1
EXHIBIT 4.05
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT, is made and entered into
effective as of ___________ (the "Effective Date"), by and between, EquipMD,
Inc., a corporation organized and existing under the laws of the State of
Georgia with its principal place of business in Atlanta, Georgia (the
"Corporation"), and __________ ("Optionee"), a resident of the State of
___________ (this "Agreement").
WITNESSETH:
WHEREAS, the Corporation desires to grant Optionee an option (the
"Option") to purchase _________ shares (the "Option Shares") of common stock,
par value $.001 per share (the "Common Stock") of the Corporation at a purchase
price of $______ per share (the "Exercise Price") pursuant to the terms set
forth in this Agreement;
NOW THEREFORE, in consideration of the premises set forth herein the
parties hereto agree as follows:
1. GRANT OF STOCK OPTION. The Corporation hereby ratifies and confirms
the grant to Optionee of the right, privilege and option to purchase the Option
Shares at the Exercise Price, in the manner and subject to the terms and
conditions contained herein. The grant of this Option shall be effective as of
the Effective Date. This Option is hereby designated as a "Nonqualified Stock
Option."
2. OPTION TERM. This Option shall specifically terminate ten (10) years
from the Grant Date ("Option Term") and, subject to the vesting terms set forth
in this Agreement, shall remain exercisable for the full term notwithstanding
the employment status of Optionee.
3. VESTING OF OPTION SHARES.
3.1. The Option Shares shall vest as follows: (i) __% of the Option
Shares shall vest and become exercisable on the date that is ___________ months
from the Effective Date and (ii) ____th of the Option Shares shall vest and
become exercisable at the end of each month thereafter for _______________
months; provided that Optionee remains an employee of the Corporation as of each
such date.
3.2. Any vested portion of the Option Shares not purchased on its
vesting date may be purchased thereafter; provided, however, that the Option
granted hereunder shall terminate upon the expiration of the Option Term.
Optionee shall have the right hereunder to purchase solely the Option Shares
which have become vested and exercisable under this Agreement and any portion of
the Option Shares which shall not have become vested and exercisable hereunder
shall terminate and be forfeited by Optionee upon termination of Optionee's
status as an employee of the Corporation.
2
4. MANNER OF EXERCISE OF OPTIONS.
4.1. This Option may be exercised by the Optionee, or by the
Optionee's administrators or executors (collectively and together with Optionee,
the "Exercising Parties" and each an "Exercising Party") by a written notice (in
substantially the form of the Notice of Exercise attached hereto as Exhibit A)
signed by the appropriate Exercising Party and delivered or mailed to the
Corporation to the attention of the Secretary of the Corporation or such other
officer as the Corporation may designate.
4.2. Any such notice shall:
(a) specify the number of shares of Stock which the
appropriate Exercising Party then elects to purchase hereunder,
(b) contain such information as may be reasonably required
by the Corporation, and
(c) be accompanied by a certified or cashier's check payable
to the Corporation in an amount equal to the Exercise Price times
the number of shares of Common Stock to be purchased (such amount,
the "Aggregate Purchase Price").
4.3. Upon receipt of any such notice and accompanying payment, and
subject to the terms hereof, the Corporation agrees to issue to the appropriate
Exercising Party stock certificates for the number of shares specified in such
notice registered in the name of the person exercising this Option. In addition
to any other applicable legends relating to any agreements to which Optionee is
a party or which govern Optionee's ownership or voting of Common Stock, the
certificate or certificates delivered to Optionee upon exercise of this option
shall contain a legend in substantially the following form:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR UNDER ANY APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS
SUCH OFFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR
OTHER DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN
COMPLIANCE WITH THE ACT AND SUCH LAWS.
2
3
5. CHANGES IN CAPITAL STRUCTURE.
5.1 If the capital stock of the Corporation is changed by reason of
a stock split, reverse stock split, stock dividend or recapitalization, or is
converted into or exchanged for other securities as a result of a merger,
consolidation, or reorganization, appropriate equitable adjustments shall be
made in (a) the number and class of shares of Common stock subject to this
Option, and (b) the Exercise Price of this Option; provided, however, that the
Corporation shall not be required to issue fractional shares as a result of any
such adjustment. Each such adjustment shall be determined by the Board of
Directors of the Corporation in good faith, which determination shall be final
and binding on all persons.
