1
EXHIBIT 10.36
PHARMCHEM LABORATORIES, INC.
1997 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
(Nonstatutory Stock Option)
By this Agreement, PharmChem Laboratories, Inc., a California
corporation (the "Company") grants to [_____________], [AN EMPLOYEE] [A
NON-EMPLOYEE DIRECTOR] [A CONSULTANT] of the Company (the "Grantee"), an option
(the "Option") to purchase shares of the Company's common stock, no par value
("Stock"), subject to the terms and conditions set forth below, in the attached
Exhibit A hereto and in the PharmChem Laboratories, Inc. 1997 Equity Incentive
Plan, as may from time to time be amended (as so amended, the "Plan"), all of
which are an integral part of this Agreement. A copy of the Plan may be obtained
from the Company upon request. Capitalized terms used but not defined in this
Agreement have the meaning specified in the Plan.
Grant Date . . . . . . . . . . . . . . . [_________________]
Expiration Date. . . . . . . . . . . . . [_________________]
Number of shares . . . . . . . . . . [_________________]
Option exercise price . . . . . . . . . $[________________]
When first exercisable . . . . . . . . . This Option shall become exercisable
in installments as specified below,
except as the Plan or this Agreement
may allow exercisability at a
different date:
Calendar Quarter Percentage No. of Shares Cumulative
After Grant Date Exercisable Exercisable No. of Shares
---------------- ----------- ----------- -------------
Prior to first day of first 0% 0 0
calendar quarter after grant date
During first calendar quarter 6.25% [________] [________]
after grant date
During second calendar quarter 12.5% [________] [________]
after grant date
During third calendar quarter 18.75% [________] [________]
after grant date
During fourth calendar quarter 25% [________] [________]
after grant date
During fifth calendar quarter 31.25% [________] [________]
after grant date
During sixth calendar quarter 37.5% [________] [________]
after grant date
During seventh calendar quarter 43.75% [________] [________]
after grant date
During eighth calendar quarter 50% [________] [________]
after grant date
During ninth calendar quarter 56.25% [________] [________]
after grant date
Employee Non-Qual.
Option Agreement 10/97
2
Calendar Quarter Percentage No. of Shares Cumulative
After Grant Date Exercisable Exercisable No. of Shares
---------------- ----------- ----------- -------------
During tenth calendar quarter 62.5% [________] [________]
after grant date
During eleventh calendar quarter 68.75% [________] [________]
after grant date
During twelfth calendar quarter 75% [________] [________]
after grant date
During thirteenth calendar 81.25% [________] [________]
quarter after grant date
During fourteenth calendar 87.5% [________] [________]
quarter after grant date
During fifteenth calendar quarter 93.75% [________] [________]
after grant date
During sixteenth calendar quarter 100% [________] [________]
after grant date
Please indicate your acceptance of this Agreement by signing the
enclosed copy in the space provided below and returning it to the Chief
Financial Officer, within 30 days after the Company's mailing of this Agreement
to you.
PHARMCHEM LABORATORIES, INC.
By: ___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
I ACKNOWLEDGE AND AGREE THAT THE VESTING OF SHARES PURSUANT TO
THE SCHEDULE ON THE FIRST PAGE OF THIS AGREEMENT IS EARNED ONLY BY
CONTINUING SERVICE AS AN EMPLOYEE, CONSULTANT OR NON-EMPLOYEE DIRECTOR
AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING
GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). I FURTHER
ACKNOWLEDGE AND AGREE THAT THIS OPTION, THE PLAN WHICH IS INCORPORATED
HEREIN BY REFERENCE, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE
VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR
IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE OR CONSULTANT FOR
THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE
WITH MY RIGHT OR THE COMPANY'S RIGHT TO TERMINATE MY EMPLOYMENT OR
CONSULTING RELATIONSHIP, IF ANY, AT ANY TIME, WITH OR WITHOUT CAUSE.
Employee Non-Qual.
Option Agreement 10/97
3
I ACKNOWLEDGE RECEIPT OF A COPY OF THE PLAN, A COPY OF WHICH IS
ANNEXED HERETO, REPRESENT THAT I AM FAMILIAR WITH THE TERMS AND
PROVISIONS THEREOF, AND HEREBY ACCEPT THIS OPTION SUBJECT TO ALL OF THE
TERMS AND PROVISIONS THEREOF. I HAVE REVIEWED THE PLAN AND THIS OPTION
IN THEIR ENTIRETY, HAVE HAD AN OPPORTUNITY TO OBTAIN THE ADVICE OF
COUNSEL PRIOR TO EXECUTING THIS AGREEMENT AND FULLY UNDERSTAND ALL
PROVISIONS OF THE OPTION. I HEREBY AGREE TO ACCEPT AS BINDING,
CONCLUSIVE AND FINAL ALL DECISIONS OR INTERPRETATIONS OF THE BOARD OF
DIRECTORS OR OF THE COMMITTEE UPON ANY QUESTIONS ARISING UNDER THE PLAN.
