Exhibit 6(v)
STOCK OPTION AGREEMENT
AGREEMENT made this 19th day of March, 1999, by and between NovaMed, Inc., a
Nevada corporation ("NovaMed"), and Xxxxxxxx Xxxxxxxx, whose address is 000
Xxxxxxxx Xxxxxxx, Xxxxxx, XX 00000 ("Option Holder").
WITNESSETH:
WHEREAS, NovaMed has adopted a Stock Option Plan (the "Plan") whereunder NovaMed
intends to grant to Option Holder an option to purchase shares of NovaMed's
common stock ("Stock"); and
WHEREAS, Option Holder is a key employee of NovaMed and NovaMed desires him/her
to remain in such capacity by providing him/her with an added incentive to work
effectively for and in NovaMed's interest and with the means to acquire or to
increase his/her proprietary interest in NovaMed and to share in its Success.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, NovaMed and Option Holder agree as follows:
1. Grant of Option. Subject to the terms and conditions of the
Plan, a copy of which is attached hereto as Exhibit "A" and by reference made a
part hereof, NovaMed hereby irrevocably grants to Option Holder, as a matter of
separate agreement and not in lieu of salary or any other compensation or
services, the right and option (the "Option") to purchase all or any part of an
aggregate number of Fifty Five Thousand (55,000) shares of authorized but
unissued common stock of NovaMed ("Optioned Shares") on the terms and conditions
hereof.
2. Price. The purchase price of the Optioned Shares shall be
the sum of One US Dollar and Thirty Cents (US$1.30) per share. The parties
acknowledge that the price is not less than One Hundred Percent (100%) of the
fair market value, as determined by the Board of Directors of NovaMed, of a
share of stock of NovaMed on the date of the grant of the Option.
3. Date of Exercise. Subject to the provisions of paragraph 7,
the Option may be exercised at any time from and after either of the following
times, whichever shall be the earlier:
a. Option Holder may exercise the Option at any time
and from time to time before two (2) years from the date of grant of the Option.
b. The agreement of NovaMed to sell all or substant-
ially all of its assets or business.
4. Method of Exercise. The Option shall be exercised by
written notice, delivered or mailed by post paid or certified mad, addressed to
NovaMed at it principal offices, specifying the number of Optioned Shares being
purchased. Such notice shall be accompanied by payment, in cash or its
equivalent, of the full price of the Optioned Shares being purchased. In the
event the Option is being exercised pursuant to paragraph 6 below by any person
or persons other than Option Holder, the notice shall be accompanied by
appropriate proof of the right of such person to exercise the Option.
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5. Issuance of Shares. The certificate or certificates
representing the shares purchased hereunder shall be issued and delivered by
NovaMed as soon as practical after receipt of the notice of exercise and
required payment. Such certificate or certificates shall be registered in the
name of the person exercising the Option and shall be delivered to or on the
written order of such person.
6. Transfer of Obligation. The Option shall not be
transferable by Option Holder except by his/her Last Will or the laws of the
Holder's domicile at the time of his/her death relating to intestacy. During
his/her lifetime, Option Holder is the only person who may exercise the Option.
More specifically, without limiting the generality of the foregoing, the Option
may not be assigned, transferred (except as permitted herein) pledged or
hypothecated in any way, whether by operation of law or otherwise, and shall not
be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any attachment or similar
process on the Option shall be null and void and without effect.
7. Termination of Option.
(a) Termination of Employment. The right to exercise
the option shall end:
(1) In the event of voluntary termination by
Option Holder, on the date of notice of such
termination.
(2) In the event of involuntary termination
by NovaMed, with cause, on the date of
notice of such termination.
(3) In the event of involuntary termination
by NovaMed, without cause, thirty (30) days
from the date of notice of such termination.
(b) Death. U Option Holder shall die within the above
mentioned thirty (30) day period, or if he shall die
while in the employ of NovaMed, the Option will
terminate unless the person or persons to whom the
Option shall have been transferred by his/her Last
Will or the laws of intestacy shall have, within six
(6) months from the date of Option Holder's death,
exercised the Option.
(c) Proof of Succession. No transfer of the Option by
Option Holder by his/her just Will or under the laws
of intestacy shall be effective to bind NovaMed
unless NovaMed shall have been furnished with written
notice thereof and a copy of Option Holder's Last
Will and /or such other evidence as the Board of
Directors of NovaMed may deem necessary to establish
the validity of the transfer and the acceptance by
the transferee or transferees of the terms and
conditions of the Option.
(d) Notwithstanding any provision of this Agreement
to the contrary, the right to exercise the Option
will terminate on March 19, 2001.
