EXHIBIT 10.10
NONSTATUTORY STOCK OPTION
RICHARD B. HOLLIS, Optionee:
Hollis-Eden, Inc. (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").
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 Three Hundred Thousand (300,000). The
date that vesting begins on this option is January 1, 1999. Subject to the
limitations contained herein, the options will have a vesting schedule as
follows: 1/3 of the total number of shares subject to this Option shall vest on
the first year anniversary date of the vesting date; thereafter, 1/36th of the
total number of shares subject to this Option shall vest on the last day of each
calendar month, until either (i) you cease to provide services to the Company
for any reason, or (ii) this option becomes fully vested.
2. (a) Exercise Price. The exercise price of this option is Sixteen
dollars and sixty-three cents ($16.63) 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 or any other method of "cashless" exercise
agreed upon by the Optionee and the Company;
(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;
(iiv) Payment by a combination of the methods of payment
permitted by subparagraph 2(b)(i) through 2(b)(iii) above.
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.
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 March 8, 1999 (the date of
grant) and, unless sooner terminated as set forth below, terminates on December
31, 2008. 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: (i) three (3) months after your Termination Date if termination is
either by you or the Company "For Cause" or:
(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 such termination of service; 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
(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 the termination of service; 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.
However, this option may be exercised following your Termination Date only
as to that number of shares as to which it was exercisable on the Termination
Date under the provisions of paragraph 1 of this option.
In the event the Optinee's employment with the Company is terminated
without cause, in which case, as provided in paragraph 1 above, he shall be
entitled to immediate vesting of any unvested portion of the grant made
hereunder, the option shall terminate on the tenth anniversary of each vesting
date in the case of any portions of the grant vested prior to the Termination
Date, and on the tenth anniversary of the Termination Date in the case of any
unvested portion of the grant to which he is entitled to accelerated vesting.
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.
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 or Committee, 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 9(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 for a period of 30 days, following which it shall be terminated
if not exercised during such 30 day period. Following any assumption or
substitution of this option under this subparagraph 9(b), if your service to the
Company or its successor is terminated other than upon your voluntary
resignation, this option shall become fully vested and exercisable and shall
remain exercisable until otherwise terminated in accordance with the provisions
of this option. 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, or a lifetime gift to a trust for the
benefit for any of the following: Richard B. Hollis, or any family members
(wife, children, parents, and brothers) or any entity related to the above, 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 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 (the
"Board") of the Company 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.
14. Rights as Stockholder. Neither you nor any person to whom this option
is transferred under paragraph 9 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 the 30th day of April, 1999.
Very truly yours,
Hollis-Eden, Inc.
By: Richard B. Hollis
---------------------------------
Duly authorized on behalf
of the Board of Directors
Attachments:
Notice of Exercise
NOTICE OF EXERCISE
Date of Exercise: __________________
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect to purchase the
number of shares for the price set forth below:
Type of option: Nonstatutory
Stock option dated: __________________________
Number of shares as to
which option is
exercised: __________________________
Certificates to be issued to:
Name __________________________
Address __________________________
__________________________
Tax id number __________________________
Total exercise price: $__________________
Cash payment delivered
herewith: $__________________
Value of ________ shares of
Hollis-Eden common
stock delivered herewith: $__________________
By this exercise, I agree (i) to provide such additional documents as you
may require pursuant to the terms of the stock option grant, (ii) to provide for
the payment by me to you (in the manner designated by you) of your withholding
obligation, if any, relating to the exercise of this option.
Very truly yours,
__________________________________
________________________
* Shared must meet the public trading requirements set forth in the option.
Shares must be valued in accordance with the terms of the option being
exercised, must have been owned for the minimum period required in the option,
and must be owned free and clear of any liens, claims, encumbrances or security
interests. Certificates must be endorsed or accompanied by an executed
assignment separate from certificate.