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EXHIBIT 4.5
LIFEQUEST MEDICAL, INC.
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
This Amended and Restated Non-Qualified Stock Option Agreement dated
___________, 19__, is entered into between LifeQuest Medical, Inc., a Delaware
corporation (the "Company"), and ____________ ("Optionee").
Recitals
A. The Company and Optionee entered into a Stock Option Agreement dated
______________ (the "Prior Agreement"). The Company and Optionee desire to amend
the Prior Agreement pursuant to the terms and conditions hereinafter provided.
B. The Company (or its affiliate) desires to have Optionee remain in
its employ, encourage the stock ownership of Optionee and increase the
Optionee's proprietary interest in the Company.
C. The Company desires to grant to Optionee an option to purchase up to
______ shares of Common Stock, $.001 par value ("Common Stock"), of the Company.
The term "orthopaedic products" as used herein shall mean those products sold by
the Company's orthopaedic division sales force.
Agreements
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
.1. Grant of Option. Subject to the terms and conditions set forth in
this Agreement, the Company hereby grants to Optionee the option to purchase,
during the period commencing on the date of this Agreement and, except as
provided in Section 8, ending ________________, at an exercise price equal to
the Closing Sales Price (as defined below) per share, up to, but not exceeding
in the aggregate, __________ shares of Common Stock, $.001 par value ("Common
Stock"), of the Company (such option is hereinafter called the "Option"). The
Closing Sales Price shall be the average of the closing bid and asked prices, in
the Over-the-Counter market as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System, at the Effective Time as
defined in the Plan of Merger and Acquisition Agreement dated June 30, 1997,
among the Company, Optionee, ___________ and ______________.
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.2. Non-Qualified Status. The Option is intended to be a non-qualified
stock option which does not satisfy the requirements of Section 422A of the
Internal Revenue Code of 1986, as amended. The Option is granted outside of and
therefore shall not be subject to the terms and provisions of the Company's 1989
Stock Option Plan, as amended.
.3. Vesting of Option. The Option evidenced hereby may be exercised
from time to time as to the following number of shares, on a cumulative basis
(as to options to purchase shares not previously exercised), on or after each of
the following dates if the Optionee is employed by the Company on such date:
(a) ___________ shares on _____________;
(b) ___________ shares on _____________; and
(c) ___________ shares on _____________.
.4. Exercise of Option. The Option shall be exercised by Optionee's
delivery of written notice to the Company setting forth the number of shares
with respect to which the Option is to be exercised and the address to which the
certificates representing shares of Common Stock issuable upon the exercise of
the Option shall be mailed. In order to be effective, such written notice shall
be accompanied, at the time of its actual receipt by the Company, by payment of
the option price of such shares, which payment shall be made by check in an
amount equal to the option price of such shares. As promptly as practicable
after the receipt by the Company of (a) such written notice from Optionee
setting forth the number of shares with respect to which the Option is to be
exercised and (b) payment of the option price of such shares in the form
required by the foregoing provisions, the Company shall deliver to Optionee
certificates representing the number of shares with respect to which the Option
has been so exercised, such certificates to be registered in the name of
Optionee. Delivery of such certificates shall be considered to have been made
when such certificates shall have been mailed, postage prepaid, to Optionee at
the address specified for such purpose in such written notice from Optionee to
the Company.
.5. Early Forfeiture of Option. If, before the expiration of the
Option, Optionee breaches, or does not perform any of his obligations under, any
confidentiality agreement or non-competition agreement now or hereafter in
effect between Optionee and the Company, and such breach or non-performance
continues for a period 30 days after written notice thereof is given by the
Company to Optionee, then, in such event, any unexercised portion of the Option
shall automatically be forfeited by Optionee and the Option shall terminate and
become of no further effect.
.6. Transferability of Option. The Option shall not be transferable by
Optionee otherwise than by will or under the laws of descent and distribution,
and shall be exercisable, during his lifetime, only by him. Any assignment or
transfer of the Option otherwise than by will or under the laws of descent and
distribution,
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whether voluntarily or involuntarily, by operation of law or otherwise, shall
not vest in the assignee or transferee any interest or rights whatsoever, but
immediately upon such assignment or transfer the Option shall terminate and
become of no further effect.
.7. Termination of Employment or Death of Optionee. The Option granted
to Optionee shall terminate on the earlier of the date of the expiration of the
Option or upon severance of the employment relationship between the Company and
Optionee under Section 5.01, 5.02 or 5.03 of the Employment Agreement dated of
even date herewith, between _____________ and Optionee; provided, however, if
Optionee shall die while in the employ of the Company and before the date of
expiration of his Option, his Option shall terminate on the later of the date of
expiration or one year following the date of death. After the death of Optionee,
his executor, administrator or any person or persons to whom his Option may be
transferred by will or by the laws of descent and distribution, shall have the
right, at any time prior to its termination, to exercise his Option to the
extent Optionee could have exercised it had he lived and remained in the employ
of the Company.
.8. No Rights as Stockholder. Optionee shall not have rights as a
stockholder with respect to shares covered by the Option until the date of
issuance of a stock certificate for such shares; and, except as otherwise
provided in Section 10 hereof, no adjustment for dividends or otherwise shall be
made if the record date therefor is prior to the date of issuance of such
certificate.