8. Effect of Merger or Consolidation.
(a) Substitution of Shares. After any merger of one
or more corporations into
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NovaMed, or after any consolidation of NovaMed and
one or more corporation in which NovaMed shall be the
surviving corporation, Option Holder shall, at not
additional cost, be entitled, upon the exercise of
the Option, to receive, subject to any required
action by the shareholders of NovaMed and in lieu of
the number of shares as to which the Option shall
then be so exercised, the number and class of shares
of stock or securities to which Option Holder would
have been entitled pursuant to the terms of the
Agreement of Merger or Consolidation if at the time
of such merger or consolidation Option Holder had
been a holder of record of a number of shares of
common stock of NovaMed equal to the number of shares
as to which the Option shall then be so exercised.
(b) Future Merger or Consolidation. Comparable rights
shall accrue to Option Holder in the event of any
successive merger or consolidation of the character
above.
(c) Dissolution of NovaMed. Notwithstanding anything
herein to the contrary, upon the dissolution or
liquidation of NovaMed, or upon any merger or
consolidation in which NovaMed is not the surviving
corporation, the Option shall terminate, but Option
Holder shall have the right, immediately prior to
dissolution, liquidation, merger or consolidation to
exercise the Option in full.
9. Shareholder Status. Option Holder, or any transferee of the
Option, shall have no right as a shareholder with respect to any Optioned Share
until he shall have become a shareholder of record of such share. No adjustment
shall be made for dividends or cash distributions, ordinary or extraordinary,
whether in cash, securities or other property, or distributions or other rights
in respect of such share for which the record date is prior to the date on which
Option Holder shall become the holder of record thereof.
10. Reservation of Right to Terminate Employment.
Nothing contained in this Agreement shall restrict the right of NovaMed to
terminate the employment of Option Holder at any time, with or without cause.
11. Purchase for Investment Only. Option Holder represents to
NovaMed that it is his/her intention to exercise the Option, and to acquire any
stock covered thereby, for investment and not with a view to the distribution or
resale thereof, and any person who shall exercise the Option shall be required
to so represent in writing at the time of exercise. Option Holder further
acknowledges that he will not sell or otherwise dispose of shares covered by the
Option except pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or except in a transaction which, in the
opinion of counsel for NovaMed, is exempt from registration under that Act.
12. Registration of Shares. If, at any time, the Board of
Directors of NovaMed shall determine, in its discretion, that the registration
or qualification of any shares covered by the Option is necessary or desirable
under any state or federal law, as a condition of or in connection with the
delivery of such shares on the exercise of the Option, the delivery of such
shares shall be deferred until such registration or qualification shall have
been effected. In the event the Board of Directors of NovaMed determines that
registration or qualification of shares covered by the Option is necessary or
desirable, NovaMed shall, at its expense, take such action as may be required to
effect such registration or qualification.
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13. Restriction on Transfer.
(a) Death or Termination of Employment.
(1) Option of NovaMed to Repurchase.
Option Holder hereby grants to NovaMed an
irrevocable right to repurchase, at any time
within one hundred eighty (180) days from
and after his/her death or any termination
of employment, any or all of the shares
acquired hereunder. NovaMed shall exercise
this option by delivering written notice
thereof to the record owner of such shares
together with payment in the sum provided
below. Concurrently with the exercise by
NovaMed of this option, the record owner of
such shares shall deliver to NovaMed all
certificates representing the said shares.
which certificates shall be properly
endorsed in blank.
(2) Option to Sell to NovaMed. Following the
full and complete exercise of the Option and
the purchase of all Optioned Shares
described herein, NovaMed grants to Option
Holder an irrevocable right to sell, at any
time within One Hundred Eighty (180) days
from and after Option Holder's death or any
termination of employment, all of Option
Holder's right, title and interest in and to
the Optioned Shares so purchased. This
option may be exercised only with respect to
all of the shares of NovaMed owned by Option
Holder and cannot be exercised with respect
to any smaller portion thereof, an is not
assignable to any other person other than
Option Holder's legal representatives in the
event of his/her death.
(3) Purchase Price. The purchase price to be
paid by NovaMed in the event of a sale to or
purchase by NovaMed under either of the
foregoing shall be an amount mutually
determined by NovaMed and Option Holder or
his/her legal representatives. If the
parties cannot mutually agree on an
acceptable price, a qualified appraiser
shall be selected by the parties and the
determination of the appraiser shall be
final and binding. If the parties cannot
agree on the identity of an acceptable
appraiser, either of the parties may
petition a court of appropriate jurisdiction
for an order which shall determine the
manner in which the price shall be
ascertained. All costs of any appraisal and
all costs of any legal action, including any
reasonable attorney's fees incurred by
NovaMed in connection therewith, shall be
the exclusive responsibility of Option
Holder and shall be deducted from any price
to be paid by NovaMed hereunder.
