EXHIBIT 4.2
INTEGRA LIFESCIENCES HOLDINGS CORPORATION
STOCK OPTION GRANT AND AGREEMENT
PURSUANT TO
2000 EQUITY INCENTIVE PLAN
STOCK OPTION GRANT AND AGREEMENT made as of the 22nd day of December,
2000 (the "Grant Date"), between INTEGRA LIFESCIENCES HOLDINGS CORPORATION, a
Delaware corporation (the "Company"), and XXXXXX X. XXXXX, an employee of the
Company (the "Employee").
WHEREAS, the Company desires to afford the Employee an opportunity to
purchase shares of common stock of the Company ("Common Stock"), par value $.01
per share, as hereinafter provided, under the Integra LifeSciences Holdings
Corporation 2000 Equity Incentive Plan (the "Plan"), a copy of which is
attached.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration the legal sufficiency of
which is hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. GRANT OF OPTION. Pursuant to the Amended and Restated Employment
Agreement by and between the Employee and the Company dated as of December 22,
2000 (the "Employment Agreement"), the Company hereby grants to the Employee a
non-qualified stock option (the "Option") to purchase all or any part of an
aggregate of 250,000 shares of Common Stock.
2. PURCHASE PRICE. The purchase price per share of the shares of Common
Stock covered by the Option shall be $11.00. It is the determination of the
Company's Stock Option Committee (the "Committee") that on the Grant Date the
purchase price per share was not less than the greater of one hundred percent
(100%) of the fair market value of the Common Stock, or the par value thereof.
3. TERM. Unless earlier terminated pursuant to any provision of this
Stock Option Grant and Agreement or the Employment Agreement, this Option shall
expire on December 21, 2010 (the "Expiration Date"), which date is not more than
ten (10) years from the Grant Date. Notwithstanding anything herein to the
contrary, this Option shall not be exercisable after the Expiration Date.
4. EXERCISE OF OPTION. The Committee, using its authority and
discretion under Sections 3(b) and 7.1 of the Plan to set the terms of Options
granted under the Plan, has determined that this Option, subject to law and
regulation, shall vest and become exercisable in such installments and on such
dates, as follows:
This Option shall vest and become exercisable with respect to
62,500 shares on the second anniversary of the date hereof.
Thereafter, this Option shall vest and become exercisable with
respect to 1/36th of the remaining shares on the first
business day of each following month. Except as provided in
Section 8(i) hereof, this Option shall vest and become
exercisable in its entirety, and shall remain exercisable
until the Expiration Date, (i) upon
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the occurrence of a "Change in Control" (as defined in the
Employment Agreement), or (ii) upon the receipt of a BONA
FIDE two-tier tender offer with respect to the outstanding
shares of Common Stock.
The portion of the Option that becomes exercisable in
accordance with the foregoing shall remain exercisable, subject to the
provisions contained in this Stock Option Grant and Agreement, until the
expiration of the term of this Option as set forth in Paragraph 3 or until other
termination of the Option as set forth in this Stock Option Grant and Agreement.
5. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
this Stock Option Grant and Agreement, the Option may be exercised in whole or
in part by written notice to the Company, at its principal office, which is
located at 000X Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000. Such notice
shall state the election to exercise the Option, and the number of shares with
respect to which it is being exercised, shall be signed by the person or persons
so exercising the Option; shall, unless the Company otherwise notifies the
Employee, be accompanied by the investment certificate referred to in Section 6;
and shall be accompanied by payment of the full Option price of such shares.
The Option price shall be paid to the Company in: (i) cash;
(ii) cash equivalent; (iii) Common Stock of the Company, in accordance with
Section 7.1(f)(ii) of the Plan (as in effect on the date of this Stock Option
Grant and Agreement); (iv) any combination of (i)-(iii); or (v) by delivering a
properly executed notice of exercise of the Option in accordance with Section
7.1(f)(iv) of the Plan (as in effect on the date of this Stock Option Grant and
Agreement).
Upon receipt of such notice and payment, the Company, as
promptly as practicable, shall deliver or cause to be delivered a certificate or
certificates representing the shares with respect to which the Option is so
exercised. Such certificate(s) shall be registered in the name of the person or
persons so exercising the Option (or, if the Option is exercised by the Employee
and if the Employee so requests in the notice exercising the Option, shall be
registered in the name of the Employee and the Employee's spouse, jointly, with
right of survivorship) and shall be delivered as provided above to or upon the
written order of the person or persons exercising the Option. In the event the
Option is exercised by any person or persons after the legal disability or death
of the Employee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise the Option. All shares that are
purchased upon the exercise of the Option as provided herein shall be fully paid
and not assessable by the Company.
