EXHIBIT (D)(6)
NITINOL MEDICAL TECHNOLOGIES
NONQUALIFIED STOCK OPTION LETTER AGREEMENT
Date of Grant: May 6, 1996
No. of Shares: 77,622 (reflects all
adjustments to the common stock of the
Company through February 20, 1997)
1. Grant of Option. FOR VALUE RECEIVED, Nitinol Medical Technologies, Inc., a
Delaware corporation (the "Company"), hereby grants to ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Optionee"), the following nonqualified option ("Option") to subscribe for and
purchase, upon the terms and conditions hereinafter set forth, an aggregate of
77,622 shares (which number reflects all adjustments to the common stock of the
Company from the date of the grant through February 20, 1997 and, subject to
future adjustment as hereinafter provided) of the Company's common stock, par
value $.001 per share ("Stock") at an exercise price equal to $6.95 per share
("Exercise Price"). It is understood that this Option is not intended to
constitute an incentive stock option as that term is defined in Section 422A of
the Internal Revenue Code of 1986, as amended and is not being issued pursuant
to any plan of the Company.
2. Term. The term of the Option is ten years from date of grant, unless sooner
terminated.
3. Exercise. The Optionee may exercise the vested portion of the Option in
whole or in part, but not as to any fractional shares, by surrender of this
Option and by delivering to the Company a Notice of Exercise, substantially in
the form attached hereto as Exhibit A, pursuant to which Optionee agrees that he
or she is purchasing the shares of Stock for investment purposes and not with a
view to distribution otherwise than in compliance with the Securities Act of
1933, as amended (the "Securities Act"), and agrees not to offer to sell, sell
or otherwise dispose of, any of such shares acquired by Optionee pursuant to
this Option in violation of the Securities Act or any applicable state
securities laws, together with a certified check or bank check in the amount of
the aggregate Exercise Price for the number of shares to be purchased pursuant
to such exercise. Unless the Board of Directors of the Company, in its sole
discretion, determine otherwise, the Option may also be exercised by the
delivery of a properly executed Notice of Exercise together with irrevocable
instructions to a broker to promptly deliver to the Company the amount of sale
or loan proceeds to pay the exercise price and any applicable withholding taxes.
4. Payment for Shares. The Shares purchased shall be deemed to be issued to
the Optionee on the date on which the Option is surrendered and payment is made
for the shares. Certificates representing the shares purchased shall be
delivered to the Optionee with ten days after the rights represented by the
Option have been properly exercised. Unless the Option shall have expired or
shall have been fully exercised, a new Stock Option Letter Agreement in the same
form as this Stock Option Letter Agreement representing any number of shares for
which this Option shall not have been exercised, shall also be delivered to the
Optionee within that time.
5. Termination. The Option will terminate immediately after cessation of your
relationship with the Company or any subsidiary thereof, unless cessation is due
to death, in which case the Option shall terminate 12 months after cessation of
such relationship, or if cessation is due to retirement or disability, in which
case the Option shall terminate three months after cessation of such
relationship.
6. Transfer of Option. The Option is not transferable, except by will or by
applicable laws of descent and distribution or pursuant to a qualified domestic
relations order.
7. Vesting. During the period of Optionee's continuous relationship with the
Company or any subsidiary thereof, the Option shall become exercisable in equal
monthly installments on the last day of each month over a 36 month period
commencing on the last day of the month during which this Option has been
granted.
8. Shares to be Fully Paid; Reservation. The Company covenants and agrees that
when issued and paid for in accordance with the terms of this Stock Option
Letter Agreement, the shares of Common Stock underlying this Option shall, upon
issuance, be fully paid and nonassessable and free from all taxes, liens and
charges related to the issuance of the shares. The Company further covenants
and agrees that during the period within which the rights represented by this
Option may be exercised, the Company shall, at all times, have authorized and
reserved for the purpose of issuance or transfer on exercise of this Option a
sufficient number of shares subject to this Option to provide for its exercise.
9. Adjustment of Number of Option Shares. The number and class of shares
covered by this Option, and the exercise price per share thereof (but not the
total price), shall all be proportionately adjusted for any increase or decrease
in the number of issued shares of Common Stock of the Company resulting from a
split or consolidation of shares or any like capital adjustment, or the payment
of any stock dividend. Any adjustment made pursuant to this paragraph shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
10. Legend. The Optionee consents to the placement of any legend required by
applicable state securities laws and of the following legend on each certificate
representing the Stock:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, ANY MAY NOT BE SOLD, TRANSFERRED,
EXCHANGED OR OTHERWISE DISPOSED OF UNLESS (1) A REGISTRATION STATEMENT
UNDER SUCH ACT IS THEN IN EFFECT WITH RESPECT THERETO, (2) A WRITTEN
OPINION FROM COUNSEL FOR THE ISSUER OF OTHER COUNSEL FOR THE HOLDER
REASONABLY ACCEPTABLE TO THE ISSUER HAS BEEN OBTAINED TO THE EFFECT THAT NO
SUCH REGISTRATION IS REQUIRED, OR (3) A "NO ACTION" LETTER OR ITS THEN
EQUIVALENT HAS BEEN ISSUED BY THE SECURITIES EXCHANGE COMMISSION TO THE
EFFECT THAT NO SUCH REGISTRATION IS REQUIRED IN CONNECTION THEREWITH."
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11. Assignment. This Option, without the prior written consent of the Company,
may not be sold, conveyed, assigned, or otherwise transferred and any such
attempt to transfer shall be void ab initio. Notwithstanding the foregoing,
this Option may be transferred to the Optionee's spouse or children by operation
of law or otherwise in the event of the Optionee's death.
