Exhibit 10.8.
NON-EMPLOYEE DIRECTOR
STOCK OPTION PURCHASE AGREEMENT
Agreement entered into this ______ day of ___________, 1997, by and
between Interwest Home Medical, Inc., a Utah corporation (the "Company") and
Xxxxxx X. Xxxxxx, a non-employee member of the Company's Board of Directors
("Xxxxxx").
RECITALS
The Company's business plan calls for it to expand its operations through
the acquisition of other companies engaged in similar businesses. The material
nature of these acquisitions limit the periods in which the Company's Board of
Directors may purchase or sale shares of the Company's common stock.
The Company has primarily funded its acquisitions with cash obtained from
its working capital, through lines of credit and through the sale of its
securities. The Company requires additional working capital and additional funds
for future acquisitions.
In November 1996, the Company entered into a "Letter Agreement for a Stock
Purchase Option" with a group of non-affiliates for the purpose of raising
additional capital through the sale of shares of the Company's common stock. The
Company desires to offer its non-employee Directors an opportunity to purchase
shares of common stock on terms and conditions which are similar to those
provided in such Letter Agreement.
The Company believes that it is in the best interest of the Company and
its public shareholders if the Company's Directors own shares of the Company's
common stock purchased with their own funds.
The Company believes that by entering into this Agreement, and similar
agreements with other non-employee Directors, it can reward, retain and motivate
its Directors and provide a mechanism by which the Company may obtain additional
capital without significant capital raising expenses.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. First Stock Option, Upon the terms and conditions of this Section 1,
the Company shall xxxxx Xxxxxx the right to purchase shares of the Company's
common stock (the "First Stock Option"). The First Stock Option shall terminate
and shall be of no force or effect unless Xxxxxx pays to the Company a
non-refundable option fee of One Thousand Dollars ($1,000) (the "First Option
Fee") within thirty (30) days from the Effective Date (as defined below) . Any
part of the First Option not purchased within thirty (30) days from the
Effective Date, shall expire.
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1.1 If Xxxxxx pays the First Option Fee to the Company within
thirty (30) days from the Effective Date, the Company shall grant him the right
to purchase 8,250 shares of the Company's common stock ("Shares") as adjusted
for all stock splits or stock dividends from and after the date hereof, if any,
(hereinafter referred to as the "First Option Shares").
1.2 The First Stock Option shall be exercisable by Xxxxxx for a
period of one hundred ninety (190) days from the Effective Date if Xxxxxx has
paid the First Option Fee.
1.3 The total purchase price for all of the First Option Shares
shall be Thirty Five Thousand Three Hundred Ten Dollars ($35,310) (the "First
Exercise Price"). The per share purchase price for each of the First Option
Shares is Four and 28/100 Dollars ($4.28). The First Option Fee shall be
credited to the First Exercise Price. The First Option Fee is non-refundable.
1.4 If all or any part of the First Option Shares are purchased
within ninety (90) days of the Effective Date, each Share purchased shall
entitle Xxxxxx to the simultaneous issuance by the Company of warrants
("Warrants") to purchase one Share (i.e., a maximum total of an additional Eight
Thousand Two Hundred and Fifty (8,250) Shares), as adjusted for all stock splits
or stock dividends from and after the date hereof, if any. The Warrants shall be
for a term of three years commencing on the date of the payment of the First
Option Fee and shall be exercisable at a price of Four and 28/100 Dollars
($4.28) per Share if exercised during the first Warrant year, Four and 75/100
Dollars ($4.75) per Share if exercised during the second Warrant year and Five
and 25/100 Dollars ($5.25) per Share if exercised during the third Warrant year.
The Warrants shall be in the form of and have such benefits and restrictions as
set forth in Exhibit "A" attached hereto.
1.5 The First Option Shares shall have certain restrictions as
further set forth herein.
