EXHIBIT 4.5
FORM OF STOCK OPTION AGREEMENT
SRI/SURGICAL EXPRESS, INC.
1998 STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
_,____ Shares
Date of Grant: _______ __, 200_
Expiration Date: _______ __, 20__
Exercise Price: $__.__ Per Share
______________________________
TO: [Insert Recipient's Name]
To enhance your interest in the sustained success and profitability of
SRI/Surgical Express, Inc., you have been granted as of the Date of Grant stated
above an incentive stock option to purchase up to __,___ shares of its common
stock, $.001 par value, at an exercise price of $__.__ per share, subject to all
the following terms and conditions:
1. Definitions. As used in this Agreement, the capitalized terms defined
-----------
below have the respective meanings ascribed to them:
"Administrative Committee" means the committee appointed by the Company's
Board of Directors to administer the Plan.
"Agreement" means this Stock Option Agreement, as originally executed by
you and the Company, and as subsequently amended or modified in accordance with
its terms.
"Company" means SRI/Surgical Express, Inc., a Florida corporation.
"Date of Grant" means the date as of which the Administrative Committee
authorized the grant of the Stock Option to you, as stated in the heading of
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
includes all rules and regulations of the SEC promulgated under that act.
"Internal Revenue Code" means the United States Internal Revenue Code of
1986, as amended from time to time, or any United States income tax law
subsequently enacted in substitution for that code.
"Plan" means the Sterile Recoveries, Inc. 1998 Stock Option Plan that was
adopted by the board of directors of the Company on February 17, 1998 and by the
Shareholders of the Company on May 19, 1998, as amended, a copy of which is
attached as Appendix "D" to this Agreement.
"Shares" means shares of the Company's common stock, $.001 par value.
"Stock Option" means the incentive stock option to purchase Shares from the
Company according to the terms and conditions of the Plan that is granted to you
pursuant to this Agreement.
2. Incorporation of Plan. The grant and exercise of the Stock Option are
---------------------
subject to your acceptance of this Agreement and all the terms and conditions of
the Plan, which are incorporated by reference in this Agreement.
3. Revocation and Expiration. The award of the Stock Option to you will
-------------------------
be revoked automatically without further action or notice if you do not accept
this Agreement within 30 days following the date when you are given written
notice of the award of the Stock Option. In any event, unless extended by the
Administrative Committee, the Stock Option expires at 5:00 P.M., New York time,
on the earlier of (a) the date that is ten years after the Date of Grant, which
is the Expiration Date stated in the heading of this Agreement, (b) the 90th day
after the day that you cease to be an employee of the Company or any of its
subsidiaries (other than as a result of your death or disability), or (c) the
date that is one year after you die or cease to be an employee of the Company or
any of its subsidiaries because of a total and permanent disability, as defined
in section 22(e)(3) of the Internal Revenue Code. In no event is the Stock
Option exercisable after the Expiration Date stated in the heading of this
Agreement.
4. Exercise of Option. The Stock Option is not exercisable until you
------------------
accept this Agreement. Thereafter, the Stock Option is exercisable to the extent
and in the manner described in the Plan and this Agreement. To the extent that
it is exercisable, you may exercise the Stock Option as a whole, in part, or in
increments at any time and from time to time. You may exercise the Stock Option
as to all or any portion of the full number of Shares for which it is
exercisable at any time, but you must exercise the Stock Option before it
expires, and every exercise must be for at least 100 whole Shares. No fractional
Shares will be issued pursuant to the Stock Option.
The Stock Option will become exercisable for each year that elapses (or has
elapsed) since ___________, 200_, in serial increments equal to 20% of the
Shares subject to the Stock Option, as follows:
Percent Exercisable
-------------------
Date Per Year Cumulatively
---- -------- ------------
_______ __, 200_ 20% 20%
_______ __, 200_ 20% 40%
_______ __, 200_ 20% 60%
_______ __, 200_ 20% 80%
_______ __, 200_ 20% 100%
In addition, the Stock Option will become fully and immediately exercisable upon
the occurrence of a "Change in Control" event described in subsection 5.2(a) of
the Plan. In no event is the Stock Option exercisable after the Expiration Date
or if the exercise of the Stock Option or the Company's issuance and delivery of
Shares pursuant to the exercise would violate any law.
