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EXHIBIT 10.11
GULF SOUTH MEDICAL SUPPLY, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Gulf South Medical Supply, Inc., a Delaware corporation (the
"Company"), hereby grants as of (Date) to (Optionee) (the "Optionee"), an
option to purchase a maximum of (Number) shares (the "Option Shares") of its
Common Stock, $.01 par value ("Common Stock"), at the price of $(ExercisePrice)
per share, on the following terms and conditions:
1. GRANT UNDER THE COMPANY'S 1997 STOCK PLAN. This option is
granted pursuant to and is governed by the Company's 1997 Stock Plan (the
"Plan") and, unless the context otherwise requires, terms used herein shall
have the same meaning as in the Plan. Determinations made in connection with
this option pursuant to the Plan shall be governed by the Plan as it exists on
this date.
2. GRANT AS NON-QUALIFIED OPTION; OTHER OPTIONS. This option
shall be treated for federal income tax purposes as a Non-Qualified Option
(rather than an incentive stock option). This option is in addition to any
other options heretofore or hereafter granted to the Optionee by the Company or
any Related Corporation (as defined in the Plan), but a duplicate original of
this instrument shall not effect the grant of another option.
3. VESTING OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. If the
Optionee has continued to serve the Company or any Related Corporation in the
capacity of an employee, officer, director or consultant (such service is
described herein as maintaining or being involved in a "Business Relationship
with the Company") on the following dates, the Optionee may exercise this
option for the number of shares of Common Stock set opposite the applicable
date:
Less than one year from the date hereof - (VestingNumber) shares
One year but less than two years from - an additional (VestingNumber) shares
the date hereof
Two years but less than three years from - an additional (VestingNumber) shares
the date hereof
Three years but less than four years - an additional (VestingNumber) shares
from the date hereof
Four years or more from the date hereof - an additional (VestingNumber) shares
Notwithstanding the foregoing, in accordance with and subject to the provisions
of the Plan, the Committee may, in its discretion, accelerate the date that any
installment of this Option becomes
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exercisable. The foregoing rights are cumulative and (subject to Sections 4 or
5 hereof) may be exercised up to and including the date which is ten years from
the date this option is granted.
4. TERMINATION OF BUSINESS RELATIONSHIP.
(a) TERMINATION OTHER THAN FOR CAUSE. If the Optionee's
Business Relationship with the Company and all Related Corporations is
terminated, other than by reason of death, disability or dissolution as defined
in Section 5 or other than for Cause as defined in Section 4(c), no further
installments of this option shall become exercisable, and this option shall
terminate (and may no longer be exercised) after the passage of three (3)
months from the date the Business Relationship ceases, but in no event later
than the scheduled expiration date. In such a case, the Optionee's only rights
hereunder shall be those which are properly exercised before the termination of
this option.
(b) TERMINATION FOR CAUSE. If the Optionee's Business
Relationship with the Company or any Related Corporation is terminated for
Cause (as defined in Section 4(c)), this option shall terminate at the time of
such termination of the Optionee's Business Relationship with the Company and
shall thereafter not be exercisable to any extent whatsoever. For the purposes
of this Section 4(b), termination of an Optionee's Business Relationship with
the Company or any Related Corporation shall be deemed to occur when the
Optionee receives notice of such termination.
(c) DEFINITION OF CAUSE. "Cause" shall mean conduct
involving one or more of the following: (i) the substantial and continuing
failure of the Optionee, after notice thereof, to render services to the
Company or Related Corporation in accordance with the terms or requirements of
the Optionee's Business Relationship with the Company; (ii) disloyalty, gross
negligence, willful misconduct, dishonesty or breach of fiduciary duty to the
Company or Related Corporation; (iii) the commission of an act of embezzlement
or fraud; (iv) deliberate disregard of the rules or policies of the Company or
Related Corporation which results in direct or indirect loss, damage or injury
to the Company or Related Corporation; (v) the unauthorized disclosure of any
trade secret or confidential information of the Company or Related Corporation;
or (vi) the commission of an act which constitutes unfair competition with the
Company or Related Corporation or which induces any customer or supplier to
break a contract with the Company or Related Corporation.
5. DEATH; DISABILITY; DISSOLUTION.
(a) DEATH. If the Optionee is a natural person who dies
while involved in a Business Relationship with the Company or any Related
Corporation, this option may be exercised, to the extent otherwise exercisable
on the date of his or her death, by the Optionee's estate, personal
representative or beneficiary to whom this option has been assigned pursuant to
Section 10, at any time within 180 days after the date of death, but not later
than the scheduled expiration date.
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(b) DISABILITY. If the Optionee is a natural person
whose Business Relationship with the Company or any Related Corporation is
terminated by reason of his or her disability (as defined in the Plan), this
option may be exercised, to the extent otherwise exercisable on the date the
Business Relationship was terminated, at any time within 180 days after such
termination, but not later than the scheduled expiration date.
(c) EFFECT OF TERMINATION. At the expiration of such
180-day period provided in paragraphs (a) or (b) of this Section 5 or the
scheduled expiration date, whichever is the earlier, this option shall
terminate (and shall no longer be exercisable) and the only rights hereunder
shall be those as to which the option was properly exercised before such
termination.
(d) DISSOLUTION. If the Optionee is a corporation,
partnership, trust or other entity that is dissolved, is liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which the
Optionee is not the surviving entity, at a time when the Optionee is involved
in a Business Relationship with the Company or any Related Corporation, this
option shall immediately terminate as of the date of such event (and shall
thereafter not be exercisable to any extent whatsoever), and the only rights
hereunder shall be those as to which this option was properly exercised before
such dissolution or other event.
6. PARTIAL EXERCISE. This option may be exercised in part at any
time and from time to time within the above limits, except that this option may
not be exercised for a fraction of a share unless such exercise is with respect
to the final installment of stock subject to this option and cash in lieu of a
fractional share must be paid, in accordance with Paragraph 13(G) of the Plan,
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. PAYMENT OF PRICE.
(a) FORM OF PAYMENT. The option price shall be paid in
the following manner:
(i) in cash or by check;
(ii) subject to Section 7(b) below, by delivery of
shares of the Company's Common Stock having a fair
market value (as determined by the Committee) equal
as of the date of exercise to the option price;
(iii) by delivery of an assignment satisfactory in
form and substance to the Company of a sufficient
amount of the proceeds from the sale of the Option
Shares and an instruction to the broker or selling
agent to pay that amount to the Company; or
(iv) by any combination of the foregoing.
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(b) LIMITATIONS ON PAYMENT BY DELIVERY OF COMMON STOCK. If
the Optionee delivers Common Stock held by the Optionee (the "Old Stock") to
the Company in full or partial payment of the option price, and the Old Stock
so delivered is subject to restrictions or limitations imposed by agreement
between the Optionee and the Company, an equivalent number of Option Shares
shall be subject to all restrictions and limitations applicable to the Old
Stock to the extent that the Optionee paid for the Option Shares by delivery of
Old Stock, in addition to any restrictions or limitations imposed by this
Agreement. Notwithstanding the foregoing, the Optionee may not pay any part of
the exercise price hereof by transferring Common Stock to the Company unless
such Common Stock has been owned by the Optionee free of any substantial risk
of forfeiture for at least six months.
8. RESTRICTIONS ON RESALE. Option Shares may be of an illiquid
nature and may be deemed to be "restricted securities" for purposes of the
Securities Act of 1933, as amended (the "Securities Act"). Accordingly, such
shares may be required to be sold in compliance with the registration
requirements of the Securities Act or an exemption therefrom.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions
of this Agreement, this option may be exercised by written notice to the
Company, at the principal executive office of the Company, or to such transfer
agent as the Company shall designate. Such notice shall state the election to
exercise this option and the number of Option Shares for which it is being
exercised and shall be signed by the person or persons so exercising this
option. Such notice shall be accompanied by payment of the full purchase price
of such shares, and the Company shall deliver a certificate or certificates
representing such shares as soon as practicable after the notice shall be
received. Such certificate or certificates shall be registered in the name of
the person or persons so exercising this option (or, if this option shall be
exercised by the Optionee and if the Optionee shall so request in the notice
exercising this option, shall be registered in the name of the Optionee and
another person jointly, with right of survivorship). In the event this option
shall be exercised, pursuant to Section 5 hereof, by any person or persons
other than the Optionee, such notice shall be accompanied by appropriate proof
of the right of such person or persons to exercise this option.