2. Second Stock Option. Upon the terms and conditions of this Section 2,
the Company shall xxxxx Xxxxxx the right to purchase shares of the Company's
common stock (the "Second Stock Option"). The Second Stock Option shall
terminate and shall be of no force or effect unless Xxxxxx pays to the Company a
non-refundable option fee of One Thousand Dollars ($1,000) (the "Second Option
Fee"), within one hundred twenty (120) days from the Effective Date.
2.1. If Xxxxxx pays the Second Option Fee to the Company, the
Company shall grant him the right to purchase 8,250 Shares, as adjusted for all
stock splits or stock dividends from and after the date hereof, if any,
(hereinafter referred to as the "Second Option Shares").
2.2 The Second Stock Option shall be exercisable by Xxxxxx for a
period of one hundred thirty five (135) days commencing on the date of the
payment of the Second Option Fee by Xxxxxx.
2.3 The total purchase price for all of the Second Option Shares
shall be Thirty Nine Thousand Four Hundred Thirty Five Dollars ($39,435) (the
"Second Exercise Price"). The per share purchase price for each of the Second
Option Shares is Four and 78/100 Dollars ($4.78). The Second Option Fee shall be
credited to the Second Exercise Price. The Second Option Fee is non-refundable.
2.4 If all or any part of the Second Option Shares are purchased
within ninety (90) days from the payment of the Second Option Fee, each Share
purchased shall entitle Xxxxxx to the simultaneous issuance by the Company of
Warrants to purchase one Share (i.e., a maximum total of an additional Eight
Thousand Two Hundred and Fifty (8,250) Shares), as adjusted for all stock
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splits or stock dividends from and after the date hereof, if any. The Warrants
shall be for a term of three years commencing on the date of the payment of the
Second Option Fee and shall be exercisable at a price of Four and 78/100 Dollars
($4.78) per Share if exercised during the first Warrant year, Five and 25/100
Dollars ($5.25) per Share if exercised during the second Warrant year and Five
and 75/100 Dollars ($5.75) per Share if exercised during the third Warrant year.
The Warrants shall be in the form of and have such benefits and restrictions as
set forth in Exhibit "A" attached hereto.
2.5 The Second Option Shares shall have certain restrictions as
further set forth herein.
3. Third Stock Option. Upon the terms and conditions of this Section 3,
the Company shall xxxxx Xxxxxx the right to purchase Shares of the Company's
common stock (the "Third Stock Option"). The Third Stock Option shall terminate
and shall be of no force or effect unless Xxxxxx pays to the Company a
non-refundable option fee of One Thousand Dollars ($1,000) (the "Second Option
Fee"), within two hundred ten (210) days from the Effective Date.
3.1 If Xxxxxx pays the Third Option Fee to the Company, the Company
shall grant him the right to purchase 8,250 Shares as adjusted for all stock
splits or stock dividends from and after the date hereof, if any, (hereinafter
referred to as the "Third Option Shares").
3.2 The Third Stock Option shall be exercisable by Xxxxxx for a
period of one hundred thirty five (135) days commencing on the date of the
payment of the Third Option Fee by Xxxxxx.
3.3 . The total purchase price for all the Third Option Shares
shall be Forty Five Thousand Three Hundred Seventy Five Dollars ($45,375) (the
"Third Exercise Price"). The per share purchase price for each of the Third
Option Shares is Five and 50/100 Dollars ($5.50). The Third Option Fee shall be
credited to the Third Exercise Price. The Third Option Fee is non-refundable.
3.4 If all or any part of the Third Option Shares are purchased
within ninety (90)days of the payment of the Third Option Fee, each Share
purchased shall entitle Xxxxxx to the simultaneous issuance by the Company of
Warrants to purchase one Share (i.e., a maximum total of an additional Eight
Thousand Two Hundred Fifty (8,250) Shares), as adjusted for all stock splits or
stock dividends from and after the date hereof, if any. The Warrants shall be
for a term of three years commencing on the date of the payment of the Third
Option Fee and shall be exercisable at a price of Five and 50/100 Dollars
($5.50) per Share if exercised during the first Warrant year, Six Dollars
($6.00) per Share if exercised during the second Warrant year and Six and 50/100
Dollars ($6.50) per Share if exercised during the third Warrant year. The
Warrants shall be in the form of and have such benefits and restrictions as set
forth in Exhibit "A" attached hereto.