6. SHARES TO BE PURCHASED FOR INVESTMENT. Unless the Company has
theretofore notified the Employee that a registration statement covering the
shares to be acquired upon the exercise of the Option has become effective under
the Securities Act of 1933 and the Company has not thereafter notified the
Employee that such registration statement is no longer effective, it shall be a
condition to any exercise of this Option that the shares acquired upon such
exercise be acquired for investment and not with a view to distribution, and the
person effecting such exercise shall submit to the Company a certificate of such
investment intent, together with such other evidence supporting the same as the
Company may request. Notwithstanding the foregoing, upon the written request of
Employee, the Company shall provide the Employee with a shelf registration
pursuant to a registration statement subject to the terms set forth in EXHIBIT B
to the Employment Agreement. The Company shall be entitled to delay the
transferability of the shares issued upon any such exercise to the extent
necessary to avoid a risk of violation of the Securities Act of 1933 (or of any
rules or regulations promulgated thereunder) or of any state laws or
regulations. Such restrictions may, at the option of the Company, be noted or
set forth in full on the share certificates. If any law or regulation requires
the Company to take any additional action regarding the Common Stock before the
Company issues certificates for the Common Stock subject to this Option or
before such Common Stock may be transferred by the Employee, the Company shall
use its commercially reasonable best efforts to
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resolve such problem.
7. TRANSFERABILITY. This Option is not assignable or transferable, in
whole or in part, by the Employee other than by will or by the laws of descent
and distribution, and during the lifetime of the Employee the Option shall be
exercisable only by the Employee or by his/her guardian or legal representative.
8. TERMINATION OF EMPLOYMENT. If the Employee's employment with the
Company and all Related Corporations, as defined in the Plan, is terminated for
any reason other than death or disability prior to the Expiration Date of this
Option as set forth in Paragraph 3, this Option shall vest and become
exercisable in the following manner:
(i) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION WITHOUT
GOOD REASON. If the Employee is terminated for "Cause", as defined in Section
4.3 of the Employment Agreement, or if the Employee voluntarily leaves his
employment with the Company (other than for "Good Reason", as defined in Section
4.4 of the Employment Agreement, or "Disability", as defined in Section 4.2 of
the Employment Agreement) prior to December 31, 2005, then the portion of this
Option that is vested on the date of termination shall be exercisable until the
Expiration Date and the non-vested portion of this Option shall terminate on the
date of termination.
(ii) TERMINATION WITHOUT CAUSE OR BY EMPLOYEE FOR GOOD REASON.
If Employee is terminated without "Cause" or terminates employment for "Good
Reason", then this Option shall become immediately vested and exercisable and
shall remain exercisable in full until the Expiration Date.
(iii) TERMINATION AFTER DECEMBER 31, 2005. If the Employee's
employment terminates for any reason following December 31, 2005 (including if
the Employment Agreement is not renewed following December 31, 2005), then this
Option shall remain exercisable in full until the Expiration Date.
9. DISABILITY. If the Employee is terminated for Disability during his
employment and prior to the Expiration Date of this Option as set forth in
Section 3, the vested portion of this Option shall be exercisable until the
later of (i) one year from the date of termination or (ii) December 31, 2005,
but in no event beyond the Expiration Date, and the non-vested portion of this
Option shall terminate on the date of termination.
10. DEATH. If the Employee dies during his employment and prior to the
Expiration Date, or if the Employee dies during any period following termination
of employment but while this Option is still exercisable, then the vested
portion of this Option shall be exercisable by the Employee's estate, personal
representative or beneficiary who acquired the right to exercise this Option by
bequest or inheritance or by reason of the Employee's death at any time prior to
the later of (i) December 31, 2005 or (ii) one (1) year after the Employee's
death, but in no event beyond the Expiration Date, and the non-vested portion of
this Option shall terminate on the date of Employee's death.
11. WITHHOLDING OF TAXES. The obligation of the Company to deliver
shares of Common Stock upon the exercise of the Option shall be subject to
applicable federal, state and local tax withholding requirements. If the
exercise of any Option is subject to the withholding requirements of applicable
federal, state or local tax laws, the Committee, in its discretion, may permit
the Employee, subject to the provisions of the Plan (as in effect on the date of
this Stock Option Grant and Agreement) and such additional withholding rules
(the "Withholding Rules") as shall be adopted by the Committee, to satisfy the
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withholding tax, in whole or in part, by electing to have the Company withhold
(or by returning to the Company) shares of Common Stock, which shares shall be
valued, for this purpose, at their fair market value on the date of exercise of
the Option (or, if later, the date on which the Employee recognizes ordinary
income with respect to such exercise). An election to use shares of Common Stock
to satisfy tax withholding requirements must be made in compliance with and
subject to the Withholding Rules. The Committee may not withhold shares in
excess of the number necessary to satisfy the minimum tax withholding
requirements.