12. No Shareholder Rights. The Optionee shall have no rights as a shareholder
of the Company with respect to shares of Common Stock covered by this Option
until payment for such shares shall have been made in full and until the date of
issuance of a stock certificate for such shares.
13. Lock-Up Agreement. Upon request of the Company, the Optionee agrees to
execute an agreement, in form and substance satisfactory to the managing
underwriter or underwriters of the Company's securities, not to sell, pledge,
contract to sell, grant any option or otherwise dispose of any shares of Stock
owned or acquired by the Optionee upon exercising of this Option for such period
of time as requested by such underwriter in connection with any public offering
of the Company's securities.
14. Miscellaneous.
(a) This Agreement shall be construed in accordance with and governed by, the
internal laws of the State of Delaware (without reference to its rules as
to conflicts of law).
(b) This Agreement may only be modified by a writing signed by each of the
parties hereto.
(c) The section headings herein are for convenience only and shall not affect
the construction thereof.
(d) All notices hereunder shall be in writing and if to the Company, shall be
delivered personally to the Secretary of the Company or mailed, by
certified mail, return receipt requested or guaranteed next business day
delivery service to its principal office, addressed to the attention of the
Secretary, and if to the Optionee, shall be delivered personally or mailed,
by certified mail, return receipt requested or by guaranteed next business
day delivery service to the address noted on the signature page of this
Share Option Agreement. Either party may change its address for receipt of
notices by advising the other party of such change in writing in accordance
with the preceding sentence.
(e) This Agreement may be executed in one or more counterparts but all such
separate counterparts shall constitute but one and the same instrument;
provided that, although executed in counterparts, the executed signature
pages of each such counterpart may be affixed to a single copy of this
Agreement which shall constitute an original.
(f) This Agreement is the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior
communications, representations agreements, negotiations and understandings
between the parties hereto.
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IN WITNESS WHEREOF, the Company has caused this Option to be executed by
its duly authorized officer as of this 20th day of February, 1997.
NITINOL MEDICAL TECHNOLOGIES, INC.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
OPTIONEE
Signature:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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(please print)
Address:____________________________
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EXHIBIT A
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NOTICE OF EXERCISE
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The undersigned, pursuant to a Nonqualified Stock Option Letter Agreement
(the "Agreement") between the undersigned and Nitinol Medical Technologies, Inc.
(the "Company"), hereby irrevocably elects to exercise purchase rights
represented by the Agreement, and to purchase thereunder _______ shares (the
"Shares") of the Company's common stock, $.001 par value ("Common Stock"),
covered by the Agreement and herewith makes payments in full therefor.
1. If the sale of the Shares and the resale thereof has not, prior to the
date hereof, been registered pursuant to a registration statement filed and
declared effective under the Securities Act of 1933, as amended (the "Act"), the
undersigned hereby agrees, represents, and warrants that:
(a) the undersigned is acquiring the Shares for his or her own account (and
not for the account of others), for investment and not with a view to the
distribution or resale thereof;
(b) by virtue of his or her position, the undersigned has access to the
same kind of information which would be available in a registration statement
filed under the Act;
(c) the undersigned is a sophisticated investor;
(d) the undersigned understands that he or she may not sell or otherwise
dispose of the Shares in the absence of either (i) a registration statement
filed under the Act or (ii) an exemption from the registration provisions
thereof; and
(e) the certificates representing the Shares may contain a legend to the
effect of subsection (d) of this Section.
2. If the sale of the Shares and the resale thereof has been registered
pursuant to a registration statement filed and declared effective under the Act,
the undersigned hereby represents and warrants that he or she has received the
applicable prospectus and a copy of the most recent annual report, as well as
all other material sent to stockholders generally.
3. The undersigned acknowledges that the number of shares of Common Stock
subject to the Agreement is hereafter reduced by the number of shares of Common
Stock represented by the Shares.
Very truly yours,
____________________________________________
(type name under signature line)
Social Security No._________________________
Address:____________________________________
____________________________________________
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NITINOL MEDICAL TECHNOLOGIES, INC.
NONQUALIFIED STOCK OPTION LETTER AGREEMENT
TO: ▇▇▇▇▇▇▇ ▇▇▇▇▇
This letter is to inform you of, and to correct, a typographical error in
the Termination Section of the Nonqualified Stock Option Letter Agreement with a
grant date of May 6, 1996 (the "Agreement") entered into between you and Nitinol
Medical Technologies, Inc. (the "Company"), pursuant to which the Company
granted to you a stock option.
The Termination Section of the Agreement inadvertently and incorrectly
states that if your relationship with the Company ceases for any reason any
other than death, disability or retirement, your option would terminate upon
such cessation. This Section of the Agreement also states that in the case of
termination of your relationship with the Company due to death or disability you
may exercise, for a twelve (12) month period and a three (3) month period,
respectively, that portion of your option which is exercisable at the time of
such termination.
In accordance with the intention of the Board of Directors of the Company
at the time of the grant, the Termination Section of the Agreement should have
stated the following: In the case of termination other than termination for
cause, death or disability, you may exercise, for a three (3) month period, that
portion of your option which is exercisable at the time of such cessation. If
the termination is for cause, the option granted automatically terminates as of
the first discovery by the Company of any reason for termination for cause. In
the case of termination of your relationship with the Company due to death or
disability, you may exercise for a twelve (12) month period that portion of your
option which is exercisable at the time of such termination.
The option granted to you under the Agreement is subject to the Termination
Section as corrected above, and not as stated previously in the Agreement.
Any questions regarding the foregoing should be addressed to ▇▇▇ ▇▇▇▇▇▇,
Executive Vice President and Chief Financial Officer of the Company.
Very truly yours,
Nitinol Medical Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer