Form of Non Qualified Stock Option Agreement

Exhibit 10.33


THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.


ACCENTIA, INC.

NONQUALIFIED STOCK OPTION AGREEMENT

Accentia, Inc., a Florida corporation (the " Company" ), hereby grants to the individual named below an option (the " Option Agreement" ) to purchase certain shares of [Common Stock/Series D Convertible Preferred Stock] of the Company pursuant to the Accentia, Inc. 2003 Stock Option Plan, in the manner and subject to the provisions of this Option Agreement.

1. Definitions :

(a)" Code" shall mean the Internal Revenue Code of 1986, as amended. (All references to Sections of the Code are to such Sections as they may from time to time be amended or renumbered.)

(b)" Company" shall mean Accentia, Inc., a Florida corporation, and any successor corporation thereto. (c)" Date of Option Grant" shall mean . (d)" Disability" shall mean disability within the meaning of Section 22(e)(3) of the Code, as determined by the Board in its sole discretion under procedures established by the Board of Directors of the Company.

(e)" Exercise Price" shall mean ($ . ) per share, as adjusted from time to time pursuant to Paragraph 9 below.

(f)" Number of Option Shares" shall mean ( ) shares of [Common Stock/Series D Preferred Stock] of the Company as adjusted from time to time pursuant to Paragraph 9 below. (g)" Option Term Date" shall mean the date ten (10) years after the Date of Option Grant.


(h) " Optionee" shall mean . (i)" Participating Company" shall mean (i) the Company and (ii) any present or future parent and/or subsidiary corporation of the Company while such corporation is a parent or subsidiary of the Company. For purposes of this Option Agreement, a parent corporation and a subsidiary corporation shall be as defined in Sections 424(e) and 424(f) of the Code. (j)" Participating Company Group" shall mean at any point in time all corporations collectively which are then a Participating Company. (k)" Plan" shall mean the Accentia, Inc. 2003 Stock Option Plan, as amended from time to time. 2. Nonqualified Stock Option . This Option is intended to be a nonqualified stock option. The Optionee should consult with the Optionee' s own tax advisors regarding the tax effects of this Option.

3. Administration . All questions of interpretation concerning this Option Agreement shall be determined by the Board of Directors of the Company (the " Board" ) and/or by a duly appointed committee of the Board having such powers as shall be specified by the Board. Any subsequent references herein to the Board shall also mean the committee if such committee has been appointed and, unless the powers of the committee have been specifically limited, the committee shall have all of the powers of the Board granted in the Plan, other than the power to terminate or amend the Plan as provided in Paragraph 12 of the Plan, subject to the terms of the Plan and any applicable limitations imposed by law. All determinations by the Board shall be final and binding upon all persons having an interest in the Option. Any officer of a Participating Company shall have the authority to act on behalf of the Company with respect to any matter, right, obligation or election which is the responsibility of or which is allocated to the Company herein, provided the officer has apparent authority with respect to such matter, right, obligation or election.

4. Exercise and Vesting of the Option .

(a) Right to Exercise . The Option shall vest and become exercisable from time to time, subject to the schedule set forth below, in whole or in part, subject to the termination provisions of paragraphs 6 and 7 hereof and the Optionee' s agreement that any shares purchased upon exercise are subject to the Company' s repurchase rights set forth in Paragraph 11 below. (i) On or after , 200 (the " Initial Vesting Date" ), the Option may be exercised to purchase up to % of the Number of Option Shares.

(ii)

On or after the last day of each successive full month of employment by the Company beginning on or after the Initial Vesting Date, the Option may be exercised to purchase up to an additional % of the Number of Option Shares. This provision shall be interpreted such that on or after


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the third annual anniversary date of the Initial Vesting Date, the Option may be exercised to purchase up to 100% of the Number of Option Shares.


