EXHIBIT 4.2
U.S. PHYSICAL THERAPY, INC.
NONSTATUTORY INDUCEMENT STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered effective as of November 18, 2003
between U.S. Physical Therapy, Inc., a Nevada corporation (the "Corporation"),
and XXXXXXXX X. XXXXXX (the "Holder") in connection with the grant of a
Nonstatutory Option (hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Holder is employed by the Corporation, one of its
Affiliates (hereinafter defined) or U.S. PT Management, Ltd., a Texas limited
partnership ("USPTM") and the Corporation desires to encourage him to own Stock
(hereinafter defined) and to give him added incentive to advance the interests
of the Corporation and desires to grant the Holder a Nonstatutory Inducement
Option (the "Option) to purchase shares of Stock of the Corporation under terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of these premises, the parties agree
that the following shall constitute the Agreement between the Corporation and
the Holder:
1. Definitions. For purposes of this Agreement, the following terms shall
have the meanings specified below:
1.1 "Affiliates" shall mean (a) any corporation, other than the
Corporation, in an unbroken chain of corporations ending with the
Corporation if each of the corporations, other than the Corporation,
owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain and
(b) any corporation, other than the Corporation, in an unbroken chain
of corporations beginning with the Corporation if each of the
corporations, other than the last corporation in the unbroken chain,
owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
1.2 "Agreement" shall mean the written agreement between the Corporation
and the Holder which is embodied herein.
1.3 "Board of Directors" shall mean the board of directors of the
Corporation.
1.4 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.5 "Eligible Individual" shall mean an employee of the Corporation or of
any of its Affiliates or of USPTM.
1.6 "Nonstatutory Option" shall mean a stock option that is not intended to
satisfy the requirements of section 422 of the Code.
1.7 "Securities Act" shall mean the Securities Act of 1933, as amended.
1.9 "Stock" shall mean the Corporation's authorized common stock, $.01 par
value, together with any other securities with respect to which this
Option may become exercisable.
3. Grant of Option. Subject to the terms and conditions set forth herein,
the Corporation grants to the Holder an Option to purchase from the
Corporation during the period ending ten years from the date of said
grant 50,000 shares of Stock at a price of $14.32 per share, subject to
adjustment or termination as provided in Paragraph 12 below. This
Option is exercisable with respect to the shares of Stock indicated as
follows:
On and After Number of Shares
------------ ----------------
one year after the grant date 10,000 shares of Stock
two years after the grant date 10,000 additional shares of Stock
three years after the grant date 10,000 additional shares of Stock
four years after the grant date 10,000 additional shares of Stock
five years after the grant date 10,000 additional shares of Stock
Notwithstanding the foregoing, upon the occurrence of a "Change in Control" of
the Corporation (as defined below), the Option shall become exercisable in full
without regard to the foregoing schedule, except as provided in the next
sentence. If, after reduction for any applicable federal excise tax that would
be imposed on the Holder under Section 4999 of the Code and any federal income
tax that would be imposed on the Holder by the Code, the Holder's net proceeds
from an exercise of the Option in full and immediate sale of the Stock would be
less than the amount of the Holder's net proceeds, after reduction for federal
income taxes, resulting from an exercise of the Option and immediate sale of the
Stock after acceleration of exercisability of the Option only to the extent of
the "Parachute Cap" as defined below, then the Option shall become exercisable
in the event of a Change in Control only to the extent of the Parachute Cap. For
this purpose, the "Parachute Cap" means the maximum extent to which the Option
could be made exercisable upon a Change in Control of the Corporation, taking
into account any other payments or other benefits to the Holder from the
Corporation or any Affiliate, without the Holder being deemed to have received a
"parachute payment" as defined in Code Section 280G (b) (2). In the event that
the application of the Parachute Cap would otherwise prevent the Option from
becoming exercisable in full, the Holder shall have the right, in the Holder's
discretion, to designate payments or other benefits to the Holder from the
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Corporation or any Affiliate (if any) that shall be reduced or eliminated so as
to permit the Option to become exercisable to a greater extent.
