1
EXHIBIT 2.11
NON QUALIFIED
STOCK OPTION AGREEMENT
This Non Qualified Stock Option Agreement (this "Agreement") is
entered into on September 20, 1996, by THE COMPANY DOCTOR, a Delaware
corporation, ("Grantor") and XXXXXX X. XXXXXXXXXXXX, M.D. ("Holder").
On September 20, 1996, Holder and The Physician Group, P.A., a Texas
professional association ("Angle P.A.") entered into that one certain Stock
Purchase Agreement (the "Stock Purchase Agreement") whereby Angle P.A. acquired
1,000 shares of the issued and outstanding capital stock, par value $0.10 per
share, of Xxxxxx X. Xxxxxxxxxxxx, M.D. P.A. ("Duchouquette P.A."), which
represented all of the issued and outstanding shares of stock of Duchouquette
P.A. (the "Duchouquette P.A. Stock").
Angle P.A. is a party to a Practice Management, Consulting, and Clinic
Services Agreement (the "Practice Management Agreement") with Grantor, dated
November 11, 1995.
Angle P.A. and Grantor have entered into an amendment to the Practice
Management Agreement pursuant to which, among other things, Grantor has granted
to Angle P.A. the right to receive shares of Common Stock of Grantor and
Grantor has agreed to issue options to purchase additional shares of its Common
Stock to Holder, as an inducement to Holder to enter into the Stock Purchase
Agreement with Angle P.A.
In compliance with the provisions of Section 4(d) of the Stock
Purchase Agreement, Angle P.A. also caused Grantor to sign and enter into that
one certain Registration Rights Agreement (the "Registration Rights Agreement")
and deliver it to Duchouquette as part of the consideration for the
Duchouquette Stock acquired by Angle P.A.
In consideration of the foregoing recitals and the mutual covenants
and obligations of the parties set forth in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. GRANT OF OPTION.
(a) As an inducement to Holder to enter into the
employment of Angle P.A., pursuant to a Physician Employment Agreement
("Physician Agreement") and a Regional Medical Director Employment Agreement
("Director Agreement"), both between Angle P.A. and Holder and both dated
September 20, 1996, Grantor hereby grants to Holder contingent options (each of
which is referred to as an "Option") to purchase shares of Common Stock, $0.01
par value ("Stock") of Grantor, subject to the terms and conditions of this
agreement.
STOCK OPTION AGREEMENT
X.X. XXXXXXXXXXXX, M.D. 1
2
(b) Holder is hereby granted an option to purchase a
number of shares of stock equal to the Annual Option Amount (defined below).
(c) If Holder is then employed by Angle P.A. under either
his Physician Agreement or his Director Agreement, Holder shall be granted an
Option to purchase a number of shares of Stock equal to the Annual Option
Amount (defined below) once per year, on the anniversary of the date of this
Agreement (the "Option Date").
(d) As used herein, the "Option Shares" shall mean the
shares referred to in subsections (b) and (c) of this section.
(e) Notwithstanding any other provision of this
Agreement, if on any Option Date Holder is not employed by Angle P.A. under
either his Physician Agreement or his Director Agreement, Holder shall not be
granted, and shall not have, an option to purchase any shares relating to that
Option Date or any subsequent Option Date and (except as to shares of Stock
which Holder has previously become entitled to purchase by an Option granted
while Holder was so employed on a prior Option Date) this Agreement shall
terminate and be of no further effect.
(f) As used herein, the "Annual Option Amount" shall mean
that number of shares of Stock which equals $100,000 divided by the average of
the closing trading price on NASDAQ of a share of Stock for the five most
recent trading days before the Option Date.
(g) If on any Option Date shares of Stock are not listed
on NASDAQ, but are listed on another exchange, then the closing price on that
exchange shall be utilized in determining the Annual Option Amount for that
year.
(h) If on any Option Date shares of Stock are not listed
on NASDAQ or any other exchange, then the Annual Option Amount shall equal
$100,000 divided by the fair market value of a share of Stock on the business
day immediately preceding the Option Date, as determined by the Board of
Directors of Grantor in its discretion.
(i) The shares of stock which Holder has the right to
purchase pursuant to the Options granted under subsection (b) and (c) of this
section are herein referred to as the "Option Shares".
2. PURCHASE PRICE.
(a) The price per share payable by Holder to Grantor upon
the exercise of an Option (the "Option Price") shall be the average of the
closing trading price on NASDAQ of a share of Stock for the five most recent
days before the date of the grant of the Option under Section 1(b) or (c).
STOCK OPTION AGREEMENT
X.X. XXXXXXXXXXXX, M.D. 2
3
(b) If on such determination date shares of Stock are not
listed on NASDAQ, but are listed on another exchange, then the closing price on
that exchange shall be utilized in determining the Option Price.