The schedule set forth above is cumulative, so that shares as to which the Option has become exercisable on and after a date indicated by the schedule may be purchased pursuant to exercise of the Option at any subsequent date prior to termination of the Option. The Option may be exercised at any time and from time to time to purchase up to the number of shares as to which it is then exercisable.

(b) Method of Exercise . The Option shall be exercised by written notice to the Company in the form of Exhibit A hereto stating the election to exercise the Option, the Number of Option Shares for which the Option is being exercised and such other representations and agreements as to the Optionee' s investment intent with respect to such shares as may be required by the Company. The written notice must be signed by the Optionee and must be delivered in person or by certified or registered mail, return receipt requested, to the Chief Financial Officer of the Company, or other authorized representative of the Participating Company Group, prior to the termination of the Option as set forth in Paragraph 6 below, accompanied by (i) full payment of the exercise price for the number of shares being purchased and (ii) an executed copy, if required herein, of the then current form of joint escrow instructions referenced below.

(c) Form of Payment of Option Price . Such payment shall be made in cash, check or cash equivalent or in any other form as may be permitted by the Board in its sole discretion.

(d) Withholding . At the time the Option is exercised, in whole or in part, or at any time thereafter as requested by the Company, the Optionee hereby authorizes payroll withholding and otherwise agrees to make adequate provision for foreign, federal and state tax withholding obligations of the Company, if any, which arise in connection with the Option, including, without limitation, obligations arising upon (i) the exercise, in whole or in part, of the Option, (ii) the transfer, in whole or in part, of any shares acquired on exercise of the Option, (iii) the operation of any law or regulation providing for the imputation of interest, or (iv) the lapsing of any restriction with respect to any shares acquired on exercise of the Option.

(e) Certificate Registration . The certificate or certificates for the shares as to which the Option shall be exercised shall be registered in the name of the Optionee, or, if applicable, the heirs of the Optionee.

(f)

Restrictions on Grant of the Option and Issuance of Shares . The grant of the Option and the issuance of the shares upon exercise of the Option shall be subject to compliance with all applicable requirements of federal or state law with respect


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to such securities. The Option may not be exercised if the issuance of shares upon such exercise would constitute a violation of any applicable federal or state securities laws or other law or regulations. In addition, no Option may be exercised unless (i) a registration statement under the Securities Act of 1933, as amended (the " Securities Act" ), shall at the time of exercise of the Option be in effect with respect to the shares issuable upon exercise of the Option or (ii) in the opinion of legal counsel to the Company, the shares issuable upon exercise of the Option may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act.


THE OPTIONEE IS CAUTIONED THAT THE OPTION MAY NOT BE EXERCISABLE UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS VESTED.


As a condition to the exercise of the Option, the Company may require the Optionee to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company.

(g) Fractional Shares . The Company shall not be required to issue fractional shares upon the exercise of the Option. 5. Non-Transferability of the Option . The Option may be exercised during the lifetime of the Optionee only by the Optionee and may not be assigned or transferred in any manner except by will or by the laws of descent and distribution.

6. Termination of the Option . The Option shall terminate and may no longer be exercised on the first to occur of (a) the Option Term Date as defined above, (b) the last date for exercising the Option following termination of employment as described in Paragraph 7 below, or (c) upon a Transfer of Control as described in Paragraph 8 below.

7. Termination of Employment.

(a)

Termination of the Option. If the Optionee ceases to be an employee of the Participating Company Group for any reason except death or Disability, the Option, to the extent unexercised and exercisable by the Optionee on the date on which the Optionee ceased to be an employee, may be exercised by the Optionee within three (3) months after the date on which the Optionee' s employment terminates, but in any event no later than the Option Term Date. If the Optionee' s employment with the Participating Company Group is terminated because of the death or Disability of the Optionee, the Option, to the extent unexercised and


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exercisable by the Optionee on the date on which the Optionee ceased to be an employee, may be exercised by the Optionee (or the Optionee' s legal representative) at any time prior to the expiration of twelve (12) months from the date the Optionee' s empl ...