A "Change in Control" shall mean any of the following events:
A. a merger or consolidation to which the Corporation is a party if the
individuals and entities who were stockholders of the Corporation
immediately prior to the effective date of such merger or consolidation
have beneficial ownership (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934 ("Rule 13d-3")) of less than 50 percent
of the total combined voting power for election of directors of the
surviving corporation following the effective date of such merger or
consolidation; or
B. the sale of all or substantially all of the assets of the
Corporation to any person or entity that is not a wholly-owned
subsidiary of the Corporation; or
C. the stockholders of the Corporation approve any plan or proposal for
the liquidation of the Corporation; or
D. a change in the composition of the Board of Directors at any time
during any consecutive 24-month period such that the Incumbent
Directors cease for any reason to constitute at least a majority of the
Board of Directors. For this purpose, the "Incumbent Directors" means
those members of the Board of Directors who either:
1. were directors at the beginning of such consecutive
24-month period; or
2. were elected by, or on the nomination or recommendation of,
a majority of the then-members of the Board of Directors.
3. Notice of Exercise. This Option may be exercised in whole or in part, from
time to time, in accordance with Paragraph 2, by written notice to the
Corporation at the address provided in Paragraph 11, which notice shall:
A. specify the number of shares of Stock to be purchased and the
exercise price to be paid therefor;
B. if the person exercising this Option is not the Holder, contain or
be accompanied by evidence satisfactory to the Committee of such
person's right to exercise this Option; and
C. be accompanied by payment in full of the purchase price in any form
acceptable to the Committee in its sole discretion, which form may
include cash, shares of Stock or a share or shares of Stock owned by
the Holder and surrendered for actual or deemed multiple exchanges of
shares of Stock, or any combination thereof. The Corporation shall not
in any case be required to sell, issue, or deliver a fractional share
of Stock with respect to this Option.
4. General Restrictions. The Corporation shall not be required to sell or issue
any shares of Stock under this Option if the sale or issuance of such shares
would constitute a violation by the individual exercising this Option or by the
Corporation of any provision of any law or regulation of any governmental
authority, including without limitation any federal or state securities laws or
regulations. If at any time the Corporation shall determine, in its discretion,
that the listing, registration or qualification of any shares subject to this
Option upon any securities exchange or under any state or federal law, or the
consent or approval of any government regulatory body, is necessary or desirable
as a condition of, or in connection with, the issuance or purchase of shares,
this Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Corporation, and any delay
caused thereby shall in no way affect the date of termination of this Option.
Specifically in connection with the Securities Act, unless a registration
statement under such Act is in effect with respect to the shares of Stock
covered by this Option, the Corporation shall not be required to sell or issue
such shares unless the Corporation has received evidence satisfactory to it that
the holder of this Option may acquire such shares pursuant to an exemption from
registration under such Act. Any determination in this connection by the
Corporation shall be final, binding, and conclusive. The Corporation may, but
shall in no event be obligated to, register any securities covered hereby
pursuant to the Securities Act. The Corporation shall not be obligated to take
any affirmative action in order to cause the exercise of this Option or the
issuance of shares pursuant thereto to comply with any law or regulation of any
governmental authority. As to any jurisdiction that expressly imposes the
requirement that this Option shall not be exercisable unless and until the
shares of Stock covered by this Option are registered or are subject to an
available exemption from registration, the exercise of this Option (under
circumstances in which the laws of such jurisdiction apply) shall be deemed
conditioned upon the effectiveness of such registration or the availability of
such an exemption. At the time of any exercise of this Option, the Corporation
may, as a condition precedent to the exercise of this Option, require from the
Holder of the Option (or in the event of his death, his legal representatives,
heirs, legatees, or distributees) such written representations, if any,
concerning his intentions with regard to the retention or disposition of the
shares being acquired by exercise of this Option and such written covenants and
agreements, if any, as to the manner of disposal of such shares as, in the
opinion of
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counsel to the Corporation, may be necessary to ensure that any disposition by
such Holder (or in the event of his death, his legal representatives, heirs,
legatees, or distributees), will not involve a violation of the Securities Act
or any similar or superseding statute or statutes, or any other applicable state
or federal statute or regulation, as then in effect. Certificates for shares of
Stock, when issued, may have the following or similar legend (in the event the
shares of Stock covered by this Option are not then registered under the
Securities Act and under applicable state securities laws), or statements of
other applicable restrictions, endorsed thereon, and, as described in the
preceding sentence, may not be immediately transferable:
The shares of Stock evidenced by this certificate have been issued to the
registered owner in reliance upon written representations that these shares have
been purchased for investment. These shares have not been registered under the
Securities Act of 1933, as amended or any applicable state securities laws, in
reliance upon an exception from registration. Without such registration, these
shares may not be sold, transferred, assigned or otherwise disposed of unless,
in the opinion of the Corporation and its legal counsel, such sale, transfer,
assignment or disposition will not be in violation of the Securities Act of
1933, as amended, applicable rules and regulations of the Securities and
Exchange Commission, and any applicable state securities laws.
