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EXHIBIT 10.4.2
OPTION NO.: _______
MDMI HOLDINGS, INC.
AMENDED AND RESTATED
2000 STOCK OPTION AND INCENTIVE PLAN
NON-INCENTIVE STOCK OPTION AGREEMENT
MDMI Holdings, Inc., a Colorado corporation (the "Company"), hereby grants an
option to purchase shares of its common stock, $.01 par value, (the "Stock") to
the optionee named below. The terms and conditions of the option are set forth
in this cover sheet, in the attachment and in the Company's 2000 Stock Option
and Incentive Plan (the "Plan").
Grant Date: , 200
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Name of Optionee:
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Optionee's Social Security Number: - -
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Number of Shares Covered by Option:
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Option Price per Share: $ .
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Vesting Start Date: ,
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BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED IN THE ATTACHED AGREEMENT AND IN THE PLAN, A COPY OF WHICH
IS ALSO ATTACHED. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY REVIEWED THE PLAN, AND
AGREE THAT THE PLAN WILL CONTROL IN THE EVENT ANY PROVISION OF THIS AGREEMENT
SHOULD APPEAR TO BE INCONSISTENT.
Optionee:
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(Signature)
Company:
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(Signature)
Title:
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Attachment
This is not a stock certificate or a negotiable instrument.
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MDMI HOLDINGS, INC.
AMENDED AND RESTATED 2000 STOCK OPTION AND INCENTIVE PLAN
NON-INCENTIVE STOCK OPTION AGREEMENT
NON-INCENTIVE STOCK This option is not intended to be an
OPTION incentive stock option under Section 422 of
the Internal Revenue Code and will be
interpreted accordingly.
VESTING This option is only exercisable before it
expires and then only with respect to the
vested portion of the option. Subject to the
preceding sentence, you may exercise this
option, in whole or in part, to purchase a
whole number of vested shares not less than
100 shares, unless the number of shares
purchased is the total number available for
purchase under the option, by following the
procedures set forth in the Plan and below
in this Agreement.
Your right to purchase shares of Stock
under this option vests as to
________(_____) of the total number of
shares covered by this option, as shown on
the cover sheet, on the one-year anniversary
of the Vesting Start Date ("Anniversary
Date"), provided you then continue in
Service. Thereafter, for each such vesting
date that you remain in Service, the number
of shares of Stock which you may purchase
under this option shall vest at the rate of
_________ (______) per month as of the first
day of each month following the month of the
Anniversary Date. The resulting aggregate
number of vested shares will be rounded to
the nearest whole number, and you cannot
vest in more than the number of shares
covered by this option.
No additional shares of Stock will vest
after your Service has terminated for any
reason. For purposes of this Agreement,
"Service" means service as an employee or
consultant of the Company or one of its
affiliates.
TERM Your option will expire in any event at the
close of business at Company headquarters on
the day before the 10th anniversary of the
Grant Date, as shown on the cover sheet.
Your option will expire earlier if your
Service terminates, as described below.
REGULAR TERMINATION If your Service terminates for any reason,
other than death, Disability or Cause, then
your option will expire at the close of
business at Company headquarters on the 90th
day after your termination date.
TERMINATION FOR If your Service is terminated for Cause,
CAUSE then you shall immediately forfeit all
rights to your option and the option shall
immediately expire.
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For purposes of this Agreement, "Cause"
means, as determined by the Board and unless
otherwise provided in an applicable
employment agreement with the Company or its
affiliate, (i) gross negligence or willful
misconduct in connection with the
performance of duties; (ii) conviction of a
criminal offense (other than minor traffic
offenses); or (iii) material breach of any
term of any employment, consulting or other
services, confidentiality, intellectual
property or non-competition agreements, if
any, between you and the Company or an
affiliate.
DEATH If your Service terminates because of your
death, then your option will expire at the
close of business at Company headquarters on
the date twelve (12) months after the date
of death. During that twelve month period,
your estate or heirs may exercise the vested
portion of your option.
In addition, if you die during the 90-day
period described in connection with a
regular termination (i.e., a termination of
your Service not on account of your death,
Disability or Cause), and a vested portion
of your option has not yet been exercised,
then your option will instead expire on the
date twelve (12) months after your
termination date. In such a case, during the
period following your death up to the date
twelve (12) months after your termination
date, your estate or heirs may exercise the
vested portion of your option.
DISABILITY If your Service terminates because of your
Disability, then your option will expire at
the close of business at Company
headquarters on the date twelve (12) months
after your termination date. For purposes of
this Agreement, "Disability" means, as
determined by the Board, you are unable to
perform each of the essential duties of your
position by reason of a medically
determinable physical or mental impairment
which is potentially permanent in character
or which can be expected to last for a
continuous period of not less than 12
months.
LEAVES OF ABSENCE For purposes of this option, your Service
does not terminate when you go on a bona
fide employee leave of absence that was
approved by the Company in writing, if the
terms of the leave provide for continued
Service crediting, or when continued Service
crediting is required by applicable law.
However, your Service will be treated as
terminating 90 days after you went on
employee leave, unless your right to return
to active work is guaranteed by law or by a
contract. Your Service terminates in any
event when the approved leave ends unless
you immediately return to active employee
work.
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The Company determines, in its sole
discretion, which leaves count for this
purpose, and when your Service terminates
for all purposes under the Plan.