5.2 If the Corporation shall enter into an agreement (i) to
consolidate with or merge into any person; (ii) to sell or otherwise transfer
all or substantially all of its assets to any person; or (iii) resulting in a
Change of Control of the Corporation the agreement governing such transaction
shall make proper provisions so that the Option shall, upon the consummation of
any such transaction and upon the terms and conditions set forth herein, be
converted into, or exchanged for, an option (the "Substitute Option"), at the
election of Grantee, of either (I) the Acquiring Corporation (as defined below)
or (II) any person that controls the Acquiring Corporation (any such person
being referred to as "Substitute Option Issuer"). As used herein, the term
"Change of Control" shall mean:
(a) the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially
all of the assets of the Corporation (a "Business Combination")
unless, following such Business Combination:
(i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of
the outstanding shares of Common Stock and the outstanding
voting securities of the Corporation immediately before such
Business Combination beneficially own, directly or
indirectly, more than 50% of 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 entity resulting from such Business Combination
(including, without limitation, an entity which as a result
of such transaction owns the Corporation or all or
substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownership
immediately before such Business Combination of the
outstanding shares of Common Stock and the outstanding
voting securities of the Corporation, as the case may be;
(ii) no party (excluding any entity resulting from such
Business Combination or any employee benefit plan (or
related trust) of the Corporation or such entity resulting
from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined
voting power of the then
3
4
outstanding voting securities of such entity except to the
extent that such ownership existed before the Business
Combination; and
(iii) at least a majority of the members of the board
of directors of the entity resulting from such Business
Combination were members of the Corporation's Board of
Directors at the time of the execution of the initial
agreement, or of the action of the Corporation's Board of
Directors, providing for such Business Combination; or
(b) The approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation
5.3 The Substitute Option shall have the same terms as the Option;
provided, that the exercise price therefor and number of shares subject thereto
shall be as set forth in this Section 5; provided, further, that if the terms of
the Substitute Option cannot, for legal reasons, be the same as the Option
(subject to the variations described in the foregoing provisos), such terms
shall be as similar as possible and in no event less advantageous to Grantee.
The Substitute Option Issuer shall also enter into an agreement with Grantee in
substantially the same form as this Agreement (subject to the variations
described in the foregoing provisos), which shall be applicable to the
Substitute Option.
5.4 The Substitute Option shall be exercisable for such number of
shares of Substitute Common Stock (as defined below) as is equal to the Assigned
Value (as defined below) multiplied by the number of Options Shares, divided by
the Average Price (as defined below), rounded up to the nearest whole share. The
exercise price per share of Substitute Common Stock of the Substitute Option
(the "Substitute Exercise Price") shall then be equal to the Exercise Price
multiplied by a fraction in which the numerator is the number of Option Shares
and the denominator is the number of shares of Substitute Common Stock for which
the Substitute Option is exercisable.
5.5 The Corporation shall not enter into any transaction described
in Section 5.2 unless the Acquiring Corporation and any person that controls the
Acquiring Corporation assume in writing all the obligations of the Corporation
hereunder and take all other actions that may be necessary so that the
provisions of this Section 5 are given full force and effect (including, without
limitation, any action that may be necessary so that the holders of the other
shares of common stock issued by Substitute Option Issuer are not entitled to
exercise any rights by reason of the issuance or exercise of the Substitute
Option and the shares of Substitute Common Stock are otherwise in no way
distinguishable from or have lesser economic value than other shares of common
stock issued by the Substitute Option Issuer (other than any diminution in value
resulting from the fact that the shares of Substitute Common Stock are
restricted securities, as defined in Rule 144 under the Securities Act or any
successor provisions).
5.6 For purposes hereof, the following terms have the following
meanings:
(a) "Acquiring Corporation" means (i) the continuing or
surviving corporation of a consolidation or merger with the
Corporation (if other than the Corporation), (ii) the Corporation
in a merger in which the Corporation is the
4
5
continuing or surviving corporation and (iii) the transferee of all
or substantially all of the Corporation's assets.
(b) "Assigned Value" means the higher of (y) the price per
share to be paid by any third party or the consideration per share
to be received by holders of Common Stock, in each case pursuant to
the agreement with the Corporation with respect to the
consolidation, merger or sale referred to in Section 5.2, and (z)
if the transaction referred to in Section 5.2 is a sale of all or
substantially all of the Corporation's assets, an amount equal to
(i) the sum of the price paid in such sale for such assets and the
current market value of the remaining assets of the Corporation, as
determined by a nationally recognized investment banking firm
selected by Grantee divided by (ii) the number of shares of Common
Stock outstanding at such time. If an agreement is entered into for
a merger or consolidation involving consideration other than cash,
the value of the securities issuable or delivered in exchange for
Common Stock ("Issued Securities") shall be equal to the Average
Price for such security, provided however, that if no market exists
for such securities or such securities are not quoted on the NASDAQ
(as hereinafter defined) or if property other than securities are
deliverable in exchange for Common Stock the value shall be
determined by a nationally recognized investment banking firm
selected by Grantee.
