Exhibit 4.4
REGENERATION TECHNOLOGIES, INC.
NONQUALIFIED STOCK OPTION GRANT AGREEMENT
PROFESSIONAL CONSULTANT
This Grant Agreement (the "Agreement") is entered into this ____ day of
__________, by and between REGENERATION TECHNOLOGIES, INC., a Delaware
corporation (the "Corporation"), and ______________ ("Grantee"), effective as of
the Grant Date as defined in Article 1 hereof.
In consideration of the premises, mutual covenants and agreements herein,
the Corporation and the Grantee agree as follows:
ARTICLE 1
GRANT OF OPTION
SECTION 1.1 GRANT OF OPTION. The Corporation hereby grants to the Grantee,
pursuant to the provisions of the Regeneration Technologies, Inc. Omnibus Stock
Plan (the "Plan"), a nonqualified stock option to purchase shares of Common
Stock, par value of $0.001 per share, of the Corporation ("Stock"), subject to
the provisions of this Agreement (the "Option"). Unless stated otherwise herein,
capitalized terms in this Agreement shall have the same meaning as defined in
the Plan. Schedule A, attached hereto and incorporated herein, sets forth the
following terms of the Option:
(i) the date the Administrator approved the Option (the "Grant Date");
(ii) the number of shares of Stock which the Grantee may purchase
under the Option;
(iii) the exercise price per share (the "Exercise Price"); and
(iv) the date as of which the Option shall expire (the "Expiration
Date"), at 5:00 p.m. Eastern Time, unless terminated earlier
pursuant to other provisions of this Agreement.
ARTICLE 2
VESTING
SECTION 2.1 VESTING SCHEDULE. Unless the Option terminates earlier
pursuant to other provisions of this Agreement, the Option shall vest and become
exercisable as provided in the following schedule:
Vested and Exerciseable Shares As of
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____ shares On the first anniversary of the Grant Date.
____ shares On the second anniversary of the Grant Date.
____ shares On the third anniversary of the Grant Date.
ARTICLE 3
EXERCISE OF OPTION
SECTION 3.1 EXERCISABILITY OF OPTION. The Option is exercisable only if
it is vested and has not been terminated. If exercisable, the Option may be
exercised in whole or in part, subject to the conditions precedent described in
Section 3.3. Only Grantee and, after his death, his executor, personal
representative, or the person to whom the Option shall have been transferred by
will or the laws of descent and distribution, may exercise the Option.
SECTION 3.2 MANNER OF EXERCISE. Grantee or any other person exercising
the Option may do so only by delivering written notice thereof to the
Administrator. Such notice shall be in the form as attached hereto, unless the
Administrator requires otherwise. Notwithstanding the foregoing, the Option may
not be exercised at any one time as to fewer than five (5) Shares or, if less,
such number of Shares as to which the Option is then exercisable. Such notice
shall be accompanied by full payment of the Exercise Price. Payment of the
Exercise Price shall be made in cash, provided that the Administrator may
authorize a payment of the Exercise Price to be made, in whole or in part, by
such other means as the Administrator may prescribe at the time of exercise. The
Option may be exercised only in multiples of whole Shares and no fractional
Shares shall be issued. If the Common Stock is registered under Section 12 of
the Securities Exchange Act of 1934, as amended, the Exercise Price may be paid,
in whole or in part, subject to such limitations as the Administrator may
determine, by delivery of a properly executed exercise notice, together with
irrevocable instructions: (i) to a brokerage firm designated by the person
exercising the Option and approved by the Administrator to deliver promptly to
the Corporation the aggregate amount of sale or loan proceeds to pay the
Exercise Price and any withholding tax obligations that may arise in connection
with the exercise, and (ii) to the Corporation to deliver the certificates for
such purchased Shares directly to such brokerage firm.
SECTION 3.3 ISSUANCE OF SHARES UPON EXERCISE. Upon exercise of the Option
and payment of the Exercise Price, the Corporation shall issue to Grantee the
number of Shares so paid for, in the form of fully paid and nonassessable Common
Stock. If the Common Stock is not yet registered under Section 12 of the
Securities Exchange Act of 1934, as amended, the Grantee shall be required to
execute and deliver, as a condition precedent to the exercise of the option and
the issuance of the Shares to the Grantee, a stockholder agreement and/or stock
restriction agreement which shall contain certain stock restrictions, including
but not limited to a waiver of inspection rights, proxy voting, limitations on
transfer and other restrictions. The Grantee's stock certificates shall be held
in escrow by the Corporation during the period that the shares are subject to
restriction. The stock certificates for any Shares issued hereunder shall,
unless such Shares are registered, bear a legend restricting transferability of
such Shares and referencing the stockholder agreement and stock restriction
agreement.
ARTICLE 4
TERMINATION OF OPTION
SECTION 4.1 TERMINATION, IN GENERAL. The Option granted hereby shall
terminate and be of no force or effect after the Expiration Date set forth on
Schedule A, unless terminated prior to such time as provided below.
