EX-10.21
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT UNDER THE
XXXXXX ACQUISITION HOLDINGS, INC. 1999 EQUITY INCENTIVE PLAN
THIS AGREEMENT, made as of __________, 2000 (the "Effective
Date"), by and between Xxxxxx Medical Group, Inc., a Delaware corporation
formerly known as Xxxxxx Acquisition Holdings, Inc. (the "Company"), and
________________ (the "Participant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Participant currently serves as a member of the
Company's Board of Directors (the "Board"); and
WHEREAS, the Company desires to afford the Participant the
opportunity to acquire ownership of the Company's common stock, par value $.01
per share ("Common Stock"), so that he may have a direct proprietary interest in
the Company's success.
NOW, THEREFORE, in consideration of the covenants and
agreements herein contained, the parties hereby agree as follows:
1. GRANT OF OPTIONS. Subject to the terms and conditions set forth
herein and in the Xxxxxx Acquisition Holdings, Inc. 1999 Equity Incentive Plan,
a copy of which is attached hereto as Exhibit A (the "Plan"), on the Effective
Date the Company does hereby grant to the Participant, during the period
commencing on the Effective Date and ending on the 10th anniversary of the
Effective Date (the "Expiration Date"), the right and option (the right to
purchase any one share under this Agreement being an "Option") to purchase from
the Company ____________ shares of Common Stock. The Option to purchase such
Common Stock shall have an exercise price of $______ per share (the Fair Market
Value of one share of Common Stock on the date hereof). The Options granted
pursuant to this Agreement shall constitute Nonqualified Stock Options under the
Plan.
2. LIMITATIONS ON EXERCISE OF OPTIONS. (a) Subject to the terms and
conditions set forth herein and in the Plan, the Options shall vest and become
exercisable, on a cumulative basis, with respect to [25%] of the shares on the
first anniversary of the Effective Date and on each succeeding anniversary
thereafter so long as the Participant is a member of the Board (a "Director");
provided, however, upon the occurrence of a Change of Control, as defined below,
all of the then unvested Options shall automatically vest and be fully
exercisable and shall remain so exercisable in accordance with the terms of this
Agreement. The Committee or the Board may accelerate the vesting and
exercisability of any or all of the then-unvested Options at any time.
(b) For purposes of this Agreement, a "Change of Control"
shall mean:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 50% or more (on a fully diluted basis) of either (A)
the then outstanding shares of common stock of the Company, taking into account
as outstanding for this purpose such common stock issuable upon the exercise of
options or warrants, the conversion of convertible stock or debt, and the
exercise of any similar right to acquire such common stock (the "Outstanding
Company Common Stock") or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
for purposes of this subsection (i), the following acquisitions shall not
constitute a Change of Control: (w) any acquisition pursuant to an initial
public offering of shares of common stock of the Company pursuant to a
registration statement declared effective under the Securities Act of 1933, as
amended, (x) any acquisition by the Company or any "affiliate" of the Company,
within the meaning of 17 C.F.R. ss. 230.405 (an "Affiliate"), (y) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Affiliate, (z) any acquisition by any
corporation or business entity pursuant to a transaction which complies with
clauses (A), (B) and (C) of subsection (ii) of this Section 2(b) (persons and
entities described in clauses (w), (x), (y) and (z) being referred to herein as
"Permitted Holders"); or
(ii) The consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 60% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding any Permitted Holder) beneficially owns, directly
or indirectly, 50% or more (on a fully diluted basis) of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Business Combination, taking into account as outstanding for this purpose such
common stock issuable upon the exercise of options or warrants, the conversion
of convertible stock or debt, and the exercise of any similar right to acquire
such common stock, or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination, and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the incumbent Board at the time of the execution of
the initial agreement providing for such Business Combination; or
(iii) The approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company; or
(iv) The sale of at least 80% of the assets of the Company to
an unrelated party, or completion of a transaction having a similar effect; or
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(v) The individuals who on the date of this Agreement
constitute the Board thereafter cease to constitute at least a majority thereof;
provided that any person becoming a member of the Board subsequent to the date
of this Agreement and whose election or nomination was approved by a vote of at
least two-thirds of the directors who then comprised the Board immediately prior
to such vote shall be considered a member of the Board on the date of this
Agreement.
3. NON-TRANSFERABLE. Except as specifically authorized by the
Committee, the Participant may not transfer the Options except by will or the
laws of descent and distribution and the Options shall be exercisable during the
Participant's lifetime only by the Participant or, in the event of his
incapacity, his guardian or legal representative. Except as so authorized, no
purported assignment or transfer of the Options, or of the rights represented
thereby, whether voluntary or involuntary, by operation of law or otherwise
(except by will or the laws of descent and distribution), shall vest in the
assignee or transferee any interest or right herein whatsoever.
4. TERMINATION OF STATUS AS A DIRECTOR. (a) DISABILITY OR CONSENT. If,
prior to the Expiration Date, the Participant shall cease to be a Director by
reason of a Disability, as defined in the Plan, or the Participant's status as a
Director shall terminate with the written consent of the Committee, then the
Options shall remain exercisable until the earlier of the Expiration Date or the
date that is [thirty (30)] days after the date of such termination as a
Director, but only to the extent the Options were vested and exercisable at the
time of such termination.
