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EXHIBIT 4.8
ADAC LABORATORIES
STOCK OPTION AGREEMENT
(NOT ISSUED UNDER ANY STOCK OPTION PLAN)
THIS STOCK OPTION AGREEMENT is issued to XXXXXX X. XXXXXX by ADAC
LABORATORIES, a California corporation (the "Company").
1. OPTIONEE; BASIC TERMS. The Optionee is hereby granted an
option to purchase the number of fully paid and non-assessable shares of the
Common Stock, without par value, of the Company at the option price hereinbelow
set forth, subject to the following additional terms and conditions:
X. XXXXX OF OPTION.
The Company hereby grants to the Optionee an option (the
"Option") to purchase 25,000 shares of the Common Stock of the Company, upon
the terms and conditions set forth below. The date of grant of the Option is
JANUARY 4, 1996 (the "Grant Date"). This Option is intended to be a
non-qualified option, the exercise of which generally results in an immediate
taxable event under the Internal Revenue Code.
B. DURATION OF OPTION.
This Option shall have a term of five (5) years from the Grant
Date and shall expire on JANUARY 4, 2001, unless terminated earlier as provided
herein.
C. PURCHASE PRICE.
The purchase price for the shares subject to the Option shall
be $11.75 per share, which is equal to one-hundred percent (100%) of fair
market value, being the closing price of the Company's Common Stock on the
Grant Date, as reported in the Wall Street Journal.
2. EXERCISABILITY. Subject to Section 6 regarding termination of
Optionee's employment, consulting or other relationship with the Company, as
currently applicable, and unless otherwise accelerated by action of the Board
of Directors or pursuant to Section 7(b), this Option shall become 50% vested
and exercisable on January 4, 1997 and fully vested and exercisable on January
4, 1998.
3. METHOD OF EXERCISE AND PAYMENT. This Option may be exercised from
time to time, in whole or in part, to the extent exercisable, only by delivery
to an officer of the Company of the original of this Option with an appropriate
Notice of Exercise duly signed by the holder, together with the full purchase
price of the shares purchased pursuant to the exercise of the Option; provided,
however, that this Option may not be exercised if such exercise would violate
any law or governmental order or regulation. If the
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offer and sale of the shares subject to the Option has not been
registered under the Securities Act of 1933, as amended (the "Act"), Optionee
shall deliver to the Company, at the time of exercise, an appropriate
"investment letter" in form and content satisfactory to the Company unless, in
the opinion of counsel for the Company, the shares issued would not be deemed
"restricted securities" within the meaning of such Act or the rules and
regulations promulgated thereunder. Payment for the shares purchased pursuant
to any exercise shall be made in full at the time of such exercise in cash or
by check payable to the order of the Company or in Common Stock of the Company,
having been owned by the Optionee for a period of six (6) months prior to such
exercise, valued as of the date of exercise of the Option at Fair Market Value.
Optionee agrees to have withheld from any remuneration payable to him by the
Company and/or to pay to the Company, at the time of exercise of the Option, an
amount which is required to be withheld or paid pursuant to any Federal, State
or local tax or revenue laws or regulations, as may be determined by the
Company. The Optionee may satisfy such tax withholding by instructing the
Company to withhold such number of option shares exercised which, when valued
at Fair Market Value on the date of Exercise (being the closing price as
reported in the Wall Street Journal), equal the total tax obligations required
to be withheld.
4. NON-TRANSFERABILITY. This Option shall not be transferred, sold,
pledged, assigned, hypothecated, or disposed of in any manner by Optionee other
than by will or the laws of descent and distribution to the extent hereinafter
set forth. This Option may be exercised during the holder's lifetime only by
the holder hereof or, upon the holder's legal incapacity to act on his/her own
behalf, by the holder's conservator or other lawful representative. The Option
shall be null and void and without effect upon any attempted assignment or
transfer, except as hereinabove provided, including without limitation, any
purported assignment, whether voluntary or by operation of law, pledge,
hypothecation or other disposition contrary to the provisions hereof, or levy
of execution, attachment, trustee process or similar process, whether legal or
equitable, upon the Option.
5. TERMINATION. To the extent that this Option shall not have been
exercised in full prior to its termination or expiration date, whichever shall
be sooner, it shall terminate and become void and of no effect.