5. Method of Exercise. To exercise the Stock Option, you must do the
------------------
following before the Stock Option expires: (a) deliver to the Company a written
notice of exercise in the form of Appendix "A" to this Agreement (or such other
form as the Administrative Committee may subsequently prescribe), specifying the
number of Shares to be purchased; (b) tender to the Company full payment for the
Shares to be purchased pursuant to the exercise of the Stock Option; (c) pay to
the Company, or make an arrangement satisfactory to the Administrative Committee
for the payment of, any tax withholding required in connection with your
exercise of the Stock Option (including FICA, Medicare, and local, state, or
federal income taxes); and (d) comply with any other reasonable requirements of
exercise that the Administrative Committee has established. You may pay the
exercise price and any tax withholding for the Shares that you purchase pursuant
to the Stock Option by any combination of money order, personal check, or
certified or official bank check. The exercise date for each exercise of the
Stock Option will be the date when (i) the Company has received notice of
exercise and full payment of the exercise price, (ii) you have paid to the
Company or made a satisfactory arrangement for the payment of any requisite tax
withholding, and (iii) you have satisfied any other requirements of exercise
established by the Administrative Committee.
6. Employment Condition. Except as otherwise provided below, you may
--------------------
exercise the Stock Option only if you have continuously been an employee of the
Company or a subsidiary of the Company during the period beginning on the Date
of Grant and ending on the 90th day before the exercise date of the Stock
Option. If your employment with the Company or any subsidiary of the Company is
terminated (voluntarily or involuntarily) at a time when the Stock Option is
exercisable, you may exercise the Stock Option within 90 days following the
effective date of termination. If you die or cease to be an employee because of
a total and permanent disability (within the meaning of section 22(e)(3) of the
Internal Revenue Code) at a time when the Stock Option is exercisable, the Stock
Option will continue to be exercisable by your heir or estate for one year
following your death or by you or your guardian for one year following the
termination of your employment because of disability. Notwithstanding the
foregoing, the Stock Option is never exercisable after the Expiration Date
stated in the heading of this Agreement. The Stock Option will be exercisable
after your death, disability, or termination of employment only to the extent
that it was exercisable on the date when you ceased to be an employee of the
Company or any of its subsidiaries. The Administrative Committee shall decide to
what extent bona fide leaves of absence for illness, temporary disability,
military or governmental service, or other reasons will constitute an
interruption of continuous employment that results in your ceasing to be an
employee of the Company or any of its subsidiaries. The award of the Stock
Option to you does not create or extend any right for you to continue to serve
as an officer or employee of the Company or any of its subsidiaries, to
participate in any other stock option or employee benefit plan of the Company,
or to receive the same benefits as any other employee; nor does it restrict in
any way the right of the Company or any of its subsidiaries to terminate at any
time your employment with it either at will or as provided in any written
employment agreement between you and the Company.
7. Nontransferability of Option. You are prohibited from transferring the
----------------------------
Stock Option, any interest in it, or any right under this Agreement by any means
other than by will or the law of descent and distribution. The Stock Option is
exercisable during your lifetime only by
you or your guardian. Any prohibited transfer (whether by gift, sale, pledge,
assignment, hypothecation, or otherwise) will be invalid and ineffective as to
the Company. In addition, the Stock Option and your rights under this Agreement
are not subject to any lien, levy, attachment, execution, or similar process by
creditors. The Company may cancel the Stock Option by notice to you, if you
attempt to make a prohibited transfer, or if the Stock Option, any interest in
it, or any right under this Agreement becomes subject to a lien, levy,
attachment, execution, or similar process.
8. Stock Certificates. Promptly after the Stock Option has been validly
------------------
exercised in accordance with the terms of the Plan, the Company shall issue and
deliver to the person who exercised it, against a written receipt in
substantially the form attached as Appendix "B" to this Agreement, a stock
certificate evidencing that person's ownership of the Shares that were purchased
pursuant to the Stock Option plus, instead of any fractional Share to which that
person otherwise would be entitled, a cash sum equal to the product of (a) that
fraction, multiplied by (b) the fair market value of a Share on the exercise
date of the Stock Option, as determined pursuant to the Plan. No one will have
any rights as a shareholder with respect to any Shares issuable upon exercise of
the Stock Option until the Stock Option has been validly exercised, the Company
has issued and delivered to the person exercising the Stock Option a certificate
evidencing those Shares, and the name of the person exercising the Stock Option
has been entered as a shareholder of record in the Company's stock records.
9. Representations and Warranties. By accepting this Agreement, you
-------------------------------
represent and warrant to the Company the following:
(a) You are accepting the Stock Option, and will purchase the Shares
subject to your Stock Option, solely for your own account, as principal, without
a view to, and not for resale in connection with, any distribution or
underwriting of the Stock Option or any Shares, and you are not participating,
directly or indirectly, in any distribution or underwriting of the Stock Option
or any Shares. You are not acquiring the Stock Option, and will not purchase any
Shares pursuant to it, as an agent, nominee, or representative for the account
or benefit of another person or entity, and you have not agreed or arranged to
sell, assign, transfer, subdivide, or otherwise dispose of all or any part of
the Stock Option or the Shares subject to it to another person or entity.