3.5 The Third Option Shares shall have certain restrictions as
further set forth herein.
4 Fourth Stock Option. Upon the terms and conditions of this Section 4,
the Company shall xxxxx Xxxxxx the right to purchase shares of the Company's
common stock (the "Fourth Stock Option"). The Fourth Stock Option shall
terminate and shall be of no force or effect unless Xxxxxx pays to the Company a
non-refundable option fee of One Thousand Dollars ($1,000) (the "Fourth Option
Fee") within three hundred (300) days from the Effective Date.
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4.1. If Xxxxxx pays the Fourth Option Fee to the Company, the
Company shall grant him the right to purchase 8,250 Shares as adjusted for all
stock splits or stock dividends from and after the date hereof, if any,
(hereinafter referred to as the "Fourth Option Shares").
4.2 The Fourth Stock Option shall be exercisable for a period of
one hundred thirty five (135) days commencing on the date of the payment of the
Fourth Option Fee.
4.3 The total purchase price for all of the Fourth Option Shares
shall be Forty Nine Thousand Five Hundred Dollars ($49,500) (the "Fourth
Exercise Price"). The per Share purchase price for the Fourth Option Shares is
Six and no/100 Dollars ($6.00). The Fourth Option Fee shall be credited to the
Fourth Exercise Price. The Fourth Option Fee is non-refundable.
4.4 If all or any part of the Fourth Option Shares are purchased
within ninety (90) days of the payment of the Fourth Option Fee, each Share
purchased shall entitle Xxxxxx to the simultaneous issuance by the Company of
Warrants to purchase one share (i.e., a maximum total of an additional Eight
Thousand Two Hundred Fifty (8,250)Eight Thousand Two Hundred Fifty (8,250
Shares), as adjusted for all stock splits or stock dividends from and after the
date hereof, if any. The Warrants shall be for a term of three years commencing
on the date of the payment of the Fourth Option Fee and shall be exercisable at
a price of Six Dollars ($6.00) per Share if exercised during the first Warrant
year, Six and 50/100 Dollars ($6.50) per Share if exercised during the second
Warrant year and Seven Dollars ($7.00) per Share if exercised during the third
Warrant year. The Warrants shall be in the form of and have such benefits and
restrictions as set forth in Exhibit "A" attached hereto.
4.5 The Fourth Option Shares shall have certain restrictions as
further set forth herein.
5. Rule 144 Restrictions, The First Option Shares, the Second Option
Shares, the Third Option Shares, and the Fourth Option Shares (collectively the
"Option Shares") and shares purchased by the exercise of Warrants, if any, shall
be "restricted securities" as such term is defined in Rule 144 ("Rule 144")
promulgated under the Securities Act of 1933, as amended, ("The Securities Act")
and the certificates representing such securities shall bear a legend as
follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), OR THE SECURITIES
LAW OF ANY STATE. NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN
MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND THE LAWS OF SUCH STATES UNDER WHOSE LAWS A TRANSFER OF
SECURITIES WOULD BE SUBJECT TO A REGISTRATION REQUIREMENT, UNLESS THE
COMPANY AND ITS COUNSEL HAVE RECEIVED A SATISFACTORY OPINION OF COUNSEL
THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE ACT OR THE
SECURITIES LAWS OF SUCH STATES."
6. Registration Rights, The Shares purchased by Xxxxxx upon the exercise
of the Options or the exercise of Warrants shall have the registration rights
provided for in this Section 6. The Company has, and will, grant similar
registration rights to other persons. Any and all shares purchased upon the
exercise of the Options or Warrants by Xxxxxx or by other persons under other
agreements, are hereafter referred to as the "Registrable Stock" and the record
owners of such Registrable Stock are hereafter referred to as the "Holders".