(b) WITHOUT CAUSE. If the Participant's status as a Director
shall be terminated by the Company without Cause, as defined in the Plan, then
the Options shall remain exercisable until the earlier of the Expiration Date or
the date that is [ninety (90)] days after the date of such termination as a
Director, but only to the extent the Options were vested and exercisable at the
time of such termination.
(c) VOLUNTARY; FOR CAUSE TERMINATION. If the Participant
voluntarily terminates his services as a Director for reasons other than
Disability and without the written consent of the Committee or the Participant's
status as a Director is terminated for Cause, then all of the Options, to the
extent not exercised prior to such termination, whether exercisable or not,
shall lapse and be canceled immediately upon the Participant's ceasing to be a
Director.
(d) DEATH. If the Participant shall cease to be a Director
prior to the Expiration Date by reason of death, or the Participant shall die
while entitled to exercise any of the Options pursuant to Section 4(a) or 4(b),
the executor or administrator of the estate of the Participant or the person or
persons to whom the Options shall have been validly transferred by the executor
or administrator pursuant to a will or the laws of descent and distribution
shall have the right, until the earlier of the Expiration Date or [one (1) year]
after the date of death, to exercise the Options, but only to the extent that
the Participant was entitled to exercise them on the date of death and subject
to any other limitation contained herein on the exercise of the Options in
effect on the date of exercise.
(e) Whether the Participant's status as a Director has been or
could have been terminated for the purposes of this Agreement, and the reasons
therefor, shall be determined by the Committee, whose determination shall be
final, binding and conclusive.
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(f) Options that have not yet vested at the time of
termination of the Participant's status as a Director shall expire, and no
further vesting shall occur with respect thereto. After the expiration of any
exercise period described in this Section 4, the Options shall terminate
together with all of the Participant's rights hereunder, to the extent not
previously exercised.
5. ADJUSTMENTS AND CORPORATE REORGANIZATIONS. In accordance with and
subject to the applicable terms of the Plan, the Options shall be subject to
adjustment or substitution, as determined by the Committee, as to the number,
price or kind of Stock or other consideration subject to such Options or as
otherwise determined by the Committee to be equitable (i) in the event of
changes in the outstanding Stock or in the capital structure of the Company by
reason of stock dividends, stock splits, reverse stock splits,
recapitalizations, reorganizations, mergers, consolidations, combinations,
exchanges, or other relevant changes in capitalization occurring after the date
hereof or (ii) in the event of any change in applicable laws or any change in
circumstances which results in or would result in any substantial dilution or
enlargement of the rights granted to, or available for, the Participant. The
Company shall give the Participant written notice of an adjustment hereunder.
Notwithstanding anything herein to the contrary, in the event of any of the
following:
(a) The Company is merged or consolidated with another
corporation or entity and, in connection therewith,
consideration is received by shareholders of the
Company in a form other than stock or other equity
interests of the surviving entity;
(b) All or substantially all of the assets of the Company
are acquired by another person;
(c) The Company's reorganization or liquidation; or
(d) The Company shall enter into a written agreement to
undergo an event described in clauses (a), (b) or
(c) above,
then the Committee may, in its discretion and upon at least 10 days advance
notice to the affected persons, cancel any outstanding Options and pay to the
Participant, in cash, the value of such Options based upon the price per share
of Stock received or to be received by other shareholders of the Company in such
event and the per share exercise price of the Options.
6. EXERCISE: PAYMENT FOR AND DELIVERY OF COMMON STOCK. The Options
shall be exercised by delivering written notice to the Committee stating the
number of shares of Common Stock to be purchased, the person or persons in whose
name the shares of Common Stock are to be registered and each such person's
address and social security number. Such notice shall not be effective unless
accompanied by the full purchase price for all shares to be purchased, and any
applicable withholding (as described below). The purchase price shall be payable
in cash, in shares of Common Stock, any combination of cash or shares of Common
Stock or any other method authorized by the Plan and consented to by the
Committee; PROVIDED, HOWEVER, that the Participant may use Common Stock in
payment of the exercise price only if the shares so used are considered "mature"
for purposes of generally accepted accounting principles (I.E., (i) been held by
the Participant free and clear for at least six (6) months prior to the use
thereof to pay
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part of an Option exercise price, (ii) been purchased by the Participant in
other than a compensatory transaction, or (iii) meet any other requirements for
"mature" shares as may exist on the date of the use thereof to pay part of an
Option exercise price). In the event that all or part of the purchase price is
paid in shares of Common Stock, the shares used in payment shall be valued at
their Fair Market Value on the date of exercise of the Options. At the time of
exercise, the Participant shall pay to the Company, in cash, or by having the
Company withhold upon exercise of the Option a sufficient number of shares of
Common Stock otherwise deliverable to the Participant based on the Fair Market
Value of the Common Stock on the date of exercise, at the election of the
Participant, such minimum amount as the Company deems necessary to satisfy its
obligation to withhold Federal, state or local income or other taxes incurred by
reason of the exercise or the transfer of shares thereupon. Payment in currency
or by certified or cashier's check shall be considered payment in cash.
