EXHIBIT 4.6
ENDOCARE, INC.
1995 STOCK PLAN
(As Amended and Restated Effective April 16, 2002)
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
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You have been granted an option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as
follows:
Grant Number 703
Date of Grant August 18, 2004
Vesting Commencement Date August 11, 2004
Exercise Price Per Share $2.15
Total Number of Shares Granted 89,634
Total Exercise Price $192,713.10
Type of Option [ ] Incentive Stock Option
[X] Nonstatutory Stock Option
Term/Expiration Date August 18, 2014
Vesting Schedule:
This Option may be exercised. in whole or in part. in accordance with the
following schedule:
25% of the Shares subject to the Option shall vest upon Optionee's
completion of twelve (12) months of Service measured from the Vesting
Commencement Date, and an additional 1/48 of the Shares shall vest upon
Optionee's completion of each additional month of Service thereafter.
For purposes of this Agreement, "Service" shall mean the Optionee's
performance of services for the Company (or any Parent or Subsidiary) in the
capacity of an Employee, Director or Consultant.
Termination Period:
This Option may be exercised for ninety (90) days after termination of the
Optionee's Service for any reason other than death or Disability. However, upon
the death or Disability of the Optionee, this Option may be exercised for such
longer period as provided in the Plan. In no event shall this Option be
exercised later than the Term/Expiration Date specified above.
II. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby grants
to the Optionee named in the Notice of Grant attached as Part I of this
Agreement (the "Optionee") an option (the "Option") to purchase the number of
Shares, as set forth in the Notice of Grant, at the exercise price per share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the Plan, which is incorporated herein by reference. Subject to
Section 15(c) of the Plan, in the event of a conflict between the terms and
conditions of the Plan and the terms and conditions of this Option Agreement,
the terms and conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option ("ISO"),
this Option is intended to qualify as an Incentive Stock Option under Section
422 of the Code. However, if this Option is intended to be an Incentive Stock
Option, to the extent that it exceeds the $100,000 rule of Code Section 422(d)
it shall be treated as a Nonstatutory Stock Option ("NSO").
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement. In the event of
Optionee's death, Disability or other termination of Optionee's Service, the
exercisability of the Option is governed by the applicable provisions of the
Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by
delivery of an exercise notice, in the form attached as Exhibit A (the "Exercise
Notice"), which shall state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised (the "Exercised
Shares"), and such other representations and agreements as may be required by
the Company pursuant to the provisions of the Plan. The Exercise Notice shall be
signed by the Optionee and shall be delivered in person or by certified mail to
the Secretary of the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
2.
No Shares shall be issued pursuant to the exercise of this Option unless
such issuance and exercise complies with all relevant provisions of law and the
requirements of any stock exchange or quotation service upon which the Shares
are then listed. Assuming such compliance, for income tax purposes the Exercised
Shares shall be considered transferred to the Optionee on the date the Option is
exercised with respect to such Exercised Shares.
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash; or
(b) check; or
(c) delivery of a properly executed exercise notice together with
such other documentation as the Administrator and the broker, if applicable,
shall require to effect an exercise of the Option and delivery to the Company of
the sale or loan proceeds required to pay the exercise price; or
(d) surrender of other Shares which (i) have been owned by the
Optionee for more than six (6) months on the date of surrender and (ii) have a
Fair Market Value on the date of surrender equal to the aggregate Exercise Price
of the Exercised Shares; or
(e) to the extent expressly authorized by the Plan Administrator,
delivery of Optionee's promissory note (the "Note") in the form attached hereto
as Exhibit C, in the amount of the aggregate Exercise Price of the Exercised
Shares together with the execution and delivery by the Optionee of the Security
Agreement attached hereto as Exhibit B. The Note shall bear interest at a rate
no less than the "applicable federal rate" prescribed under the Code and its
regulations at time of purchase, and shall be secured by a pledge of the Shares
purchased by the Note pursuant to the Security Agreement.
4. Limited Transferability of Option. This Option shall be neither
transferable nor assignable by Optionee other than by will or by the laws of
descent and distribution following Optionee's death and may be exercised, during
Optionee's lifetime, only by Optionee. However, if this Option is designated a
Non-Statutory Option in Part I of this Agreement, then this Option may, in
connection with the Optionee's estate plan, be assigned in whole or in part
during Optionee's lifetime to one or more Family Members of the Optionee or to a
trust established for the exclusive benefit of one or more such Family Members.
