EXHIBIT 10.61
OPTION AGREEMENT
This OPTION AGREEMENT ("Agreement") is made and entered into as of
December 22, 1998 by and between HEALTHCARE IMAGING SERVICES, INC., a
Delaware corporation (the "Company") located at 000 Xxxxxx Xxxxx, Xxx Xxxx,
XX 00000, and Xxxxxx X. Xxxxxxx (the "Grantee") residing at c/o Stratus
Services Group, 000 Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
1. GRANT OF OPTION. The Company does hereby grant to the Grantee a
non-qualified stock option to purchase up to One Hundred and Fifty Thousand
(150,000) shares (the "Shares") of common stock, par value $0.01 per share,
of the Company (the "Common Stock") at an exercise price of $1.00 per share
(the "Option"). The Option is, in its entirety, intended to be a
non-qualified stock option.
2. TERM OF THE OPTION. The Option (to the extent not earlier exercised or
forfeited) will expire ten (10) years from the date hereof.
3. VESTING OF THE OPTION. The Option shall be fully vested on the date of
this Agreement.
4. MANNER OF EXERCISE. The Option may be exercised solely by delivery to
the secretary of the Company, or to his/her office, of all of the following
after the vesting thereof and prior to the expiration thereof:
(a) Notice in writing signed by the Grantee or any other person then
entitled to exercise the Option, stating that the Option, or a portion
thereof, is thereby exercised;
(b) Full payment (in cash or by check, or as otherwise permitted under
Section 5 of this Agreement) to the Company for the Shares with respect to
which the Option, or a portion thereof, is exercised;
(c) Such representations and documents as the Company deems reasonably
necessary or advisable to effect compliance with all applicable provisions
of the Securities Act of 1933, as amended (the "Act"), and any other
federal or state securities laws or regulations. (The Company may also
take whatever additional actions it deems reasonably appropriate to effect
such compliance including, without limitation, placing legends on the
certificate(s) evidencing the Shares and issuing stop transfer orders to
transfer agents and registrars);
(d) Promptly upon delivery of a written statement by the Company
describing in detail the withholding taxes due upon exercise of the
Option, full payment to the Company of all amounts which, under federal,
state or local tax laws, the Company is required to withhold upon exercise
of the Option as determined by the Company promptly upon the Grantee's
delivery of the notice described in Section 4(a); and
(e) In the event the Option shall be exercised by any person or persons
other than the Grantee, appropriate proof of the right of such person or
persons to exercise the Option.
The date of exercise of the Option shall be deemed to be the date all of
the foregoing conditions have been satisfied.
5. CASHLESS EXERCISE PROCEDURES. The Company agrees, at the request of the
Grantee, to allow the cashless exercise of the Option, or a portion thereof,
through a brokerage firm acceptable to the Company whereby the Grantee (to the
extent permitted by, and subject to, applicable law) can exercise the Option,
or a portion thereof, without making a direct payment of the exercise price
thereof to the Company.
6. CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. The Shares deliverable
upon exercise of the Option, or any portion thereof, may be either previously
authorized by unissued shares of Common Stock or issued shares of Common
Stock which have then been reacquired by the Company. Such Shares shall be
fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates evidencing the Shares purchased upon
the exercise of the Option, or a portion thereof, prior to fulfillment of all
of the following conditions (in addition to the conditions set forth in
Section 4 of this Agreement):
(a) The completion of any registration or other qualification of such
Shares under any state or federal law or under any ruling or regulation of
the Securities and Exchange Commission or of any other governmental
regulatory body, which the Company shall deem reasonably necessary or
advisable;
(b) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Company shall determine to be
reasonably necessary or advisable; or
(c) The lapse of such reasonable period of time following the exercise of
the Option as the Company may from time to time reasonably establish for
reasons of administrative convenience.
The Company agrees that to the extent its action is required to fulfill
the conditions set forth in Sections 4 and 6 hereof, the Company shall use
its reasonable efforts to promptly fulfill its obligations thereunder;
provided, however, that the foregoing shall in no event be deemed to require
the Company to register or otherwise qualify any Shares under any federal,
state or local law, rule or regulation or to obtain any approval or other
clearance from any federal, state or local governmental agency.
7. TRANSFER OF OPTION. The Option shall not be assignable, saleable, or
transferable by the Grantee without the consent of the Company. The Option
may not be pledged, alienated, attached or otherwise encumbered, and any
purported pledge, alienation, attachment, or encumbrance thereof shall
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be void and unenforceable against the Company or any affiliate.