10. OPTION NOT TRANSFERABLE. This option is not transferable or
assignable except by will or by the laws of descent and distribution or
pursuant to a valid domestic relations order. Except as set forth in the
preceding sentence, during the Optionee's lifetime, only the Optionee can
exercise this option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of
this option imposes no obligation on the Optionee to exercise it.
12. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. Neither the
Plan, this Agreement, nor the grant of this option imposes any obligation on
the Company or any Related Corporation to continue to maintain a Business
Relationship with the Optionee.
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13. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have
no rights as a stockholder with respect to the Option Shares until such time as
the Optionee has exercised this option by delivering a notice of exercise and
has paid in full the purchase price for the number of shares for which this
option is to be so exercised in accordance with Section 9. Except as is
expressly provided in the Plan with respect to certain changes in the
capitalization of the Company, no adjustment shall be made for dividends or
similar rights for which the record date is prior to such date of exercise.
14. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. The Plan contains
provisions covering the treatment of options in a number of contingencies such
as stock splits and mergers. Provisions in the Plan for adjustment with
respect to stock subject to options and the related provisions with respect to
successors to the business of the Company are hereby made applicable hereunder
and are incorporated herein by reference.
15. WITHHOLDING TAXES. If the Company or any Related Corporation in
its discretion determines that it is obligated to withhold any tax in
connection with the exercise of this option, or in connection with the transfer
of, or the lapse of restrictions on, any Common Stock or other property
acquired pursuant to this option, the Optionee hereby agrees that the Company
or any Related Corporation may withhold from the Optionee's wages or other
remuneration the appropriate amount of tax. At the discretion of the Company
or Related Corporation, the amount required to be withheld may be withheld in
cash from such wages or other remuneration or in kind from the Common Stock or
other property otherwise deliverable to the Optionee on exercise of this
option. The Optionee further agrees that, if the Company or Related
Corporation does not withhold an amount from the Optionee's wages or other
remuneration sufficient to satisfy the withholding obligation of the Company or
Related Corporation, the Optionee will make reimbursement on demand, in cash,
for the amount underwithheld.
16. LOCK-UP AGREEMENT. The Employee agrees that in connection with an
underwritten public offering of Common Stock, upon the request of the Company
or the principal underwriter managing such public offering, the Option Shares
may not be sold, offered for sale or otherwise disposed of without the prior
written consent of the Company or such underwriter, as the case may be, for at
least 90 days after the effectiveness of the registration statement filed in
connection with such offering, or such longer period of time as the Board of
Directors may determine if all of the Company's directors and officers agree to
be similarly bound.
17. ARBITRATION. Any dispute, controversy, or claim arising out of,
in connection with, or relating to the performance of this Agreement or its
termination shall be settled by arbitration in the State of Mississippi,
pursuant to the rules then obtaining of the American Arbitration Association.
Any award shall be final, binding and conclusive upon the parties and a
judgment rendered thereon may be entered in any court having jurisdiction
thereof.
18. PROVISION OF DOCUMENTATION TO EMPLOYEE. By signing this Agreement
the Optionee acknowledges receipt of an original of this Agreement and a copy
of the Plan.
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19. MISCELLANEOUS.
(a) NOTICES. All notices hereunder shall be in writing and
shall be deemed given when sent by certified or registered mail, postage
prepaid, return receipt requested, to the address set forth below. The
addresses for such notices may be changed from time to time by written notice
given in the manner provided for herein.
(b) ENTIRE AGREEMENT; MODIFICATION. This Agreement
constitutes the entire agreement between the parties relative to the subject
matter hereof, and supersedes all proposals, written or oral, and all other
communications between the parties relating to the subject matter of this
Agreement. This Agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.
(c) SEVERABILITY. The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, subject to the limitations set forth in Section 10
hereof.
(e) GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware, without
giving effect to the principles of the conflicts of laws thereof. The
preceding choice of law provision shall apply to all claims, under any theory
whatsoever, arising out of the relationship of the parties contemplated herein.
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IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed as of the date first above written.
GULF SOUTH MEDICAL SUPPLY, INC.
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XXXXXXXX Xxxxxxx, XX 00000
(Optionee) By:
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Print Name of Optionee
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Street Address Title
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City State Zip Code