ACCEPTED AND AGREED:
_______________________________
Name: _________________________
Dated: __________________, ____
4
EXHIBIT A
TO
EMPLOYEE OPTION AGREEMENT
1. Manner of Exercise. This Option shall be exercised by delivery to
the Company (or its authorized agent), during the period in which such Option is
exercisable, of (i) written notice of your intent to purchase a specific number
of shares of Stock pursuant to this Option and (ii) full payment of the Option
Price for such specific number of shares. Payment may be made by any one or more
of the following means:
(i) certified or cashier's check or wire transfer,
(ii) shares of Stock with a Fair Market Value on the effective
date of such exercise equal to such Option Price and owned by you for at
least six months (or such longer period as is determined by the Company
required by applicable accounting standards to avoid a charge to the
Company's earnings), or that you purchased on the open market,
(iii) pursuant to procedures previously approved by the Company,
through the sale of the shares of Stock acquired on exercise of this
Option through a broker-dealer to whom you have submitted an irrevocable
notice of exercise and irrevocable instructions to deliver promptly to
the Company the amount of sale or loan proceeds sufficient to pay for
such shares, together with, if requested by the Company, the amount of
federal, state, local or foreign withholding taxes payable by you by
reason of such exercise, or
(iv) through simultaneous sale of shares of Stock acquired on
exercise of this Option through a broker-dealer acceptable to the
Company to whom the Grantee has submitted an irrevocable notice of
exercise, as permitted under Regulation T of the Federal Reserve Board.
Such exercise shall become effective on the earliest date on which both such
notice and full payment have been actually received by the Company (which date
must be before the Expiration Date). You shall not have any rights as a
shareholder of the Company with respect to the shares of Stock deliverable upon
exercise of this Option until a certificate for such shares is delivered to you.
2. Exercise After Termination of Employment. This Option may be
exercised only while you remain an employee or non-employee director of, or a
Consultant to, the Company or a Subsidiary, except that this Option may also be
exercised after the date on which you cease to be employed by or provide
services to the Company or a Subsidiary ("Termination Date") as follows:
(i) if you cease to be employed by or provide services to the
Company or a Subsidiary on account of Disability, you may also exercise
this Option at any time during the first 6 months after your Termination
Date;
(ii) if you cease to be employed by or provide services to the
Company or a Subsidiary on account of death, the executor or
administrator of your estate, your heirs or legatees or beneficiary
designated in accordance with the Plan, as applicable, may also exercise
this Option at any time during the first 6 months after your Termination
Date; and
(iii) if you cease to be employed by or provide services to the
Company or a Subsidiary due to (a) your resignation after age 65 or 10
years of service to or employment with the Company or Subsidiary,
provided after your resignation you are not employed or
A-1
5
engaged by, and do not serve on the board of directors of, a competitor
of the Company or a Subsidiary or (b) elimination of your position with
the Company or a reduction in the Company's work force, you may exercise
this Option to the extent this Option was exercisable immediately before
the Termination Date during the first 3 months after your Termination
Date;
provided, however, that under no circumstances can this Option be exercised
after the Expiration Date.
3. Option Non-Transferable. This Option is not transferable except
by will or the laws of descent and distribution. It is exercisable during your
lifetime only by you or your guardian or legal representative.
4. Nonstatutory Option. This Option has been designated by the
Committee as a nonstatutory option; it does not qualify as an incentive stock
option.
5. Taxes. The Company is not required to issue shares of Stock upon
the exercise of this Option unless you first pay to the Company such amount, if
any, as may be requested by the Company to satisfy any liability it may have to
withhold federal, state, or local income or other taxes relating to such
exercise. As provided in the Plan, you may elect Share Withholding by the
Company of a portion of the shares of Stock that would otherwise be deliverable
to you upon exercise of this Option. However, the Committee has the discretion
to revoke your right to elect Share Withholding at any time before you make such
an election.
6. Amendments. This Agreement may be amended only by a writing
executed by the Company and you which specifically states that it is amending
this Agreement; provided that this Agreement is subject to the power of the
Board (as defined in the Plan) to amend the Plan as provided therein, except
that no such amendment shall adversely affect your rights under this Option
without your consent.
7. Notices. Any notice to be given under the terms of this Agreement
to the Company shall be addressed to the Company in care of its Secretary. Any
notice to be given to you shall be addressed to you at the address listed in the
Company's records. By a notice given pursuant to this Section, either party may
designate a different address for notices. Any notice shall have been deemed
given when actually delivered.
8. Severability. If any part of this Agreement is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any part of this Agreement not declared
to be unlawful or invalid. Any part so declared unlawful or invalid shall, if
possible, be construed in a manner which gives effect to the terms of such part
to the fullest extent possible while remaining lawful and valid.
9. Applicable Law. This Agreement shall be governed by the
substantive laws (excluding the conflict of laws rules) of the State of
California.
10. Headings. Headings are provided herein for convenience only and
are not to serve as a basis for interpretation or construction of this
Agreement.
A-2