ONCURE HOLDINGS, INC. INCENTIVE STOCK OPTION AGREEMENT
Exhibit 10.21
ONCURE HOLDINGS, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (the “Agreement”), is made and entered into as of «Date1», 2006 between ONCURE HOLDINGS, INC., a Delaware corporation (the “Company”), and «Name» (“Optionee”).
THE PARTIES AGREE AS FOLLOWS:
Article X. Xxxxx Of Option; Effective Date; Vesting Base Date.
Section 1.01 Grant. The Company hereby grants to Optionee pursuant to the Company’s Equity Incentive Plan (the “Plan”), a copy of which is attached to this Agreement as Exhibit A, an incentive stock option within the meaning of Section 422 of the Code (the “ISO”) to purchase all or any part of an aggregate of «Shares1» shares (the “ISO Shares”) of the Company’s Common Stock, par value $0.001 per share (“Common Stock”) on the terms and conditions set forth herein and in the Plan, the terms and conditions of the Plan being hereby incorporated into this Agreement by reference. Defined terms used herein, but whose definition is not set forth herein shall have the meaning and definition applicable thereto as set forth in the Plan.
Section 1.02 Effective Date. The effective date of this ISO is «Date2», the date on which such ISO was granted by the Company (the “Effective Date”).
Section 1.03 Exercise Price. The exercise price for purchase of the shares of Common Stock covered by this ISO shall be $«Price» per share, which is the Fair Market Value of a share of Common Stock on the Effective Date.
Section 1.04 Term. This ISO shall expire on the date 10 years after the Effective Date.
Section 1.05 Adjustment of ISO. The Company shall adjust the number and kind of shares and the exercise price thereof in certain circumstances in accordance with the provisions of the Plan.
Article II. Exercise of Options.
Section 2.01 Vesting; Time of Exercise. This ISO shall vest and become exercisable as follows:
(a) «Shares2» (2/3) of the ISO Shares subject to this ISO shall vest over four years from the Effective Date at the rate of 1/48 per month on the monthly anniversary of the Effective Date, provided the Optionee has not incurred a Termination before such date.
(b) «Shares3» (1/3) of the ISO Shares subject to this ISO shall vest 100%, provided the Optionee has not incurred a Termination before such date, upon the completion of a Change of Control:
(i) completed after August 18, 2006 (the “Merger Date”) and prior to the two-year anniversary of the Merger Date in which the consideration for each share of Common Stock is at least equal to 200% of the Initial Common Stock Price. For purposes of this Agreement, “Initial Common Stock Price” means $3.50;
(ii) completed on or after the two-year anniversary of the Merger Date and prior to the three-year anniversary of the Merger Date in which the consideration for each share of Common Stock is at least equal to 225% of the Initial Common Stock Price;
(iii) completed on or after the three-year anniversary of the Merger Date and prior to the four-year anniversary of the Merger Date in which the consideration for each share of Common Stock is at least equal to 250% of the Initial Common Stock Price; or
(iv) completed on or after the four-year anniversary of the Merger Date in which the consideration for each share of Common Stock is at least equal to 300% of the Initial Common Stock Price.
This ISO shall expire one hundred and twenty (120) months from the Effective Date. Any ISO that does not vest pursuant to this Section 2.01 as of the date of Optionee’s Termination will be forfeited.
Section 2.02 Exercise After Termination. If Optionee incurs a Termination from the Company, to the extent the ISO has not then expired or been exercised, this ISO shall remain exercisable for the period specified below following such Termination and, thereafter, if the ISO is not exercised, it shall expire and terminate. A transfer of Optionee among the Company and its Affiliates, or a leave of absence duly authorized by the Company, shall not be deemed a Termination.
(a) Death or Disability. In the event that Optionee’s Termination is by reason of death or Disability, the Option shall be exercisable by Optionee’s beneficiary or estate for a period of 6 months following Optionee’s death or Disability. If the Option is not exercised within 6 months following Optionee’s death or Disability, then such Option shall expire and shall no longer be exercisable.
