Exhibit 10.2
ATS Medical, Inc.
Employee Stock Option Agreement
ATS Medical, Inc. (the "Company") has adopted the ATS Medical, Inc.
2000 Stock Incentive Plan (the "Plan") which permits issuance of stock options
for the purchase of shares of Common Stock, $.01 par value, of the Company, and
the Company has taken all necessary actions to grant this option pursuant and
subject to the terms of the Plan, as follows:
1. The Company grants as of the date of this Agreement, as a matter of
separate agreement and not in lieu of salary or other compensation for services
rendered, the right and option (hereinafter called the "Option") to purchase all
or any part of an aggregate number of shares of Common Stock, $.01 par value, at
the option price per share provided pursuant to the Notice of Grant of Stock
Options and Option Agreement (the "Notice"), which constitutes the first page of
this Agreement, and on the terms and conditions herein set forth in this
Agreement and subject to all provisions of the Plan. It is understood and agreed
that the option price is not less than the per share fair market value of such
shares on the date this Option was granted. The Company intends that this Option
shall be an Incentive Stock Option governed by the provisions of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"). The terms of the
Plan and the Option shall be interpreted and administered so as to satisfy the
requirements of Section 422 of the Code. A copy of the Plan will be furnished
upon request of the Optionee.
2. This Option shall in all events terminate at the close of business
on the "Termination Date" contained in the Notice or such shorter period as is
prescribed herein, and, further, may be exercised during the option period only
as described in the vesting schedule contained in the Notice.
Such installments shall cumulate and, if in any year the full amount
purchasable in such year is not purchased, the shares not purchased shall be
purchasable in any subsequent year during the term of this Option. The Optionee
shall not have any of the rights of a shareholder with respect to the Common
Stock subject to this Option until such shares shall be issued to the Optionee
upon the due exercise of this Option.
Notwithstanding the said vesting schedule, the entire Option shall
become immediately exercisable upon a Change in Control (as defined below) of
the Company and shall terminate if not exercised 30 days following the date of a
Change in Control of the Company. The Company shall notify the Optionee in
writing of the acceleration within 10 days of the Change in Control. A "Change
in Control of the Company" shall be deemed to have occurred if (a) a change in
control occurs of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended, whether or not the Company is then subject to
such reporting requirement; (b) more than 25 percent of the then outstanding
common shares of the Company is acquired by any person or group; or (c)
individuals who at the date hereof constitute the Board of Directors of the
Company cease for any reason to constitute at least a majority thereof (unless
the election or the nomination for election of each new director was approved by
a vote of at least two-thirds of directors then still in office who were
directors at the beginning of the period and/or their
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successor directors who were recommended or elected to succeed a beginning
director by at least two-thirds of the directors who were directors at the
beginning of the period).
3. This Option shall terminate and may no longer be exercised if the
Optionee ceases to be employed by the Company or its subsidiaries, if any,
except that:
(a) In the event that the Optionee shall cease to be employed
by the Company or its subsidiaries, if any, for any reason other than
the Optionee's gross and willful misconduct or death or disability, the
Optionee shall have the right to exercise this Option at any time
within three months after such termination of employment to the extent
of the full number of shares the Optionee was entitled to purchase
under this Option on the date of termination;
(b) In the event that the Optionee shall cease to be employed
by the Company or its subsidiaries, if any, by reason of the Optionee's
gross and willful misconduct during the course of employment, including
but not limited to wrongful appropriation of funds of the Company or
the commission of a gross misdemeanor or felony, this Option shall be
terminated as of the date of the misconduct; and
(c) In the event that the Optionee shall die while in the
employ of the Company or any subsidiary or within three (3) months
after termination of employment for any reason other than gross and
willful misconduct, or become disabled (within the meaning of Section
22(e)(3) of the Code) while in the employ of the Company or a
subsidiary, if any, and the Optionee shall not have fully exercised
this Option, this Option may be exercised at any time within twelve
months after the Optionee's death or such disability by the personal
representatives, administrators, or, if applicable, guardian of the
Optionee or by any person or persons to whom this Option is transferred
by will or the applicable laws of descent and distribution to the
extent of the full number of shares the Optionee was entitled to
purchase under this Option on the date of death, disability or
termination of employment, if earlier; provided, however, that this
Option may not be exercised to any extent by anyone after the
Termination Date.
4. The exercise of this Option is contingent upon receipt from the
Optionee (or other person exercising this Option pursuant to Section 3(c) above)
of a representation that, at the time of such exercise, it is the Optionee's
intent to acquire the shares being purchased for investment and not with a view
to distribution thereof; provided however, that the receipt of this
representation shall not be required upon exercise of this Option in the event
that, at the time of such exercise, the shares subject to this Option shall have
been and shall continue to be registered under the Securities Act of 1933, as
amended (the "Securities Act"). The certificates for shares so issued fox
investment may be restricted by the Company as to transfer unless such shares
are first registered under the Securities Act or the Company receives advice of
counsel satisfactory to it that registration under the Securities Act is not
required.
This Option shall not be exercisable until and unless: (i) the Shares
underlying this Option have been registered under the Securities Act and
applicable state securities laws, or (ii) upon determination of the Board of
Directors of the Company that the shares can be issued to
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the Optionee upon exercise in compliance with an available exemption from
registration under applicable federal and state securities laws.
5. Subject to the foregoing, this Option may be exercised in whole or
in part from time to time by serving written notice of exercise on the Company
at its principal officer accompanied by payment of the purchase price. Payment
of the purchase price shall be made by certified or bank cashier's check payable
to the Company, or by tender of shares of the Company's Common Stock, previously
owned by the Optionee, having a fair market value on the date of exercise equal
to the exercise price of this Option, or a combination of cash and shares equal
to such exercise price.
6. This Agreement shall not confer on the Optionee any right with
respect to continuance of employment with the Company or any subsidiary of the
Company, nor will it interfere in any way with the right of the Company to
terminate such employment at any time. Neither the Optionee nor the Optionee's
legal representative, legatees or distributees, as the case may be, will be or
will be deemed to be the holder of any shares subject to this Option unless and
until this Option has been exercised and the purchase price of the shares
purchased has been paid.
7. This Option may not be transferred, except by will or the laws of
descent and distribution to the extent provided in Section 3(c).
8. If there shall be any change in the stock subject to this Option
through merger, consolidation, reorganization, recapitalization, stock dividend,
stock split or other change in the corporate structure of the Company,
appropriate adjustments shall be made by the Company in the number of shares and
the price per share of the shares subject to this Option in order to prevent
dilution or enlargement of option rights granted hereunder.
9. The Company shall at all times during the term of this Option
reserve and keep available such number of shares in the Company as will be
sufficient to satisfy the requirements of this Agreement.
10. If the Optionee shall dispose of any of the shares of Common Stock
acquired upon exercise of this Option within two years from the date this Option
was granted or within one year after exercise of this Option, then, in order to
provide the Company with the opportunity to claim the benefit of any income tax
deduction, Optionee shall promptly notify the Company of the dates of
acquisition and disposition of such shares, the number of shares so disposed of,
and the consideration, if any, received for such shares.
11. This Agreement and the Plan contain all of the terms governing this
grant, and the Plan and this Agreement are intended to be complete, final and
conclusive.
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