8. RIGHTS OF STOCKHOLDER. The holder of the Option shall not be, nor have
any of the rights or privileges of, a stockholder of the Company in respect
of any Shares purchasable upon the exercise of any part of the Option unless
and until the conditions set forth in Sections 4 and 6 have been satisfied.
9. OTHER CONDITIONS AND LIMITATIONS.
(a) The Option is granted on the condition that the purchase of Shares
thereunder shall be for investment purposes and not with a view to resale
or distribution, except that such condition shall be inoperative if the
offering of Shares subject to the Option is registered under the Act or if
in the opinion of counsel for the Company such Shares may be resold
without registration. At the time of the exercise of the Option or any
portion thereof, the Grantee will execute such further agreements as the
Company may reasonably require to implement the foregoing condition and to
acknowledge the Grantee's familiarity with restrictions on the resale of
the Shares under applicable securities laws.
(b) The Company will furnish upon request of the Grantee copies of such
publicly available financial and other information concerning the Company
and its business and prospects as may be reasonably requested by the
Grantee in connection with the exercise of the Option, or a portion
thereof.
10. ADJUSTMENTS UPON CERTAIN EVENTS.
(a) In the event of any (i) subdivision or consolidation of the Common
Stock, (ii) dividend or other distribution (whether in the form of cash,
shares of Common Stock, other securities, or other property), (iii)
recapitalization or other capital adjustment of the Company or (iv)
merger, consolidation or other reorganization of the Company or other
similar corporate transaction or event that affects the Common Stock,
appropriate adjustments shall be made to prevent dilution of the Grantee's
interest in the Common Stock and to preserve the benefits or potential
benefits intended to be made available to the Grantee under this
Agreement; provided, however, that the number of shares of Common Stock
subject to the Option shall always be a whole number.
(b) No adjustment in the current exercise price per share (the "Per Share
Option Price") shall be required unless such adjustment would require an
increase or decrease of at least $0.10 in such price; provided, however,
that any adjustments which by reason of this clause (b) are not required
to be made shall be carried forward cumulatively and taken into account in
any subsequent calculation.
(c) In any case in which this Section 10 shall require that an adjustment
as a result of any event become effective from and after a record date,
the Company may elect to defer until the occurrence of such event (i) the
issuance to the Grantee exercised after such record date and before the
occurrence of such event of the additional shares of Common Stock issuable
upon such exercise over
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and above the shares issuable immediately prior to adjustment and (ii) the
payment to the Grantee of any amount in cash in lieu of a fractional share
of Common Stock; provided, however, that the Company shall deliver to the
Grantee a due xxxx or other appropriate instrument evidencing the
Grantee's right to receive such additional Common Stock or such payment in
lieu of such fractional shares.
(d) Whenever the Per Share Option Price is adjusted as provided in this
Section 10 and upon any modification of the rights of the holder in
accordance with this Section 10, the Company shall promptly prepare a
certificate of an officer of the Company setting forth the Per Share
Option Price and the number of shares of Common Stock issuable upon
exercise of the Option after such adjustment or modification, a brief
statement of the facts requiring such adjustment or modification and the
manner of computing the same and cause a copy of such certificate to be
mailed to the Grantee.
11. NOTICES. Any notice or other communication under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of
delivery if personally delivered or sent by telecopy, on the business day
after notice is delivered to a courier or mailed by express mail if sent by
courier delivery or express mail for next day delivery and on the third day
after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered, return receipt requested, postage prepaid and
addressed as follows:
If to the Company to:
Healthcare Imaging Services, Inc.
Tri-Parkway Corporate Park
000 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Grantee to:
Xxxxxx X. Xxxxxxx
c/o Stratus Services Group
000 Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
12. MISCELLANEOUS. This Agreement shall bind and inure to the benefit of
the parties hereto, the successors and assigns of the Company and the
permitted successors and assigns of the Grantee. The validity,
interpretation, construction, performance and enforcement of this Agreement
shall be governed by the internal laws of the State of New Jersey, without
regard to its conflicts of law rules. This Agreement may be executed in one
or more counterparts, which together shall constitute one agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
HEALTHCARE IMAGING SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chairman of the Board,
President and
Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxx
--------------------------
XXXXXX X. XXXXXXX
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