.9. Changes in the Company's Capital Structure. The existence of the
Option shall not affect in any way the right or power of the Company to make or
authorize any or all adjustments, recapitalization, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issuance of bonds, debentures, preferred or
prior preference stock ahead or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
If the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of Common Stock outstanding, without
receiving compensation therefor in money, services or property, then (a) the
number, class and per share price of shares of stock subject to the Option
hereunder shall be appropriately adjusted in such a manner as to entitle
Optionee to receive upon exercise of the Option, for the same aggregate cash
consideration, the same total number and class of shares as he would have
received had he exercised the Option in full immediately prior to the event
requiring the adjustment; and (b) the number and class of shares then reserved
for issuance under this Agreement shall be adjusted by substituting for the
total number and class of shares of Common Stock then reserved that number and
class of shares of stock that would have been
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received by the owner of an equal number of outstanding shares of each class of
Common Stock as the result of the event requiring the adjustment.
Except as provided herein, if the Company is merged or consolidated
with another corporation or if the Company is liquidated or sells or otherwise
disposes of substantially all its assets while the Option remains unexercised
under this Agreement, (x) subject to the provisions of clause (y) below, after
the effective date of such merger, consolidation, liquidation, sale or other
disposition, as the case may be, Optionee shall be entitled, upon exercise of
the Option, to receive, in lieu of shares of Common Stock, the number and class
or classes of shares of such stock or other securities or property to which
Optionee would have been entitled if, immediately prior to such merger,
consolidation, liquidation, sale or other disposition, Optionee had been the
holder of record of a number of shares of Common Stock equal to the number of
shares as to which the Option shall be so exercised; or (y) the Option shall be
canceled by the Company as of the effective date of any such merger,
consolidation, liquidation, sale or other disposition, provided that (i) notice
of such cancellation shall be given to Optionee and (ii) Optionee shall have the
right to exercise the Option in full (without regard to any limitations set
forth in paragraph 3 hereof) during a period set by the Company preceding the
effective date of such merger, consolidation, liquidation, sale or other
disposition and, provided further, that in the event the Option may not be
exercised in full under applicable securities laws without registration of the
shares of Common Stock issuable on exercise of the Option, the Company may limit
the exercise of the Option to such number of shares of Common Stock, if any, as
may be issued without such registration, the method of choosing the number of
shares of Common Stock for which the Option may be exercised to be solely within
the discretion of the Company.
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number, class or price of shares of Common Stock
then subject to the Option.
.10. Requirements of Law. The Company shall not be required to sell or
issue any shares under the Option if the issuance of such shares shall
constitute or result in a violation by Optionee or the Company of any provision
of any law, statute or regulation of any governmental authority. Specifically,
in connection with any applicable statute or regulation relating to the
registration of securities, upon exercise of the Option, the Company shall not
be required to issue such shares unless the Company has received evidence
reasonably satisfactory to it to the effect that Optionee will not transfer such
shares except in accordance with applicable law, including receipt of an opinion
of counsel reasonably satisfactory to the
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Company to the effect that any proposed transfer complies with applicable law.
The Company may, but shall in no event be obligated to, register any shares
covered hereby pursuant to applicable securities laws of any county or political
subdivision thereof. In the event the shares issuable on exercise of the Option
are not so registered, the Company may imprint on the certificate evidencing
such shares any legend that counsel for the Company considers necessary or
advisable to comply with applicable law. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of the Option
or the issuance of shares pursuant to the Option to comply with any law or
regulation of any governmental authority.
.11. Arbitration. The Company and Optionee agree that any dispute or
controversy arising out of or in connection with this Agreement or any alleged
breach hereof shall be settled by arbitration in San Antonio, Texas pursuant to
the rules of the American Arbitration Association. If the two parties cannot
jointly select a single arbitrator to determine the matter, one arbitrator shall
be chosen by each party (or, if a party fails to make a choice, by the American
Arbitration Association on behalf of such party) and the two arbitrators so
chosen will select a third. The decisions of the single arbitrator jointly
selected by the parties, or, if three arbitrators are selected, the decision of
any two of them, will be final and binding upon the parties and the judgment of
a court of competent jurisdiction may be entered thereon. Fees of the
arbitrators and costs of arbitration shall be borne by the parties in such
manner as shall be determined by the arbitrator or arbitrators.
.12. Notices. Any notice, report, demand or payment required, permitted
or desired to be given pursuant to any of the provisions of this Agreement shall
be deemed to have been sufficiently given or served for all purposes if hand
delivered or delivered by responsible overnight courier or sent by certified or
registered air mail, return receipt requested, and postage prepaid as follows:
If to the Company:
LifeQuest Medical, Inc.
00000 Xxxx Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
with a copy to: Fulbright & Xxxxxxxx L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No. (000) 000-0000
If to Employee:
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with a copy to:
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.13. Employment Agreement. The granting of the Option shall not
diminish or impair the rights and responsibilities of Optionee and the Company
under the Employment Agreement or any confidentiality or non-competition
agreement in effect between the Optionee and the Company. Optionee and the
Company agree that the granting of the Option pursuant to this Agreement
constitutes full satisfaction of any and all obligations of the Company
contained in the Employment Agreement with respect to the granting of stock
options, and Optionee hereby forever releases any claims with respect to such
obligations of the Company (and its affiliate) under the Employment Agreement.
14. Entire Agreement. This Agreement contains the entire agreement of
the parties relating to the subject matter of this Agreement, and this Agreement
amends and restates in its entirety all agreements between the parties relating
to the subject matter of this Agreement, including the Prior Agreement. There
are no understandings or agreements, whether oral or written, relating to the
subject matter of this Agreement that are not stated in this Agreement.
This Agreement is effective as of the date first written above.
LIFEQUEST MEDICAL, INC.
By:
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Name:
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Title:
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Name of Optionee:
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