EXHIBIT 4.10
GOHEALTH.MD, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into
as of this 23rd day of February, 1999, by and between GOHEALTH.MD, INC., a
Delaware corporation (the "Company"), and Xxxxx X'Xxxxxxx ("Optionee").
Background
The Company desires to grant Optionee an option to purchase shares of
common stock of the Company.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and intending to be legally bound, it
is agreed as follows:
1. Non-Qualified Stock Options to Purchase Shares.
(a) Number of Option Shares and Exercise Price. The Company
hereby grants to the Optionee non-qualified stock options (the "Options"), to
purchase the following number of shares of the Company's common stock, par value
$0.001 per share (the "Option Shares"):
(i) 115,000 shares of common stock, with an exercise price
of $.50 per share.
(b) Exercise Period. The Options shall be exercisable, in
whole or in part, at any time and from time to time during the period commencing
on the date hereof, and ending on February, 23, 2006 (the "Exercise Period").
2. Manner of Exercise and Terms of Payment.
The Options may be exercised in whole or in part, subject to
the limitations set forth in this Agreement, upon delivery to the Company of
timely written notice of exercise, accompanied by full payment of the Option
Price for the Option Shares with respect to which the Options are exercised. The
exercise price may be paid by delivering a certified check or wire transfer of
immediately available funds to the order of the Company for the entire exercise
price. The person entitled to the shares so purchased shall be treated for all
purposes as the holder of such shares as of the close of business on the date of
exercise and certificates for the shares of stock so purchased shall be
delivered to the person so entitled within a reasonable time, not exceeding
thirty (30) days, after such exercise. Unless this Option has expired, a new
Option of like tenor and for such number of shares as the holder of this Option
shall direct, representing in the aggregate the right to purchase a number of
shares with respect to which this Option shall not have been exercised, shall
also be issued to the holder of this Option within such time.
181
3. Rights as Stockholder. Optionee or a permitted transferee of the
Options shall have no rights as a stockholder of the Company with respect to any
shares of common stock subject to such Options prior to his exercise of the
Options.
4. Adjustment of Purchase Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of this Option and the exercise
price shall be subject to adjustment from time to time, as provided in Schedule
A attached hereto.
5. Investment Representation.
(a) Optionee represents and warrants to the Company that
Optionee is acquiring these Options and the Option Shares for Optionee's own
account for the purpose of investment and not with a view toward resale or other
distribution thereof in violation of the 1933 Act. Optionee acknowledges that
the effect of the representations and warranties is that the economic risk of
the investment in the Options and Option Shares must be borne by the Optionee
for an indefinite period of time. This representation and warranty shall be
deemed to be a continuing representation and warranty and shall be in full force
and effect upon such exercise of the Options granted hereby.
(b) Prior to such time as the Option Shares have been
registered under the 1933 Act, the Company shall place a legend on each
certificate for the Option Shares issued pursuant hereto, or any certificate
issued in exchange therefore, stating that such securities are not registered
under the 1933 Act and state securities laws and setting forth or referring to
the restriction on transferability and sale thereof imposed by the 1933 Act or
any applicable state securities law, and that the holder thereof agrees to be
bound by such restrictive legend.
6. Exercisability. The Options shall be exercisable only by Optionee
during his lifetime or by his assigns, heirs, executors or administrators, as
the case may be. Any assignment hereof shall be in compliance with applicable
securities laws. The Options granted hereunder and the registration rights may
be assigned together only, but may not be separately assigned.
7. Definitions.
(a) The term "Additional Shares of Capital Stock" shall mean
all shares of Capital Stock issued by the Company, except those shares of Common
Stock of the Company issuable upon the exercise of this Option or any other
shares of Common Stock issued to the Optionee.
(b) The term "Capital Stock" shall mean the Company's common
stock, and any other stock of any class, whether now or hereafter authorized,
which has the right to participate in the distribution of earnings and assets of
the Company without limit as to amount or percentage.
8. Miscellaneous.
182
(a) Termination of Other Agreements. This Agreement sets forth
the entire understanding of the parties hereto with respect to the rights to the
registration of capital stock of the Company and supercedes all prior
arrangements or understandings among the parties regarding such matters.
(b) Notices. Any notices required hereunder shall be deemed to
be given upon the earlier of the date when received at, or (i) the third
business day after the date when sent by certified or registered mail, (ii) the
next business day after the date sent by guaranteed overnight courier, or (iii)
the date sent by telecopier or delivered by hand, in each case, to the addresses
set forth below:
If to the Company: GoHealth.MD, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: President
If to the Optionee: Xxxxx X'Xxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
or to such other addresses as the parties may specify in writing.
(c) Amendments and Waivers. The provisions of this Agreement
may be amended or terminated unless in a writing signed by the Optionee and the
Company.
(d) Binding Effect. This Agreement will bind and inure to the
benefit of the respective successors (including any successor resulting from a
merger or similar reorganization), assigns, heirs, and personal representatives
of the parties hereto.
(e) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New Jersey.