(c) "Average Price" means the average closing sales price
per share of a share of Substitute Common Stock (or an Issued
Security as the case may be) quoted on the NYSE (or if such
Substitute Common Stock or an Issued Security as the case may be)
is not quoted on the NYSE, the highest bid price per share as
quoted on the National Association of Securities Dealers Automated
Quotation System (the "NASDAQ") or, if the shares of Substitute
Common Stock (or Issued Security as the case may be) are not quoted
thereon, on the principal trading market on which such shares are
traded as reported by a recognized source) for the one year
immediately preceding the consolidation, merger or sale in
question, but in no event higher than the closing price of the
shares of Substitute Common Stock (or Issued Security as the case
may be) on the day preceding such consolidation, merger or sale;
provided that if the Substitute Option Issuer is the Corporation
the Average Price shall be computed with respect to a share of
common stock issued by the Corporation, the person merging into the
Corporation or by any Corporation which controls such person, as
Grantee may elect.
(d) "Substitute Common Stock" means the shares of capital
stock (or similar equity with the greatest voting power in respect
to the election of directors (or persons similarly responsible for
the direction of the business and affairs) of the Substitute Option
Issuer.
6. AUTHORIZED SHARES. The Corporation agrees to take all necessary and
appropriate steps to ensure that there are at all times sufficient authorized
shares of capital stock available for issuance upon exercise of this Option.
5
6
7. TRANSFER OF OPTION. To the extent not prohibited by any statute, rule
or regulation applicable to this Option or the registration of the Option Shares
with the Securities and Exchange Commission, all or a portion of this Option is
transferable by Optionee, without consideration, to or for the benefit of
Immediate Family Members, including but not limited to a partnership or trust
with respect to which Immediate Family Members are the sole partners or
beneficiaries, respectively. The right to transfer this Option is personal to
Optionee and any transferee of this Option shall not have the right to transfer
this Option to any person other than by the laws of descent. As used herein the
phrase "Immediate Family Members" shall mean the Optionee's spouse, children,
grandchildren, parents and grandparents.
8. MISCELLANEOUS
8.1. This Agreement shall be interpreted and construed according to
and governed by the laws of the State of Georgia.
8.2. This Agreement contains the entire agreement of the parties.
This Agreement may not be changed orally, but may be changed only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
8.3. The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision of
this Agreement.
8.4. This Agreement shall bind all parties, their respective heirs,
executors, administrators and assigns. Except as provided in Section 7 hereof,
nothing contained herein shall be construed as an authorization or right of any
party to assign their respective rights or obligations hereunder and Optionee
shall have no right to assign this Option and any such attempted assignment
shall be ineffective. The Option, right and privilege herein granted to Optionee
to purchase Option Shares shall be binding upon the Corporation and its
successors or assigns.
6
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
Attest: EquipMD, Inc.
By: By:
------------------------------- -----------------------------------
Name: Title:
----------------------------- --------------------------------
Title:
----------------------------
Optionee
----------------------------------
8
Exhibit A
to
Stock Option Agreement
between
EquipMD, Inc.
and
[Name]
NOTICE OF EXERCISE
Dated ________________
The undersigned hereby notifies EquipMD, Inc. (the "Corporation") of
this election to exercise the undersigned's stock option to purchase
________________ shares of the Corporation's common stock, $.001 par value (the
"Common Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the undersigned and the Corporation dated ________________. Accompanying
this Notice is a certified or a cashier's check in the amount of
$________________ payable to the Corporation such amount being equal to the
Exercise Price multiplied by the number of Option Shares being purchased hereby.
The undersigned is a resident of the State of __________.
IN WITNESS WHEREOF, the undersigned has set his/her hand and seal, this
________ day of ________________, ______.
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR OR EXECUTOR]
Name:
------------------------------------
Position (if other than Optionee):
9
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT, is made and entered into
effective as of ____________ (the "Effective Date"), by and between, EquipMD,
Inc., a corporation organized and existing under the laws of the State of
Georgia with its principal place of business in Atlanta, Georgia (the
"Corporation"), and _________ ("Optionee"), a resident of the State of
_____________ (this "Agreement").
WITNESSETH:
WHEREAS, the Corporation desires to grant Optionee an option (the
"Option") to purchase _________ shares (the "Option Shares") of common stock,
par value $.001 per share (the "Common Stock") of the Corporation at a purchase
price of $____ per share (the "Exercise Price") pursuant to the terms set forth
in this Agreement;
NOW THEREFORE, in consideration of the premises set forth herein the
parties hereto agree as follows:
1. GRANT OF STOCK OPTION. The Corporation hereby ratifies and confirms
the grant to Optionee of the right, privilege and option to purchase the Option
Shares at the Exercise Price, in the manner and subject to the terms and
conditions contained herein. The grant of this Option shall be effective as of
the Effective Date. This Option is hereby designated as a "Nonqualified Stock
Option."
2. OPTION TERM. This Option shall specifically terminate ten (10) years
from the Grant Date ("Option Term") and, subject to the vesting terms set forth
in this Agreement, shall remain exercisable for the full term notwithstanding
the employment status of Optionee.
3. VESTING OF OPTION SHARES.
3.1. Commencing on the last day of the first full calendar quarter
following the Effective Date and thereafter on the last day of each of the
succeeding seven calendar quarters, provided that (i) Optionee remains an
employee of the corporation as of each of such dates and during each of such
calendar quarters, ____% of the Option Shares shall vest and become exercisable
and (ii) the unvested portion of the Option Shares shall become immediately
vested and fully exercisable upon the date that Optionee is terminated by the
Corporation for any reason other than "For Cause" as such term is defined in the
employment agreement by and among Optionee and the Corporation dated
___________.
3.2. Any vested portion of the Option Shares not purchased on its
vesting date may be purchased thereafter; provided, however, that the Option
granted hereunder shall terminate upon the expiration of the Option Term.
Optionee shall have the right hereunder to purchase solely the Option Shares
which have become vested and exercisable under this Agreement and any portion of
the Option Shares which shall not have become vested and exercisable hereunder
shall terminate and be forfeited by Optionee upon termination of Optionee's
status as an employee of the Corporation.
10
4. MANNER OF EXERCISE OF OPTIONS.
4.1. This Option may be exercised by the Optionee, or by the
Optionee's administrators or executors (collectively and together with Optionee,
the "Exercising Parties" and each an "Exercising Party") by a written notice (in
substantially the form of the Notice of Exercise attached hereto as Exhibit A)
signed by the appropriate Exercising Party and delivered or mailed to the
Corporation to the attention of the Secretary of the Corporation or such other
officer as the Corporation may designate.
4.2. Any such notice shall:
(a) specify the number of shares of Stock which the
appropriate Exercising Party then elects to purchase hereunder,
(b) contain such information as may be reasonably required
by the Corporation, and
(c) be accompanied by a certified or cashier's check payable
to the Corporation in an amount equal to the Exercise Price times
the number of shares of Common Stock to be purchased (such amount,
the "Aggregate Purchase Price").
4.3. Upon receipt of any such notice and accompanying payment, and
subject to the terms hereof, the Corporation agrees to issue to the appropriate
Exercising Party stock certificates for the number of shares specified in such
notice registered in the name of the person exercising this Option. In addition
to any other applicable legends relating to any agreements to which Optionee is
a party or which govern Optionee's ownership or voting of Common Stock, the
certificate or certificates delivered to Optionee upon exercise of this option
shall contain a legend in substantially the following form:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR UNDER ANY APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS
SUCH OFFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR
OTHER DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN
COMPLIANCE WITH THE ACT AND SUCH LAWS.
2
11
5. CHANGES IN CAPITAL STRUCTURE.
5.1 If the capital stock of the Corporation is changed by reason of
a stock split, reverse stock split, stock dividend or recapitalization, or is
converted into or exchanged for other securities as a result of a merger,
consolidation, or reorganization, appropriate equitable adjustments shall be
made in (a) the number and class of shares of Common stock subject to this
Option, and (b) the Exercise Price of this Option; provided, however, that the
Corporation shall not be required to issue fractional shares as a result of any
such adjustment. Each such adjustment shall be determined by the Board of
Directors of the Corporation in good faith, which determination shall be final
and binding on all persons.