(b) You understand that (i) no state or federal agency has passed upon the
Stock Option or the Shares or made any finding or determination as to the
fairness of the Stock Option or the Shares as an investment, (ii) the Stock
Option and the Shares subject to it have not been, and will not be, registered
under either the Securities Act of 1933, as amended, or any state securities
law, (iii) those Shares can be offered for sale, sold, assigned, foreclosed or
otherwise transferred only if the transaction is registered under those laws or
qualifies for an available exemption from registration under those laws, and
(iv) the Company has not agreed, and is not obligated to register any resale or
other transfer of any Shares acquired pursuant to the Stock Option under the
Securities Act of 1933, as amended, or any state securities law, or to take any
action to enable you to qualify for an exemption from registration under any of
those laws with respect to a resale or other transfer of those Shares.
(c) You have received from the Company and carefully read a Plan Summary
(including the supplement) pertaining to the Plan and all the other documents
described on Appendix "C" to this Agreement.
10. Holdback Agreement. If the Company initiates a public offering of the
------------------
Shares, you agree not to effect any public sale or distribution, including any
sale pursuant to Rule 144 or any successor provision of the Securities Act of
1933, as amended, of any Shares during the 120 day period beginning on the
closing date of the offering.
11. Notice of Sale. You agree to promptly notify the Company of any sale
--------------
of your Shares.
12. Notices. Every notice, demand, consent, approval, and other
-------
communication required or permitted under this Agreement will be valid only if
it is in writing and delivered personally or by telecopy, commercial courier, or
first class, postage prepaid, United States mail (whether or not certified or
registered and regardless of whether a return receipt is received or requested
by the sender) and addressed, if to you, at your address set forth below and, if
to the Company, at 00000 Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxx 00000, Attention:
President, or at any other address that either party has previously designated
by notice given to the other party in accordance with this provision. A validly
given notice, demand, consent, approval, or other communication will be
effective on the earlier of its receipt, if delivered personally or by telecopy
or commercial courier, or the third day after it is postmarked by the United
States Postal Service, if it is delivered by first class, postage prepaid,
United States mail. You shall notify the Company of any change in your mailing
address that is listed in this Agreement.
13. Legal Proceedings. If any dispute arises between you and the Company
-----------------
with respect to this Agreement or the Stock Option, either party may elect (but
is not obligated) to submit the dispute to arbitration before a panel of
arbitrators in accordance with the Florida Arbitration Code by giving the other
party a notice of arbitration in accordance with section 9 of this Agreement. If
a party elects to arbitrate a dispute before a lawsuit is filed with respect to
the subject matter of the dispute, arbitration will be the sole and exclusive
method of resolving the dispute, the other party must arbitrate the dispute, and
each party will be barred from filing a lawsuit concerning the subject matter of
the arbitration, except to obtain an equitable remedy. A party's right to submit
a dispute to arbitration does not restrict its right to institute litigation to
obtain any legal or equitable remedy. The filing of a lawsuit by either party
before the other party has elected that a dispute be submitted to arbitration
will bar and preclude both you and the Company from submitting the subject
matter of the lawsuit to arbitration while the lawsuit is pending.
The arbitration panel will consist of three arbitrators, with one
arbitrator selected by the Company, the second selected by you, and the third,
neutral arbitrator selected by agreement of the first two arbitrators. Each
party shall select an arbitrator and notify the other party of the selection
within 15 days after the effective date of the notice of arbitration and the two
arbitrators selected by the parties shall select the third arbitrator within 30
days after the effective date of the notice of arbitration. A party who fails to
select an arbitrator within the prescribed 15-day period waives the right to
select an arbitrator or to have an additional, neutral arbitrator selected by
the arbitrator selected by the other party, and the arbitrator chosen by the
other party will constitute the "arbitration panel" for purposes of this
Agreement.
Every arbitrator must be independent (not a relative of yours or an
officer, director, employee, or shareholder of the Company or any Subsidiary)
without any economic or financial interest of any kind in the outcome of the
arbitration. Each arbitrator's conduct will be governed by the Code of Ethics
for Arbitrators in Commercial Disputes (1986) that has been approved and
recommended by the American Bar Association and the American Arbitration
Association.