Notwithstanding anything contained herein, vesting of the
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Option pursuant to Section 2.1 shall cease upon the Grantee's termination of
service to the Corporation unless otherwise agreed by the Corporation in
writing.
SECTION 4.2 TERMINATION OF SERVICE FOR REASON OTHER THAN DEATH OR
DISABILITY. Unless the Option has earlier terminated pursuant to the provisions
of the Agreement, the Option shall terminate in its entirety, regardless of
whether the Option is vested in whole or in part, thirty (30) days after the
date the Grantee is no longer in the service of the Corporation or its
Affiliates for any reason other than the Grantee's death or Disability.
SECTION 4.3 UPON GRANTEE'S DEATH. Unless the Option has earlier terminated
pursuant to the provisions of the Agreement, upon the Grantee's death the
Grantee's executor, personal representative, or the person(s) to whom the Option
shall have been transferred by will or the laws of descent and distribution, may
exercise all or any part of the outstanding Option with respect to the shares of
Stock as to which the Option is vested as of the Grantee's date of death,
provided such exercise occurs within six (6) months after the date of the
Grantee's death, but not later than the Expiration Date of the Option. Unless
sooner terminated, the Option shall terminate upon the expiration of such six
(6) month period.
SECTION 4.4 TERMINATION OF SERVICE BY REASON OF DISABILITY. Unless the
Option has earlier terminated pursuant to the provisions of the Agreement, in
the event that the Grantee ceases, by reason of Disability, to be in the service
of the Corporation or an Affiliate, the outstanding Option may be exercised in
whole or in part with respect to the shares of Stock as to which the Option is
vested as of the date of the Grantee's termination of service due to Disability
at any time within six (6) months after the date of such termination, but not
later than the Expiration Date of the Option. Unless sooner terminated, the
Option shall terminate upon the expiration of such six (6) month period.
For purposes of this Agreement, Disability shall mean the inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months. The Administrator may require such proof of
Disability as the Administrator in its sole discretion deems appropriate and the
Administrator's determination as to whether the Grantee is Disabled shall be
final and binding on all parties concerned.
ARTICLE 5
ADJUSTMENTS; BUSINESS COMBINATIONS
SECTION 5.1 ADJUSTMENTS FOR EVENTS AFFECTING COMMON STOCK. In the event of
changes in the Common Stock of the Corporation by reason of any stock dividend,
split-up, recapitalization, merger, consolidation, business combination or
exchange of shares and the like, the Administrator shall, in its discretion,
make appropriate adjustments to the number, kind and price of shares covered by
this Option, and shall, in its discretion and without the consent of the
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Grantee, make any other adjustments in this Option, including but not limited to
reducing the number of shares subject to the Option or providing or mandating
alternative settlement methods such as settlement of the Option in cash or in
shares of Common Stock or other securities of the Corporation or of any other
entity, or in any other matters which relate to the Option as the Administrator
shall, in its sole discretion, determine to be necessary or appropriate.
SECTION 5.2 POOLING OF INTERESTS TRANSACTION. Notwithstanding anything in
the Plan or the Agreement to the contrary and without the consent of the
Grantee, the Administrator, in its sole discretion, may make any modifications
to the Option, including but not limited to cancellation, forfeiture, surrender
or other termination of the Option in whole or in part regardless of the vested
status of the Option, in order to facilitate any business combination that is
authorized by the Board to comply with requirements for treatment as a pooling
of interests transaction for accounting purposes under generally accepted
accounting principles.
SECTION 5.3 ADJUSTMENTS FOR UNUSUAL EVENTS. The Administrator is
authorized to make, in its discretion and without the consent of the Grantee,
adjustments in the terms and conditions of, and the criteria included in, the
Option in recognition of unusual or nonrecurring events affecting the
Corporation, or the financial statements of the Corporation or any Subsidiary,
or of changes in applicable laws, regulations, or accounting principles,
whenever the Administrator determines that such adjustments are appropriate in
order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Option or the Plan.
SECTION 5.4 BINDING NATURE OF ADJUSTMENTS. Adjustments under this Article
5 will be made by the Administrator, whose determination as to what adjustments,
if any, will be made and the extent thereof will be final, binding and
conclusive. No fractional shares will be issued pursuant to this Option on
account of any such adjustments.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 NON-GUARANTEE OF SERVICE OR EMPLOYMENT. Nothing in the Plan or
the Agreement shall alter the affiliation status of the Grantee in relation to
the Corporation (or any of its affiliates), nor be construed as a contract of an
affiliation between the Corporation (or any of its affiliates) and the Grantee,
nor as a contract of employment between the Corporation (or any of its
affiliates) and the Grantee, nor as a contractual right of the Grantee to
continue in service or affiliation with the Corporation (or any of its
affiliates), nor as a limitation of the right of the Corporation (or any of its
affiliates) to terminate its relationship with Grantee at any time with or
without cause or notice.
