respect to the final exercise of this
option this minimum shall not apply. In no event may this option be exercised
for any number of shares which would require the issuance of anything other than
whole shares.
5. TERM. The term of this option commences on _____________ (the date
of grant) and, unless sooner terminated as set forth below, terminates on
____________ (the "Expiration Date" which date shall be no more than ten (10)
years from the date this option is granted). In no event may this option be
exercised on or after the date on which it terminates. This option shall
terminate prior to the expiration of its term as follows: three (3) months after
the termination of your continuous service to the Company as an employee,
consultant or director (your "Termination Date") for any reason or for no reason
unless:
(a) such termination of service is due to your permanent and total
disability (within the meaning of Section 422(c)(6) of the Code), in which event
the option shall terminate on the earlier of the Expiration Date set forth above
or twelve (12) months following your Termination Date; or
(b) such termination of service is due to your death, in which
event the option shall terminate on the earlier of the Expiration Date set forth
above or eighteen (18) months after your death; or
3.
4
(c) during any part of such three (3) month period the option is
not exercisable solely because of the condition set forth in paragraph 3 above,
in which event the option shall not terminate until the earlier of the
Expiration Date set forth above or until it shall have been exercisable for an
aggregate period of three (3) months after your Termination Date; or
(d) exercise of the option within three (3) months after your
Termination Date would result in liability under section 16(b) of the Securities
Exchange Act of 1934, in which case the option will terminate on the earlier of
(i) the Expiration Date set forth above, (ii) the tenth (10th) day after the
last date upon which exercise would result in such liability or (iii) six (6)
months and ten (10) days after your Termination Date with the Company or an
affiliate of the Company.
This option may be exercised following your Termination Date only
as to that number of shares as to which it was exercisable on your Termination
Date under the provisions of paragraph 1 of this option.
6. EXERCISE. (a) This option may be exercised, to the extent specified
above, by delivering a notice of exercise (in a form designated by the Company)
together with the exercise price to the Secretary of the Company, or to such
other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then reasonably
require.
(b) By exercising this option you agree that:
(i) as a precondition to the completion of any exercise of this
option, the Company may require you to enter an arrangement providing for the
cash payment by you to the Company of any tax withholding obligation of the
Company arising by reason of: (1) the exercise of this option; (2) the lapse of
any substantial risk of forfeiture to which the shares are subject at the time
of exercise; or (3) the disposition of shares acquired upon such exercise; and
(ii) the Company (or a representative of the underwriters) may,
in connection with the first underwritten registration of the offering of any
securities of the Company under the Act, require that you not sell or otherwise
transfer or dispose of any shares of Common Stock or other securities of the
Company during such period (not to exceed one hundred eighty (180) days)
following the effective date (the "Effective Date") of the registration
statement of the Company filed under the Act as may be requested by the Company
or the representative of the underwriters. You further agree that the Company
may impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such period.
4.
5
7. COVENANT OF COMPANY. During the term of this option, the Company
shall keep available at all times the number of shares of stock required to
satisfy the exercise of such option.
8. ADJUSTMENT UPON CHANGES IN STOCK. (a) If any change is made in the
stock subject to this option (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or other transaction not involving the receipt of
consideration by the Company), this option will be appropriately adjusted in the
type(s) and number of securities and price per share of stock subject to the
option. Such adjustments shall be made by the Board of Directors, the
determination of which shall be final, binding and conclusive. (The conversion
of any convertible securities of the Company shall not be treated as a
"transaction not involving the receipt of consideration by the Company.")
(b) In the event of: (i) a merger or consolidation in which the
Company is not the surviving corporation; or (ii) a reverse merger in which the
Company is the surviving corporation but the shares of the Company's common
stock outstanding immediately preceding the merger are converted by virtue of
the merger into other property, whether in the form of securities, cash or
otherwise; or (iii) a sale of all or substantially all of the assets of the
Company, then, to the extent permitted by applicable law: (1) any surviving
corporation shall assume this option or shall substitute a similar option
(including an option to acquire the same consideration paid to stockholders in
the transaction described in this subparagraph 8(b)), if this option is still
outstanding, or (2) in the event any surviving corporation refuses to assume or
continue this option, or to substitute a similar option for this option (if
still outstanding), then this option shall become fully vested and exercisable
prior to such event and shall terminate after such acceleration of vesting if
not exercised at or prior to such corporate event. In the event of a dissolution
or liquidation of the Company, this option (if still outstanding) shall
terminate if not exercised prior to such event.
9. TRANSFERABILITY. This option is not transferable, except by will or
by the laws of descent and distribution, and is exercisable during your life
only by you. By delivering written notice to the Company, in a form satisfactory
to the Company, you may designate a third party who, in the event of your death,
shall thereafter be entitled to exercise this option.
10. OPTION NOT A SERVICE CONTRACT. This option is not an employment
contract and nothing in this option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company,
or of the Company to continue your employment with the Company. In the event
that this option is granted to you in connection with the performance of
services as a consultant or director, or in the
5.
6
event that this option is granted to you in connection with the performance of
services as an employee and you subsequently perform services as a consultant or
director, references to employment, employee and similar terms shall be deemed
to include the performance of services as a consultant or a director, as the
case may be, provided, however, that no rights as an employee shall arise by
reason of the use of such terms.
11. NOTICES. Any notices provided for in this option shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of
notices delivered by the Company to you, five (5) days after deposit in the
United States mail, postage prepaid, addressed to you at the address specified
below or at such other address as you hereafter designate by written notice to
the Company.
12. AMENDMENT. This option may be amended by the Board of Directors at
any time; provided, however, that any change that would adversely affect your
rights in this option must first be approved by you in writing before becoming
effective.
13. ADMINISTRATION. This option is subject to all interpretations,
amendments, rules and regulations which may from time to time be promulgated and
adopted by the Company. This authority shall be exercised by the Board, or by a
committee of one or more members of the Board in the event that the Board
delegates its authority to a committee. The Board, in exercise of this
authority, may correct any defect, omission or inconsistency in this option in a
manner and to the extent the Board shall deem necessary or desirable to make
this option fully effective. References to the Board shall mean the committee if
a committee has been appointed by the Board. Any interpretations, amendments,
rules and regulations promulgated by the Board shall be final and binding upon
the Company and its successors in interest as well as you and your heirs,
assigns, and other successors in interest.
6.
7
14. RIGHTS AS STOCKHOLDER. Neither you nor any person to whom this
option is transferred under paragraph 8 of this option shall be deemed to be the
holder of, or to have any of the rights of a holder with respect to, any shares
subject to this option unless and until such person has satisfied all
requirements for exercise of this option pursuant to its terms.
Dated as of _________________.
Very truly yours,
ALANEX CORPORATION
By:_______________________
▇▇▇▇ authorized on behalf
of the Board of Directors
ATTACHMENTS:
Notice of Exercise
7.
8
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option; and
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options previously granted and delivered to the undersigned
under stock option plans of the Company, and (ii) the following agreements only:
NONE __________
(Initial)
OTHER ___________________
___________________
___________________
_______________________________
[NAME______________], OPTIONEE
Address:_______________________
_______________________________
_______________________________
8.