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6.1 Right to Piggyback, Whenever the Company proposes to register
any of its securities under the Securities Act and the registration form to be
used may be used for the registration of any of the Registrable Stock in
connection with the resale thereof by the Holders (a "Piggyback Registration"),
the Company will (i) give no less than fifteen (15) days prior written notice to
all Holders of its intention to effect such a registration (the "Registration
Notice"), and (ii) include in such registration all Registrable Stock issued
prior to the date fifteen (15) days following the date of the Registration
Notice in accordance with the priorities set forth in Sections 6.3 and 6.4
below. The obligations of the Company to register a particular share of
Registrable Stock shall expire on the date which is two (2) years after such
share of Registrable Stock was issued to a Holder provided that the Company has
filed all reports required to be filed by it pursuant to the Securities Act and
the Securities Exchange Act of 1934, as amended, and has taken such other action
as any Holder may reasonably request, all to the extent required to enable
Holders to sell Registrable Stock pursuant to Rule 144 adopted by the Securities
and Exchange Commission ("SEC") (as such rule may be amended from time to time)
or any similar rule or regulation hereafter adopted by the SEC.
6.2 Piggyback Expenses. All expenses incident to the Company's
performance of or compliance with this Section 6, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions
relating to Registrable Stock) and other persons or entities retained by the
Company in connection with any Piggyback Registration will be paid by the
Company. Holders shall pay for fees and disbursements of counsel retained by
Holders (or any of them) and, if the Piggyback Registration is an underwritten
offering, shall pay all underwriting discounts and commissions relating to the
sale of Registrable Stock.
6.3 Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company and the
managing underwriters advise the Company in writing that in their opinion the
number of securities to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities that the Company proposes to sell and
Registrable Stock prorata among the Company and the Holders on the basis of the
number of shares which the Company proposes to register and the number of shares
of Registrable Stock issued to Holders prior to the date of the Registration
Notice; provided, however, that in no event will the Registrable Stock issued to
the Holders prior to the date of the Registration Notice exceed forty percent
(40%) of the securities being sought for underwritten primary registration if
the Company is unable to register all of the securities for which the Company
sought underwritten primary registration.
6.4 Priority on Secondary Registration. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities and the managing underwriters advise the Company in writing that in
their opinion the number of securities to be included in such registration
exceeds the number which can be sold in such offering, the Company will include
in such registration (i) first, the Registrable Stock of the Holders acquired
pursuant to this Letter Agreement prior to the date of the Registration Notice
prorata among the Holders, (ii) second, the securities requested to be included
therein by the other holders (other than the Holders) requesting such
registration, and (iii) third, the other securities requested to be included in
such registration, if any.
6.5 Mandatory Registration. If Holders purchase all of the First
Option Shares and all of the Second Option Shares, the Company hereby agrees,
notwithstanding any provision
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herein to the contrary, to (i) file a registration statement relating to all
such First Option Shares and Second Option Shares purchased no later than one
hundred eighty (180) days after the date the last of said First Option Shares
and said Second Option Shares are purchased by the Holders (the "Mandatory
Registration") and (ii) register all additional Third Option Shares and Fourth
Option Shares and shares purchased by the Holders by the exercise of Warrants,
if any, purchased prior to the date of the filing of said Mandatory
Registration.
6.6 Selection of Underwriters. The Holders shall have no right to
select or participate in the selection of any investment banker(s) or manager(s)
to administer any offering.
7 . Holdback Agreements.
7.1 In connection with any underwritten Piggyback Registration,
Xxxxxx agrees not to effect any public sale or distribution of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven (7) days prior to and the
ninety (90) day period beginning on the effective date of any such underwritten
Piggyback Registration in which any shares of Registrable Stock are included,
unless the underwriters managing the registered public offering otherwise agree
and such sale or distribution otherwise complies with Regulation ss.240.10b-6 of
the Exchange Act; provided, however, that the Xxxxxx may elect, at his option,
to not have the underwriter sell the Registrable Stock Xxxxxx has registered and
to otherwise determine the method and timing of the sale of the securities so
registered without regard to the holdback provisions hereof.
