Exhibit 4.3
NATIONAL QUALITY CARE, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of September 9, 1998, by and between National
Quality Care, Inc., a Delaware corporation (the "Company"), and Xxxxxx Xxxx,
M.D. ("Optionee").
R E C I T A L
The Board of Directors of the Company (the "Board of Directors") has
authorized the granting to Optionee, for services previously rendered by
Optionee as an employee or a consultant to the Company, of a non-qualified stock
option to purchase the number of shares of Common Stock of the Company specified
in Paragraph 1 hereof, at the price specified therein, such option to be for the
term and upon the terms and conditions hereinafter stated.
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 of
Directors, the Company hereby grants to Optionee, in consideration of employment
or consulting services performed for the benefit of the Company, the option
("Option") to purchase up to 42,000 shares ("Shares") of Common Stock of the
Company, at the exercise price of $0.28 per share.
2. TERM. This Option shall expire five (5) years from the date first
written above.
3. SHARES SUBJECT TO EXERCISE. All of the Options granted hereunder shall
vest and be exercisable immediately, in the event that the Company's financial
statements, as filed in the Company's Form 10-QSB for the quarter ending
September 30, 1998, shall reflect positive income from operations during the
quarterly period ending September 30, 1998, and shall thereafter remain subject
to exercise for the term specified in Paragraph 2 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 in the amount of the purchase price of such shares plus the amount of
applicable federal, state and local withholding taxes, and the written statement
provided for in Paragraph 10 hereof, if required by such Paragraph 10. Not less
than 100 shares may be purchased at any one time unless the number purchased is
the total number purchasable under such Option at the time. Only whole shares
may be purchased.
5. TAX WITHHOLDING. 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 Company 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. This Option shall not terminate
as a result of the termination of Optionee's services as an employee or a
consultant to the Company.
7. NONTRANSFERABILITY. This Option may not be assigned or transferred
except, if applicable, by will or by the laws of descent and distribution, and
may be exercised only by Optionee during Optionee's lifetime and after
Optionee's death, by Optionee's representative or by the person entitled thereto
under Optionee's 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.
9. NO RIGHT TO EMPLOYMENT OR TO PERFORM SERVICES. Nothing in this Option
shall confer upon the Optionee any right to employment or to perform services
for the Company, or shall interfere with or restrict in any way the rights of
the Company to discharge or terminate Optionee as an employee, independent
contractor or consultant at any time for any reason whatsoever, with or without
good cause.
10. RESTRICTIONS ON SALE OF SHARES. Optionee represents and agrees that,
upon Optionee's exercise of the Option in whole or part, unless there is in
effect at that time under the Securities Act of 1933, as amended, 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 Optionee 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
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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11. NOTICES. All notices to the Company shall be addressed to the Company
at the principal office of the Company at 0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx, Xxxxx
000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Telecopier No. (000) 000-0000, and all
notices to Optionee shall be addressed to Optionee at the address and telecopier
number of Optionee on file with the Company, or to such other address and
telecopier number 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 and followed by telecopier to the addressee. 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 Company (as the case may be).
12. SALE OR OTHER DISPOSITION. If Optionee at any time contemplates the
disposition (whether by sale, gift, exchange or other form of transfer) of any
Shares acquired by exercise of this Option, 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.
13. ADJUSTMENTS. If there is any change in the capitalization of the
Company affecting in any manner the number or kind of outstanding shares of
Common Stock of the Company, whether by stock dividend, stock split,
reclassification or recapitalization of such stock, or because the Company has
merged or consolidated with one or more other corporations (and provided the
Option does not thereby terminate pursuant to Section 2 hereof), then the number
and kind of shares then subject to the Option and the price to be paid therefor
shall be appropriately adjusted by the Board of Directors; provided, however,
that in no event shall any such adjustment result in the Company's being
required to sell or issue any fractional shares. Any such adjustment shall be
made without change in the aggregate purchase price applicable to the
unexercised portion of the Option, but with an appropriate adjustment to the
price of each Share or other unit of security covered by this Option.
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14. CESSATION OF CORPORATE EXISTENCE. Notwithstanding any other provision
of this Option, upon the dissolution or liquidation of the Company, the
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or the sale of substantially all the assets of the Company or of more than 50%
of the then outstanding stock of the Company to another corporation or other
entity, the Option granted hereunder shall terminate; provided, however, that:
(i) each Option for which no option has been tendered by the surviving
corporation in accordance with all of the terms of provision (ii) immediately
below shall, within five days before the effective date of such dissolution or
liquidation, merger or consolidation or sale of assets in which the Company is
not the surviving corporation or sale of stock, become fully exercisable; or
(ii) in its sole and absolute discretion, the surviving corporation may, but
shall not be so obligated to, tender to any Optionee, an option to purchase
shares of the surviving corporation, and such new option or options shall
contain such terms and provisions as shall be required substantially to preserve
the rights and benefits of this Option.
15. INVALID PROVISIONS. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable under any applicable law, such
invalidity or unenforceability shall not be construed as rendering any other
provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid or unenforceable provision were not contained herein.
16. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
17. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the parties hereto and
delivered to the other.
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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:_________________________________
Xxx Xxxxxxxxx
Chief Operating Officer
Social Security Number
or Employer Identification
Number: ("Optionee")
_______________________________ By:________________________________
Xxxxxx Xxxx, M.D.
Address:
________________________________
________________________________
________________________________
________________________________
Telecopier No. (____) ___-____
