EXHIBIT 4.5
NATIONAL QUALITY CARE, INC.
AMENDED AND RESTATED INCENTIVE STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is entered into as of September 12,
1996 by and between National Quality Care, Inc., a Delaware corporation (the
"Company"), and Xxx Xxxxxxxxx ("Optionee").
R E C I T A L
Pursuant to the May 12, 1996 Stock Option Plan (the "Plan"), the Board of
Directors of the Company (the "Board") authorized the granting to Optionee of an
incentive stock option, and on or about June 19, 1996, the Company entered into
an agreement with Optionee, for the Optionee to purchase the number of shares of
Common Stock of the Company specified in Paragraph 1 thereof, at the price
specfified therein, such option to be for the term and upon the terms and
conditions stated in that agreement. The Board has since determined that the
exercise price should be amended to reflect a change in the value of the
Company's stock and that the Company should enter into this Amended and Restated
Agreement to reflect the relevant changes.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and of the undertakings of
the parties hereto contained herein, it is hereby agreed:
1. NUMBER OF SHARES; OPTION PRICE. Pursuant to said action of the Board,
the Company hereby grants to Optionee the option ("Option") to purchase at $.44
per share, subject to the terms and conditions of the Plan, 12,500 shares of the
currently authorized and unissued Common Stock of the Company, par value $0.01
per share, at any time after twelve (12) months following the date of this
Agreement, and an additional 12,500 shares at any time after eighteen (18)
months following the date of this Agreement (the "Shares"). So long as
applicable law allows, at the option of the Company, the Company agrees to waive
payment for the exercise of the options referenced hereinabove. In such event,
the Company shall issue appropriate documentation to Optionee causing Employee
to recognize income for such waiver of the option exercise price. In the event
that applicable law will not allow for the waiver of such payment for such
options, the Company shall declare Incentive Compensation of no less than the
amount necessary for Optionee to exercise such options.
2. TERMS. This Option shall expire on the day before the tenth
anniversary (fifth anniversary if Optionee owns more than 10% of the voting
stock of the Company, a Parent or a Subsidiary on the date of this Agreement) of
the date hereof, unless such Option shall have been terminated prior to that
date in accordance with the provisions of the Plan or this Agreement. The terms
"Parent" and "Subsidiary" herein mean a parent corporation or a subsidiary
corporation, as such terms are defined in the Plan.
3. SHARES SUBJECT TO EXERCISE. 12,500 shares shall be exercisable twelve
(12) months from the date hereof and an additional 12,500 shares shall vest
eighteen (18) months following the date hereof, if Optionee remains an employee
of the Company, a Parent or a Subsidiary on each such respective date. All
Shares shall thereafter remain subject to exercise for the term specified in
Paragraph 2 hereof, provided that Optionee is then and has continuously been in
the employ of the Company, a Parent or a Subsidiary, subject, however, to the
provisions of Paragraph 5 hereof.
4. METHOD AND TIME OF EXERCISE. The Option may be exercised by written
notice delivered to the Company stating the number of shares with respect to
which the Option is being exercised, together with a check made payable to the
Company and/or upon waiver of the exercise price as provided herein, plus the
amount of applicable federal, state and local withholding taxes and the written
statement provided for in Paragraph 9 hereof, if required by such Paragraph 9.
Only whole shares may be purchased.
5. TAX WITHHOLDING. In the event that this Option shall lose its
qualification as an incentive stock option, as a condition to exercise of this
Option, the Company may require the Optionee to pay over to the Company all
applicable federal, state and local taxes which the Company is required to
withhold with respect to the exercise of this Option. At the discretion of the
Board and upon the request of the Optionee, the minimum statutory withholding
tax requirements may be satisfied by the withholding of shares of Common Stock
otherwise issuable to the Optionee upon the exercise of this option.
6. EXERCISE ON TERMINATION OF EMPLOYMENT. If Optionee shall cease to be
employed by the Company, a Parent or Subsidiary, Optionee's right, if any, to
exercise his options will be limited to installments accrued under Paragraph 3
hereof on the date of termination (unless the Board accelerates the
exercisablity of the Option pursuant to Section 7(d) of the Plan) and will be
governed by Section 7 of the Plan. The maximum period permissible for an
incentive stock option under Section 7 in the absence of Board action shall
apply for each type of termination of employment described therein unless the
Board has made other provision herein; PROVIDED, HOWEVER, in the event Optionee
terminates Optionee's employment or other relationship with the Company by
ceasing to
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serve as an officer or leaving the employ of the Company, or as a non-employee,
by ceasing to provide services to the Company, pursuant to the circumstances set
forth in Section 7(c) of the Plan, the Options shall remain exercisable until
120 days after the date of such termination.
7. NONTRANSFERABILITY. This Option may not be assigned or transferred
except by will or by the laws of descent and distribution, and may be exercised
only by Optionee during his lifetime and after his death, by his representative
or by the person entitled thereto under his will or the laws of intestate
succession.
8. OPTIONEE NOT A SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to the Common Stock of the Company covered by the
Option until the date of issuance of a stock certificate or stock certificates
to him upon exercise of the Option. No adjustment will be made for dividends or
other rights for which the record date is prior to the date such stock
certificate or certificates are issued, except as provided in Section 9 of the
Plan.
9. NO RIGHT TO EMPLOYMENT. Nothing in this Option shall confer upon the
Optionee any right to continue in the employ of the Company or to continue to
perform services for the Company or any Parent or Subsidiary, or shall interfere
with or restrict in any way the rights of the Company to discharge or terminate
any officer, director, employee, independent contractor or consultant at any
time for any reason whatsoever, with or without good cause.
10. MODIFICATION AND TERMINATION. The rights of Optionee are subject to
modification and termination in certain events, as provided in Sections 7,8 and
9 of the Plan.
11. RESTRICTIONS ON SALE OF SHARES. Optionee represents and agrees that,
upon his exercise of the Option in whole or part, unless there is in effect at
that time under the Securities Act of 1933 a registration statement relating to
the shares issued to him, he will acquire the shares issuable upon exercise of
this Option for the purpose of investment and not with a view to their resale or
further distribution, and that upon each exercise thereof he will furnish to the
Company a written statement to such effect, satisfactory to the Company in form
and substance. Optionee agrees that any certificates issued upon exercise of
this Option may bear a legend indicating that their transferability is
restricted in accordance with applicable state or federal securities law. Any
person or persons entitled to exercise this Option under the provisions of
Paragraphs 5 and 6 hereof shall, upon each exercise of the Option under
circumstances in which Optionee would be required to furnish such a written
statement, also furnish to the Company a written statement to the same effect,
satisfactory to the Company in form and substance.
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12. PLAN GOVERNS. This Agreement and the Option evidenced hereby are made
and granted pursuant to the Plan and are in all respects limited by and subject
to the express terms and provisions of the Plan, as it may be construed by the
Plan Committee. It is intended that this option shall qualify as an incentive
stock option as defined by Section 422 of the Code, and this Agreement shall be
construed in a manner which will enable this Option to be so qualified.
Optionee hereby acknowledges receipt of a copy of the Plan.
13. NOTICES. All notices to the Company shall be addressed to the
Chairman of the Plan Committee of the Board of Directors of the Company at the
principal office of the Company at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, and all notices to Optionee shall be addressed to
Optionee at the address of Optionee on file with the Company or its
Subsidiaries, or to such other address as either may designate to the other in
writing. A notice shall be deemed to be duly given if and when enclosed in a
properly addressed sealed envelope deposited, postage prepaid, with the United
States Postal Service. In lieu of giving notice by mail as aforesaid, written
notices under this Agreement may be given by personal delivery to Optionee or to
the Chairman of the Plan Committee or the Board of Directors of the Company (as
the case may be).
14. SALE OR OTHER DISPOSITION. Optionee understands that, under current
law, beneficial tax treatment resulting from the exercise of this Option will be
available only if certain requirements of the Code are satisfied, including
without limitation, the requirement that no disposition of Shares acquired
pursuant to exercise of this Option be made within two years from the grant date
or within one year after the transfer of Shares to him or her. If Optionee at
any time contemplates the disposition (whether by sale, gift, exchange or other
form of transfer) of any such Shares, he or she will first notify the Company in
writing of such proposed disposition and cooperate with the Company in complying
with all applicable requirements of law, which, in the judgment of the Company,
must be satisfied prior to such disposition. In addition to the foregoing,
Optionee hereby agrees that if Optionee disposes (whether by sale, exchange,
gift or otherwise) of any Shares acquired by exercise of this Option within two
years of the grant or within one year after the transfer of such Shares to
Optionee upon exercise of this Option, then Optionee shall notify the Company of
such disposition in writing within 30 days from the date of such disposition.
Such written notice shall state the date of such disposition, and the type and
amount of the consideration received for such Share or Shares by Optionee in
connection therewith. In the event of any such disposition, the Company shall
have the right to require Optionee to pay the Company immediately the amount of
taxes (if any) which the Company is required to withhold under federal and/or
state law as a result of
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the granting or exercise of the Option and the disposition of the Shares.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
NATIONAL QUALITY CARE, INC.
("Company")
By: /s/ Xxxxxx Xxxx, M.D.
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Xxxxxx Xxxx, M.D.,President
Social Security Number: Optionee
/s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
Address:
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
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