7.2 It is expressly understood that the rights of Xxxxxx hereunder
are expressly subject to any agreements by and between Xxxxxx and the Company
concerning the transfer or sale of any Option Shares and shares purchased by the
exercise of Warrants, if any, (including Sections 10 and 11 below), or any
interest therein, whether contained herein, in the Company's Articles of
Incorporation on file prior hereto or other constituent documents on file and
specifically disclosed to Xxxxxx by the Company prior to the Effective Date
hereof, or otherwise on file and specifically disclosed to Xxxxxx by the Company
prior to the Effective Date hereof.
8. Registration Procedures. Whenever Registrable Stock will be registered
pursuant to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Stock in accordance with the
intended method of disposition thereof, and pursuant thereto, the Company will
as expeditiously as possible:
8.1 Prepare and file with the SEC a registration statement filed
pursuant to the Securities Act on Form X-0, X-0, X-0, XX-0 or SB-2 or any
similar registration statement pursuant to which Registrable Stock may be
registered (a "Registration Statement") with respect to such Registrable Stock
and use its best efforts to cause such Registration Statement to become
effective (provided that, no less than ten (10) days before filing a
Registration Statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel of Xxxxxx copies of all such documents
proposed to be filed);
8.2 Prepare and file with the SEC such amendments and supplements
to such Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than two (2) years and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement;
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8.3 Xxxxxxx Xxxxxx, such number of copies of such Registration
Statement, each amendment and supplement thereto, the prospectus included in
such Registration Statement (including each preliminary prospectus) and such
other documents as he may reasonably request in order to facilitate the
disposition of the Registrable Stock owned by Xxxxxx.
8.4 Use its best efforts to register or qualify such Registrable
Stock under such other securities or blue sky laws of such jurisdictions as
Xxxxxx reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable Xxxxxx to consummate the disposition
in such jurisdictions of Registrable Stock owned by Xxxxxx (provided that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction, or (iii)
consent to general service of process in any such jurisdiction);
8.5 Notify Xxxxxx, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
Xxxxxx, the Company will prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of Registrable Stock such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
8.6 Cause all such Registrable Stock to be listed on each
securities exchange on which similar securities issued by the Company are then
listed, if any; and
8.7 Provide a transfer agent and registrar for all such Registrable
Stock not later than the effective date of such Registration Statement;
8.8 Make available for inspection during normal business hours by
Xxxxxx, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such Xxxxxx or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by Xxxxxx, underwriter, attorney, accountant or
agent in connection with such Registration Statement.
9. Indemnification,
9.1 The Company agrees to indemnify, to the extent permitted by
law, Xxxxxx against all losses, claims, damages, liabilities and expenses caused
by any untrue or alleged untrue statement of material fact contained in any
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein, except insofar as the same are caused by or
contained in any information furnished to the Company by Xxxxxx expressly for
his use therein or which Xxxxxx failed to provide after being so requested or by
Xxxxxx'x failure to deliver a copy of the Registration Statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
Xxxxxx with a sufficient number of copies of the same or which is otherwise
attributable of the negligence or willful misconduct of any Xxxxxx.
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9.2 In connection with any Registration Statement in which any
Xxxxxx is participating, Xxxxxx will furnish to the Company in writing, within
fifteen (15) days after written request therefor, such information and
affidavits as the Company reasonably requests for use in connection with any
such Registration Statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers, each person or entity
who controls the Company (within the meaning of the Securities Act), against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained or required to be contained
in the Registration Statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained or required to be contained in any information or
affidavit so furnished or required to be so furnished in writing by Xxxxxx.
9.3 Any person or entity entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification, and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim, with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without the indemnifying party's consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
9.4 The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
or entity of such indemnified party and will survive the transfer of securities.
The Company and Xxxxxx also agree to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's or Xxxxxx'x indemnification, as the case may be, is unavailable
for any reason.