12. ADJUSTMENT OF AND CHANGES IN THE COMMON STOCK.
(a) In the event the outstanding shares of the Common Stock
shall be changed into an increased number of shares, through a share dividend or
a split-up of shares, or into a decreased number of shares, through a
combination of shares, then immediately after the record date for such change,
the number of shares of Common Stock then subject to the Option shall be
proportionately increased, in case of such share dividend or split-up of shares,
or proportionately decreased, in case of such combination of shares. In the
event the Company shall issue any of its shares of Common Stock or other
securities or property (other than common stock which is covered by the
preceding sentence), in a reclassification of the Common Stock (including
without limitation any such reclassification in connection with a consolidation
or merger in which the Company is the continuing entity), the Option shall be
adjusted so that the Employee shall be entitled to receive upon exercise of the
Option the same kind and number of shares or other securities or property which
the Employee would have owned or have been entitled to receive after the
happening of any of the events described above, had he owned the shares of the
Common Stock subject to the Option immediately prior to the happening of such
event or any record date with respect thereto, which adjustment shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In the event the Company shall distribute to all holders
of the Common Stock evidences of its indebtedness or assets (including leveraged
recapitalizations with special cash distributions), but excluding regular
quarterly cash dividends, then in each case the number of shares of Common Stock
thereafter subject to the Option shall be determined by multiplying the number
of shares theretofore subject to the Option by a fraction, (i) the numerator of
which shall be the then current market price per share of Common Stock (as
determined in paragraph (c) below) on the record date for such distribution, and
(ii) the denominator of which shall be the then current market price per share
of the Common Stock less the then fair value (as mutually determined in good
faith by the Board of Directors of the Company (the "Board") and the Employee)
of the portion of the assets or evidences of indebtedness so distributed
applicable to a share of Common Stock. Such adjustment shall be made whenever
any such distribution is made, and shall become effective on the date of
distribution retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
(c) For the purpose of any computation under paragraph (b) of
this Section 12, the current market price per share of the Common Stock at any
date shall be deemed to be the average of the daily Stock Prices for 15
consecutive Trading Days commencing 20 Trading Days before the date of such
computation. "Stock Price" for each Trading Day shall be the "Fair Market Value"
of the Common Stock (as defined in the Plan, as in effect on the date of this
Stock Option Grant and Agreement) for such Trading Day. "Trading Day" shall be
each Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on
which the Common Stock is not traded on the exchange or in the market which is
the principal United States market for the Common Stock.
(d) Notwithstanding anything in this Agreement to the
contrary, in the event of a spin-off by the Company to its shareholders, the
adjustment of the Option shall be determined in an appropriate
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and equitable manner, and it is the intention of the parties hereto that, to
the extent practicable, such adjustment shall include an option grant to
acquire an equity interest in the spun-off entity.
(e) Whenever the number of shares of Common Stock subject to
the Option is adjusted as herein provided, the purchase price per share of
Common Stock issuable thereunder shall be adjusted by multiplying such purchase
price immediately prior to such adjustment by a fraction, the numerator of which
shall be the number of shares of Common Stock subject to the Option immediately
prior to such adjustment, and the denominator of which shall be the number of
shares of Common Stock subject to the Option immediately thereafter.
(f) For the purpose of this Section 12, the term "Common
Stock" shall mean (i) the class of Company securities designated as the Common
Stock at the date of this Stock Option and Grant Agreement, or (ii) any other
class of equity interest resulting from successive changes or reclassifications
of such shares consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value. In the event that at any time,
as a result of an adjustment made pursuant to the second sentence of Section
12(a) above, the Employee shall become entitled to, upon exercise of the Option,
any shares other than the Common Stock, thereafter the number of such other
shares issuable on exercise of the Option and the exercise price per share of
Common Stock issuable thereunder shall be subject to adjustment from time to
time in a manner and on the terms as nearly equivalent as practicable to the
provisions with respect to the shares contained in this Section 12 and the
provisions of this Stock Option and Grant Agreement with respect to the shares
of Common Stock issuable on exercise of the Option shall apply on like terms to
any such other shares.