The assigned portion shall be exercisable only by the person or persons who
acquire a proprietary interest in the Option pursuant to such assignment. The
terms applicable to the assigned portion shall be the same as those in effect
for this Option immediately prior to such assignment.
For purposes of this Section 4, a Family Member shall be limited to
the Optionee's children, stepchildren, grandchildren, parents, stepparents,
grandparents, spouse, former spouse, siblings, nieces, nephews, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
including adoptive relationships, a trust in which any of the
3.
foregoing individuals have more than a fifty percent (50%) beneficial interest,
a foundation in which any of the foregoing individuals (or the Optionee) control
the management of assets, and any other entity in which any of the foregoing
individuals (or Optionee) own more than fifty percent (50%) of the voting
interests.
5. Term of Option. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option Agreement.
6. Tax Consequences. Some of the federal and Delaware tax consequences
relating to this Option, as of the date of this Option, are set forth below.
THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING
THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercising the Option.
(i) Nonstatutory Stock Option. The Optionee may incur regular
federal tax liability upon exercise of a NSO. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the Fair Market Value of the Exercised Shares on the
date of exercise over their aggregate Exercise Price. If the Optionee is an
Employee or a former Employee, the Company will be required to withhold from his
or her compensation or collect from Optionee and pay to the applicable taxing
authorities an amount in cash equal to a percentage of this compensation income
at the time of exercise, and may refuse to honor the exercise and refuse to
deliver Shares if such withholding amounts are not delivered at the time of
exercise.
(ii) Incentive Stock Option. If this Option qualifies as an
ISO, the Optionee will have no regular federal income tax liability upon its
exercise, although the excess, if any, of the Fair Market Value of the Exercised
Shares on the date of exercise over their aggregate Exercise Price will be
treated as an adjustment to alternative minimum taxable income for federal tax
purposes and may subject the Optionee to alternative minimum tax in the year of
exercise. In the event that the Optionee undergoes a change of status from
Employee to Consultant or Outside Director, any Incentive Stock Option of the
Optionee that remains unexercised three (3) months following such change in
status shall cease to qualify as an Incentive Stock Option and will be treated
for tax purposes as a Nonstatutory Stock Option.
(b) Disposition of Shares.
(i) NSO. If the Optionee holds NSO Shares for at least one
year, any gain realized on disposition of the Shares will be treated as
long-term capital gain for federal income tax purposes.
4.
(ii) ISO. If the Optionee holds ISO Shares for at least one
year after exercise and two years after the grant date, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes. If the Optionee disposes of ISO Shares within one year
after exercise or two years after the grant date, any gain realized on such
disposition will be treated as compensation income (taxable at ordinary income
rates) to the extent of the excess, if any, of the lesser of (A) the difference
between the Fair Market Value of the Shares acquired on the date of exercise and
the aggregate Exercise Price, or (B) the difference between the sale price of
such Shares and the aggregate Exercise Price.
(c) Notice of Disqualifying Disposition of ISO Shares. If the
Optionee sells or otherwise disposes of any of the Shares acquired pursuant to
an ISO on or before the later of (i) two years after the grant date, or (ii) one
year after the exercise date, the Optionee shall immediately notify the Company
in writing of such disposition. The Optionee agrees that he or she may be
subject to income tax withholding by the Company on the compensation income
recognized from such early disposition of ISO Shares by payment in cash or out
of the current earnings paid to the Optionee.
7. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan and this 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 the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Optionee. This agreement is governed by Delaware law except for that body of law
pertaining to conflict of laws.
By your signature and the signature of the Company's representative below,
you and the Company agree that this Option is granted under and governed by the
terms and conditions of the Plan and this Option Agreement. Optionee has
reviewed the Plan and this Option Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Option
Agreement and fully understands all provisions of the Plan and Option Agreement.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Administrator upon any questions relating to the Plan
and Option Agreement. Optionee further agrees to notify the Company upon any
change in the residence address indicated below.
OPTIONEE: ENDOCARE, INC.
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Signature ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CEO and Chairman
Address:
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5.
