MIMEDX GROUP, INC. AMENDED AND RESTATED ASSUMED 2005 STOCK PLAN (formerly the SpineMedica Corp. 2005 Employee, Director and Consultant Stock Plan) Incentive Stock Option Award Agreement (Employees)
Exhibit 10.68
MIMEDX GROUP, INC.
AMENDED AND RESTATED ASSUMED 2005 STOCK PLAN
(formerly the SpineMedica Corp. 2005 Employee, Director and Consultant Stock Plan)
AMENDED AND RESTATED ASSUMED 2005 STOCK PLAN
(formerly the SpineMedica Corp. 2005 Employee, Director and Consultant Stock Plan)
Incentive Stock Option Award Agreement
(Employees)
(Employees)
THIS AGREEMENT (together with Schedule A, attached hereto, the “Agreement”), effective as of
the date specified as the “Grant Date” on Schedule A attached hereto, between MiMedx Group, Inc., a
Florida corporation (the “Corporation”), and the individual identified on Schedule A attached
hereto, an Employee of the Corporation or an Affiliate (the “Participant”);
R E C I T A L S:
In furtherance of the purposes of the MiMedx Group, Inc. Amended and Restated Assumed 2005
Stock Plan (formerly the SpineMedica Corp. 2005 Employee, Director and Consultant Stock Plan), as
it may be hereafter amended (the “Plan”), the Corporation and the Participant hereby agree as
follows:
1. Incorporation of Plan. The rights and duties of the Corporation and the
Participant under this Agreement shall in all respects be subject to and governed by the provisions
of the Plan, the terms of which are incorporated herein by reference. In the event of any conflict
between the provisions in the Agreement and those of the Plan, the provisions of the Plan shall
govern. Unless otherwise defined herein, capitalized terms in this Agreement shall have the same
definitions as set forth in the Plan.
2. Grant of Option; Term of Option. The Corporation hereby grants to the Participant
pursuant to the Plan, as a matter of separate inducement and agreement in connection with his or
her employment or service to the Corporation, and not in lieu of any salary or other compensation
for his or her services, the right and Option (the “Option”) to purchase all or any part of such
aggregate number of shares (the “Shares”) of common stock of the Corporation (the “Common Stock”)
at a purchase price (the “Option Price”) as specified on Schedule A, attached hereto, and subject
to such other terms and conditions as may be stated herein or in the Plan or on Schedule A.
The Participant expressly acknowledges that the terms of Schedule A shall be incorporated
herein by reference and shall constitute part of this Agreement. The Corporation and the
Participant further acknowledge and agree that the signatures of the Corporation and the
Participant on the Grant Notice contained in Schedule A shall constitute their acceptance of all of
the terms of this Agreement and their agreement to be bound by the terms of this Agreement.
The Option (or any portion thereof) shall be designated as an Incentive Option, as stated on
Schedule A. To the extent that the Option or any portion thereof is designated as an Incentive
Option and such Option does not qualify as an Incentive Option, the Option or portion thereof shall
be treated as a Nonqualified Option. Except as otherwise provided in the Plan or this Agreement,
this Option will expire if not exercised in full by the Expiration Date specified on Schedule A.
3. Exercise of Option. Subject to the terms of the Plan and this Agreement, the
Option shall become exercisable on the date or dates, and subject to such conditions, as are set
forth on Schedule A attached hereto. To the extent that an Option which is exercisable is not
exercised, such Option shall accumulate and be exercisable by the Participant in whole or in part
at any time prior to expiration of the Option, subject to the terms of the Plan and this Agreement.
The Participant expressly acknowledges that the Option may vest and be exercisable only upon
such terms and conditions as are provided in this Agreement and the Plan. Upon the exercise of
an Option in whole or in part and payment of the Option Price in accordance with the provisions of
the Plan and this Agreement, the Corporation shall, as soon thereafter as practicable, deliver to
the Participant a certificate or certificates for the Shares purchased. Payment of the Option
Price may be made (i) in cash or by cash equivalent; and, where permitted by applicable law,
payment may also be made (ii) by delivery (by either actual delivery or attestation) of shares of
Common Stock owned by the Participant (subject to such terms and conditions, if any, as may be
determined by the Administrator); (iii) by shares of Common Stock withheld upon exercise but only
if and to the extent that payment by such method does not result in variable accounting or other
accounting consequences deemed unacceptable to the Corporation; (iv) in the event that a Public
Market (as defined in the Plan) for the Common Stock exists, by delivery of written notice of
exercise to the Corporation and delivery to a broker of written notice of exercise and irrevocable
instructions to promptly deliver to the Corporation the amount of sale or loan proceeds to pay the
Option Price; (v) by such other payment methods as may be approved by the Administrator and which
are acceptable under applicable law; or (vi) by any combination of the foregoing methods. Shares
delivered or withheld in payment of the Option Price shall be valued at their Fair Market Value on
the date of exercise, determined in accordance with the terms of the Plan.
4. No Right of Employment or Service; Forfeiture of Option. Neither the Plan, this
Agreement nor any other action related to the Plan shall confer upon the Participant any right to
continue in the employment or service of the Corporation or an Affiliate or interfere with the
right of the Corporation or an Affiliate to terminate the Participant’s employment or service at
any time. Except as otherwise expressly provided in the Plan or this Agreement or as determined by
the Administrator, all rights of the Participant with respect to the Option shall terminate upon
termination of the employment of the Participant with the Corporation or an Affiliate.
Notwithstanding any thing to the contrary herein or in the Plan, if Participant’s employment with
the Corporation terminates for any reason prior to the expiration of ninety (90) days from the date
of commencement of Participant’s employment, then all Options granted, whether or not vested, shall
upon such termination be forfeited in full and shall no longer be of any force or effect.
5. Termination of Employment. Unless the Administrator determines otherwise, the
Option shall not be exercised unless the Participant is, at the time of exercise, an Employee and
has been an Employee continuously since the date the Option was granted, subject to the following:
(a) The employment relationship of the Participant shall be treated as continuing
intact for any period that the Participant is on military or sick leave or other bona fide
leave of absence, provided that the period of such leave does not exceed 90 days, or, if
longer, as long as the Participant’s right to reemployment is guaranteed either by statute or by contract. The employment relationship of the Participant shall also
be treated as continuing intact while the Participant is not in active service because of
Disability. The Administrator shall have sole authority to determine whether the
Participant is disabled and, if applicable, the Participant’s Termination Date.
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(b) Unless the Administrator determines otherwise (subject to any requirements imposed
under Code Section 409A), if the employment of the Participant is terminated because of
Disability or death, the Option may be exercised only to the extent vested and exercisable
on the Participant’s Termination Date. The Option must be exercised, if at all, prior to
the first to occur of the following, whichever shall be applicable (X) the close of the
period of one year next succeeding the Termination Date; or (Y) the close of the Option
Period. In the event of the Participant’s death, the Option shall be exercisable by such
person or persons as shall have acquired the right to exercise the Option by will or by the
laws of intestate succession.
(c) Unless the Administrator determines otherwise (subject to any requirements imposed
under Code Section 409A), if the employment of the Participant is terminated for any reason
other than Disability, death or for Cause, the Option may be exercised to the extent vested
and exercisable on his or her Termination Date. The Option must be exercised, if at all,
prior to the first to occur of the following, whichever shall be applicable: (X) the close
of the period of three months next succeeding the Termination Date; or (Y) the close of the
Option period. If the Participant dies following such termination of employment and prior
to the date specified in (X) of this subparagraph (c), the Participant shall be treated as
having died while employed under subparagraph (b) immediately preceding (treating for this
purpose the Participant’s date of termination of employment as the Termination Date). In
the event of the Participant’s death, the Option shall be exercisable by such person or
persons as shall have acquired the right to exercise the Option by will or by the laws of
intestate succession.
(d) Unless the Administrator determines otherwise (subject to any requirements imposed
under Code Section 409A), if the employment of the Participant is terminated for Cause, the
Option shall lapse and no longer be exercisable as of his or her Termination Date, as
determined by the Administrator.
6. Notice of Disposition. To the extent that this Option is designated as an
Incentive Option, if Shares of Common Stock acquired upon exercise of the Option are disposed of
within two years following the date of grant or one year following the transfer of such Shares to
the Participant upon exercise, the Participant shall, promptly following such disposition, notify
the Corporation in writing of the date and terms of such disposition and provide such other
information regarding the disposition as the Administrator may reasonably require.
7. Limitation on Incentive Options. In no event shall there first become exercisable
by the Participant in any one calendar year Incentive Options granted by the Corporation or any
Parent or Subsidiary with respect to shares having an aggregate Fair Market Value (determined at
the time an Incentive Option is granted) greater than $100,000. To the extent that any Incentive
Options are first exercisable by the Participant in excess of such limitation, the excess shall be
considered a Nonqualified Option.