(b) Cause. In the event that Optionee’s Termination is by the Company for Cause (as defined below) the Option shall be exercisable by Optionee for a period of 5 days following Optionee’s Termination. If the Option is not exercised within 5 days following Optionee’s Termination for Cause, then such Option shall expire and shall no longer be exercisable. For purposes of this Agreement, “Cause” shall be defined in the Optionee’s employment agreement, or if there is no such definition or employment agreement, it shall mean: (i) a material failure of Optionee to perform his duties and functions as an employee; (ii) Optionee’s willful
failure to perform his material assigned duties without an excuse that is reasonably acceptable to Company; (iii) Optionee engages in an act (or causes an act) that has a material adverse impact on the reputation, business, business relationships or financial condition of Company; (iv) the conviction of or plea of guilty or nolo contendere by Optionee to a felony or any crime involving moral turpitude, fraud or misrepresentation; (v) misappropriation or embezzlement by Optionee of funds or assets of Company.
(c) Other Termination. In the event that Optionee’s Termination is for any reason other than death, Disability or Cause, the Option shall be exercisable by Optionee for a period of 3 months following Optionee’s Termination. If the Option is not exercised within 3 months following Optionee’s Termination, then the Company shall, in exchange for the cancellation of such unexercised Options and to the extent permissible under applicable law, issue to the Optionee a number of shares of Common Stock equal to fifty percent (50%) of (i) the product of (1) the number of shares of Common Stock exercisable under such unexercised Options multiplied by (2) the difference between the fair market value of one share of Common Stock on the date of issuance and the exercise price per share of Common Stock under the Options, divided by (ii) the fair market value of one share of Common Stock on the date of issuance. For purposes of the foregoing, the fair market value of one share of Common Stock on the date of issuance shall be determined in good faith by the Board. No Options shall be exercisable after such payment is made. Such payment will be treated for tax purposes as resulting from a Non-Qualified Stock Option.
The Optionee acknowledges that an ISO exercised more that three months after his Termination, other than by reason of death or Disability, will be taxed as a Non-Qualified Stock Option.
Section 2.03 Manner of Exercise. To the extent vested, Optionee may exercise this ISO, or any portion of this ISO, by giving written notice in such form and at such time as established by the Administrator, payment of the exercise price and payment of any applicable withholding or employment taxes. The date the Company receives the required written notice of an exercise hereunder accompanied by payment will be considered as the date this ISO was exercised. Promptly after receipt of the applicable exercise price, the required income and employment tax withholding, if any and any other documents required to be executed by the Administrator, the Company shall, issue to the Optionee or other person entitled to exercise the ISO, the requisite number of ISO Shares acquired upon exercise of the Option, which such shares may be evidenced in book form or by a certificate in the discretion of the Administrator. The Optionee or transferee of the Optionee shall not have any privileges as a shareholder with respect to any ISO Shares covered by the ISO until the date of the valid exercise of all or a part of the ISO.
Section 2.04 Nonassignability of ISO. This ISO is not assignable or transferable by Optionee except by will or by the laws of descent and distribution; provided, however, Optionee may transfer this ISO to Immediate Family in accordance with the terms of the Plan. Except to the extent transferred to Immediate Family, during the life of Optionee, the ISO is exercisable only by the Optionee. Any attempt to otherwise assign, pledge, transfer, hypothecate or dispose of this ISO in a manner not herein permitted, and any levy of execution, attachment, or similar process on this ISO, shall be null and void.
Section 2.05 Special Tax Consequences. The Optionee acknowledges that, to the extent that the aggregate Fair Market Value (determined as of the time the Option is granted) of all shares of Common Stock with respect to which ISOs, including the Option, are exercisable for the first time by the Optionee in any calendar year exceeds $100,000, the Option and such other options shall be Non-Qualified Stock Options to the extent necessary to comply with the limitations imposed by Section 422(d) of the Code. The Optionee further acknowledges that the rule set forth in the preceding sentence shall be applied by taking the Option and other “incentive stock options” into account in the order in which they were granted, as determined under Section 422(d) of the Code and the Treasury Regulations thereunder.