5.2 If the Corporation shall enter into an agreement (i) to
consolidate with or merge into any person; (ii) to sell or otherwise transfer
all or substantially all of its assets to any person; or (iii) resulting in a
Change of Control of the Corporation the agreement governing such transaction
shall make proper provisions so that the Option shall, upon the consummation of
any such transaction and upon the terms and conditions set forth herein, be
converted into, or exchanged for, an option (the "Substitute Option"), at the
election of Grantee, of either (I) the Acquiring Corporation (as defined below)
or (II) any person that controls the Acquiring Corporation (any such person
being referred to as "Substitute Option Issuer"). As used herein, the term
"Change of Control" shall mean:
(a) the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially
all of the assets of the Corporation (a "Business Combination")
unless, following such Business Combination:
(i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of
the outstanding shares of Common Stock and the outstanding
voting securities of the Corporation immediately before such
Business Combination beneficially own, directly or
indirectly, more than 50% of 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 entity resulting from such Business Combination
(including, without limitation, an entity which as a result
of such transaction owns the Corporation or all or
substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownership
immediately before such Business Combination of the
outstanding shares of Common Stock and the outstanding
voting securities of the Corporation, as the case may be;
(ii) no party (excluding any entity resulting from such
Business Combination or any employee benefit plan (or
related trust) of the Corporation or such entity resulting
from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined
voting power of the then
3
12
outstanding voting securities of such entity except to the
extent that such ownership existed before the Business
Combination; and
(iii) at least a majority of the members of the board
of directors of the entity resulting from such Business
Combination were members of the Corporation's Board of
Directors at the time of the execution of the initial
agreement, or of the action of the Corporation's Board of
Directors, providing for such Business Combination; or
(b) The approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation
5.3 The Substitute Option shall have the same terms as the Option;
provided, that the exercise price therefor and number of shares subject thereto
shall be as set forth in this Section 5; provided, further, that if the terms of
the Substitute Option cannot, for legal reasons, be the same as the Option
(subject to the variations described in the foregoing provisos), such terms
shall be as similar as possible and in no event less advantageous to Grantee.
The Substitute Option Issuer shall also enter into an agreement with Grantee in
substantially the same form as this Agreement (subject to the variations
described in the foregoing provisos), which shall be applicable to the
Substitute Option.
5.4 The Substitute Option shall be exercisable for such number of
shares of Substitute Common Stock (as defined below) as is equal to the Assigned
Value (as defined below) multiplied by the number of Options Shares, divided by
the Average Price (as defined below), rounded up to the nearest whole share. The
exercise price per share of Substitute Common Stock of the Substitute Option
(the "Substitute Exercise Price") shall then be equal to the Exercise Price
multiplied by a fraction in which the numerator is the number of Option Shares
and the denominator is the number of shares of Substitute Common Stock for which
the Substitute Option is exercisable.
5.5 The Corporation shall not enter into any transaction described
in Section 5.2 unless the Acquiring Corporation and any person that controls the
Acquiring Corporation assume in writing all the obligations of the Corporation
hereunder and take all other actions that may be necessary so that the
provisions of this Section 5 are given full force and effect (including, without
limitation, any action that may be necessary so that the holders of the other
shares of common stock issued by Substitute Option Issuer are not entitled to
exercise any rights by reason of the issuance or exercise of the Substitute
Option and the shares of Substitute Common Stock are otherwise in no way
distinguishable from or have lesser economic value than other shares of common
stock issued by the Substitute Option Issuer (other than any diminution in value
resulting from the fact that the shares of Substitute Common Stock are
restricted securities, as defined in Rule 144 under the Securities Act or any
successor provisions).
5.6 For purposes hereof, the following terms have the following
meanings:
(a) "Acquiring Corporation" means (i) the continuing or
surviving corporation of a consolidation or merger with the
Corporation (if other than the Corporation), (ii) the Corporation
in a merger in which the Corporation is the
4
13
continuing or surviving corporation and (iii) the transferee of all
or substantially all of the Corporation's assets.
