MEDPRO SAFETY PRODUCTS, INC. INCENTIVE STOCK OPTION AWARD AGREEMENT
Exhibit
10.12
2008
STOCK AND INCENTIVE COMPENSATION PLAN
INCENTIVE
STOCK OPTION
AWARD
AGREEMENT
This is
an INCENTIVE STOCK OPTION AWARD AGREEMENT (the “Agreement”) dated as of
__________, 2009 (“Grant Date”), by and between MedPro Safety Products, Inc., a
Nevada corporation (the “Company”), and ____________ (the
“Optionee”).
Recitals
A. The
Board of Directors of the Company (the “Board”) has adopted the 2008 MedPro
Safety Products, Inc. Stock and Incentive Compensation Plan (the “Plan”), which
was approved by the Company’s shareholders in January 2009.
B. The
Committee has determined that it is in the best interests of the Company and
appropriate to the stated purposes of the Plan that the Company grant to the
Optionee an option to purchase shares of the Company’s common stock (“Shares”)
pursuant and subject to the terms, definitions, and conditions of the
Plan.
C. Any
capitalized terms used but not defined herein shall have the respective meanings
given them in the Plan, a copy of which is attached hereto and incorporated by
reference herein in its entirety.
NOW,
THEREFORE, the Company and the Optionee do hereby agree as follows:
SECTION
1 — GRANT OF
OPTION
Subject
to the terms and conditions of this Agreement, the Company hereby grants to the
Optionee an option (the “Option”) to purchase all or any part of __________
Shares. The Option is subject to the terms set forth herein and in
all respects to the terms and provisions of the Plan applicable to Incentive
Stock Options. This Option is intended to be an incentive stock
option as described in Code Section 422.
SECTION
2 — OPTION
PRICE
The
option price hereunder is $_____ per Share, which price
the Company believes is currently the fair market value per
Share. Accordingly, it is not intended that the Option constitute
“deferred compensation” pursuant and subject to Code Section
409A.
SECTION
3 — DURATION OF
OPTION
Subject
to acceleration upon a Change of Control, as defined in Section 2.5 of the Plan,
and subject to such shorter period as provided herein, including Section 4 of
this Agreement (related to excise of the Option) and Section 8 of this Agreement
(related to Termination of Service), the Option shall be exercisable with
respect to Shares vested at that time as set forth on the attached Schedule A
and as set forth in Section 4, and shall otherwise remain exercisable until the
tenth anniversary of the Grant Date (which Option Period shall be reduced to the
fifth anniversary of the Grant Date if the Optionee owns or is deemed to own
more than 10% of the total combined voting power of all classes of stock of the
Company), provided the Optionee is employed by the Company on the date such
event occurs.
SECTION 4 — EXERCISE
OF OPTION
Subject
to the restrictions set forth in Section 8, the Optionee shall exercise the
Option or it shall lapse if not so exercised, as described and in compliance
with the following terms set forth herein:
(a) Time of
Exercise. During the Option Period, the Optionee may exercise
the Option with respect to the Shares vested at any time upon compliance with
the terms specified in (b) and (c) below; provided, however, should the
Option be subject to Section 409A of the Code, the Option must be automatically
exercised by the Optionee, to the extent vested pursuant to Schedule A, 30 days after the first of
the following events to occur:
(i) Termination
of Service;
(ii) Change
of Control; or
(iii) January
1, 2013.
(b) Method of
Exercise. The Optionee shall exercise portions or all of the
vested Option by written notice, which shall:
(i) state
the election to exercise the Option, the number of Shares in respect of which it
is being exercised, and the Optionee's address and Social Security
Number;
(ii) contain
such representations and agreements, if any, as the Board may require concerning
the holder's investment intent regarding such Shares;
(iii) acknowledge
and accept the restrictions on transfer of the Option Stock as required by
Section 9 of the Plan;
(iv) be
signed by the Optionee; and
(v) be
in writing and delivered in person or by certified mail to the Chairman of the
Board.
(c) Payment Upon Exercise of
Option. Payment of the full Option Price for Shares upon which
the Option is exercised plus any income and employment tax withholding (if
applicable) shall accompany the written notice of exercise described
above. Such payment may be in cash, in shares of Stock owned by the
Optionee, through a direction to the Company to retain Shares that would
otherwise be issued on exercise with a fair market value equal to the Option
Price or a combination thereof, as set forth in Section 6.8 of the
Plan. The Company shall cause to be issued and delivered to the
Optionee the certificate(s) representing such Shares as soon as practicable
following the receipt of notice and payment described above.