Within 120 days after the effective date of the notice of arbitration, the
arbitration panel shall convene a hearing for the dispute to be held on such
date and at such time and place in Tampa, Florida, as the arbitration panel
designates upon 60 days' advance notice to you and the Company. The arbitration
panel shall render its decision within 30 days after the conclusion of the
hearing. The decision of the arbitration panel will be binding and conclusive as
to you and the Company and, upon the pleading of either party, any court having
jurisdiction may enter a judgment of any award rendered in the arbitration,
which may include an award of damages. The arbitration panel shall hear and
decide the dispute based on the evidence produced, notwithstanding the failure
or refusal to appear by a party who has been duly notified of the date, time,
and place of the hearing.
You and the Company (a) consent to the personal jurisdiction of the state
and federal courts having jurisdiction over Hillsborough County, Florida, (b)
stipulate that the proper, exclusive, and convenient venue for any legal
proceeding arising out of this Agreement or the Stock Option is Hillsborough
County, Florida, and (c) waive any defense, whether asserted by a motion or
pleading, that Hillsborough County, Florida, is an improper or inconvenient
venue. YOU KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE YOUR RIGHT TO A JURY
TRIAL IN ANY LAWSUIT BETWEEN YOU AND THE COMPANY WITH RESPECT TO THIS AGREEMENT
OR THE STOCK OPTION.
In any mediation, arbitration, or legal proceeding arising out of this
Agreement, the losing party shall reimburse the prevailing party, on demand, for
all costs incurred by the prevailing party in enforcing, defending, or
prosecuting any claim arising out of this Agreement, including all fees, costs,
and expenses of agents, experts, attorneys, witnesses, arbitrators, and
supersedeas bonds, whether incurred before or after demand or commencement of
legal or arbitration proceedings, and whether incurred pursuant to trial,
appellate, mediation, arbitration, bankruptcy, administrative, or judgment-
execution proceedings. The Company shall pay to you, on demand, interest on any
amount owed to you under this Agreement that is not paid to you when due, from
the date when due until paid in full, at the annual rate then provided by
Florida law for the payment of interest on
judgments generally (the current annual rate of interest on judgments prescribed
by section 55.03, Florida Statutes, is 11%).
----------------
14. Miscellaneous. The validity, construction, enforcement, and
-------------
interpretation of this Agreement are governed by the laws of the State of
Florida and the federal laws of the United States of America, excluding the laws
of those jurisdictions pertaining to resolution of conflicts with the laws of
other jurisdictions. A waiver, amendment, modification, or cancellation of this
Agreement will be valid and effective only if it is in writing and executed by
you and the Company. By signing this Agreement, you accept the grant of the
Stock Option, acknowledge receipt of copies of the Plan and the disclosure
documents described on Appendix "C," and warrant that you are free to enter into
this Agreement and do not have any legal obligations that are inconsistent with
this Agreement. The Plan and this Agreement record the final, complete, and
exclusive understanding between you and the Company with respect to the Stock
Option and supersede any prior or contemporaneous agreement, representation, or
understanding, oral or written, by you or the Company. This Agreement is binding
on your heirs, guardian, and personal representative and is binding on, inures
to the benefit of, the Company's assignees and successors. Time is of the
essence with respect to your exercise of the Stock Option.
SRI/SURGICAL EXPRESS, INC.
By:__________________________(SEAL)
Xxxxx X. Xxxxxxxx, Executive
Vice President
ACCEPTANCE OF STOCK OPTION
--------------------------
I have carefully read the foregoing Stock Option Agreement, all the
disclosure documents described on Appendix "C" to the Agreement, and the
accompanying copy of the Plan. Before exercising the Stock Option, I will review
the additional disclosure documents furnished to me by the Company. I accept the
Stock Option granted to me pursuant to the Agreement and agree to be bound by
all the terms and conditions of the Plan and the Agreement.
EXECUTED: as of _______, 200_ _______________________________________
[Insert Recipient's Name and Address]
APPENDIX "A"
NOTICE OF EXERCISE
------------------
TO: SRI/Surgical Express, Inc.
Attention: Chief Financial Officer
This notifies you that I exercise my option to purchase _____________
shares (the "Shares") of common stock of SRI/Surgical Express, Inc. (the
"Company") pursuant to the stock option that the Company granted to me on
_________________, _____, pursuant to the Company's 1998 Stock Option Plan (the
"Plan") and the Stock Option Agreement that was accepted by me as of
________________, _____ (the "Agreement").
As full payment for the Shares and any applicable withholding taxes, I
enclose a bank draft, money order, or personal check in the sum of
$________________.
In connection with my purchase of the Shares, I represent and warrant to
the Company the following:
(a) I am in full compliance with all conditions to exercise of the Stock
Option set forth in the Plan and the Agreement.
