AMENDED AND RESTATED ATRION CORPORATION
Exhibit
10.4
Form of
Amended and Restated
AMENDED AND RESTATED
ATRION CORPORATION
2006 EQUITY INCENTIVE PLAN
THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (the
"Agreement") is made and entered into effective as of [DATE], by
and between Atrion Corporation, a Delaware corporation (the
"Company"), and [NAME OF PARTICIPANT] (the "Participant"), pursuant
to the Amended and Restated Atrion Corporation 2006 Equity
Incentive Plan, as amended and restated from time to time (the
"Plan"). Capitalized terms used but not defined herein shall have
the meanings set forth in the Plan.
W I
T N E S S E T H:
WHEREAS,
pursuant to the Plan and subject to the execution of this
Agreement, the Committee has granted, and the Participant desires
to receive, an Award.
NOW,
THEREFORE, for and in consideration of the premises, the mutual
promises and covenants herein contained, and other good and
valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree
as follows:
AWARD OF OPTION. On the date specified on Exhibit A attached
hereto (the "Date of Grant") but subject to the execution of this
Agreement, the Company granted to the Participant an Award in the
form of a Non-Qualified Stock Option (the "Option") to purchase
from the Company the number of shares of Common Stock (the
"Shares") set forth on said Exhibit A for the price per Share (the
"Option Price") set forth on said Exhibit A.
EFFECT OF PLAN. The Option is in all respects subject to,
and shall be governed and determined by, the provisions of the Plan
(all of the terms of which are incorporated herein by reference)
and to any rules which might be adopted by the Board or the
Committee with respect to the Plan to the same extent and with the
same effect as if set forth fully herein. The Participant hereby
acknowledges that all decisions and determinations of the Committee
shall be final and binding on the Participant, his beneficiaries
and any other person having or claiming an interest in the
Option.
VESTING AND EXERCISABILITY OF OPTION. The Option may be
exercised and Shares may be purchased by the Participant as the
result of such exercise only during the term or terms set forth on
Exhibit A attached hereto; provided, however, that in no event
shall the total number of Shares purchased hereunder pursuant to
the exercise of the Option exceed the number set forth on Exhibit A
attached hereto, as the same may be adjusted in accordance with the
Plan.
Limitations
on Exercise of Option. The Option may not be exercised after its
expiration date.
No
Vesting After Termination. Notwithstanding any other provision
hereof, in no event may the Option be exercised at any time after
Termination of Employment with respect to any number of Shares in
excess of the number of Shares as to which the Option was
exercisable at the time of Termination of Employment.
METHOD OF EXERCISE.
The Option shall be exercised by delivery to the Company at its
principal office of written notice of the Participant's intent to
exercise the Option with respect to the number of Shares then being
purchased, accompanied by payment in full to the Company of the
amount of the Option Price for the number of Shares then being
purchased. The Option Price may be paid as follows, as elected by
the Participant:
in the
manner set forth in Sections 5.2.4.1-5.2.4.4 of the Plan;
or
through
any combination of the consideration provided for in this Section 4
or such other method approved by the Committee consistent with
applicable law.
SURRENDER OF AGREEMENT ON EXERCISE. In case of any exercise
of the Option, this Agreement shall be surrendered to the Company.
The Company shall thereupon cause to be issued and delivered to the
Participant (or, in the event of a cashless exercise pursuant to
Section 5.2.4.4, to the Participant's broker-dealer), as soon as
reasonably may be done in accordance with the terms of the Plan, a
certificate or certificates, representing the Shares so purchased
and fully paid for. In the event of a partial exercise of the
Option, the Company shall endorse on Exhibit B attached hereto the
fact that the Option has been partially exercised on such date,
setting forth the number of Shares as to which the Option has been
exercised on such date and the number of Shares then remaining
subject to the Option, and return this Agreement to the
Participant.
NO ASSIGNMENT. The
Option is personal to the Participant and may not in any manner or
respect be assigned or transferred otherwise than by will or the
laws of descent and distribution, and is exercisable during the
Participant's lifetime only by the Participant; provided, however,
that the Participant may transfer the Option at any time or from
time to time to any one or more of the Participant’s
“family members” as that term is defined in the General
Instructions to Form S-8 under the Securities Act of 1933. Any
transferee shall remain subject to all of the terms and conditions
applicable to the Option prior to such transfer.
AUTHORITY OF COMMITTEE. Notwithstanding any provision of the
Plan or of this Award Agreement to the contrary, the Committee, in
its sole and exclusive discretion, shall have the power at any time
to (a) accelerate the vesting and exercisability of the Option
including, without limitation, acceleration to such a date that
would result in the Option becoming fully and immediately vested
and exercisable or (b) waive any restrictions of the
Option.
TERMINATION. This Agreement shall terminate on the earliest
of:
the
date on which the Option is exercised with respect to all of the
Shares then subject to the Option;
the
date on which the Option is forfeited; and
[NUMBER]
years from the Date of Grant.
2
TAX WITHHOLDING.
