1
EXHIBIT 10.108
XXXXXX.XXX, INC.
2000 EQUITY PARTICIPATION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the xxxxxx.xxx,
Inc. 2000 Equity Participation Plan (the "Plan") shall have the same defined
meanings in this Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
G. Xxxxx Xxxxxx
You ("Optionee") have been granted an additional option to purchase
Common Stock of the Company, subject to the terms and conditions of the Plan and
this Stock Option Agreement. The terms of your grant are set forth below:
Date of Grant: August 20, 2001
Vesting Commencement Date: August 20, 2001
Exercise Price per Share: $0.112 per share
Total Number of Shares Granted: 1,500,000
Total Exercise Price: $168,000
Type of Option: Non-Qualified Stock Option
Term/Expiration Date: August 20, 2011
Exercise and Vesting Schedule:
This Option shall vest and become exercisable according to the following
schedule:
2
Subject to the following paragraphs, this Option shall vest and become
exercisable with respect to thirty-three and one-third percent (33 1/3%) of the
shares of the Company's Common Stock subject to the Option (the "Shares") on the
one-year anniversary of the Option's Date of Grant, and thereafter, with respect
to thirty-three and one-third percent (33 1/3%) of the Shares on each successive
twelve-month anniversary following the one-year anniversary of the Option's Date
of Grant (each, a "Vesting Date"), commencing with the first such anniversary,
such that this Option shall be vested and exercisable with respect to one
hundred percent (100%) of the Shares on the third anniversary of the Option's
Date of Grant; provided, however, that Optionee has remained in Continuous
Status as an Employee or Consultant as of each Vesting Date.
Notwithstanding the foregoing, in the event (a) of a Change in Control
(as defined below) this Option shall immediately vest and become exercisable
with respect to fifty percent (50%) of the unvested Shares subject to the Option
as of the date of such Change in Control; provided, however, that Optionee has
remained in Continuous Status as an Employee or Consultant as of the date of
such Change of Control or (b) that Optionee is terminated without Cause (as
defined below) or terminates his employment for Good Reason (as defined below),
any unvested Options as of the date of such termination shall immediately vest
and become exercisable. The terms Cause and Good Reason shall have the meanings
ascribed to them in that certain Employment Agreement between drkoop LifeCare, a
Delaware corporation and a wholly-owned first-tier subsidiary of Company and
Optionee, dated as of August 20, 2001, as may be amended from time to time.
For purposes of the Options, "Change in Control" shall mean: (i) any
sale, merger, consolidation, tender offer or similar acquisition of shares, or
other transaction or series of related transactions (each a "Transaction") as a
result of which at least a majority of the voting power of Company is not held,
directly or indirectly, by the persons or entities who held the Company's
securities with voting power before such Transaction; (ii) a sale or other
disposition of all or substantially all of the Company's assets, whether in one
transaction or a series of related transactions; or (iii) individuals who on the
date hereof constitute Company's Board of Directors and any new director (other
than a director designated by a person or entity who has entered into an
agreement to effect a transaction described in clause (i) or (ii) above) whose
nomination and/or election to the Board was approved by a vote of at least a
majority of the directors then still in office who either were directors on the
date hereof or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Company's or such
parent's Board of Directors.
Termination Period:
This Option may be exercised, to the extent vested, for three (3) months
after Optionee ceases to be a Service Provider, or for twelve (12) months
following the death or disability of Optionee as provided in the Plan, but in no
event later than the Term/Expiration Date as provided above.
II. AGREEMENT
1. Grant of Option. The Company hereby grants to the Optionee an Option
to
2
3
purchase the number of Shares set forth in the Notice of Stock Option Grant
(the "Notice of Grant"), at the exercise price per share set forth in the Notice
of Grant (the "Exercise Price"). Notwithstanding anything to the contrary
anywhere else in this Stock Option Agreement, this grant of an Option is subject
to the terms, definitions and provisions of the Plan adopted by the Company,
which is incorporated herein by reference. This Option is not intended to, and
does not, qualify as an Incentive Stock Option as defined in Section 422 of the
Code.
2. Exercise of Option. This Option is exercisable as follows:
(a) Right to Exercise.
(i) This Option shall be exercisable cumulatively
according to the vesting schedule set out in the Notice of Grant. For purposes
of this Stock Option Agreement, Shares subject to this Option shall vest based
on Optionee's Continuous Status as an Employee or Consultant.
(ii) This Option may not be exercised for a fraction of
a Share.
(iii) In the event of Optionee's termination of
Continuous Status as an Employee or Consultant, the exercisability of the Option
is governed by Section 5 below.
(iv) In no event may this Option be exercised after the
date of expiration of the term of this Option as set forth in the Notice of
Grant.
(b) Method of Exercise. This Option shall be exercisable by
written Notice (in the form attached as Exhibit A). The Notice must state the
number of Shares for which the Option is being exercised, and such other
representations and agreements with respect to such shares of Common Stock as
may be required by the Company pursuant to the provisions of the Plan or as may
be necessary in order for the Company to comply with Applicable Laws. The Notice
must be signed by the Optionee and shall be delivered in person or by certified
mail to the Secretary of the Company. The Notice must be accompanied by payment
of the Exercise Price, including payment of any applicable withholding tax. This
Option shall be deemed to be exercised upon receipt by the Company of such
written Notice accompanied by the Exercise Price and payment of any applicable
withholding tax.
No Shares shall be issued pursuant to the exercise of an Option
unless such issuance and such exercise comply with Applicable Laws and the
requirements of any stock exchange upon which the Shares may then be listed.