(b) I am purchasing the Shares solely for my own account, as principal,
without a view to, and not for resale in connection with, any distribution or
underwriting of any Shares, and I am not participating, directly or indirectly,
in any distribution or underwriting of any shares. I am not investing in the
Shares as an agent, nominee, or representative for the account or benefit of any
person or entity, and I have not agreed or arranged to sell, assign, transfer,
subdivide, or otherwise dispose of all or any part of the Shares to another
person or entity.
(c) I understand that (i) no state or federal agency has passed upon the
Shares or made any finding or determination as to the fairness of the Shares as
an investment, (ii) the Shares have not been, and will not be, registered under
either the Securities Act of 1933, as amended, or any state securities law, and
they can be offered for sale, sold, assigned, pledged, hypothecated, or
otherwise transferred or encumbered only if the transaction is registered under
those laws or qualifies for an available exemption from registration under those
laws, and (iii) the Company has not agreed, and is not obligated, to register
any resale or other transfer of the Shares under the Securities Act of 1933, as
amended, or any state securities law, or to take any action to enable me to
qualify for an exemption from registration under any of those laws with respect
to a resale or other transfer of the Shares.
(d) I have received from the Company and carefully read [add description
of disclosure document], pertaining to the Shares and all the documents
incorporated by reference in it (the "Disclosure Documents").
(e) I agree to notify the Company regarding whether or not I have sold the
Shares on the first anniversary of the date the Shares are issued.
(f) I have been given adequate opportunity to evaluate this investment,
including opportunities to (i) question officers of the Company, (ii) obtain any
additional information necessary to evaluate the investment or to verify
any information or representation contained in the Disclosure Documents, and
(iii) make such other investigation as I considered appropriate or necessary to
evaluate the business and financial affairs and condition of the Company.
(g) Management of the Company has answered all questions asked by me, and
they have either furnished to me, or given me full and unrestricted access to,
all records, contracts, documents, and other information requested by me, with
respect to the Shares, the Company, the Disclosure Documents, and the business
and financial affairs and condition of the Company.
(h) I am an officer or managerial employee of the Company, and therefore,
knowledgeable concerning the business of the Company, and I have carefully
considered and understand the risks and other factors affecting the suitability
of the Shares as an investment for me.
(i) I understand that neither the Company, any officer or director of the
Company, nor any professional advisor of the Company, makes any representation
or warranty to me with respect to, or assumes any responsibility for, the
federal income tax consequences to me of an investment in the Shares.
(j) Because of my knowledge and experience in financial and business
matters, and the Company's business in particular, I am able to evaluate the
merits, risks, and other factors bearing upon the suitability of the Shares as
an investment for me, and I have been afforded adequate opportunity to evaluate
this proposed investment in light of those factors, my financial condition, and
my investment knowledge and experience.
(k) I have adequate net worth and annual income to provide for my current
needs and possible future contingencies and do not have an existing or
foreseeable future need for liquidity of my investment in the Shares. Also, I am
otherwise able to bear the economic risk of an investment in the Shares, and
have sufficient net worth and annual income to sustain a loss of all or part of
my investment in the Shares if that were to occur and to withstand the probable
inability to publicly sell, transfer, or otherwise dispose of the Shares for an
indefinite period of time.
Please issue in my name, as printed below my signature to this notice of
exercise, a stock certificate evidencing my ownership of the Shares. Also,
please issue to me in the same manner a balance certificate for any of the
Shares evidenced by an enclosed stock certificate that are not required to
satisfy the purchase price of the Shares.
EXECUTED: _________, ___ ____________________________________________
Signature of Participant
____________________________________________
Name of Participant
____________________________________________
Street Address
Amount Enclosed: $_________ ____________________________________________
City State Zip Code
Shares Enclosed: ___________
____________________________________________
Social Security Number
APPENDIX "B"
STOCK CERTIFICATE RECEIPT
-------------------------
I acknowledge receipt from SRI/Surgical Express, Inc. on _______________, _____,
of stock certificate number _______ for ___________ shares of common stock of
SRI/Surgical Express, Inc., purchased by me pursuant to the exercise of the
stock option granted to me under the Stock Option Agreement that was accepted by
me on______________, _____.
By:_________________________________
Name:__________________________
APPENDIX "C"
DISCLOSURE DOCUMENTS FURNISHED TO OPTIONEE
------------------------------------------
Plan Summary (with supplement)
Most Recent Annual Report on Form 10-K of the Company
Most Recent Quarterly Report on Form 10-Q of the Company