(f) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be considered to be an original instrument
and to be effective as of the date first written above. Each such copy shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(g) Interpretation. Unless the context of this Agreement
clearly requires otherwise, (a) references to the plural include the singular,
the singular the plural, the part the whole, (b) references to one gender
include all genders, (c) "or" has the inclusive meaning frequently identified
with the phrase "and/or" and (d) "including" has the inclusive meaning
frequently identified with the phrase "but not limited to." The section and
other headings contained in this Agreement are for
183
reference purposes only and shall not control or affect the construction of the
Agreement or the interpretation thereof in any respect.
IN WITNESS WHEREOF, the undersigned have executed, or have caused this
Agreement to be executed, as of the day and year first above written.
GOHEALTH.MD, INC. OPTIONEE
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx X'Xxxxxxx
By: ________________________ _________________________
Xxxxxxx X. Xxxxxx Xxxxx X'Xxxxxxx
Chief Executive Officer
184
SCHEDULE A
Adjustment of Purchase Price and Number of Shares
1. Adjustment. The number and kind of securities purchasable
upon the exercise of this Option and the Exercise Price shall be subject to
adjustment from time to time upon the happening of certain events as follows:
(a) Reclassification, Consolidation or Merger. At any
time while this Option remains outstanding and unexpired, in case of (i) any
reclassification or change of outstanding securities issuable upon exercise of
this Option (other than a change in par value, or from par value to no par value
per share, or from no par value per share to par value or as a result of a
subdivision or combination of outstanding securities issuable upon the exercise
of this Option), (ii) any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification or change, other than a change in par value, or from par value
to no par value per share, or from no par value per share to par value, or as a
result of a subdivision or combination of outstanding securities issuable upon
the exercise of this Option), or (iii) any sale or transfer to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the Company, or such successor or purchasing corporation, as the case
may be, shall without payment of any additional consideration therefor, execute
a new Option providing that the holder of this Option shall have the right to
exercise such new Option (upon terms not less favorable to the holder than those
then applicable to this Option) and to receive upon such exercise, in lieu of
each share of Common Stock theretofore issuable upon exercise of this Option,
the kind and amount of shares of stock, other securities, money or property
receivable upon such reclassification, change, consolidation, merger, sale or
transfer. Such new Option shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
1 of Schedule A. The provisions of this subsection 1(a) shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
transfers.
(b) Subdivision or Combination of Shares. If the
Company at any time while this Option remains outstanding and unexpired, shall
subdivide or combine its Capital Stock, the Exercise Price shall be
proportionately reduced, in case of subdivision of such shares, as of the
effective date of such subdivision, or, if the Company shall take a record of
holders of its Capital Stock for the purpose of so subdividing, as of such
record date, whichever is earlier, or shall be proportionately increased, in the
case of combination of such shares, as of the effective date of such
combination, or, if the Company shall take a record of holders of its Capital
Stock for the purpose of so combining, as of such record date, whichever is
earlier.
(c) Stock Dividends. f the Company at any time while
this Option is outstanding and unexpired shall pay a dividend in shares of, or
make other distribution of shares of, its Capital Stock, then the Exercise Price
shall be adjusted, as of the date the Company shall take a record of the holders
of its Capital Stock for the purpose of receiving such dividend or other
185
distribution (or if no such record is taken, as at the date of such payment or
other distribution), to that price determined by multiplying the exercise price
in effect immediately prior to such payment or other distribution by a fraction
(a) the numerator of which shall be the total number of shares of Capital Stock
outstanding immediately prior to such dividend or distribution, and (b) the
denominator of which shall be the total number of shares of Capital Stock
outstanding immediately after such dividend or distribution. The provisions of
this subsection 1(c) shall not apply under any of the circumstances for which an
adjustment is provided in subsection 1(a) or 1(b).
(d) Liquidating Dividends, Etc. If the Company at any
time while this Option is outstanding and unexpired makes a distribution of its
assets to the holders of its Capital Stock as a dividend in liquidation or by
way of return of capital or other than as a dividend payable out of earnings or
surplus legally available for dividends under applicable law or any distribution
to such holders made in respect of the sale of all or substantially all of the
Company's assets (other than under the circumstances provided for in the
foregoing subsections (a) through (c)), the holder of this Option shall be
entitled to receive upon the exercise hereof, in addition to the shares of
Common Stock receivable upon such exercise, and without payment of any
consideration other than the exercise price, an amount in cash equal to the
value of such distribution per share of Common Stock multiplied by the number of
shares of Common Stock which, on the record date for such distribution, are
issuable upon exercise of this Option (with no further adjustment being made
following any event which causes a subsequent adjustment in the number of shares
of Common Stock issuable upon the exercise hereof), and an appropriate provision
therefor should be made a part of any such distribution. The value of a
distribution which is paid in other than cash shall be determined in good faith
by the Board of Directors.
2. Notice of Adjustments. Whenever any of the exercise price
or the number of shares of Common Stock purchasable under the terms of this
Option at that exercise price shall be adjusted pursuant to Section 1 hereof,
the Company shall promptly make a certificate signed by its President or a Vice
President and by its Treasurer or Assistant Treasurer or its Secretary or
Assistant Secretary, setting forth in reasonable detail the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Company's
Board of Directors made any determination hereunder), and the exercise price and
number of shares of Common Stock purchasable at that exercise price after giving
effect to such adjustment, and shall promptly cause copies of such certificate
to be mailed (by first class and postage prepaid ) to the registered holder of
this Option.
186
