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EXHIBIT 10.8
THE STOCK OPTION EVIDENCED BY THIS STOCK OPTION AGREEMENT, AND ANY SHARES
ACQUIRED UPON THE EXERCISE THEREOF, HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE,
IN RELIANCE ON CERTAIN EXEMPTIONS PROVIDED THEREUNDER.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into as
of October __, 1996 (the "Execution Date"), by and between INFOMED HOLDINGS,
INC., a Delaware corporation (the "Corporation"), and the person whose name
appears on the signature page hereof (the "Optionee").
W I T N E S S E T H:
WHEREAS, as of the original date of grant of the Option described herein,
the Optionee was an employee or director of the Corporation or one of its
subsidiaries; and
WHEREAS, on the date set forth opposite the name of the Optionee on the
signature page hereof (the "Effective Date"), the Optionee was granted stock
options by the Corporation, but such stock options were not previously evidenced
by any formal written agreement; and
WHEREAS, the Corporation and the Optionee desire to reflect the terms of
such stock options in this Agreement (it being agreed that the provisions of
this Agreement are not intended to constitute a modification of any material
economic terms of such stock options);
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants contained herein, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of this Agreement,
the Corporation hereby grants, effective as of the Effective Date, to the
Optionee the right and option (the "Option") to purchase that number of shares
of the Corporation's $.001 par value common stock (the "Common Stock") set forth
in Schedule I to this Agreement (the "Option Shares").
2. EXERCISE PRICE. The purchase price (the "Exercise Price") for each
Option Share shall be the price per share set forth in Schedule I to this
Agreement, subject to adjustment from time to time as hereinafter provided.
3. EXERCISE OF OPTION.
(a) To the extent that the Option has become and remains exercisable it
may be exercised by the Optionee delivering to the Corporation a written notice
of exercise signed by the Optionee, in substantially the form attached hereto as
Exhibit A (a "Notice of Exercise"), together with a check payable to the
Corporation in the amount of the total Exercise Price for the Option Shares to
be purchased pursuant to the Notice of Exercise.
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(b) The Optionee may exercise the Option for less than the full number
of Option Shares with respect to which the Option is exercisable (the "Available
Option Shares"), but no fractional shares of Common Stock shall be issued.
Subject to the other restrictions on exercise set forth herein, the unexercised
portion of the exercisable Option may be exercised at a later date by the
Optionee.
(c) Within thirty (30) days after the exercise of the Option as herein
provided, the Corporation shall deliver to the Optionee a certificate or
certificates for the total Option Shares being purchased, in such names and
denominations as are requested by the Optionee.
(d) Neither the Option nor the Option Shares have been registered under
the Securities Act of 1933, as amended (the "Act"), or under the securities laws
of any state. Unless the issuance of shares of Common Stock are covered by an
effective registration statement at the time the Option is exercised, each
certificate representing Option Shares issued upon the exercise of the Option
shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (ii) THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL
ACCEPTABLE TO THE CORPORATION THAT REGISTRATION UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED SALE, PLEDGE OR TRANSFER.
The Optionee and the Corporation agree to execute such documents and instruments
as counsel for the Corporation reasonably deems necessary to ensure that the
granting of the Option and the issuance of any shares upon the exercise thereof
will be in compliance with applicable federal and state securities laws.
(e) The Corporation covenants and agrees that all Option Shares which
may be issued upon exercise of the Option shall, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid and
nonassessable, and free from all liens, claims and encumbrances, except
restrictions imposed by applicable securities laws, the Corporation's Articles
of Incorporation and/or this Agreement. The Corporation shall at all times
reserve and keep available for issuance upon the exercise of the Option such
number of authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of the Option.
4. TERM OF OPTION.
(a) The term of the Option shall commence on the Effective Date set
forth in Schedule I to this Agreement, and shall continue in effect until the
first to occur of the following:
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(i) the date on which the Option has been fully exercised with respect to all of
the Option Shares; or (ii) the date specified as the expiration date of the
Option on Schedule I hereto (the "Expiration Date").
(b) In the event of the Optionee's death, the Option may be exercised
hereunder by the Optionee's personal representative, legatees or heirs at law,
as the case may be, and in the case of the Optionee's mental incompetence, by
his legal guardian, or if none has been appointed, by his duly authorized
attorney-in-fact.
5. NONTRANSFERABILITY. This Agreement, the Option and all rights hereunder
are nontransferable and nonassignable by the Optionee, other than by the last
will and testament of the Optionee or the laws of descent and distribution,
unless the Corporation consents thereto in writing. Any transfer or attempted
transfer except pursuant to the preceding sentence shall be null and void and of
no effect whatsoever.
