EXHIBIT 4.9
AMENDMENT NO. 1
TO
NOTICE OF STOCK OPTION AWARD AND STOCK OPTION AWARD AGREEMENT
(GRANT NUMBER 649 & 652)
THIS AMENDMENT NO. 1 (the "Amendment Agreement") TO NOTICE OF STOCK OPTION
AWARD AND STOCK OPTION AWARD AGREEMENT (GRANT NUMBER 649 & 652) (collectively,
the "Option Agreement"), is made by and between Endocare, Inc., a Delaware
corporation ("Endocare"), and Xxxxxxxxx Xxxxxxxxx ("Holder").
WHEREAS, Holder has been granted an option to acquire 250,000 shares of
Endocare common stock at an Exercise Price of $2.25 per share subject to the
terms of the Option Agreement;
WHEREAS, Endocare wishes to amend the "Vesting Schedule" and "Termination
or Change of Continuous Service" sections of the Option Agreement as provided
herein; and
WHEREAS, Xxxxxx agrees to the amendment and modification of the Option
Agreement as provided herein on the terms and conditions contained herein.
NOW, THEREFORE, it is agreed as follows:
1. Xxxxxx acknowledges that she has reviewed in full the Option Agreement
and the amendment and modification set forth below.
2. The second paragraph of the "Vesting Schedule" section set forth in the
Option Agreement shall be amended and restated in its entirety as follows:
"25% of the Shares subject to the Option shall vest twelve months after
the Vesting Commencement Date, and 1/48 of the Shares subject to the
Option shall vest on each monthly anniversary of the Vesting Commencement
Date thereafter. Notwithstanding the foregoing, if the Company terminates
the Grantee's Continuous Service other than for Cause, or if the Grantee
terminates her Continuous Service for Good Reason, then the Shares subject
to the Option shall continue to vest pursuant to the terms of the previous
sentence until the first anniversary of such termination, and at such time
vesting shall cease."
3. Section 5 of the Option Agreement entitled "Termination or Change of
Continuous Service" shall be amended and restated in its entirety as follows:
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"Except as provided in the Vesting Schedule set forth in the Notice, in
the event the Grantee's Continuous Service terminates, other than for
Cause, the Grantee may, but only during the Post-Termination Exercise
Period, exercise the portion of the Option that was vested at the date of
such termination (the "Termination Date"). In the event of termination of
the Grantee's Continuous Service for Cause, the Grantee's right to
exercise the Option shall, except as otherwise determined by the Board,
terminate concurrently with the termination of the Grantee's Continuous
Service (also the "Termination Date"). In no event shall the Option be
exercised later than the Expiration Date set forth in the Notice. In the
event of the Grantee's change in status from Employee, Director or
Consultant to any other status of Employee, Director or Consultant, the
Option shall remain in effect and vesting of the Option shall continue
only to the extent determined by the Board as of such change in status.
Except as provided in Sections 6 and 7 below, to the extent that the
Option was unvested on the Termination Date, or if the Grantee does not
exercise the vested portion of the Option within the Post-Termination
Exercise Period, the Option shall terminate; provided, however, that, if
the Company terminates the Grantee's Continuous Service other than for
Cause, or if the Grantee terminates her Continuous Service for Good
Reason, then the Shares subject to the Option shall continue to vest
pursuant to the terms of and only to the extent provided for in the
Vesting Schedule set forth in the Notice."
4. The terms of this Amendment Agreement shall be effective as of
September __, 2003.
5. Xxxxxx represents and warrants: (a) that she is the owner of the Option
Agreement and (b) that she has full power to enter into this Amendment
Agreement.
6. Xxxxxx further acknowledges and agrees that, except for the amendment
and modification set forth in Sections 2 and 3 hereof, the Option Agreement will
be governed by the terms and conditions of the Option Agreement.
7. This Amendment Agreement and the Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of Endocare and Holder
with respect to the subject matter hereof, and may not be modified adversely to
the Holder's interest except by means of a writing signed by Endocare and
Holder. Nothing in this Amendment Agreement (except as expressly provided
herein) is intended to confer any rights or remedies on any persons other than
the parties. Should any provision of this Amendment Agreement be determined by a
court of law to be illegal or unenforceable, such provision shall be enforced to
the fullest extent allowed by law and the other provisions shall nevertheless
remain effective and shall remain enforceable.
8. This Amendment Agreement shall be binding upon Endocare and its
successors and assigns (if any), and Xxxxxx and her successors and assigns (if
any).
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9. This Amendment Agreement may be executed in counterparts which together
shall constitute a single agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be executed and delivered as of the date set forth beside such
party's signature.
Dated: September 14, 2003 ENDOCARE, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: President
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Dated: September 15, 2003 /s/ Xxxxxxxxx Xxxxxxxxx
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XXXXXXXXX XXXXXXXXX
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