(b) "Assigned Value" means the higher of (y) the price per
share to be paid by any third party or the consideration per share
to be received by holders of Common Stock, in each case pursuant to
the agreement with the Corporation with respect to the
consolidation, merger or sale referred to in Section 5.2, and (z)
if the transaction referred to in Section 5.2 is a sale of all or
substantially all of the Corporation's assets, an amount equal to
(i) the sum of the price paid in such sale for such assets and the
current market value of the remaining assets of the Corporation, as
determined by a nationally recognized investment banking firm
selected by Grantee divided by (ii) the number of shares of Common
Stock outstanding at such time. If an agreement is entered into for
a merger or consolidation involving consideration other than cash,
the value of the securities issuable or delivered in exchange for
Common Stock ("Issued Securities") shall be equal to the Average
Price for such security, provided however, that if no market exists
for such securities or such securities are not quoted on the NASDAQ
(as hereinafter defined) or if property other than securities are
deliverable in exchange for Common Stock the value shall be
determined by a nationally recognized investment banking firm
selected by Grantee.
(c) "Average Price" means the average closing sales price
per share of a share of Substitute Common Stock (or an Issued
Security as the case may be) quoted on the NYSE (or if such
Substitute Common Stock or an Issued Security as the case may be)
is not quoted on the NYSE, the highest bid price per share as
quoted on the National Association of Securities Dealers Automated
Quotation System (the "NASDAQ") or, if the shares of Substitute
Common Stock (or Issued Security as the case may be) are not quoted
thereon, on the principal trading market on which such shares are
traded as reported by a recognized source) for the one year
immediately preceding the consolidation, merger or sale in
question, but in no event higher than the closing price of the
shares of Substitute Common Stock (or Issued Security as the case
may be) on the day preceding such consolidation, merger or sale;
provided that if the Substitute Option Issuer is the Corporation
the Average Price shall be computed with respect to a share of
common stock issued by the Corporation, the person merging into the
Corporation or by any Corporation which controls such person, as
Grantee may elect.
(d) "Substitute Common Stock" means the shares of capital
stock (or similar equity with the greatest voting power in respect
to the election of directors (or persons similarly responsible for
the direction of the business and affairs) of the Substitute Option
Issuer.
6. AUTHORIZED SHARES. The Corporation agrees to take all necessary and
appropriate steps to ensure that there are at all times sufficient authorized
shares of capital stock available for issuance upon exercise of this Option.
5
14
7. TRANSFER OF OPTION. To the extent not prohibited by any statute, rule
or regulation applicable to this Option or the registration of the Option Shares
with the Securities and Exchange Commission, all or a portion of this Option is
transferable by Optionee, without consideration, to or for the benefit of
Immediate Family Members, including but not limited to a partnership or trust
with respect to which Immediate Family Members are the sole partners or
beneficiaries, respectively. The right to transfer this Option is personal to
Optionee and any transferee of this Option shall not have the right to transfer
this Option to any person other than by the laws of descent. As used herein the
phrase "Immediate Family Members" shall mean the Optionee's spouse, children,
grandchildren, parents and grandparents.
8. MISCELLANEOUS
8.1. This Agreement shall be interpreted and construed according to
and governed by the laws of the State of Georgia.
8.2. This Agreement contains the entire agreement of the parties.
This Agreement may not be changed orally, but may be changed only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
8.3. The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision of
this Agreement.
8.4. This Agreement shall bind all parties, their respective heirs,
executors, administrators and assigns. Except as provided in Section 7 hereof,
nothing contained herein shall be construed as an authorization or right of any
party to assign their respective rights or obligations hereunder and Optionee
shall have no right to assign this Option and any such attempted assignment
shall be ineffective. The Option, right and privilege herein granted to Optionee
to purchase Option Shares shall be binding upon the Corporation and its
successors or assigns.
6
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
Attest: EquipMD, Inc.
By: By:
------------------------------ -----------------------------------
Name: Title:
---------------------------- --------------------------------
Title:
---------------------------
Optionee
------------------------------------------
16
Exhibit A
to
Stock Option Agreement
between
EquipMD, Inc.
and
Xxxxx X. Xxxxxxx
NOTICE OF EXERCISE
Dated ________________
The undersigned hereby notifies EquipMD, Inc. (the "Corporation") of
this election to exercise the undersigned's stock option to purchase
________________ shares of the Corporation's common stock, $.001 par value (the
"Common Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the undersigned and the Corporation dated ________________. Accompanying
this Notice is a certified or a cashier's check in the amount of
$________________ payable to the Corporation such amount being equal to the
Exercise Price multiplied by the number of Option Shares being purchased hereby.
The undersigned is a resident of the State of __________.
IN WITNESS WHEREOF, the undersigned has set his/her hand and seal, this
________ day of ________________, ______.
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR OR EXECUTOR]
Name:
-----------------------------------
Position (if other than Optionee):
