NEW YORK HEALTH CARE, INC. NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit
10.35
NEW
YORK
HEALTH CARE, INC.
This
NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement")
is
made as of February 28, 2007 between New York Health Care, Inc., a New York
corporation (the "Company"),
and
Xxxxxx Xxxx (the "Optionee").
W
I T N E
S S E T H:
WHEREAS,
the Company desires to grant to the Optionee Non-Qualified Stock Options
pursuant to the Company’s 2004 Stock Incentive Plan (the “Plan”);
and
WHEREAS,
the Optionee is a director of the Company and eligible to participate in
the
Plan;
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth
and in
consideration of services rendered to the Company by the Optionee, and for
other
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged, the parties hereto agree as follows:
THIS
AGREEMENT AND THE TERMS HEREOF ARE SUBJECT TO THE TERMS OF THE PLAN, WHICH
ARE
INCORPORATED HEREIN IN THEIR ENTIRETY. IN THE EVENT OF ANY INCONSISTENCY
BETWEEN
THIS AGREEMENT AND THE PLAN, THE PROVISIONS OF THE PLAN SHALL
GOVERN.
All
capitalized terms not otherwise defined herein shall have the meanings set
forth
in the Plan.
1. Grant.
The
Company hereby grants to the Optionee non-qualified stock options pursuant
to
the Plan (the "Options"),
to
purchase 25,000 shares of the Company’s Common Stock, par value of $0.01 per
share, (the “Common
Stock”),
vesting on the date hereof. The Options are exercisable in whole or in part
at
an exercise price of $0.13 per share for a period of ten (10) years commencing
the date hereof and ending on February 27, 2017, subject to the terms and
conditions set forth herein and in the Plan. It is intended by the parties
that
the Options be Non-Qualified Stock Options under the Plan.
2. Procedure
for Exercise.
The
Options may be exercised, in whole or in part, by giving written notice of
exercise to the Company specifying the number of shares of Common Stock to
be
purchased. Such notice shall be accompanied by payment in full of the purchase
price, which shall be in cash, or in whole shares of Common Stock which are
already owned by the Optionee, or partly in cash and partly in such owned
Common
Stock, or other cashless exercise, in accordance with Section 5 of the
Plan.
3. Adjustment
of Number of Options.
The
number of Options shall be subject to adjustment from time to time in accordance
with Section 3 of the Plan.
4. No
Employment.
Nothing
herein shall confer upon the Optionee any right to continue as a director
or an
employee, as applicable, of the Company or its affiliates, or interfere in
any
way with any right of the Company or its affiliates to terminate such
directorship or employment, as applicable, subject to the terms of any agreement
to which the Optionee may be a party.
5. Transferability.
No
Options shall be transferable by the Optionee other than in accordance with
the
Plan.
6. Optionee
Representations.
The
Optionee represents to the Company that he has (a) received a copy of the
Plan,
(b) read it in its entirety, (c) had a reasonable opportunity to make inquiries
as to its terms, (d) received satisfactory responses from the Company regarding
the terms, and (e) understands the terms of the Plan. The Optionee represents,
warrants and acknowledges to, and agrees with, the Company that he is acquiring
the Options, and upon exercise of the Options, shall be acquiring the Common
Stock for his own account for the purpose of investment only, and not with
a
view to, or for sale in connection with, any distribution thereof, and that
he
is not relying on the value of the Options as current compensation. The Optionee
warrants and agrees that he will comply will all applicable laws relating
to the
Plan, the grant and exercise of the Options, and the disposition of the shares
of Common Stock acquired upon exercise of the Options, including, without
limitation, all Federal and state securities and “blue sky” laws.
7. Notices.
Any
notice, request, demand, waiver, consent, approval or other communication
which
is required or permitted hereunder shall be in writing and shall be deemed
given
only if delivered personally, by overnight courier, or by registered or
certified mail, postage prepaid, as follows:
|
If
to the Company, to:
New
York Health Care, Inc.
0000
XxXxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
President
|
If
to the Optionee, to:
Xxxxxx
Xxxx
000
Xxxxx Xxxxx Xxxx
Xxxx
Xxxxxx, Xxx Xxxxxx 00000
|
or
to
such other address as the addressee may have specified in a notice duly given
to
the sender as provided herein. Such notice, request, demand, waiver, consent,
approval or other communications will be deemed to have been given as of
the
date received.
9. Binding
Effect.
Except
as otherwise provided in this Agreement or the Plan, this Agreement shall
be
binding upon and inure to the benefit of the parties and their respective
representatives, successors, and assigns.
10.
Entire
Agreement.
This
Agreement and the Plan constitute the entire agreement between the parties
pertaining to the subject matter hereof and supersede all prior and
contemporaneous agreements, understandings, negotiations and discussions,
whether written or oral, of the parties with respect thereto; provided, however,
that this provision is not intended to abrogate any other written agreement
between the parties executed with or after this Agreement pertaining to another
subject matter.
2
11.
Severability.
Every
provision of this Agreement and the Plan is intended to be severable. If,
in any
jurisdiction, any term or provision hereof is determined to be invalid or
unenforceable, (a) the remaining terms and provisions hereof shall be
unimpaired, (b) any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such term or provision in any
other
jurisdiction, and (c) the invalid or unenforceable term or provision shall,
for
purposes of such jurisdiction, be deemed replaced by a term or provision
that is
valid and enforceable and that comes closest to expressing the intention
of the
invalid or unenforceable term or provision.
12.
Counterparts.
This
Agreement may be executed in counterparts and by facsimile or other electronic
signature.
IN
WITNESS WHEREOF, the parties have executed this Non-Qualified Stock Option
Agreement as of the day and year first above written.