6. CESSATION OF CONTINUOUS STATUS -- TERMINATION, RETIREMENT, DEATH
OR DISABILITY. If the holder shall voluntarily or involuntarily cease his/her
Continuous Status (defined herein as failure to maintain an employment or
consulting status with the Company or severance of the relationship with the
Company which gave rise to the grant of this Option) (hereinafter referred to
as a "Termination"), the Option of the holder shall terminate forthwith, except
that the holder shall have ninety days (90) days following the Termination to
exercise this Option or any portion hereof which the holder could have
exercised on the date of Termination; provided, however, that if the
Termination is due to retirement by the holder on or after attaining the age of
sixty-two (62) years, the
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Stock Option Agreement
(Not Issued Under Any Stock Option Plan)
ADAC Laboratories
disability of the holder or the death of the holder, the holder or the
representative of the estate of the holder shall have the privilege of
exercising the entire unexercised portion of this Option, provided that such
exercise be accomplished (i) prior to the expiration of this Option and (ii)
either within six (6) months of the holder's retirement, within six (6) months
of the holder's disability, or within twelve (12) months after the date of
death of the holder, as the case may be. Notwithstanding any of the foregoing,
in the event of (i) wilful refusal to perform the normal duties and
responsibilities delegated to him as an employee of or consultant to the
Company, (ii) his expropriation of Company property (including but not limited
to trade secrets or other proprietary rights), (iii) his leaving the employment
of the Company in order to directly or indirectly (as an employee or agent of
another business or business entity) compete with the Company or (iv) his
violation of the provisions of Section 10 of this Option Agreement, the
existence of which shall be determined by the Board of Directors (such decision
to be made by the Board in its sole discretion and which determination shall be
conclusive), this Option shall terminate immediately upon the happening of such
event, and the holder shall have thereupon no right thereafter to exercise any
unexercised Option he might have exercised on or prior thereto.
7. ADJUSTMENT OF SHARES AND ACCELERATION OF EXERCISABILITY.
A. STOCK SPLITS AND CAPITAL ADJUSTMENTS. If, prior to
the complete exercise of this Option, there shall be declared and paid a stock
dividend upon the Common Stock of the Company or if such stock shall be split
up, converted, exchanged or reclassified, this Option, to the extent that it
has not been exercised, shall entitle the holder, upon the future exercise of
this Option, to such number and kind of securities or other property, subject
to the terms of the Option, to which the holder would be entitled had he
actually owned the stock subject to the unexercised portion of the Option at
the time of the occurrence of such stock dividend, split up, conversion,
exchange, reclassification or substitution; and the aggregate purchase price
upon the future exercise of the Option shall be the same as if shares of Common
Stock of the Company originally optioned were being purchased as provided
herein.
B. ACCELERATION OF EXERCISABILITY UPON "CHANGE IN CONTROL."
(i) Ten (10) days prior to a "Change in Control" (as
defined below), this Option, if not then presently exercisable shall
immediately vest and become exercisable, regardless of the original
vesting schedule in Section 2. A "Change in Control" of the Company
shall be deemed to have occurred if (a) any "person" or "group"
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Stock Option Agreement
(Not Issued Under Any Stock Option Plan)
ADAC Laboratories
(as defined in or pursuant to Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), becomes the
"beneficial owner" (as defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of securities of the Company
representing 40% or more of the voting power of the common stock
outstanding which votes generally for the election of directors; (b) as
a result of market or corporate transactions or shareholder action, the
individuals who constitute the Board of Directors of the Company at the
beginning of any period of 12 consecutive months (but commencing not
earlier than July 1, 1995), plus any new directors whose election or
nomination was approved by a vote of at least two-thirds of the
directors still in office who were directors at the beginning of such
period of 12 consecutive months, cease for any reason during such
period of 12 consecutive months to constitute at least two-thirds of
the members of such Board; or (c) the Company sells, through merger,
sale, transfer, assignment or otherwise, in one or more transactions
other than in the ordinary course of business, assets which provided at
least 2/3 of the revenues or pre-tax net income of the Company and its
subsidiaries on a consolidated basis during the most recently-completed
fiscal year.
(ii) Notwithstanding paragraph (i) above, the
following events shall not constitute a Change in Control: any
acquisition of beneficial ownership pursuant to (a) a
reclassification, however effected, of the Company's authorized common
stock, or (b) a corporate reorganization involving the Company or any
of its subsidiaries which does not result in a material change in the
ultimate ownership by the shareholders of the Company (through their
ownership of the Company or its successor resulting from the
reorganization) of the assets of the Company and its subsidiaries, but
only if such reclassification or reorganization has been approved by
the Company's Board of Directors.