5. Transfer and Exercise of Option. This Option shall not be transferable except
by will or by the laws of descent and distribution. During the Holder's lifetime
this Option may be exercised only by him. No assignment or transfer of this
Option, whether voluntary or involuntary, by operation of law or otherwise,
except a transfer by will or by the laws of descent or distribution, shall vest
in the assignee or transferee any interest or right whatsoever in this Option.
6. Status of Holder. The Holder shall not be deemed a stockholder of the
Corporation with respect to any of the shares of Stock subject to this Option,
except to the extent that such shares shall have been purchased and transferred
to him. The Corporation shall not be required to issue or transfer any
certificates for shares of Stock purchased upon exercise of this Option until
all applicable requirements of law have been complied with and, in the event
that the Stock is publicly traded, such shares shall have been duly listed on
any securities exchange on which the Stock may then be listed.
7. No Effect on Capital Structure. This Option shall not affect the right of the
Corporation or any Affiliate thereof to reclassify, recapitalize or otherwise
change its capital or debt structure or to merge, consolidate, convey any or all
of its assets, dissolve, liquidate, windup, or otherwise reorganize.
8. Premature Expiration of Option. If a Holder (a) voluntarily ceases to be an
Eligible Individual or (b) ceases to be an Eligible Individual by reason that
his status as such was terminated by the Corporation or one of its Affiliates
(with or without cause), this Option shall terminate thirty days after such
Holder ceases to be an Eligible Individual.
Notwithstanding the foregoing, if a Holder ceases to be an Eligible Individual
by reason of (a) disability (as defined in Section 22(e) (3) of the Code) or (b)
death, then the Holder shall have the right for twelve months after the date of
disability or death to exercise this Option to the extent that it is exercisable
on the date of his disability.
That portion of this Option which is not exercisable on the date the Holder
ceases to be an Eligible Individual shall terminate and be forfeited to the
Corporation on the date of such cessation.
9. Board Authority. Any question concerning the interpretation of this
Agreement, any adjustments required to be made under Paragraph 12 and any
controversy which may arise under this Agreement shall be determined by the
Board of Directors in its sole discretion.
10. Tax Withholding. This Option is not intended to qualify as an "incentive
stock option" within the meaning of section 422 of the Internal Revenue Code of
1986, as amended, and shall be so construed. The parties recognize that the
Corporation or an Affiliate may be obligated to withhold federal, state and
local income taxes and Social Security taxes to the extent that the Holder
realizes ordinary income in connection with the exercise of the Option. The
Holder agrees that the Corporation or Affiliate may withhold amounts needed to
cover such taxes from payments otherwise due and owing to the Holder, and also
agrees that upon demand the Holder will promptly pay to the Corporation or
Affiliate having such obligation any additional amounts as may be necessary to
satisfy such withholding tax obligation. Such payment shall be made in cash or
cash equivalent.
11. Notice. Whenever any notice is required or permitted hereunder, such notice
must be in writing and personally delivered or sent by mail, courier or
facsimile machine. Any notice required or permitted to be delivered hereunder
shall be deemed to be delivered on the date which it is personally delivered,
or, whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has theretofore specified by written notice delivered in accordance herewith.
The Corporation or Holder may change, at any time and from time to time, by
written notice to the other, the address previously specified for receiving
notices. Until changed in accordance herewith, the Corporation and the Holder
specify their respective addresses as set forth below:
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Corporation: U.S. Physical Therapy, Inc.
