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Exhibit 10.8
VESTED STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement") dated as of __________ 1999,
by and between Maxxim Medical, Inc., a Texas corporation (the "Company"), and
_________________ (the "Executive"), who is presently a ________________ of the
Company.
WHEREAS, pursuant to the Maxxim Medical, Inc. 1999 Stock Incentive
Plan (the "Plan"), the Committee (as defined in the Plan) has decided to award
Options (as defined below) on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings ascribed to them below. Any capitalized term used in this
Agreement and not defined herein shall have the meaning ascribed to it in the
Plan.
"Acquisition" shall have the meaning set forth in Section 5.3.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Common Stock" shall mean the Common Stock, par value $0.001 per
share, of the Company, subject to adjustment pursuant to the third paragraph of
Section 3 of the Plan, under certain circumstances.
"Company" shall have the meaning set forth in the preamble hereto.
"Executive" shall have the meaning set forth in the preamble hereto.
"Exercise Price" shall have the meaning set forth in Section 2.2.
"Grant Date" shall have the meaning set forth in Section 2.1.
"Options" shall have the meaning set forth in Section 2.1.
"Plan" shall have the meaning set forth in the recitals hereof.
In addition, certain other terms used herein have definitions
otherwise ascribed to them herein.
2. Grant and Terms of Options.
2.1. Grant of Options. The Company hereby grants to the Executive as
of ____________ (the "Grant Date") ______ Nonqualified Stock Options (the
"Options") each to purchase one share of Common Stock per Option on the terms
and conditions set forth below,
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and in reliance upon the representations and covenants of the Executive set
forth below. Unless sooner exercised or forfeited as provided for in the Plan
or this Agreement, the Options shall expire on the tenth anniversary of the
date of this Agreement.
2.2. Exercise Price. The exercise price of the Options is $26.00 per
share of Common Stock subject thereto (the "Exercise Price").
2.3. Exercisability. The Options shall be immediately exercisable on
the Grant Date and shall remain exercisable until they terminate as set forth
in this Agreement or the Plan.
3. Plan Shares. The Executive shall not be permitted to sell,
assign, transfer, pledge or otherwise encumber any Plan Shares or Options,
except as provided in the Plan or, in the case of Plan Shares, as provided in
Sections 2.3, 2.4 and 2.5 of the Stockholders' Agreement. Any transfer of Plan
Shares otherwise permitted pursuant to this Agreement shall remain subject to
the terms of the Stockholders' Agreement, and shall not be permitted other than
in accordance with the terms thereof, notwithstanding any provision of this
Agreement that would otherwise permit such transfer.
4. Executive's Representations, Warranties and Agreements. In
connection with the exercise of any Options, the Executive shall make to the
Company (i) representations, warranties and agreements in writing that such
Executive is acquiring the shares of Common Stock without a view to the
distribution thereof and (ii) any other representations that the Committee may
reasonably deem appropriate.
5. Successors.
5.1. This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the Executive
otherwise than (a) by will or the laws of descent and distribution or (b)
pursuant to a gift to the Executive's spouse, children, grandchildren or other
living descendants, whether directly or indirectly or by means of a trust,
partnership, limited liability company or otherwise, in each case, subject to
the restrictions of the Stockholders' Agreement. This Agreement shall inure to
the benefit of and be enforceable by the Executive's legal representatives.
5.2. This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
5.3. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise (an "Acquisition"))
to all or substantially all of the business and/or assets of the Company
expressly to assume and to agree to perform this Agreement in the same manner
and to the same extent that the Company would have been required to perform
this Agreement if no such succession had taken place (or by substituting for
such Options new options, based upon the stock of such successor, having an
aggregate spread between the Fair Market Value of the underlying stock and the
Exercise Price thereof, and the same term, immediately after such substitution,
equal to the spread on, the term of and such other terms equivalent to such
Options immediately before such substitution); provided, however, that the
Company or such successor may, at its option, at the time of or promptly after
such Acquisition, terminate all of its obligations hereunder with respect to
the Options by paying to
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the Executive or the Executive's successors or assigns an amount equal to the
product of (i) the number of Options and (ii) the Fair Market Value per share
of the shares underlying such Options at the time of such Acquisition less the
amount of such Options' Exercise Price (but not in excess of such Fair Market
Value per share), in either case, in exchange for the Executive's Options. As
used in this Agreement, the "Company" shall mean both the Company as defined
above and any such successor that assumes and agrees to perform this Agreement,
by operation of law or otherwise.
