EXHIBIT 4.4
NATIONAL QUALITY CARE, INC.
a Delaware corporation
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
Xxx Xxxxxxxxx June 19, 1996
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Name of Optionee Date Option Granted
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
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Residence Address No. 004
This Agreement ("Agreement") is amended and restated as of the September 6,
1996 between National Quality Care, Inc. (formerly, Xxxxxxx, Inc.), a Delaware
corporation (hereinafter the "Company"), and the optionee named above
(hereinafter "Optionee"). The option granted by this Agreement is designated a
"Non-Qualified Option" granted pursuant to the Xxxxxxx, Inc. Stock Option Plan
dated May 12, 1996 (the "Plan").
1. GRANT OF OPTION. Pursuant to and subject to the terms and conditions
of the Agreement, the Company grants to the Optionee, a consultant to the
Company, the right and option (the "Option") to purchase at $.38 per share on
the terms and conditions hereinafter set forth, 12,500 shares of the currently
authorized and unissued Common Stock of the Company, par value $0.01 per share,
at any time after one (1) month following the date of this Agreement, and an
additional 12,500 shares at any time after six (6) months following the date of
this Agreement (the "Shares"). The Option shall be exercisable, in whole or in
part, during the period commencing with the date on which each portion of the
Option becomes exercisable, as set forth above and ending on December 31, 1999.
So long as applicable law allows, at the option of the Company, the Company
agrees to waive payment for the exercise of the options referenced hereinabove.
In such event, the Company shall issue appropriate documentation to Optionee
causing Employee to recognize income for such waiver of the option exercise
price. In the event that applicable law will not allow for the waiver of such
payment for such options, the Company shall declare Incentive Compensation of
no less than the amount necessary for Optionee to exercise such options.
Nothing contained herein shall be construed to limit or restrict the right
of the Company or a parent or subsidiary corporation of the Company to terminate
the Optionee's services for the Company.
2. METHOD OF EXERCISE. The Option may be exercised pursuant thereto by
written notice to the Company stating the number of shares with respect to which
the Option is being exercised, together with payment in full, by certified or
cashier's check payable to the order of the Company, of the purchase price for
the number of Shares being purchased. If requested by the Plan Committee of the
Board of Directors, prior to the delivery of any Shares, the Optionee shall
supply the Plan Committee with a representation that the Shares are not being
acquired with a view to distribution and will be sold or otherwise disposed of
only in accordance with applicable federal and state statutes, rules and
regulations.
As soon after the notice of exercise as the Company is reasonably able to
comply, the Company shall, without payment of any transfer or issue tax by the
Optionee, deliver to the Optionee or any such other person, at the main office
of the Company or such other place as shall be mutually acceptable, a
certificate or certificates for the Shares being purchased upon exercise of the
Option. Notwithstanding the foregoing, the Company shall have the right to
postpone the time of delivery of the Shares for such period as may be required
for it with reasonable diligence to comply with any applicable listing
requirements of any national securities exchange or any federal, state or local
law. The Optionee may exercise the Option for less than the total number of
Shares for which the Option is then exercisable, provided that a partial
exercise may not be for fewer than 100 Shares, unless the remaining shares
exercisable under the Option is for less than 100 Shares. The Option may be
exercisable for whole Shares only.
3. TERMINATION OF OPTION. The Option shall terminate and expire
immediately and in total upon the earlier of:
(a) The Expiration Date of the Option as specified in Section 1 of
this Agreement; or
(b) The date of termination of the Option pursuant to Section 5
hereof.
This Option shall survive and be exercisable notwithstanding that Optionee shall
(i) terminate his relationship with the Company, (ii) cease to provide services
to the Company or (iii) otherwise be subject to the provisions of Sections
7(a)-(d) of the Plan, and shall terminate only as provided in Sections 3(a) or
(b) of this Agreement.