7. ISSUANCE OF SHARES. As promptly as practical after receipt of such
written notification and full payment of such aggregate exercise price for the
Options and any required tax withholding amount has been satisfied, the Company
shall issue or transfer to the Participant the number of shares with respect to
which Options have been so exercised, and shall deliver to the Participant a
certificate or certificates therefor, registered in the Participant's name.
8. RIGHTS AS STOCKHOLDER. (a) The Participant or a transferee of the
Options shall have no rights as a stockholder with respect to any shares covered
by the Options until he shall have become the holder of record of such shares
(and the Company shall use its reasonable best efforts to cause the Participant
promptly to become the holder of record of such shares), and, except as provided
in Section 5 hereof, no adjustment shall be made for dividends or distributions
or other rights in respect of such shares for which the record date is prior to
the date upon which he shall become the holder or record thereof.
(b) The Participant acknowledges and agrees that any Common
Stock acquired in respect of the Options granted under Section 2 shall be
"Shares" as such term is used in the Stockholders Agreement, dated as of
December 7, 1999, among the Company and certain "Investors" listed in Schedule I
thereto, and, as such, will be subject to certain restrictions, including
restrictions on resale and such other transfers. In the event of any conflict or
inconsistency between the terms and provisions of this Agreement and the
Stockholders Agreement, the Stockholders Agreement shall govern and control.
9. COMPANY; PARTICIPANT. (a) Except with respect to Section 2 and as
otherwise indicated by the context, the term "Company" as used in this
Agreement shall include the Company and its Related Entities.
(b) Whenever the word "Participant" is used in any provision
of this Agreement under circumstances where the provision should logically be
construed to apply to the executors, the administrators, legal representatives,
the person or persons to whom the Options may be transferred by will or by the
laws of descent and distribution or any other transferee to whom the Options may
be transferred with the consent of the Committee, the word "Participant" shall
be deemed to include such person or persons.
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10. REQUIREMENTS OF LAW. (a) By accepting the Options, the Participant
represents and agrees for himself and his transferees (whether by will or the
laws of descent and distribution) that, unless a registration statement under
the Securities Act of 1933, as amended (the "Act"), is in effect as to shares
purchased upon any exercise of the Options, (i) any and all shares so purchased
shall be acquired for his personal account and not with a view to or for sale in
connection with any distribution, and (ii) each notice of the exercise of any
portion of this Option shall be accompanied by a representation and warranty in
writing, signed by the person entitled to exercise the same, that the shares are
being so acquired in good faith for his personal account and not with a view to
or for sale in connection with any distribution.
(b) No certificate or certificates for shares of Common Stock
may be purchased, issued or transferred if the exercise hereof or the issuance
or transfer of such shares shall constitute a violation by the Company or the
Participant of any (i) provision of any Federal, state or other securities law,
(ii) requirement of any securities exchange listing agreement to which the
Company may be a party, or (iii) other requirement of law or of any regulatory
body having jurisdiction over the Company. Any reasonable determination in this
connection by the Board, upon notice given to the Participant, shall be final,
binding and conclusive.
(c) The certificates representing shares of Common Stock
acquired pursuant to the exercise of Options shall carry such appropriate
legend, and such written instructions shall be given to the Company's transfer
agent, as may be deemed necessary or advisable by counsel to the Company in
order to comply with the requirements of the Act or any state securities laws.
11. NOTICES. Any notice to be given to either party shall be in writing
and shall be given by hand delivery to such party or by registered or certified
mail, return receipt requested, postage prepaid, addressed to the Company in
care of its Secretary at its principal office, and to the Participant at the
address given beneath his signature hereto, or at such other address as either
party shall have furnished to the other in writing in accordance herewith.
Notice and communications shall be effective when actually received by the
addressee.
12. BINDING EFFECT. This Agreement shall be binding upon the heirs,
executors, administrators, successors and permitted assigns of the
parties hereto.
13. THE PLAN. The terms and provisions of the Plan are incorporated
herein by reference and made a part hereof as though fully set forth herein. In
the event of any conflict or inconsistency between discretionary terms and
provisions of this Agreement, this Agreement shall govern and control. In all
other instances of conflicts or inconsistencies or omissions, the terms and
provisions of the Plan shall govern and control. All capitalized terms not
otherwise expressly defined in this Agreement shall have the meaning ascribed to
them in the Plan.
14. GOVERNING LAW. This Agreement shall be construed and interpreted
in accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of law thereof.
15. ENTIRE AGREEMENT. This Agreement, together with the Plan,
contains the entire agreement and understanding between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral, with respect thereto.
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IN WITNESS WHEREOF, the Company has granted this Option on the date of
grant specified above. This instrument may be executed in any number of
counterparts, each of which shall be deemed to be an original, and such
counterparts together shall constitute one and the same instrument.
XXXXXX MEDICAL GROUP, INC.
By:
-----------------------------------
Name:
Title:
ACCEPTED:
-----------------------
[Participant Name]
[Participant Address]
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