(g) In case of any consolidation of the Company or merger of
the Company with another corporation as a result of which Common Stock is
converted or modified or in case of any sale or conveyance to another
corporation of the property, assets and business of the Company as an entirety
or substantially as an entirety, the Company shall modify the Option so as to
provide the Employee with an option for the kind and amount of shares and other
securities and property that he would have owned or have been entitled to
receive immediately after the happening of such consolidation, merger, sale or
conveyance had the Option, immediately prior to such action, actually been
exercised for shares and, if applicable, other securities of the Company subject
to the Option. The provisions of this Section 12(g) shall similarly apply to
successive consolidations, mergers, sales or conveyances.
(h) Notwithstanding anything to the contrary contained herein,
the provisions of this Section 12 shall not apply to, and no adjustment is
required to be made in respect of, any of the following: (i) the issuance of
shares of Common Stock upon the exercise of any other rights, options or
warrants that entitle the holder to subscribe for or purchase such shares (it
being understood that the sole adjustment pursuant to this Section 12 in respect
of the issuance of shares of Common Stock upon exercise of rights, options or
warrants shall be made at the time of the issuance by the Company of such
rights, options or warrants, or a change in the terms thereof); (ii) the
issuance of shares of Common Stock to the Company's employees, directors or
consultants pursuant to bona fide benefit plans or employment or consulting
arrangements adopted by the Company's Board of Directors; (iii) the issuance of
shares of Common Stock in a bona fide public offering; (iv) the issuance of
shares of Common Stock pursuant to any dividend reinvestment or similar plan
adopted by the Company's Board of Directors to the extent that the applicable
discount from the current market price for shares issued under such plan does
not exceed 5%; and (v) the issuance of shares of Common Stock in any arm's
length transaction (including, without limitation, any acquisition, financing,
private placement, or, except as provided in Section 12(g), merger or
combination or consolidation), directly or indirectly, to any party.
(i) In the event the parties hereto cannot agree upon an
appropriate and equitable
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adjustment to the Option, the services of an independent investment banker
mutually acceptable to Employee and the Company shall (at the sole expense of
the Company) be retained to determine an appropriate and equitable
adjustment, and such determination shall be binding upon the parties.
(j) For purposes of this Stock Grant and Option Agreement,
"Affiliate" of an entity or individual means any entity or individual, directly
or indirectly, controlling, controlled by or under common control with such
entity or individual.
13. LEGAL FEES. If any contest or dispute shall arise between the
Company and the Employee regarding any provisions of this Stock Grant and Option
Agreement, the Company shall reimburse the Employee for legal fees and expenses
reasonably incurred by Employee in connection with such contest or dispute to
the extent set forth in Section 8.1 of the Employment Agreement. The application
of this Section 13 (and Section 8.1 of the Employment Agreement) shall survive
the termination of the Employment Agreement. Such reimbursement shall be made as
soon as practicable following the resolution of such contest or dispute (whether
or not appealed) to the extent the Company receives reasonable written evidence
of such fees and expenses. Notwithstanding any determination or interpretation
by the Committee, any dispute or controversy arising under or in connection with
this Agreement, shall be settled exclusively by arbitration in Wilmington,
Delaware in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
14. CONSTRUCTION. Except as would be in conflict with any specific
provision herein, this Stock Option Grant and Agreement is made under and
subject to the provisions of the Plan as in effect on the Grant Date and, except
as would conflict with the provisions of this Stock Option Grant and Agreement,
all of the provisions of the Plan as in effect on the Grant Date are hereby
incorporated herein as provisions of this Stock Option Grant and Agreement. In
the event of any such conflict, the terms of this Stock Option Grant and
Agreement shall govern.
15. GOVERNING LAW. This Stock Option Grant and Agreement shall be
governed by applicable federal law and otherwise by the laws of the State of
Delaware.
16. AMENDMENT OR MODIFICATION: WAIVER. No provision of this Agreement
may be amended, modified or waived unless such amendment or modification is
agreed to in writing, signed by the Employee and by a duly authorized officer of
the Company, and such waiver is set forth in writing and signed by the party to
be charged. No waiver by any party hereto of any breach by another party hereto
of any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same time, any prior time or any subsequent time.
IN WITNESS WHEREOF, the undersigned have executed this Stock Option
Grant and Agreement as of the date first written above.
INTEGRA LIFESCIENCES HOLDINGS
CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxxxx, Chairman
/s/ Xxxxxx X. Xxxxx
-------------------------
XXXXXX X. XXXXX
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