Article III. Restrictions on ISO Shares.
Section 3.01 Investor Rights Agreement. Optionee hereby agrees that the ISO Shares shall be subject to such terms and conditions as the Administrator shall determine in its sole discretion, including, without limitation, restrictions on the transferability of the ISO Shares, the right of the Company to repurchase ISO Shares, and a right of first refusal in favor of the Company with respect to permitted transfers of ISO Shares. Such terms and conditions may, in the Administrator’s sole discretion, be contained in an investor rights agreement or in such other agreement as the Administrator shall determine and which the Optionee hereby agrees to enter into at the request of the Company upon exercise of the Option.
Section 3.02 Legality of Issuance. The Company shall not be obligated to sell or issue any ISO Shares pursuant to this Agreement if such sale or issuance, in the opinion of the Company and the Company’s counsel, might constitute a violation by the Company of any provision of law, including without limitation the provisions of the Exchange Act of 1934, as amended (the “Exchange Act”) or the Securities Act of 1933, as amended (the “Securities Act”)
Section 3.03 Registration or Qualification of Securities. The Company may, but shall not be required to, register or qualify the sale of any ISO Shares under the, Securities Act, or any other applicable law. The Company shall not be obligated to take any affirmative action in order to cause the grant or exercise of this ISO or the issuance or sale of any ISO Shares pursuant thereto to comply with any law.
Section 3.04 Restriction on Transfer. Regardless whether the sale of the ISO Shares has been registered under the Securities Act or has been registered or qualified under the securities laws of any state, the Company may impose restrictions upon the sale, pledge or other transfer of ISO Shares (including the placement of appropriate legends on stock certificates) if, in the judgment of the Company and the Company’s counsel, such restrictions are necessary or
desirable in order to achieve compliance with the provisions of the Securities Act, the Exchange Act, the securities laws of any state or any other law.
Section 3.05 Stock Certificate Restrictive Legends. Stock certificates evidencing ISO Shares may bear such restrictive legends as the Company and the Company’s counsel deem necessary or advisable under applicable law or pursuant to this Agreement, including, without limitation, the following legends:
THE TRANSFER, SALE, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE INVESTOR RIGHTS AGREEMENT AMONG THE COMPANY AND ITS STOCKHOLDERS, A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE COMPANY. THE COMPANY WILL FURNISH A COPY OF THE INVESTOR RIGHTS AGREEMENT TO THE HOLDER OF THIS CERTIFICATE UPON REQUEST AND WITHOUT CHARGE. THE SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS, HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT FOR RESALE OR DISTRIBUTION, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS IN THE OPINION OF COUNSEL FOR THE COMPANY SUCH SALE OR TRANSFER WILL NOT VIOLATE APPLICABLE SECURITIES LAWS.
Article IV. Miscellaneous
Section 4.01 Taxes. Optionee acknowledges and agrees that Optionee will be responsible for any taxes arising from exercise of this Option and that the Company may withhold the amount of such taxes or require the remittance of such taxes to the Company.
Section 4.02 Representations, Warranties, Covenants and Acknowledgments of Optionee Upon Exercise of ISO. Optionee hereby agrees that in the event that the Company and the Company’s counsel deem it necessary or advisable in the exercise of their discretion, the issuance of ISO Shares may be conditioned upon certain representations, warranties and acknowledgments by the person exercising the ISO (the “Purchaser”), including, without limitation, those set forth in Sections 4.02 (a) through (h) hereof:
(a) Investment. Purchaser is acquiring the ISO Shares for Purchaser’s own account and not for the account of any other person. Purchaser is acquiring the ISO Shares for investment and not with a view to distribution or resale thereof except in compliance with applicable laws regulating securities.