6. Miscellaneous.
6.1. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without regard to the
principles of conflicts of law thereof. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect. Except as
otherwise provided in the Plan, this Agreement may not be amended or modified
except by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
6.2. All notices and other communications under this Agreement shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed if to the Executive, at the address set forth on the signature page
hereto, and if to the Company: 00000 00xx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000, Attn: Corporate Secretary, or to such other addresses as either party
furnishes to the other in writing in accordance with this Section 6.2. Notices
and communications shall be effective when actually received by the addressee.
6.3. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
6.4. No later than the date as of which an amount first becomes
includible in the gross income of the Executive for federal income tax purposes
with respect to any Options, the Executive shall pay to the Company, or if
appropriate, any of its Affiliates, or make arrangements satisfactory to the
Committee regarding the payment of, any United States federal, state or local
or foreign taxes of any kind required by law to be withheld with respect to
such amount. If approved by the Committee, withholding obligations may be
settled with Common Stock, including Common Stock that is part of the Award
that gives rise to the withholding requirement. The obligations of the Company
under the Plan shall be conditional on such payment or arrangements, and the
Company and its Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the Executive.
The Committee may establish such procedures as it deems appropriate, including
making irrevocable elections, for the settlement of withholding obligations
with Common Stock.
6.5. The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
6.6. The Options are granted pursuant to the Plan which is
incorporated herein by reference and the Options shall, except as otherwise
expressly provided herein, be governed
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by the terms thereof. The Executive hereby acknowledges receipt of a copy of
the Plan and agrees to be bound by all the terms and provisions thereof. The
Executive and the Company each acknowledges that this Agreement (together with
the Stockholders' Agreement, the Plan and the other agreements referred to
herein and therein) constitutes the entire agreement and supersedes all other
agreements and understandings, both written and oral, among the parties or
either of them, with respect to the subject matter hereof, including the
Investor Participation Agreement, by and among Fox Xxxxx Medic Acquisition
Corporation, a Texas corporation, the Executive and certain other stockholders
of the Company, dated June 13, 1999, as amended.
6.7. In connection with (a) the cash out of a Stock Option pursuant to
Section 5(g) of the Plan, or (b) the payment of the Exercise Price of a Stock
Option with fully vested Common Stock pursuant to Section 5(d) of the Plan at
any time following the date on which the Participant first becomes entitled to
exercise such Participant's Put Right (as defined in the Stockholders'
Agreement), but provided that the Participant does not actually exercise the
Put Right, the procedural protection with respect to the determination of Fair
Market Value that is set forth in the definition of "Fair Market Value" in the
Stockholders' Agreement shall be deemed to apply to the definition of "Fair
Market Value" as set forth in the Plan. If the Executive shall exercise his or
her right to pay the Exercise Price in full or in part in the form of fully
vested Common Stock pursuant to Section 5(d) of the Plan in connection with an
exercise of such Participant's Put Right, Fair Market Value for purposes of
this Agreement shall be equal to the Fair Market Value as determined under the
Stockholders' Agreement in connection with such Put Right.
6.8. The Company and the Participant shall from time to time execute
and deliver all such further documents and do all such acts and things as may
be reasonably required to carry out effectively or better evidence or perfect
the full intent and meaning of this Agreement, including without limitation
obtaining the ratification and approval of the Committee of this Award.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MAXXIM MEDICAL, INC.
By:
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Name:
Title:
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Executive:
Title:
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MAXXIM MEDICAL, INC.
By:
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Name:
Title:
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Executive:
Title:
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