Att'n: Corporate Secretary
0000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Holder: Xxxxxxxx X. XxXxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
12. Adjustments Upon Changes in Capitalization, Merger, Etc. Notwithstanding any
other provision hereof, in the event of any change in the number of outstanding
shares of Stock
A. effected without receipt of consideration therefor by the
Corporation, by reason of a stock dividend, or split, combination,
exchange of shares or other recapitalization, merger, or otherwise, in
which the Corporation is the surviving corporation, or
B. by reason of a spin-off of a part of the Corporation into a separate
entity, or assumptions and conversions of outstanding grants due to an
acquisition by the Corporation of a separate entity,
1. the number and class of shares subject to this Option and
2. the exercise price of this Option shall be automatically adjusted to
accurately and equitably reflect the effect thereon of such change
(provided, however, that any fractional share resulting from such
adjustment may be eliminated). In the event of a dispute concerning
such adjustment, the Board of Directors has full discretion to
determine the resolution of the dispute. Such determination shall be
final, binding and conclusive.
In addition to the foregoing, in the event of:
A. dissolution or liquidation of the Corporation,
B. a merger or consolidation (other than a merger effecting a
reincorporation of the Corporation in another state or any other merger
or a consolidation in which the stockholders of the surviving
corporation and their proportionate interests therein immediately after
the merger or consolidation are substantially identical to the
stockholders of the Corporation and their proportionate interests
therein immediately prior to the merger or consolidation) in which the
Corporation is not the surviving corporation (or survives only as a
subsidiary of another corporation in a transaction in which the
stockholders of the parent of the Corporation and their proportionate
interests therein immediately after the transaction are not
substantially identical to the stockholders of the Corporation and
their proportionate interests therein immediately prior to the
transaction; provided, however, that the Board of Directors may at any
time prior to such a merger or consolidation provide by resolution that
the foregoing provisions of this parenthetical shall not apply if a
majority of the board of directors of such parent immediately after the
transaction consists of individuals who constituted a majority of the
Board of Directors immediately prior to the transaction), or
C. a transaction in which any person becomes the owner of 50% or more
of the total combined voting power of all classes of stock of the
Corporation (provided, however, that the Board of Directors may at any
time prior to such transaction provide by resolution that this
subparagraph (c) shall not apply if such acquiring person is a
corporation and a majority of the board of directors of the acquiring
corporation immediately after the transaction consists of individuals
who constituted a majority of the Board of Directors immediately prior
to the acquisition of such 50% or more total combined voting power)
This Option shall terminate, except to the extent provision is made in writing
in connection with such transaction for the assumption of this Option, or for
the substitution for this Option of a new option covering the stock of a
successor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and exercise price, in which
event this Option shall continue in the manner and under the terms so provided.
In the event of any such termination of this Option, the Holder shall have the
right (subject to the general limitations on exercise set forth in Paragraph 8
above), immediately prior to the occurrence of such termination and during such
period occurring prior to such termination as the Board of Directors in its sole
discretion shall determine and designate, to exercise this Option in whole or in
part, whether or not this Option was otherwise exercisable at the time such
termination occurs. The Board shall send written notice of an event that will
result in such a termination to the Holder not later than the time at which the
Corporation gives notice thereof to its stockholders.
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13. Rights as a Stockholder. The Holder shall have no right as a stockholder
with respect to any shares covered by this Option until a certificate
representing such shares is issued to him. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash or other property) or
distributions or other rights for which the record date is prior to the date
such certificate is issued, except as provided in Paragraph 12 hereof.
14. Furnish Information. The Holder shall furnish to the Corporation all
information requested by the Corporation to enable it to comply with any
reporting or other requirement imposed upon the Corporation by or under any
applicable statute or regulation.
15. Termination of Employment. In the event of the Holder's termination of
employment with the Corporation or an Affiliate or USPTM, the unexercised
portion of this Option granted hereunder shall terminate in accordance with
Paragraph 8 hereof.
16. Right of the Corporation, Affiliates Thereof and USPTM to Terminate Holder's
Employment. Nothing contained in this Agreement shall confer upon the Holder the
right to continue in the employ of the Corporation, any of its Affiliates or
USPTM, or interfere in any way with the rights of the Corporation, any of its
Affiliates or USPTM to terminate his employment at any time.