Regardless
of any action the Company or the Subsidiary employing the
Participant takes with respect to any or all income tax, social
insurance, payroll tax, payment on account or other applicable
taxes (“Tax Items”) in connection with the Award, the
Participant hereby acknowledges and agrees that the ultimate
liability for all Tax Items legally due by the Participant is and
remains the responsibility of the Participant. Further, if the
Participant has become subject to tax in more than one jurisdiction
between the date of grant and the date of any relevant taxable or
tax withholding event, as applicable, the Participant acknowledges
that the Company or the Subsidiary employing the Participant may be
required to withhold or account for Tax Items in more than one
jurisdiction.
The
Participant acknowledges and agrees that the Company and the
Subsidiary employing the Participant: (i) make no representations
or undertakings regarding the treatment of any Tax Items in
connection with any aspect of the Award, including, but not limited
to, the award or vesting of the Option, the exercise of the Option,
the delivery of the Shares upon exercise or the subsequent sale of
Shares acquired upon exercise; and (ii) does not commit to
structure the terms of the Award or any aspect of the Award to
reduce or eliminate the Participant’s liability for Tax
Items.
Prior
to exercise of the Option, the Participant must pay or make
adequate arrangements satisfactory to the Company or the Subsidiary
employing the Participant to satisfy all withholding obligations
for Tax Items of the Company or the Subsidiary employing the
Participant arising from exercise of the Option. In this regard, in
lieu of all or any part of a cash payment, the Participant may
elect to satisfy all or part of the withholding obligations for Tax
Items by (i) having the Company withhold a portion of the Shares
issuable upon exercise of the Option or (ii) delivering shares of
Common Stock owned by the Participant, duly endorsed for transfer,
to the Company, in each case with a Fair Market Value equal to the
amount of the withholding obligations to be satisfied in such
manner. The Company or the Subsidiary employing the Participant
will remit the total amount paid or withheld for Tax Items to the
appropriate tax authorities.
SECTION 409A. This
Agreement is intended to comply with Section 409A of the Code and
shall be construed and interpreted in a manner that is consistent
with the requirements for avoiding additional taxes and penalties
under Section 409A of the Code. Notwithstanding the foregoing, the
Company makes no representation that the payments and benefits
provided hereunder comply with Section 409A of the Code, and in no
event shall the Company be liable for all or any portion of any
taxes, penalties, interest or other expenses that may be incurred
by the Participant on account of non-compliance with Section 409A
of the Code.
COUNTERPART EXECUTION. This Agreement may be executed in any
number of counterparts, each of which shall be considered an
original, and such counterparts shall, together, constitute and be
one and the same instrument.
NO RIGHT TO CONTINUED EMPLOYMENT. This Agreement shall not be deemed to
confer upon the Participant any right to continue the Participant's
employment by the Company or any Subsidiary employing the
Participant, and the Company or any Subsidiary employing the
Participant may terminate such employment at any time for any
reason, subject to the provisions of any applicable employment
agreement.
3
MISCELLANEOUS.
The
Participant's rights under this Agreement can be modified,
suspended or canceled only in accordance with the terms of the
Plan. 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.
The
invalidity or unenforceability of any provision hereof shall in no
way affect the validity of enforceability of any other provision of
this Agreement.
This
Agreement shall bind the parties, their respective heirs,
executors, administrators, successors and assigns. Nothing
contained herein shall be construed as an authorization or right of
any party to assign their respective rights or obligations
hereunder and the Participant shall have no right to assign this
Agreement, and any such attempted assignment shall be ineffective.
This Agreement shall be binding upon the Company and its successors
and assigns.
This
Agreement shall be subject to the applicable provisions,
definitions, terms and conditions set forth in the Plan, all of
which are incorporated by this reference in this Agreement and the
terms of the Plan shall govern in the event of any inconsistency
between the Plan and this Agreement.
Any
notice required or permitted to be given to the Company hereunder
shall be in writing and addressed to the Secretary of the Company
at the Company’s principal office. Any notice required or
permitted to be given to the Participant shall be in writing and
addressed to the Participant at the Participant’s address as
shown in the records of the Company. Either party may designate
another address in writing from time to time. Notices hereunder
shall be deemed to have been given when deposited in the United
States mail, postage prepaid and sent by certified or registered
mail to the above addresses.
This
Agreement shall be interpreted and construed according to and
governed by the laws of the State of Texas.
[Signatures
appear on the following page.]
4
IN
WITNESS WHEREOF, the Company and the Participant have executed and
delivered this Agreement as of the day and year first written
above.
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5
EXHIBIT A
TO
AWARD AGREEMENT
Participant:
Grant
Date:
Option
Price: $
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Shares
Subject to Option
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Can
Only Be
Exercised
After
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Must
Be
Exercised
By
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6
EXHIBIT B
TO
AWARD AGREEMENT
PARTIAL EXERCISE
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Date
of
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No. of
Shares
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No. of
Shares
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Signature
of
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Exercise
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Purchased
Officer
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Remaining
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Endorsing
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7