8. COMPLIANCE WITH SECURITIES LAWS.
A. POSTPONE ISSUANCE. Notwithstanding any
provision of this Option to the contrary, the Company may postpone the issuance
and delivery of shares upon any exercise of this Option until one of the
following conditions shall be met:
(i) The shares with respect to which such Option
has been exercised are at the time of the issue of such shares
effectively registered under applicable
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Stock Option Agreement
(Not Issued Under Any Stock Option Plan)
ADAC Laboratories
Federal and state securities laws now in force or hereafter enacted or
amended; or
(ii) Counsel for the Company shall have given an
opinion that registration of such shares under applicable Federal and
state securities laws, as now in force or hereafter enacted or
amended, is not required.
B. INVESTMENT REPRESENTATION. In the event that
for any reason the shares to be issued upon exercise of the Option shall not be
effectively registered under the Securities Act of 1933 (the "1933 Act"), upon
any date on which the Option is exercised in whole or in part, the Company
shall be under no further obligation to issue shares covered by the Option,
unless the Optionee shall give a written representation to the Company, in form
satisfactory to the Company, that such person is acquiring the shares issued
pursuant to such exercise of the Option for investment and not with a view to,
or for sale in connection with, the distribution of any such shares, and that
he/she will make no transfer of the same except in compliance with the 1933 Act
and the rules and regulations promulgated thereunder and then in force, and in
such event, the Company may place an "investment legend" upon any certificate
for the shares issued by reason of such exercise.
9. NO AGREEMENT OF EMPLOYMENT. Neither the grant of this Option
nor this Agreement shall be deemed to create any agreement with, or obligation
by, the Company to employ the Optionee for any period of time. By accepting
this Option, the Optionee acknowledges that his employment, if he is an
employee of the Company, is strictly "at will," and such person understands
that his employment may be terminated by the Company at any time, with or
without cause.
10. ASSIGNMENT OF INVENTIONS, ETC.; NON-DISCLOSURE OF CONFIDENTIAL
INFORMATION.
A. ASSIGNMENT OF INVENTIONS. As further consideration
for the issuance of the Option, the Optionee, if he is an Employee of the
Company, agrees that any and all inventions, processes, discoveries, "know-how"
and improvements (collectively "Inventions") (regardless of whether the
Inventions are patentable), and any and all patent rights, letters patent,
copyrights, trademarks, trade name, applications therefor in the United States
and all other countries and any and all rights and interests in, to and under
the same, now possessed by the Optionee (except those, if any, listed next to
Optionee's signature on this Agreement) or acquired after the date of this
Agreement, conceived, reduced to practice, acquired, or possessed by him
(either solely or jointly with others) during the Optionee's employment by the
Company or any of its subsidiaries, relating in any way to the work or services
performed by Optionee for the Company, or made with the Company's
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Stock Option Agreement
(Not Issued Under Any Stock Option Plan)
ADAC Laboratories
assets or the business and activities of, or the equipment, devices, processes,
and formulae connected with the Company's business or any other business
conducted by the Company or any of its subsidiaries shall be assigned to, and
become the absolute property of, the Company and shall at all times and for all
purposes be regarded as acquired and held by the Optionee in a fiduciary
capacity for the sole benefit of the Company, and the Optionee agrees that,
upon request, he will promptly make all disclosures, execute all instruments
and papers, and perform all acts whatsoever necessary or desired by the Company
to vest and confirm in it, its successors, assigns and nominees, fully and
completely, all rights created or contemplated by this subparagraph A and which
may be necessary or desirable to enable the Company, its successors, assigns,
and nominees to secure and enjoy the full benefits and advantages thereof.
B. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
The Optionee, regardless of whether he is an employee or consultant, shall not
at any time, directly or indirectly use, divulge, furnish or make accessible to
anyone other than the Company, its directors and officers other than in the
regular course of the business of the Company or any of its subsidiaries, any
knowledge or information with respect to (i) confidential or secret processes,
plans, formulae, data (including cost data), machinery, devices, drawings,
specifications, manufacturing procedures and techniques, methods, technology,
"knowhow," or material relating to the business, products (whether existing
or under development) or activities of the Company or its subsidiaries, (ii)
any confidential or secret engineering, development or research work of the
Company or its subsidiaries, (iii) any other confidential or secret aspect of
the business, products or activities of the Company or its subsidiaries, or
(iv) any customer usages and requirements or any customer lists of the Company
or its subsidiaries.