(c) If on such determination date shares of Stock are not
listed on NASDAQ or any other exchange, then the Option Price shall be the fair
market value of a share of Stock on the business day immediately preceding the
Option Date, as determined by the Board of Directors of Grantor in its
discretion.
(d) The Option Price shall be payable in cash or by
certified or cashier's check or in shares of Stock held by Holder..
3. EXERCISE.
(a) Holder may purchase any number of the "Option Shares"
in multiples of 1,000 shares at any time during the Option Term (defined
below) by delivering to Grantor (i) written notice of Holder's election to
exercise the Option and of the number of Option Shares to be purchased pursuant
thereto, (ii) payment of the Option Price for such Option Shares, and (iii)
documentation in form reasonably satisfactory to Grantor to ensure compliance
with any state or federal law then in effect, including (without limitation) an
investment letter in the form of that attached hereto as Exhibit 1.
(b) Upon Holder's compliance with subsection (a) of this
section, Grantor shall promptly deliver, or cause to be delivered by its
transfer agent, to Holder certificates representing the Option Shares then
purchased.
(c) Holder need not exercise his Option and purchase
Option Shares earned on different Option Dates at the same time.
(d) As used herein, the "Option Term" as to any Option
Shares shall mean the period beginning on the date of the grant of the Option
under Sections 1(b) or (c) and ending on the sixth (6th) anniversary of such
Option Date.
4. RIGHTS AS STOCKHOLDER. Holder shall have no rights as a
stockholder with respect to any Option Shares, until the delivery of a
certificate or certificates to him representing such shares. Except as
provided in Paragraph 5, no adjustments shall be made for dividends or other
rights for which the record date is prior to the issuance of such certificate
or certificates.
5. CAPITAL ADJUSTMENTS. The Option Shares shall be subject to
such adjustments as are appropriate to reflect any stock dividend, stock split,
share combination, exchange of shares, recapitalization, merger, consolidation,
separation, liquidation, or the like, of Grantor.
6. ASSIGNABILITY. Neither this Agreement nor any right created
hereby shall be assignable by either party.
STOCK OPTION AGREEMENT
X.X. XXXXXXXXXXXX, M.D. 3
4
7. HOLDER ACKNOWLEDGMENTS. Holder acknowledges and agrees that
no shares of Stock issued to him upon exercise of the Option granted hereby
will be registered under state or federal securities laws. Holder further
acknowledges and agrees that the Option granted hereby is not a qualified
incentive stock option for federal income tax purposes.
8. MISCELLANEOUS.
(a) Notices. Any notices, consents, demands, requests,
approvals, and other communications to be given under this Agreement by any
party to the other shall be deemed to have been duly given if given in writing
and personally delivered, sent by courier, sent by telegram, telex, or
telecopy, or sent by mail, registered or certified, postage prepaid with return
receipt requested, at the address specified beside each party's signature at
the end of this Agreement. Notices delivered personally or by telegram, telex,
or telecopy shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of 10:00 a.m. on the third business day after
mailing. Any party may change its or his address for notice hereunder by
giving notice of such change in the manner provided in this Section.
(b) Entire Agreement. This Agreement supersedes any and
all other agreements, either oral or written, between the parties hereto with
respect to the subject matter hereof and contains all of the covenants and
agreements between the parties with respect thereto.
(c) Modification and Waiver. No change or modification
of this Agreement shall be valid or binding upon the parties hereto unless such
change or modification shall be in writing and signed by all the parties
hereto. No waiver of any term or condition of this Agreement shall be
enforceable unless it shall be in writing signed by the party against which or
whom it is sought to charged. The waiver by either party of a breach of any
provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach by such other party.
(d) Governing Law. This Agreement, and the rights and
obligations of the parties hereto, shall be governed by and construed in
accordance with the laws of the State of Texas and shall be performable in
Dallas County, Texas. Venue of any litigation arising hereunder shall be in a
court of competent jurisdiction in Dallas County, Texas.
(e) Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
shall constitute one and the same document.
(f) Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which he or it may be
entitled.
STOCK OPTION AGREEMENT
X.X. XXXXXXXXXXXX, M.D. 4
5
(g) Assignment. Neither party may assign this Agreement
without the prior written consent of the other party hereto, which consent may
be withheld in its or his sole discretion.
(i) Binding Effect. This Agreement shall be binding upon
the parties hereto, together with their respective personal representatives,
heirs, successors, and permitted assigns.
The parties hereto have duly executed this Agreement as of the date
first above written.
The Company Doctor
By: /s/ Xxx Xxxxx
----------------------------------------
Xxx Xxxxx, Vice President
0000 Xxxxx X'Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(000) 000-0000
/s/ Xxxxxx X. Xxxxxxxxxxxx, M.D.
---------------------------------------------
Xxxxxx X. Xxxxxxxxxxxx, M.D.
0000 Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
(000) 000-0000
STOCK OPTION AGREEMENT
X.X. XXXXXXXXXXXX, M.D. 5