NOTICE OF EXERCISE When you wish to exercise this option, you
must notify the Company by filing the proper
"Notice of Exercise" form at the address
given on the form. Your notice must specify
how many shares you wish to purchase (in a
parcel of at least 100 shares generally).
Your notice must also specify how your
shares of Stock should be registered (in
your name only or in your and your spouse's
names as joint tenants with right of
survivorship). The notice will be effective
when it is received by the Company.
If someone else wants to exercise this
option after your death, that person must
prove to the Company's satisfaction that he
or she is entitled to do so.
FORM OF PAYMENT When you submit your notice of exercise, you
must include payment of the option price for
the shares you are purchasing. Payment may
be made in one (or a combination) of the
following forms:
o Cash, your personal check, a
cashier's check, a money order or
another cash equivalent acceptable
to the Company.
o Shares of Stock which have already
been owned by you for more than six
months and which are surrendered to
the Company. The value of the
shares, determined as of the
effective date of the option
exercise, will be applied to the
option price.
o To the extent a public market for
the Stock exists as determined by
the Company, by delivery (on a form
prescribed by the Company) of an
irrevocable direction to a licensed
securities broker acceptable to the
Company to sell Stock and to
deliver all or part of the sale
proceeds to the Company in payment
of the aggregate option price and
any withholding taxes.
WITHHOLDING TAXES You will not be allowed to exercise this
option unless you make acceptable
arrangements to pay any withholding or other
taxes that may be due as a result of the
option exercise or sale of Stock acquired
under this option. In the event that the
Company determines that any federal, state,
local or foreign tax or withholding payment
is required relating to the exercise or sale
of shares arising from this grant, the
Company shall have the right to require such
payments from you, or withhold such amounts
from other payments due to you from the
Company or any affiliate.
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TRANSFER OF OPTION During your lifetime, only you (or, in the
event of your legal incapacity or
incompetency, your guardian or legal
representative) may exercise the option. You
cannot transfer or assign this option. For
instance, you may not sell this option or
use it as security for a loan. If you
attempt to do any of these things, this
option will immediately become invalid. You
may, however, dispose of this option in your
will or it may be transferred upon your
death by the laws of descent and
distribution.
Regardless of any marital property
settlement agreement, the Company is not
obligated to honor a notice of exercise from
your spouse, nor is the Company obligated to
recognize your spouse's interest in your
option in any other way.
MARKET STAND-OFF In connection with any underwritten public
AGREEMENT offering by the Company of its equity
securities pursuant to an effective
registration statement filed under the
Securities Act, including the Company's
initial public offering, you agree not to
sell, make any short sale of, loan,
hypothecate, pledge, grant any option for
the purchase of, or otherwise dispose or
transfer for value or agree to engage in any
of the foregoing transactions with respect
to any shares of Stock without the prior
written consent of the Company or its
underwriters, for such period of time after
the effective date of such registration
statement as may be requested by the Company
or the underwriters (not to exceed 180 days
in length).
RETENTION RIGHTS Neither your option nor this Agreement give
you the right to be retained by the Company
(or any affiliates) in any capacity. The
Company (and any affiliates) reserve the
right to terminate your Service at any time
and for any reason.
SHAREHOLDER RIGHTS You, or your estate or heirs, have no rights
as a shareholder of the Company until a
certificate for your option's shares has
been issued.
No adjustments are made for dividends or
other rights if the applicable record date
occurs before your stock certificate is
issued, except as described in the Plan.
FORFEITURE OF RIGHTS If you should take actions in competition
with the Company, the Company shall have the
right to cause a forfeiture of your rights,
including, but not limited to, the right to
cause: (i) a forfeiture of any outstanding
option, and (ii) with respect to the period
commencing twelve (12) months prior to your
termination of Service with the Company and
ending twelve (12) months following such
termination of Service (A) a forfeiture of
any gain recognized by you upon the exercise
of an option or (B) a forfeiture
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of any Stock acquired by you upon the
exercise of an option (but the Company will
pay you the option price without interest).
Unless otherwise specified in an employment
or other agreement between the Company and
you, you take actions in competition with
the Company if you directly or indirectly,
own, manage, operate, join or control, or
participate in the ownership, management,
operation or control of, or are a
proprietor, director, officer, stockholder,
member, partner or an employee or agent of,
or a consultant to any business, firm,
corporation, partnership or other entity
which competes with any business in which
the Company or any of its affiliates is
engaged during your employment or other
relationship with the Company or its
affiliates or at the time of your
termination of Service. Under the prior
sentence, ownership of less than 1% of the
securities of a public company shall not be
treated as an action in competition with the
Company.
ADJUSTMENTS In the event of a stock split, a stock
dividend or a similar change in the Stock,
the number of shares covered by this option
and the option price per share shall be
adjusted (and rounded down to the nearest
whole number) if required pursuant to the
Plan. Your option shall be subject to the
terms of the agreement of merger,
liquidation or reorganization in the event
the Company is subject to such corporate
activity.
APPLICABLE LAW This Agreement will be interpreted and
enforced under the laws of the State of
Colorado, other than any conflicts or choice
of law rule or principle that might
otherwise refer construction or
interpretation of this Agreement to the
substantive law of another jurisdiction.
THE PLAN The text of the Plan is incorporated in this
Agreement by reference. Certain capitalized
terms used in this Agreement are defined in
the Plan, and have the meaning set forth in
the Plan.
This Agreement and the Plan constitute the
entire understanding between you and the
Company regarding this option. Any prior
agreements, commitments or negotiations
concerning this option are superseded.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL
OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
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