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SECTION
5 — NONTRANSFERABILITY
OF OPTION
The
Option shall not be transferable or assignable by the Optionee except as set
forth in Section 14.14 of the Plan. The Option shall be exercisable,
during the Optionee's lifetime, only by the Optionee. The Option
shall not be pledged or hypothecated in any way, and shall not be subject to
execution, attachment or similar process. Except as set forth in
Section 14.14 of the Plan, any attempted transfer, assignment, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof, and the levy of any process upon the Option, shall be null, void and
without effect. Such Option may be transferable by will or the laws
of descent and distribution upon the death of the Optionee.
SECTION
6 — EFFECT OF
AMENDMENT, SUSPENSION
OR TERMINATION OF EXISTING
OPTIONS
No
amendment, suspension or termination of the Plan shall, without the Optionee's
written consent, alter or impair the Option granted under the terms of this
Agreement. Notwithstanding the preceding to the contrary, the
Optionee agrees that the Company may, in its sole and absolute discretion,
without the prior consent of the Optionee, modify or amend the terms of the
Option in any manner it deems necessary to comply with Code Section 409A,
including provisions related to the exercise of the Option; provided, however,
the Optionee acknowledges that the Company has no affirmative obligation to
exercise such discretion or to otherwise ensure that the Option complies with
Code Section 409A or is subject to any particular tax treatment.
SECTION
7 — RESTRICTIONS ON
ISSUING SHARES
Shares
shall not be issued pursuant to the exercise of the Option, unless the issuance
and transferability of the Shares shall comply with all relevant provisions of
law, including, but not limited to, the (i) limitations, if any, imposed by
applicable state law; (ii) restrictions, if any, imposed by the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder by the United States Securities and
Exchange Commission; and (iii) requirements of any stock exchange upon which the
Stock may then be listed. The Board may, in its discretion, determine
if such restrictions or such issuance of Shares so complies with all relevant
provisions of law. Any certificate issued upon exercise of an Option
shall bear any legend that the Committee deems appropriate to reflect any
restrictions on transfer.
SECTION
8 — EXERCISE AFTER
TERMINATION OF SERVICE
After an
Optionee's Termination of Service, an Option may be exercised only with respect
to the number of Shares which the Optionee could have acquired by an exercise of
the Option immediately before the Termination of Service. Any Option
exercised under this Section may be exercised by the legal representative of the
estate of the Optionee or by the person or persons who acquire the right to
exercise such Option by bequest or inheritance. If the Committee determines in
the particular case that there was Cause for Termination of Service, the right
to exercise the Option shall immediately terminate upon Termination of
Service.
For
purposes of this Agreement, "Cause" shall mean the Optionee's (i) willful
failure to substantially perform Optionee’s assigned duties, (ii) repeated gross
negligence in performing such Optionee’s duties, (iii) illegal conduct in
performing such Optionee’s duties, (iv) willful actions contrary to the
Company’s interest, (v) repeated refusal to comply with the reasonable and
lawful instructions of management of the Company or a subsidiary, or (vi) breach
of any covenant, provision, term or undertaking set forth in this Agreement or
in any separate employment agreement between Optionee and the
Company.
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SECTION
9 — COVENANTS
9.1 Covenants of
Nondisclosure.
(a) Employment Relationship and
Acknowledgments. Optionee acknowledges that:
(i) Optionee's
employment by the Company creates a relationship of confidence and trust between
Optionee and the Company and as a result Optionee has fiduciary obligations and
duties to the Company such as a fiduciary duty of loyalty;
(ii) the
Company has a proprietary interest in documents and information applicable to
its business or to the business of its clients and customers which may be made
known to Optionee during the period of Optionee's employment;
(iii) "Confidential
Information" means information, not generally known in the industry in which the
Company is or may be engaged, disclosed to Optionee, or known by Optionee, as a
consequence of or through his employment by the Company or its predecessors and
successors, about the Company's costs, pricing, marketing, ideas, problems,
developments, research records, technical data, processes, products, plans for
products or service improvement and development, business and strategic plans,
financial information, forecasts, customer records and any other information
which derives independent economic value, actual or potential, and all other
information of a trade secret or confidential nature; and
(iv) "Confidential
Material" means any writing of any kind, obtained by Optionee as a consequence
of or through his employment by the Company or its predecessors, containing any
Confidential Information and shall include, without limiting the generality of
the foregoing, customer lists, price lists, financial data, operating
instructions, forms and manuals, procedural instructions, information stored in
computers or on computer disks or computer print-outs, computer programs, any
physical property of the Company or any of its sources with which insurance is
placed, policyholders, expiration or renewal dates, inspection or credit reports
and data on insurance risks being written, catalogs, records, drawings,
blueprints, notes, notebooks, and all other materials of a trade secret or
confidential nature.
(b) Confidentiality
Agreement.
(i) Restricted Disclosure and
Use. Notwithstanding any other provision of this Agreement,
unless Optionee shall first secure the Company's written consent signed by an
officer of the Company, and except for authorized use in performance of
Optionee's duties on behalf of and for the benefit of the Company, Optionee
shall not disclose to any others, or use, at any time, in any way, or anywhere,
either during or subsequent to employment with the Company, any trade secret or
other Confidential Information (of either technical or non-technical nature) of
the Company.
(ii) Return of Materials Upon
Termination. Upon the end of Optionee's employment, Optionee
shall deliver to the Company within three business days all Confidential
Material relating in any way to the Company's business and which are in the
possession of or under the control of Optionee, whether made, written or
obtained by Optionee or others. Optionee shall retain no copies of
such materials, either for Optionee's own use or otherwise. Optionee
shall also deliver to the Company within three business days of the end of
Optionee's employment all other Company property in Optionee's possession or
control.
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(c) Binding
Nature. Optionee hereby expressly agrees that the covenants in
this Section 9.1 shall be binding upon Optionee's heirs, successors and legal
representatives.
(d) Non-Disclosure of
Information to Subsequent Companies. If, following termination
or cessation of Optionee's employment, Optionee accepts other employment or
enters into a business relationship with any person, partnership, corporation or
other entity doing business of the kind then being performed by the Company,
Optionee shall obtain from said second employer and shall provide to the Company
a written acknowledgment by the successor employer of its notification of the
terms of Section 9.1 of this Agreement. The provisions of this Section 9.1 shall
survive any termination of this Agreement.
9.2 Restrictive
Covenants.
(a) Nonsolicitation of
Employees, Etc. Optionee hereby covenants and agrees that
during the term of Optionee’s employment with Company and throughout the
Restricted Period, Optionee will not, directly or indirectly,
solicit, divert, induce, encourage or attempt to solicit, divert, induce or
encourage any person who was an employee, agent, consultant, independent
contractor, vendor, supplier or service provider of Company or its affiliates at
the time of Optionee’s termination of employment or within six (6) months prior
to such termination of employment, to leave or reduce his or her employment,
relationship or other arrangement with Company or any of its
affiliates. Further, during the Restricted Period, Optionee shall not
directly or indirectly, on behalf of himself or another person or entity, hire,
engage the services of, or attempt to hire or engage the services of, any person
or entity who was an employee, agent, consultant, independent contractor,
vendor, supplier or service provider of Company or its affiliates at the time of
Optionee’s termination of employment or within six (6) month prior to such
termination.
(b) Nonsolicitation of
Customers. Optionee hereby covenants and agrees that during
the term of Optionee’s employment with Company and throughout the Restricted
Period, Optionee will not, directly or indirectly, solicit, divert, induce,
encourage or attempt to solicit, divert, induce or encourage any customer of
Company or its affiliates at the time of Optionee’s termination of employment or
within six (6) months prior to such termination of employment, to terminate or
reduce the customer’s relationship with Company or any of its
affiliates. Further, during the Restricted Period, Optionee shall not
directly or indirectly, on behalf of himself or another person or entity, hire,
provide products or services to any person or entity or engage the services of,
or attempt to hire or engage the services of, any person or entity who was a
customer of Company or its affiliates at the time of Optionee’s termination of
employment or within six (6) month prior to such termination.
(c) Noncompetition. Optionee
hereby covenants and agrees that during the term of Optionee’s employment with
Company and throughout the Restricted Period, Optionee will not, either directly
or indirectly, in any capacity (including, but not limited to, in the capacity
as an employer, employee, sole proprietor, principal, partner, member, officer,
director, stockholder, consultant, agent, independent contractor or service
provider (other than a minority shareholder or other equity interest holder of
not more than 1% of a company whose equity interests are publicly traded on a
nationally recognized stock exchange or over-the-counter)), on Optionee’s own
behalf or in the service or on behalf of others, engage in, have any equity or
profit interest in, advise, manage, or render or perform services to any
business entity or individual engaged in business which is in competition with
Company or its affiliates or provides products similar to those provided by
Company or its affiliates within any country wherein Company or any of its
affiliates has customers, an office, an operation, sells or markets their
products or services.