10. Purchased Option Shares Possibly Subject to 180 Day Lock-Up
Restrictions. Xxxxxx, shall, if requested by an underwriter of a primary
offering of the Company's securities, agree that he will not sell or otherwise
transfer or dispose of his shares of the Company's common stock during the
period beginning seven days prior to and ending 180 days following the effective
date of a registration statement of the Company filed under the Securities Act
of 1933, as amended.
11. Investor Suitability. Xxxxxx hereby represents that he (i) has
reviewed the Company's financial information to his full satisfaction, including
all portions deemed relevant by Xxxxxx of the Company's public filings with the
SEC, (ii) has had access to all information necessary for him to make an
informed decision with respect to this Letter Agreement, (iii) was not solicited
by the Company or any representative of the Company in connection with this
Agreement, and (iv) is capable of bearing the risks of loss of any investment in
the Company as provided this Agreement.
12. Effective Date. The Effective Date of this Agreement shall be
___________, 1997.
13. Term. This Agreement shall remain in effect from and after the
Effective Date until the expiration of any remaining unexercised stock purchase
rights conferred hereunder.
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14. Entire Agreement: Definitive Agreement. This Agreement and exhibits
constitutes the whole and entire agreement among the Company and Xxxxxx with
respect to the matters set forth herein and this Agreement shall not be modified
or amended in any respect except by a written instrument executed by the Company
and Xxxxxx.
15. Benefit. This Agreement is binding upon and inures to the benefit of
the Company and Xxxxxx and their respective heirs, personal representatives,
successors and assigns; provided, however, the options granted hereunder shall
not be transferable by Xxxxxx to any person or entity without the consent of the
Company in its sole discretion.
16. Severability. If any provision or term of this Agreement shall be
held or determined to be unenforceable, the balance of this Agreement shall
nevertheless continue in full force and effect, unaffected by such holding or
determination. In addition, in any such event, the parties agree that it is
their intention and agreement that any such provision or term which is held or
deter-mined to be unenforceable as written, shall nonetheless be enforced and
binding to the fullest extent permitted by law as though such provision or term
had been written in such a manner to such an extent as to be enforceable under
the circumstances.
17. Law Governing. This Agreement shall be governed and interpreted under
the laws of the State of Utah.
18. Further Assurances. Each party agrees that he or it will, whenever and
as often as he or it shall be required by any other party, execute, acknowledge
and deliver such further instruments and documents as may be necessary in order
to complete the agreements herein provided and to do any and all other acts and
to acknowledge, execute and deliver any and all other documents which may be
requested in order to reasonably carry out the intent and purposes of this
Agreement.
19. Construction of Agreement. The parties hereto agree that this
Agreement shall not be construed against any party hereto by reason of the party
or parties responsible for its preparation. The parties mutually agree that each
has had full access to the advice of legal counsel and that this Agreement
represents the culmination of negotiations between the Company and Xxxxxx and
their representatives. Any previous correspondence amongst the parties hereto
and all such negotiations are superseded hereby in all respects are of no
further force and effect.
20. Notices. All notices hereunder shall be given in writing and shall be
sent by overnight courier, sent by facsimile transmission (with the original
forwarded in accordance with this Section) or sent by certified mail, postage
prepaid and return receipt requested. Notice shall be considered received by the
addressee two (2) days after deposit in the United States Mail (by certified
mail, postage prepaid and return receipt requested), or by facsimile
transmission, or by overnight courier. The parties hereto may change the address
at which they wish to receive notices by providing notice of the new address to
the other parties hereto. Unless either party receives notice of a change of
address in the manner provided in this Section, notices shall be addressed to
the last known address of the party to whom notice is sent.
IN WITNESS WHEREOF, the parties have executed this Agreement, the date and
year indicated under their signature below.
INTERWEST HOME MEDICAL, INC. Xxxxxx
By:__________________________ ___________________________
Its: President Xxxxxx X. Xxxxxx
Date:________________________ Date:_______________________
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