17. No Liability for Good Faith Determinations. The members of the Board of
Directors shall not be liable for any act, omission, or determination taken or
made in good faith with respect to this Agreement, and members of the Board of
Directors shall be entitled to indemnification and reimbursement by the
Corporation in respect of any claim, loss, damage, or expense (including
attorneys' fees, the costs of settling any suit, provided such settlement is
approved by independent legal counsel selected by the Corporation, and amounts
paid in satisfaction of a judgment, except a judgment based on a finding of bad
faith) arising there from to the full extent permitted by law and under any
directors and officers liability or similar insurance coverage that may from
time to time be in effect.
18. Execution of Receipts and Releases. Any payment of cash or any issuance or
transfer of shares of Stock to the Holder, or to his legal representative, heir,
legatee, or distributee, in accordance with the provisions hereof, shall, to the
extent thereof, be in full satisfaction of all claims of such persons hereunder.
The Board of Directors may require any Holder, legal representative, heir,
legatee, or distributee, as a condition precedent to such payment, to execute a
release and receipt therefor in such form as it shall determine.
19. No Guarantee of Interests. Neither the Board of Directors nor the
Corporation guarantees the Stock of the Corporation from loss or depreciation.
20. Corporation Records. Records of the Corporation or its Affiliates (including
USPTM) regarding the Holder's period of employment, termination of employment
and the reason therefor, leaves of absence, re-employment, and other matters
shall be conclusive for all purposes hereunder, unless determined by the Board
of Directors to be incorrect.
21. No Liability of Corporation. The Corporation assumes no obligation or
responsibility to the Holder or his legal representatives, heirs, legatees, or
distributees for any act of, or failure to act on the part of, the Board of
Directors.
22. Corporation Act. Any action required of the Corporation shall be by
resolution of its Board of Directors, by a person authorized to act by
resolution of the Board of Directors, or by a person authorized to act by the
bylaws of the Corporation.
23. Severability. If any provision of this Agreement is held to be illegal or
invalid for any reason, the illegality or invalidity shall not affect the
remaining provisions hereof, but such provision shall be fully severable and
this Agreement shall be construed and enforced as if the illegal or invalid
provision had never been included herein.
24. Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all prior understandings and agreements, written or oral, of the
parties hereto with respect to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated except by a
written instrument signed by the Corporation and the Holder; provided, however,
that the Corporation unilaterally may waive any provision hereof in writing to
the extent that such waiver does not adversely affect the interests of the
Holder hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
25. Successors. This Agreement shall be binding upon the Holder, his legal
representatives, heirs, legatees and distributees, and upon the Corporation and
its successors and assigns.
26. Headings. The titles and headings of Paragraphs are included for convenience
of reference only and are not to be considered in construction of the provisions
hereof.
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27. Governing Law. All questions arising with respect to the provisions of this
Agreement shall be determined by application of the laws of the State of Nevada
except to the extent Nevada law is preempted by federal law. Questions arising
with respect to the provisions of this Agreement that are matters of contract
law shall be governed by the contract law of the State of Texas, except to the
extent preempted by federal law and except to the extent that Nevada corporate
law conflicts with the contract law of such state, in which event Nevada
corporate law shall govern. The obligation of the Corporation to sell and
deliver Stock hereunder is subject to applicable laws and to the approval of any
governmental authority required in connection with the authorization, issuance,
sale, or delivery of such Stock.
29. Word Usage. Words used in the masculine shall apply to the feminine where
applicable, and wherever the context of this Agreement dictates, the plural
shall be read as the singular and the singular as the plural.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed and
the Holder has hereunto set his hand effective as of the day and year first
above written.
U.S. PHYSICAL THERAPY, INC.
By: /s/ Xxx Xxxxxxxx
---------------------------------------
Name: Xxx Xxxxxxxx
Title: President & Chief Executive Officer
Date of Execution: November 18, 2003
HOLDER
/s/ Xxxxxxxx X. XxXxxx
---------------------------------------
Name: Xxxxxxxx X. XxXxxx
Date of Execution: November 18, 2003
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