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4. ADJUSTMENTS. If there is any change in the capitalization of the
Company affecting in any manner the number or kind of outstanding shares of
Common Stock of the Company, whether by stock dividend, stock split,
reclassification or recapitalization of such stock, or because the Company has
merged or consolidated with one or more other corporations (and provided the
Option does not thereby terminate pursuant to Section 5 hereof), then the number
and kind of shares then subject to the Option and the price to be paid therefor
shall be appropriately adjusted by the Plan Committee; PROVIDED, HOWEVER, that
in no event shall any such adjustment result in the Company's being required to
sell or issue any fractional shares. Any such adjustment shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option, but with an appropriate adjustment to the price of each Share or
other unit of security covered by this Option.
5. CESSATION OF CORPORATE EXISTENCE. Notwithstanding any other provision
of this Option, upon the dissolution or liquidation of the Company, the
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or the sale of substantially all the assets of the Company or of more than 50%
of the then outstanding stock of the Company to another corporation or other
entity, the Option granted hereunder shall terminate, provided, however, that:
(i) each Option for which no option has been tendered by the surviving
corporation in accordance with all of the terms of provision (ii) immediately
below shall, within five days before the effective date of such dissolution or
liquidation, merger or consolidation or sale of assets in which the Company is
not the surviving corporation or sale of stock, become fully exercisable; or
(ii) in its sole and absolute discretion, the surviving corporation may, but
shall not be so obligated to, tender to any Optionee, an option to purchase
shares of the surviving corporation, and such new option or options shall
contain such terms and provisions as shall be required substantially to preserve
the rights and benefits of this Option.
6. NON-TRANSFERABILITY. The Option is not assignable or transferable by
the Optionee, either voluntarily or by operation of law, otherwise than by will
or by the laws of descent and distribution, and is exercisable, during the
Optionee's lifetime, only by the Optionee. Upon any attempted transfer of this
Option contrary to the provisions hereof, the Board of Directors may, at its
discretion, terminate this Option.
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7. NO STOCKHOLDER RIGHTS. The Optionee or other person entitled to
exercise this Option shall have no rights or privileges as a stockholder with
respect to any Shares subject hereto until the Optionee or such person has
become the holder of record of such Shares, and no adjustment (except such
adjustment as may be effected pursuant to the provisions of Section 4 hereof)
shall be made for dividends or distributions of rights in respect of such Shares
if the record date is prior to the date on which the Optionee or such person
becomes the holder of record.
8. METHOD OF ACCEPTANCE. This Agreement is addressed to the Optionee in
duplicate and shall not be effective until the Optionee has executed the
acceptance below and returned one copy to the Company, thereby acknowledging
that he has read and agreed to all the terms and conditions of this Agreement.
Executed by the Company as of the 6th day of September, 1996.
NATIONAL QUALITY CARE, INC.
a Delaware corporation
By: /s/ Xxxxxx Xxxx, M.D.
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Xxxxxx Xxxx, M.D., President
ACCEPTED:
By: /s/ Xxx Xxxxxxxxx September 6, 1996
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Xxx Xxxxxxxxx Date
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ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise _______ of the
Options allocated to him under that certain Non-Qualified Stock Option Agreement
by and between Xxx Xxxxxxxxx and National Quality Care, Inc., dated as of June
19, 1996, and to purchase the Common Shares issuable upon the exercise of said
Options, and requests that Certificates for such shares be issued and delivered
as follows:
ISSUE TO:
Xxx Xxxxxxxxx
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(Name)
000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxx 00000
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(Address, Including Zip Code)
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(Social Security or Tax Identification Number)
DELIVER TO:
Matthias & Xxxx, LLP
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(Name)
at 000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, XX
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90071
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(Address, Including Zip Code)
Full payment of the purchase price with respect to the Options exercised
and transfer taxes, if any, in the amount $ is enclosed herewith.
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Dated as of:
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Xxx Xxxxxxxxx
PLEASE INSERT SOCIAL SECURITY OR TAX
IDENTIFICATION NUMBER OF HOLDER
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