Exhibit 10.44
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Form of Amendment to Employee Stock Option Agreements
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NEUROMEDICAL SYSTEMS, INC.
1993 STOCK OPTION PLAN
AS AMENDED AND RESTATED OCTOBER 25, 1995
NONQUALIFIED STOCK OPTION AGREEMENTS
AMENDMENT
This AMENDMENT, effective as of September 18, 1997, (the "Amendment")
between Neuromedical Systems, Inc., a Delaware corporation (the "Company"), and
each Optionee as such term is defined below, with respect to any and all
agreements between the Company and Optionee made pursuant to and in accordance
with the Neuromedical Systems, Inc. 1993 Stock Option Plan (the "Original Plan")
and/or the Neuromedical Systems, Inc. 1993 Stock Option Plan, as amended and
restated on October 25, 1995 (the "Amended Plan" and collectively with the
Original Plan, the "Plan") governing one or more grants of an Option by the
Company to Optionee prior to the date hereof (each such agreement, an "Option
Agreement"; other capitalized terms not otherwise defined herein shall have the
meanings assigned thereto in the respective Plan and/or the respective Option
Agreement(s) executed thereunder).
WHEREAS, under the current terms and conditions of each Option
Agreement, upon Optionee's cessation of employment by the Company (whether
voluntarily or involuntarily), Optionee must exercise any vested and exercisable
options within 90 days of such departure;
WHEREAS, the Board of Directors of the Company (the "Board") has
authorized an amendment to each Option Agreement permitting an extension to such
departing exercise period upon observance by Optionee of certain additional
terms and conditions;
WHEREAS, the Board has taken such action to benefit both Optionee and
the Company as a whole;
NOW THEREFORE, Company and Optionee agree as follows:
Exercise Period. If Optionee is terminated from employment by a
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Termination Event, as such term is defined below, the Optionee may at any time
within three (3) months after such termination of employment, exercise the
Option to the extent, but only to the extent, that the Option or portion thereof
was exercisable on the date of the termination of employment, after which time
the Option shall terminate in full, provided, however, that so long as (i)
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Optionee remains an employee through the earlier of (a) six months after the
first day the new Chief Executive Officer (successor to Co-Chief Executives Xxxx
X. Xxxxxxxx, III and Uzi Ish-Xxxxxxx) is present in his capacity as Chief
Executive Officer of the Company at the offices of the Company and (b) December
31, 1998, or (ii) Optionee is discharged without Cause on or after September 4,
1997 but prior to the dates set forth in clause (i) above, then the Optionee may
at any time within
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two (2) years after the date of such Termination Event exercise the Option to
the extent, but only to the extent, that the Option or portion thereof was
exercisable on the date of such Termination Event, after which time the Option
shall terminate in full.
Optionee Acknowledgment. Optionee acknowledges that, to the extent
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Optionee has entered into any agreement with the Company with respect to
Replacement Options, dated July 28, 1997 (each, a "Replacement Option
Agreement"), this document constitutes due notice of amendment in accordance
with the terms of such Replacement Option Agreement, which provides for
unilateral amendment to the Option Agreement by the Company so long as (i) the
result of such amendment does not adversely affect Optionee's rights under the
Option Agreement or the Plan, and (ii) reasonable notice of any such unilateral
amendment is provided to Optionee.
Company Waiver. Notwithstanding the terms and conditions of any
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Option Agreement providing for amendment only by written instrument signed by
all of the parties thereto, the Company waives such requirement with respect to
Optionee and hereby intends that this Amendment be a valid and binding
obligation of the Company, enforceable in accordance with the terms and
conditions set forth herein, and the Company further waives any and all right to
contest the validity or enforceability of this Amendment on grounds of absence
of Optionee's signature hereto.
Definition of "Optionee". For purposes of this Amendment, the term
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"Optionee" shall mean, individually, each employee of the Company and any
Subsidiary who has entered into an Option Agreement(s) with the Company on or
prior to the date first set forth above, provided, however, that such term shall
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not include any present or former (a) Chief or Co-Chief Executive Officers of
the Company, (b) consultants of the Company and any Subsidiary, and (c) members
of the Company Board of Directors, and this Amendment shall not be applicable to
any of the foregoing at any time by reason of cessation of affiliation with the
Company in any such capacity.
Definition of "Termination Event". For purposes of this Amendment,
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the term "Termination Event" shall mean voluntary or involuntary termination
from employment of Optionee by the Company or any Subsidiary for any reason
other than Disability, death or Cause, including the Optionee's ceasing to be
employed by a Subsidiary or division of the Company or any Subsidiary as a
result of the sale of such Subsidiary or division or an interest in such
Subsidiary or division.
Entire Agreement. This Amendment and Optionee's respective Option
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Agreement(s) (including the Exhibits, Schedules and other documents referred to
herein and therein) constitute the entire agreement between the Company and the
Optionee, and supersede any prior understandings, agreements, or representations
by or between the parties, written or oral, to the extent they related in any
way to the subject matter hereof. This Amendment amends Optionee's respective
Option Agreement(s) only to the extent set forth herein and does not otherwise
amend, waive or modify such Option
Agreement(s), and all other terms and conditions of the respective Option
Agreement(s) shall remain fully operative.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has duly executed this Amendment to be effective
as of the date first written above,
NEUROMEDICAL SYSTEMS, INC.
By: ______________________________
Name:
Title:
Schedule
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Pursuant to the General Instructions to Item 601 of Regulation SK of the
Securities Act of 1933, as amended, the Company has filed only the form of the
Company's Amendment to Employee Stock Option Agreements (the "Amendment")
because the executed exemplars of such document are substantially identical in
all material respects, except as to the parties thereto, and certain substituted
terms, in each case as set forth as follows:
Employee Party to Amendment Substituted Terms
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Xxxxx Xxxxxx, Jr.
Vice President Finance and
Administration and CFO None
Xxxx Xxxxxx, Ph.D.
Vice President, Processing Operations None
Xxxx X. Xxxxxxxx, III "Optionee" definition contains no exclusions
Co-CEO, Vice President of Corporate and includes Xxxx X. Xxxxxxxx, III
Development, Secretary and General Exercise Period paragraph extends Option
Counsel exercise to three (3) years upon satisfaction
of clause (i) or (ii) of such paragraph
Xxxxx X. Xxxxxxxx,
Vice President of Product Development None
Uzi Ish-Xxxxxxx "Optionee" definition contains no exclusions
Co-CEO, Executive Vice President, Chief and includes Uzi Ish-Xxxxxxx
of Technical Operations and President, Exercise Period paragraph extends Option
Neuromedical Systems Israel Ltd. exercise to three (3) years upon satisfaction
of clause (i) or (ii) of such paragraph
Xxxxxx X. Mango, M.D.
Vice President and Medical Director None
Xxxxxxx Xx, M.D.
President, NSI Asia Pacific Ltd. None
Xxxxxx X. Xxxxxx
Vice President, Marketing and Sales None
Xxxx Xxxxxx, M.D.
President, NSI Europe B.V. None
Xxxxxx X. Xxxxxxx, M.D.
Vice President Medical Operations None