Notwithstanding anything herein to the
contrary, the purchase price shall be not
less than the sum of One Dollar ($ 1.00) per
share.
(b) Proposed Disposition of Shares.
(1) Except as set forth in subparagraph 4
below, neither Option
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Holder nor any vendee, transferee,
successor, assignee, donee or pledgee of any
of the shares acquired hereunder nor any
person or firm that acquires any interest in
any of the said shares by contract or
otherwise shall sell, encumber, pledge,
hypothecate, give or otherwise transfer any
or all of said shares or any interest
therein, voluntarily, by operation of law or
otherwise, without obtaining a prior written
consent of NovaMed unless Option Holder or
such transferee shall give notice to NovaMed
of an intention to do so. The said notice
shall specify the name of the proposed
transferee, the number of such shares to be
transferred, the price offered per share,
payment terms, and any other material terms
or conditions of the proposed transfer.
(2) At any time within sixty (60) days after
receipt of the above described notice by
NovaMed, NovaMed shall have the right to
purchase all or any of the subject shares
for the same price as shall be paid by the
transferee. If the proposed transfer does
not involve or include a price per share,
NovaMed shall pay the fair market value of
said shares as the same shall be determined
by the independent certified public
accountant of NovaMed. NovaMed shall pay the
purchase price, by check or in cash, to the
owner of the subject shares and the owner
shall deliver to NovaMed all certificates
representing the subject shares properly
endorsed in blank.
(3) After the expiration of the above stated
sixty (60) day period, but prior to the
expiration of ninety (90) days after receipt
of the said notice by NovaMed, any of the
subject shares with respect to which NovaMed
has not exercised the right described herein
may be transferred as specified in the said
notice. Any transferee of the subject shares
shall hold them subject to all of the terms
and conditions of this Agreement, including
restrictions upon any subsequent transfer.
(4) Notwithstanding the foregoing, any owner
of the shares acquired in compliance with
the terms of this Agreement may make a gift,
inter vivos or testamentary, of such shares
to such person's spouse or issue, or to a
trust or other fiduciary account for the
benefit of any of them so long as such
fiduciary account is not also for the
benefit of any other person. Any such donee
shall hold such shares subject to all of the
provisions of this Agreement and shall not
sell, encumber, pledge, hypothecate, give or
otherwise transfer any or all of said shares
or any right or interest therein except in
accordance with all the terms and conditions
of this Agreement.
14. Statement on Certificate. The certificate representing any
shares acquired hereunder will bear a legend on the face thereof in
substantially the following form:
These securities have not been registered under the Securities
Act of 1933, and may not be offered, offered for sale, or sold
in the absence of an effective registration statement under
the Act or an opinion of counsel satisfactory to the
corporation that registration is not required. Additionally,
sale, encumbrance, hypothecation, gift or other transfer of
such shares or any interest therein is restricted by and
subject to a Stock Option.
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Agreement dated March 19,1999, a copy of which may be
inspected at the principal offices of the corporation and all
of the provisions of which are incorporated herein by
reference.
15. Life Insurance. NovaMed may procure insurance on the life
of Option Holder, naming itself as beneficiary, in such face amounts as NovaMed
shall determine. The principal purpose of such life insurance shall be to assist
NovaMed in making payment of any obligation due by NovaMed hereunder.
16. Succession. This Agreement shall be binding upon the
parties and their heirs, distributees, legal representatives, successors and
assigns.
17. Amendment. This Agreement may not be altered or amended
except by a written instrument setting forth such changes signed by NovaMed and
Option Holder.
18. Interpretation. Whenever the context so requires, the
singular shall include the plural, the plural shall include the singular, the
whole include and part thereof, and any gender shall include all other genders.
19. Notices. All notices required to be given under this
Agreement shall be in writing, and shall be sufficiently given if personally
delivered, or if mailed, postage prepaid, registered mail, return receipt
requested, as follows:
Name Address
NovaMed, Inc. 000 Xxxxxx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000 XXX
Xxxxxxxx Xxxxxxxx 000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
20. Attorney's Fees. If any party hereto should default in the
performance of any obligation hereunder, any other party shall be entitled to a
reasonable attorney's fee and all costs incurred in connection with the
enforcement of any of the terms and conditions hereof.
21. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Nevada, United States of America and in
the English language.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
NovaMed, Inc.
By_________________________
Xx. Xxxxxx Xxxxxx, Director
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Xxxxxxxx Xxxxxxxx
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