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8. Nontransferability of Option. To the extent that this Option is designated as an
Incentive Option, the Option shall not be transferable (including by sale, assignment, pledge or
hypothecation) other than by will or the laws or intestate succession, or, in the Administrator’s
discretion, as may otherwise be permitted in accordance with Section 422 of the Code and related
regulations. To the extent that this Option is treated as a Nonqualified Option, the Option shall
not be transferable (including by sale, assignment, pledge or hypothecation) other than by will or
the laws of intestate succession, except as may be permitted by the Administrator in a manner
consistent with the registration provisions of the Securities Act of 1933, as amended (the
“Securities Act”). Except as may be permitted by the preceding, the Option shall be exercisable
during the Participant’s lifetime only by him or her or by his or her guardian or legal
representative. The designation of a beneficiary in accordance with the Plan does not constitute a
transfer.
9. Superseding Agreement; Binding Effect. This Agreement supersedes any statements,
representations or agreements of the Corporation with respect to the grant of the Option or any
related rights, and the Participant hereby waives any rights or claims related to any such
statements, representations or agreements. This Agreement does not supersede or amend any existing
confidentiality agreement, nonsolicitation agreement, noncompetition agreement, employment
agreement or any other similar agreement between the Participant and the Corporation, including,
but not limited to, any restrictive covenants contained in such agreements. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their respective
executors, administrators, heirs, successors and assigns.
10. Governing Law. Except as otherwise provided in the Plan or herein, this Agreement
shall be construed and enforced according to the laws of the State of Florida, without regard to
the conflict of laws provisions of any state, and in accordance with applicable federal laws of the
United States.
11. Amendment and Termination: Waiver. Subject to the terms of the Plan, this
Agreement may be modified or amended only by the written agreement of the parties hereto. The
waiver by the Corporation of a breach of any provision of the Agreement by the Participant shall
not operate or be construed as a waiver of any subsequent breach by the Participant.
Notwithstanding the foregoing, the Administrator shall have unilateral authority to amend the Plan
and this Agreement (without Participant consent) to the extent necessary to comply with applicable
law or changes to applicable law (including but in no way limited to Code Section 409A, Code
Section 422 and federal securities laws).
12. No Rights as Stockholder. The Participant and his or her legal representatives,
legatees and distributees shall not be deemed to be the holder of any Shares subject to the Option
and shall not have any rights of a stockholder unless and until certificates for such Shares have
been issued and delivered to him or her or them.
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13. Withholding: Tax Matters.
(a) The Participant acknowledges that the Corporation shall require the Participant to
pay the Corporation in cash the amount of any tax or other amount required by any
governmental authority to be withheld and paid over by the Corporation to such authority for the account of the Participant, and the Participant agrees, as a
condition to the grant of the Option and delivery of the Shares or any other benefit, to
satisfy such obligations. Notwithstanding the foregoing, the Corporation may establish
procedures to permit the Participant to satisfy such obligations in whole or in part, and
any other local, state, federal, foreign or other income tax obligations relating to the
Option, by electing (the “election”) to have the Corporation withhold shares of Common Stock
from the Shares to which the Participant is entitled. The number of Shares to be withheld
shall have a Fair Market Value as of the date that the amount of tax to be withheld is
determined as nearly equal as possible to (but not exceeding) the amount of such obligations
being satisfied. Each election must be made in writing to the Administrator in accordance
with election procedures established by the Administrator.
(b) The Participant acknowledges that the Corporation has made no warranties or
representations to the Participant with respect to the tax consequences (including, but not
limited to, income tax consequences) related to the transactions contemplated by this
Agreement, and the Participant is in no manner relying on the Corporation or its
representatives for an assessment of such tax consequences. The Participant acknowledges
that there may be adverse tax consequences upon acquisition or disposition of the Shares
subject to the Option and that the Participant should consult a tax advisor prior to such
exercise or disposition. The Participant acknowledges that he or she has been advised that
he or she should consult with his own attorney, accountant, and/or tax advisor regarding the
decision to enter into this Agreement and the consequences thereof. The Participant also
acknowledges that the Corporation has no responsibility to take or refrain from taking any
actions in order to achieve a certain tax result for the Participant.
14. Administration. The authority to construe and interpret this Agreement and the
Plan, and to administer all aspects of the Plan, shall be vested in the Administrator, and the
Administrator shall have all powers with respect to this Agreement as are provided in the Plan.
Any interpretation of the Agreement by the Administrator and any decision made by it with respect
to the Agreement is final and binding.
15. Notices. Except as may be otherwise provided by the Plan or determined by the
Administrator, any written notices provided for in this Agreement or the Plan shall be in writing
and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight
courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three
business days after mailed but in no event later than the date of actual receipt. Notices shall be
directed, if to the Participant, at the Participant’s address indicated on Schedule A (or such
other address as may be designated by the Participant in a manner acceptable to the Administrator),
or, if to the Corporation, at the Corporation’s principal office, attention Chief Financial
Officer, MiMedx Group, Inc.. Notice may also be provided by electronic submission, if and to the
extent permitted by the Administrator.