(b) Business Experience. Purchaser is capable of evaluating the merits and risks of Purchaser’s investment in the Company evidenced by purchase of the ISO Shares.
(c) Relation to Company. Purchaser is presently an officer, director or employee of, or a consultant to, the Company and in such capacity has become personally familiar with the business, affairs, financial condition and results of operations of the Company.
(d) Access to Information. Purchaser has had the opportunity to ask questions of, and to receive answers from, appropriate executive officers of the Company with respect to the terms and conditions of the transaction contemplated hereby and with respect to the business, affairs, financial condition and results of operations of the Company. Purchaser has had access to such financial and other information as is necessary in order for Purchaser to make a fully-informed decision as to investment in the Company by way of purchase of the ISO Shares and has had the opportunity to obtain any additional information necessary to verify any of such information to which Purchaser has had access.
(e) Speculative Investment. Purchaser’s investment in the Company represented by the ISO Shares is highly speculative in nature and is subject to a high degree of risk of loss in whole or in part. The amount of such investment is within Purchaser’s risk capital means and is not so great in relation to Purchaser’s total financial resources as would jeopardize the personal financial needs of Purchaser or Purchaser’s family in the event such investment were lost in whole or in part.
(f) Registration. Purchaser must bear the economic risk of investment for an indefinite period of time because the sale to Purchaser of the ISO Shares has not been registered under the Securities Act and the ISO Shares cannot be transferred by Purchaser unless such transfer is registered under the Securities Act or an exemption from such registration is available. The Company has made no agreements, covenants or undertakings whatsoever to register the transfer of any of the ISO Shares under the Securities Act. The Company has made no representations, warranties or covenants whatsoever as to whether any exemption from the Securities Act, including without limitation any exemption for limited sales in routine brokers’ transactions pursuant to Rule 144, will be available; if the exemption under Rule 144 is available at all, it may not be available until at least two years after payment of cash for the ISO Shares and not then unless: (i) a public trading market then exists in the Company’s common stock; (ii) adequate information as to the Company’s financial and other affairs and operations is then available to the public; and (iii) all other terms and conditions of Rule 144 have been satisfied.
(g) Public Trading. None of the Company’s securities is presently publicly traded, and the Company has made no representation, covenant or agreement as to whether there will be a public market for any of its securities.
(h) Tax Advice. The Company has made no warranties or representations to Purchaser with respect to the income tax consequences of the transactions contemplated by the option agreement pursuant to which the ISO Shares will be purchased, and Purchaser is in no manner relying on the Company or the Company’s representatives for an assessment of such tax consequences.
Section 4.03 Assignment; Binding Effect. Subject to the limitations set forth in this Agreement, this Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, legal representatives and successors of the parties hereto; provided, however, that Optionee may not assign any of Optionee’s rights under this Agreement.
Section 4.04 Damages. Optionee shall be liable to the Company for all costs and damages, including incidental and consequential damages, resulting from a disposition of shares which is not in conformity with the provisions of this Agreement.
Section 4.05 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
Section 4.06 Notices. All notices and other communications under this Agreement shall be in writing. Unless and until the Optionee is notified in writing to the contrary, all notices, communications and documents directed to the Company at its corporate headquarters. Unless and until the Company is notified in writing to the contrary, all notices, communications and documents intended for the Optionee and related to this Agreement, if not delivered by hand, shall be mailed to Optionee’s last known address as shown on the Company’s books. Notices and communications shall be mailed by first class mail, postage prepaid; documents shall be mailed by registered mail, return receipt requested, postage prepaid. All mailings and deliveries related to this Agreement shall be deemed received only when actually received.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
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ONCURE HOLDINGS, INC. |
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By: |
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Title: Chief Executive Officer |
The Optionee hereby accepts and agrees to be bound by all of the terms and conditions of this Agreement and the Plan.
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Optionee |
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Name: |
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Dated: |
[Signature Page to Option Agreement
EXHIBIT A
EQUITY INCENTIVE PLAN