C. REMEDIES. The Optionee acknowledges that a breach
of him of the provisions of this Agreement will cause the Company irreparable
injury for which the Company cannot be reasonably or adequately compensated in
damages. Such breach shall cause an immediate termination of this Option, and
the Company shall be entitled, in addition to all other remedies available to
it, to injunctive and/or other equitable relief to prevent a continuing breach
of this Agreement, or any part of it, and to secure its enforcement.
11. SEVERABILITY. If any condition, term or provision of this
Agreement is determined by a court to be illegal or in conflict with any law,
state or Federal, the validity of the remaining portions or provisions shall
not be affected, and the rights and obligations of the parties shall be
construed and enforced as if this Agreement did not contain the particular
condition, term or provision determined to be unenforceable.
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Stock Option Agreement
(Not Issued Under Any Stock Option Plan)
ADAC Laboratories
12. ENTIRE AGREEMENT; CALIFORNIA LAW. This Agreement contains the
entire understanding and agreement between the parties hereto respecting the
within subject matter, and there are no representations, agreements,
arrangements or understandings, oral or written, between the parties hereto
relating to the subject matter of this Agreement that are not fully expressed
herein. The Company is a California corporation, and this Agreement shall be
governed by and construed in accordance with the laws of the State of
California.
WITNESS the signature of its duly authorized officer of the Company as
of the date of grant hereof.
ADAC LABORATORIES
By_________________________________
Title: ___________________________
Acknowledged and Agreed to*:
___________________________
Optionee
___________________________
Xxxxxx Xxxxxxx
___________________________
City, State, Zip Code
___________________________
Social Security No.
*IF you have any "Inventions" to except from Section 10, you must IDENTIFY ALL
SUCH INVENTIONS below, or, if the statement is not applicable, you must write
NONE below.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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STOCK OPTION EXERCISE FORM
Date:______________
ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: __________________
Gentlemen:
The undersigned elects to exercise the option to purchase
_______ shares of common stock (the "Shares") of ADAC Laboratories (the
"Company") under and pursuant to the stock option granted to the undersigned by
the Company on _____________, 19___, under a Stock Option Agreement (the
"Agreement").
Prior to the issuance of said Shares, I will make full payment
of the purchase price for the Shares in cash or, if permitted under the terms
of the Agreement, by tender of stock of the Company having a fair market value
not less than the purchase price, or payment as otherwise approved by the
Company. I also will make adequate provision for federal and state income tax
withholding obligations of the Company, if any, that arise upon exercise, in
whole or in part, of this Option.
In the event a portion of the purchase price for the Shares
consists of my promissory note (if permitted under the Agreement), I will
deliver to the Company the Shares as security for the full and timely payment
of such note and I agree to deposit the stock certificate or certificates
representing the Shares, along with a blank stock assignment separate from the
certificate executed by me, with an escrow agent appointed by the Company (such
agent may be an officer of the Company), to be held by such escrow agent
pursuant to a Company-approved escrow delivered herewith.
I represent and agree that I am over eighteen (18) years of
age, that I am acquiring the Shares for investment purposes and that I have no
present intention to transfer, sell or otherwise dispose of such Shares, except
as permitted pursuant to the Agreement and in compliance with applicable
securities laws.
I further acknowledge and understand that the Shares must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. I further acknowledge
and understand that the Company is under no obligation to register the Shares
and that, in the absence of registration, the Shares may not be transferred. I
understand that the instrument evidencing the Shares will be imprinted with
legends that prohibit the transfer of the Shares unless they are registered or
such registration is not required in the opinion of counsel satisfactory to the
Company. I do not have any contract, agreement or arrangement with any person
to sell, transfer or grant participations, to such person or to any third
person with respect to any of the Shares.
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STOCK OPTION EXERCISE FORM
I agree further that said Shares are being acquired by me in
accordance with and subject to the terms, provisions and conditions of the
Agreement, to all of which I hereby expressly assent. These agreements shall
bind and inure to the benefit of my heirs, legal representatives, successors
and assigns.
I agree that I will notify the Secretary of the Company if I
sell any of the Shares purchased pursuant to this Option within one (1) year
from the date I exercise all or part of this Option or within two (2) years
from the date I was granted this Option. I further agree to hold all Shares
purchased under this Option in my name (and not under the name of any nominee)
for the one-year period immediately after exercise of this Option and the
two-year period immediately after grant of this Option.
My address of record is:
____________________________________
____________________________________
and my Social Security Number is: ____________________
Very truly yours,
Date: ___________________ ________________________________
Receipt of the above is
hereby acknowledged:
ADAC LABORATORIES
By________________________
Title_____________________
Dated____________________