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(d) Restricted
Period. For purposes of this Agreement, the “Restricted
Period” shall mean the period ending two (2) years after Optionee terminates
employment with Company or any of its affiliates. The
running of the Restricted Period shall be tolled for any period during which
Optionee is in violation of the restrictions set forth herein.
(e) Enforcement. Optionee
acknowledges that the duties, obligations and restrictions imposed upon him in
this Agreement are special, unique and of an extraordinary character, and that
in the event of Optionee’s breach or threatened breach of any portion of this
Agreement, the damage to Company and its affiliates would be irreparable or
could not be adequately measured in money damages. Optionee
represents and further acknowledges that any breach or threatened breach of his
duties, obligations and restrictions under this Agreement will cause Company and
its affiliates immediate and irreparable injury, loss and damage before legal
notice can be had upon Optionee, or his attorney, or before a judicial hearing
can be held. Therefore, Optionee agrees that Company may protect its
interest by seeking and obtaining specific performance or a court injunction
(both temporary and permanent), in addition to any provable money damages, costs
and reasonable attorneys fees, along with any other remedies they may have at
law and equity, for any breach or threatened breach of the
Agreement. Optionee also agrees that it is important for any
prospective person or business entity entering into an arrangement with Optionee
which might be impacted by the restrictive covenants set forth herein to be made
aware of this Agreement. Accordingly, Optionee further agrees to
provide a copy of this Agreement to any person or business entity with whom
Optionee considers entering into any arrangement of any nature which would be
impacted by this Agreement. Should Optionee fail to provide
this information, Optionee further agrees that Company may forward a copy of
this Agreement to any person or business entity entering into an arrangement of
any nature with Optionee which it believes would be impacted by this Agreement
and Optionee releases Company and its affiliates from any and all claimed
liability or damage by virtue of such disclosure. The provisions of
this Section 9.2 shall survive the termination of this Agreement for any reason,
including but not limited to, the expiration of its term.
9.3 Inventions, Discoveries,
etc. The Optionee acknowledges that right, title and interest
in and to all inventions, discoveries, design ideas, computer programs,
formulas, drawings, models, processes, methods, techniques, devices and data and
any and all patents, copyrights, and improvements to any of the foregoing
developed by the Optionee during his employment with the Company and relating to
the Company's business, are the property of the Company and are Confidential
Information of the Company and will be kept in confidence. Further,
the Optionee shall assign to the Company all of the Optionee's right, title and
interest in and to all such inventions and discoveries and other Confidential
Information from and after the time of creation. The Optionee agrees
to disclose promptly to the Company all such inventions, discoveries and other
Confidential Information and to comply with the Company's reasonable
instructions and sign documents for the purpose of vesting, confirming or
securing the Company's title thereto, and the Optionee agrees to do anything
else reasonably necessary to enable the Company to secure a patent, to register
a copyright or to otherwise protect the Company's interest in such inventions,
discoveries and other Confidential Information.
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SECTION
10 — ACKNOWLEDGEMENTS
The
Optionee acknowledges receipt contemporaneously herewith of a copy of the Plan,
and the Optionee represents that Optionee is familiar with the terms and
provisions thereof and hereby accepts the Option subject to all the terms and
provisions thereof. Any capitalized term used herein and not
otherwise defined shall have the meaning given in the Plan. The
Optionee acknowledges that nothing contained in the Plan or this Agreement shall
(a) confer upon the Optionee any additional rights to continued employment by
the Company or any corporation related to the Company; or (b) interfere in any
way with the right of the Company to terminate the Optionee's employment or
change the Optionee's compensation at any time.
SECTION
11 — TERM OF
AGREEMENT
This
Agreement shall terminate upon the earlier of (i) complete exercise or
termination of the Option; (ii) mutual agreement of the parties; or
(iii) expiration of the Option Period.
IN WITNESS WHEREOF, the parties have
executed and delivered this Agreement as of the date set forth in the preamble
hereto, but actually on the dates set forth below.
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Optionee:
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Title:
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Date:
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Date:
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Schedule
A
Recipient:__________________________
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Award Date
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Exercise Price
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Type of Award
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Vesting
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Expiration Date
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Incentive
Stock
Option
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