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby approves the terms
and conditions of the Plan and this Option Agreement. In consideration of the
Company's granting his or her spouse the right to purchase Shares as set forth
in the Plan and this Option Agreement, the undersigned hereby agrees to be
irrevocably bound by the terms and conditions of the Plan and this Option
Agreement and further agrees that any community property interest shall be
similarly bound. The undersigned hereby appoints the undersigned's spouse as
attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Option Agreement.
_____________________
Spouse of Optionee
EXHIBIT A
ENDOCARE, INC.
1995 STOCK PLAN
(AS AMENDED AND RESTATED EFFECTIVE APRIL 16, 2002)
EXERCISE NOTICE
Endocare, Inc.
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Attention: Corporate Secretary
1. Exercise of Option: Effective as of today, _______________, 200_ the
undersigned ("Purchaser") hereby elects to purchase ___________ shares
(the "Shares") of the Common Stock of Endocare, Inc. (the "Company") under
and pursuant to the 1995 Stock Plan (the "Plan") and the Stock Option
Agreement dated _________________ (the "Agreement"). The purchase price
for the Shares shall be $___________, as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the full
purchase price for the Shares.
3. Representations of Purchaser: Purchaser acknowledges that Purchaser has
received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent
of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of
the Option. A share certificate for the number of Shares so acquired shall
be issued to the Optionee as soon as practicable after exercise of the
Option. No adjustment will be made for a dividend or other right for which
the record date is prior to the date the stock certificate is issued,
except as provided in Section 13 of the Plan.
5. Tax Consultation. Purchaser understands that Purchaser may suffer adverse
tax consequences as a result of Purchaser's purchase or disposition of the
Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company
for any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. This Agreement, the Plan 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 the Company and Purchaser with respect to
the subject matter hereof, and may not be modified adversely to the
Purchaser's interest except by means of a writing signed by the Company
and Purchaser. This agreement is governed by Delaware law except for that
body of law pertaining to conflict of laws.
Submitted by: Accepted by:
PURCHASER ENDOCARE, INC.
__________________________ By:________________________
Signature
__________________________ Its:_______________________
Print Name
__________________________
Social Security No:
Address: Address:
__________________________ Endocare, Inc.
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ADDENDUM TO STOCK OPTION AGREEMENT
ACCREDITED INVESTOR
The following representations, warranties and covenants are hereby
incorporated into, and are hereby made a part of, that certain Stock Option
Agreement (the "Option Agreement") by and between Endocare, Inc. (the "Company")
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Optionee") evidencing the stock option (the "Option")
granted on August 18, 2004 to Optionee under the terms of the Plan. All
capitalized terms in this Addendum not otherwise defined herein shall have the
meanings assigned to them in the Option Agreement.
The Optionee hereby represents, warrants and covenants to and for the
benefit of the Company, with knowledge that the Company is relying thereon in
issuing the Option to the Optionee, as follows:
1. The Option and the shares issuable upon exercise of the Option
(collectively, the "Securities") shall be acquired for investment for the
Optionee's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof. The Optionee has no present
intention of selling, granting any participation in, or otherwise distributing
the same. The Optionee further represents that the Optionee does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Securities.
2. The Optionee, by reason of the Optionee's business or financial
experience, is capable of evaluating the merits and risks of the investment in
the Securities and of protecting the Optionee's interests in connection with the
investment in the Securities.
3. The Optionee has a preexisting personal or business relationship
with the Company or one or more of its officers, directors or controlling
persons and is aware of its (their) character, business acumen, and general
business and financial condition.
4. The Optionee is an "accredited investor" within the meaning of Rule
501(a) of Regulation D adopted by the Securities and Exchange Commission under
the Securities Act of 1933.
5. The Optionee has not seen or received any advertisement or general
solicitation with respect to the sale of the Securities.
6. The Optionee has been provided with financial and other written
information about the Company, and has been given the opportunity by the Company
to obtain any information and ask questions concerning the Company, the
Securities, and the Optionee's investment that the Optionee felt necessary. To
the extent requested, Optionee has received satisfactory information and
answers.
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7. In reaching the decision to invest in the Securities, the Optionee
evaluated such Optionee's financial resources and investment position and the
risks associated with the investment, and acknowledges that such Optionee is
able to bear the economic risks of this investment.
8. The Optionee agrees to not exercise the Option until the Securities
are registered pursuant to an effective Registration Statement on Form S-8.
OPTIONEE: ENDOCARE, INC.
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Signature ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CEO and Chairman