16. Severability. The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part,
the remaining provisions shall nevertheless be binding and enforceable.
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17. Restrictions on Option and Shares. The Corporation may impose such restrictions
on the Option and the Shares or other benefits underlying the Option as it may deem advisable,
including without limitation restrictions under the federal securities laws, the requirements of
any stock exchange or similar organization and any blue sky, state or foreign securities laws
applicable to such Option or Shares. Notwithstanding any other provision in the Plan or the
Agreement to the contrary, the Corporation shall not be obligated to issue, deliver or transfer
shares of Common Stock, to make any other distribution of benefits, or to take any other action,
unless such delivery, distribution or action is in compliance with all applicable laws, rules and
regulations (including but not limited to the requirements of the Securities Act). The Corporation
may cause a restrictive legend to be placed on any certificate for Shares issued pursuant to the
exercise of the Option in such form as may be prescribed from time to time by applicable laws and
regulations or as may be advised by legal counsel.
18. Effect of Changes in Status. Unless the Administrator, in its sole discretion,
determines otherwise (or unless required by Code Section 409A), the Option shall not be affected by
any change in the terms, conditions or status of the Participant’s employment, provided that the
Participant continues to be in the employ of the Corporation or an Affiliate. Without limiting the
foregoing, the Administrator has sole discretion to determine, subject to Code Section 409A, at the
time of grant of the Option or at any time thereafter, the effect, if any, on the Option if the
Participant’s status as an Employee changes, including but not limited to a change from full-time
to part-time, or vice versa, or if other similar changes in the nature or scope of the
Participant’s employment occur.
19. Right of Offset. Notwithstanding any other provision of the Plan or the
Agreement, the Corporation may reduce the amount of any payment otherwise payable to or on behalf
of the Participant by the amount of any obligation of the Participant to the Corporation that is or
becomes due and payable and the Participant shall be deemed to have consented to such reduction.
20. Counterparts; Further Instruments. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The parties hereto agree to execute such further instruments and to
take such further action as may be reasonably necessary to carry out the purposes and intent of
this Agreement.
[Signatures of the Corporation and the Participant follow on Schedule A/Grant Notice.]
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MIMEDX GROUP, INC.
AMENDED AND RESTATED ASSUMED 2005 STOCK PLAN
(formerly the SpineMedica Corp. 2005 Employee, Director and Consultant Stock Plan)
AMENDED AND RESTATED ASSUMED 2005 STOCK PLAN
(formerly the SpineMedica Corp. 2005 Employee, Director and Consultant Stock Plan)
Incentive Stock Option Agreement
(Employees)
(Employees)
Schedule A/Grant Notice
1. Pursuant to the terms and conditions of the MiMedx Group, Inc. Amended and Restated Assumed
2005 Stock Plan (formerly the SpineMedica Corp. 2005 Employee, Director and Consultant Stock Plan)
(the “Plan”), you (the “Participant”) have been granted an option (the “Option”) to purchase
_____
shares (the “Shares”) of our Common Stock as outlined below.
Name of Participant: |
||||||
Address: |
||||||
Grant Date:
|
, 20 | |||||
Number of Shares Subject to Option: |
||||||
Option Price:
|
$ | |||||
Type of Option:
|
Incentive Stock Option | |||||
Expiration Date (Last day of Option Period):
|
, 20 | |||||
Vesting Schedule/Conditions: |
||||||
2. By my signature below, I, the Participant, hereby acknowledge receipt of this Grant Notice
and the Option Award Agreement (the “Agreement”) dated
___________________
, 200
_____
, between the Participant
and MiMedx Group, Inc. (the “Corporation”) which is attached to this Grant Notice. I understand
that the Grant Notice and other provisions of Schedule A herein are incorporated by reference into
the Agreement and constitute a part of the Agreement. By my signature below, I further agree
to be bound by the terms of the Plan and the Agreement, including but not limited to the terms of
this ScheduleA/Grant Notice. The Corporation reserves the right to treat the Option and the
Agreement as cancelled, void and of no effect if the Participant fails to return a signed copy of
the Grant Notice within 30 days of grant date stated above.
Signature:
|
Date: | |||||
Agreed to by: | ||||
MIMEDX GROUP, INC. | ||||
By: | ||||
Name: | ||||
Attest:
|
Title: | |||
Secretary |
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