Assuming such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
3. Method of Payment. Payment of the Exercise Price shall be by any of
the following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) check;
3
4
(c) with the consent of the Administrator, other shares of
Common Stock that (i) in the case of shares acquired upon exercise of an option
granted by the Company either have been owned by the Optionee for more than six
months on the date of surrender or were not acquired, directly or indirectly,
from the Company, and (y) have a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the shares as to which said Option
shall be exercised;
(d) with the consent of the Administrator in its sole and
absolute discretion, authorization from the Company to retain from the total
number of shares as to which the Option is exercised that number of shares
having a Fair Market Value on the date of exercise equal to the exercise price
for the total number of shares as to which the Option is exercised;
(e) with the consent of the Administrator, delivery of a
properly executed exercise notice together with irrevocable instructions to a
broker to deliver promptly to the Company the amount of sale or loan proceeds
required to pay the exercise price;
(f) with the consent of the Administrator, a combination of any
of the foregoing methods of payment;
(g) with the consent of the Administrator, a combination of any
of the foregoing methods of payment at least equal in value to the stated
capital represented by the Shares to be issued, plus a promissory note for the
balance of the exercise price; or
(h) with the consent of the Administrator, such other
consideration and method of payment for the issuance of Shares to the extent
permitted under Applicable Laws.
4. Restrictions on Exercise. If the issuance of Shares upon such
exercise or if the method of payment for such shares would constitute a
violation of any applicable federal or state securities or other law or
regulation, then the Option may also not be exercised. The Company may require
Optionee to make any representation and warranty to the Company as may be
required by any applicable law or regulation before allowing the Option to be
exercised.
5. Termination of Relationship. If Optionee terminates Continuous Status
as an Employee or Consultant for any reason, Optionee may exercise this Option
during the Termination Period set out in the Notice of Grant, to the extent the
Option was vested at the date of such termination. To the extent that Optionee
was not vested in this Option at the date on which Optionee terminates
Continuous Status as an Employee or Consultant, or if Optionee does not exercise
this Option within the time specified herein, the Option shall terminate.
6. Non-Transferability of Option. This Option may not be transferred in
any manner except by will or by the laws of descent or distribution . It may be
exercised during the lifetime of Optionee only by Optionee. The terms of this
Option shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
7. Term of Option. This Option may be exercised only within the term set
out in the Notice of Grant.
4
5
[SIGNATURE PAGE FOLLOWS]
5
6
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which shall constitute one
document.
XXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Title: President
--------------------------------
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
THE OPTION HEREOF IS EARNED ONLY BY CONTINUING CONSULTANCY OR EMPLOYMENT
AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING
GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN THE
COMPANY'S 2000 EQUITY PARTICIPATION PLAN WHICH IS INCORPORATED HEREIN BY
REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO
CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL IT
INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR
WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that
he is familiar with the terms and provisions thereof. Optionee hereby accepts
this Option subject to all of the terms and provisions hereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option. Optionee
further agrees to notify the Company upon any change in the residence address
indicated below.
Dated: August 20, 2001 /s/ G. Xxxxx Xxxxxx
--------------------------------
G. XXXXX XXXXXX
Residence Address:
6
7
EXHIBIT A
---------
XXXXXX.XXX, INC.
2000 EQUITY PARTICIPATION PLAN
EXERCISE NOTICE
xxxxxx.xxx, Inc.
Attention: Secretary
1. Exercise of Option. Effective as of today, ___________, _____, the
undersigned ("Optionee") hereby elects to exercise Optionee's option to purchase
_________ shares of the Common Stock (the "Shares") of xxxxxx.xxx, Inc. (the
"Company") under and pursuant to the xxxxxx.xxx, Inc. 2000 Equity Participation
Plan (the "Plan") and the Non-Qualified Stock Option Agreement dated
_____________, _____, (the "Option Agreement").
2. Representations of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Plan and the Option Agreement. Optionee agrees
to abide by and be bound by their terms and conditions.
3. Rights as Stockholder. Until the stock certificate evidencing such
Shares is issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to Shares subject to the Option, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such stock certificate
promptly after the Option is exercised. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section IV of Article One of the
Plan. Optionee shall enjoy rights as a stockholder until such time as Optionee
disposes of the Shares.
4. Tax Consultation. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
5. Restrictive Legends.
(a) Legends. Optionee understands and agrees that the Company
shall cause any other legends that may be required by state or federal
securities laws to be placed upon any certificate(s) evidencing ownership of the
Shares.
8
(b) Refusal to Transfer. The Company shall not be required (i)
to transfer on its books any Shares that have been sold or otherwise transferred
in violation of any of the provisions of this Agreement or (ii) to treat as
owner of such Shares or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such Shares shall have been so
transferred.
6. Successors and Assigns. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon Optionee and his or her heirs, executors, administrators, successors and
assigns.
7. Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or by the Company forthwith to the
Administrator, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Administrator shall be final and binding on
the Company and on Optionee.
8. Governing Law; Severability. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas excluding that body
of law pertaining to conflicts of law. Should any provision of this Agreement be
determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain enforceable.
9. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
10. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
11. Delivery of Payment. Optionee herewith delivers to the Company the
full Exercise Price for the Shares, as well as any applicable withholding tax.
1
9
12. Entire Agreement. The Plan and Option Agreement are incorporated
herein by reference. This Agreement, the Plan and the Option Agreement
constitute the entire agreement of the parties and supersede in their entirety
all prior undertakings and agreements of the Company and Optionee with respect
to the subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: XXXXXX.XXX, INC.
By:
------------------------------ -------------------------
Its:
-------------------------
Address:
------------------------------
------------------------------
------------------------------
2