SECTION 6.2 NO RIGHTS OF STOCKHOLDER. The Grantee shall not have any of
the rights of a stockholder with respect to the shares of Stock that may be
issued upon the exercise of the Option until such shares of Stock have been
issued upon the due exercise of the Option, subject to and in accordance with
the provision of Section 3.3. No adjustment shall be made for dividends or
distributions or other rights for which the record date is prior to the date
such certificate or certificates are issued.
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SECTION 6.3 NONQUALIFIED NATURE OF OPTION. The Option is intended to be a
stock option that does not qualify as an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended, and
this Agreement shall be so construed.
SECTION 6.4 THE CORPORATION'S RIGHTS. The existence of this Option shall
not affect in any way the right or power of the Corporation or its stockholders
to make or authorize any or all adjustments, recapitalizations, reorganizations
or other changes in the Corporation's capital structure or its business, or any
merger or consolidation of the Corporation, or any issue of bonds, debentures,
preferred or other stocks with preference ahead of or convertible into, or
otherwise affecting the Stock or the rights thereof, or the dissolution or
liquidation of the Corporation, or any sale or transfer of all or any part of
the Corporation's assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
SECTION 6.5 WITHHOLDING OF TAXES. The Corporation or any Affiliate shall
have the right to deduct from any compensation or any other payment of any kind
(including withholding the issuance of shares of Stock) due the Grantee the
amount of any foreign, federal, state or local taxes required by law to be
withheld as the result of the exercise of the Option or the lapsing of any
restriction with respect to any shares of Stock acquired on exercise of the
Option; provided, however, that the value of the shares of Stock withheld may
not exceed the statutory minimum withholding amount required by law. In lieu of
such deduction, the Administrator may require the Grantee to make a cash payment
to the Corporation or an Affiliate equal to the amount required to be withheld.
If the Grantee does not make such payment when requested, the Corporation may
refuse to issue any Stock certificate under the Plan until arrangements
satisfactory to the Administrator for such payment have been made.
SECTION 6.6 GRANTEE. Whenever the word "Grantee" is used in any provision
of this Agreement under circumstances where the provision should logically be
construed to apply to the estate, personal representative or beneficiary to whom
this Option may be transferred by will or by the laws of descent and
distribution, the word "Grantee" shall be deemed to include such person.
SECTION 6.7 NONTRANSFERABILITY OF OPTION. The Option shall be
nontransferable otherwise than by will or the laws of descent and distribution
and during the lifetime of the Grantee, the Option may be exercised only by the
Grantee or, during the period the Grantee is under a legal disability, by the
Grantee's guardian or legal representative. Except as provided in the preceding
sentence, the Option may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process.
SECTION 6.8 ENTIRE AGREEMENT; MODIFICATION. The Agreement contains the
entire agreement between the parties with respect to the subject matter
contained herein and may not be modified, except as provided in the Plan or in a
written document signed by each of the parties hereto. Any oral or written
agreements, representations, warranties, written inducements, or other
communications made prior to the execution of the Agreement shall be void and
ineffective for all purposes.
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SECTION 6.9 CONFORMITY WITH PLAN. This Agreement is intended to conform in
all respects with, and is subject to all applicable provisions of, the Plan,
which is incorporated herein by reference. Inconsistencies between this
Agreement and the Plan shall be resolved in accordance with the terms of the
Plan. In the event of any ambiguity in the Agreement or any matters as to which
the Agreement is silent, the Plan shall govern. A copy of the Plan is available
upon request to the Administrator.
SECTION 6.10 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, other than the
conflict of laws principles thereof.
SECTION 6.11 HEADINGS. The headings in the Agreement are for reference
purposes only and shall not affect the meaning or interpretation of the
Agreement.
IN WITNESS WHEREOF, the Corporation has caused this Agreement, which shall
be effective as of the Grant Date, to be executed by its duly authorized
officer, and the Grantee has hereunto set his hand and seal.
WITNESS: REGENERATION TECHNOLOGIES, INC.
By:
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Xxxxxxx X. Xxxxx, CFO
WITNESS:
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Grantee
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SCHEDULE A
OF REGENERATION TECHNOLOGIES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
NAME OF GRANTEE: ________________________
DATE OPTION WAS APPROVED
BY PLAN ADMINISTRATOR: ____________, 2000
NUMBER OF SHARES: ______shares of Common Stock of
RegenerationTechnologies, Inc.
EXERCISE PRICE PER SHARE: $_______ per share
EXPIRATION DATE: Ten (10) years from Grant date
EXERCISE FORM
Stock Option Plan Administrator
c/o Office of the Corporate Secretary
Regeneration Technologies, Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Gentlemen:
I hereby exercise the Option granted to me on ___________, _____ by
Regeneration Technologies, Inc. (the "Corporation"), subject to all the terms
and provisions thereof and of the Regeneration Technologies, Inc. Omnibus Stock
Plan (the "Plan"), and notify you of my desire to purchase ____________ shares
of Common Stock of the Corporation at a price of $[______] per share pursuant to
the exercise of said Option.
Total Amount Enclosed: $__________
Date:
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Grantee
Received by Regeneration Technologies, Inc.
,
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By:
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