6. ADJUSTMENTS.
(a) If, prior to the termination of the Option as provided in Section
4(a) hereof, the number of outstanding shares of Common Stock is increased by a
stock split, stock dividend, or other similar event, the Exercise Price in
effect immediately prior to such event shall be proportionately reduced, and
conversely, if the number of outstanding shares of Common Stock is decreased by
a combination or reclassification of shares, or other similar event, the
Exercise Price in effect immediately prior to such event shall be
proportionately increased. Upon each adjustment of the Exercise Price, the
Optionee shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment, and rounding down to the nearest whole share.
(b) If, prior to the termination of the Option as provided in Section
4(a) hereof, the Corporation shall effect a merger, consolidation, exchange of
shares, recapitalization, reorganization or other similar event, or shall sell,
transfer or otherwise dispose of all or substantially all of its property,
assets or business, and, pursuant to the terms of such merger, consolidation,
exchange of shares, recapitalization, reorganization, or disposition of assets,
property or business, shares of Common Stock shall be changed into the same or a
different number of shares of the same or another class or classes of stock or
securities of the Corporation, successor or transferee or an affiliate thereof
or cash or other property or assets, then the Optionee shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified in this Agreement and in lieu of the Option Shares immediately
theretofore purchasable and receivable upon the exercise of the Option, such
shares of stock and/or securities, property or cash as may be issued or payable
with respect to or in exchange for the number of Option Shares immediately
theretofore purchasable and receivable upon the exercise of the Option had such
merger, consolidation, exchange of shares, recapitalization or reorganization
not taken place, and, in any such case, appropriate provisions shall be made
with respect to the rights and interests of the Optionee to the end that the
provisions hereof (including,
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without limitation, provisions for adjustment of the Exercise Price and of the
number of shares purchasable upon the exercise of the Option) shall thereafter
be applicable, as nearly as may be practicable in relation to any shares of
stock or securities, property or cash thereafter deliverable upon the exercise
hereof. The provisions of this paragraph shall similarly apply to successive
reorganizations, mergers, consolidations or dispositions of assets. Upon any
reorganization, consolidation, merger or transfer hereinabove referred to, this
Agreement and the Option shall continue in full force and effect and the terms
hereof shall be applicable to the shares of stock and other securities,
property, assets and cash receivable upon the exercise of the Option after the
consummation of such merger, consolidation, exchange of shares,
recapitalization, reorganization or transfer, as the case may be. The
Corporation shall not effect any such merger, consolidation, exchange of shares,
recapitalization, reorganization or transfer unless, prior to the consummation
thereof, the successor corporation (if other than the Corporation) resulting
therefrom or the corporation purchasing such assets shall, by written instrument
executed and mailed to the registered holder hereof at the last address of such
holder appearing on the books of the Company, (i) assume the obligation to
deliver to such holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
purchase, and (ii) agree to be bound by all the terms of this Agreement.
7. INVESTMENT REPRESENTATION. Unless the issuance of shares of Common Stock
are covered by an effective registration statement at the time the Option is
exercised, as a condition to the issuance of Option Shares hereunder, the
Optionee shall represent to the Corporation that the Option Shares acquired
pursuant to such exercise are being purchased for his or her own account for
investment purposes only and not with a present view to resale or a distribution
thereof, unless the Corporation receives an opinion of counsel acceptable to the
Corporation that such a representation is not required under the Act or any
state securities laws. The Optionee acknowledges that he or she has no right to
require the Corporation or any other person or entity to (a) register under the
Act or any state securities law any shares of Common Stock issued upon exercise
of the Option, or (b) satisfy the conditions of Rule 144 of the Securities and
Exchange Commission or any other rule or provision with respect to the public
sale of such Common Stock.
8. NO EMPLOYMENT RIGHT. Neither this Agreement nor the Option shall give
rise to any entitlement to the Optionee to continue to be employed or to serve
as a director or be compensated for any services by the Corporation or any of
its subsidiaries.
9. NO RIGHTS AS A SHAREHOLDER. The Optionee shall not have any interest in
or shareholder rights with respect to any shares of Common Stock (or other
securities) which are (or may become) subject to the Option until such shares
(or other securities) have been issued and delivered to the Optionee in
accordance with this Agreement.
10. TAXES. As a condition to the issuance of Option Shares hereunder, the
Corporation may withhold, or require the Optionee to pay or reimburse the
Corporation for, any taxes which the Corporation determines are required to be
withheld under federal, state or local law in connection with the exercise of
the Option.
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11. HEIRS AND SUCCESSORS. This Agreement and all terms and conditions
hereof shall be binding upon the Corporation and its successors and assigns, and
upon the Optionee and his heirs, legatees and legal representatives.
12. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
13. NOTICES. All notices, requests and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given and received when delivered in person, when delivered by overnight
delivery service, or three (3) business days after being mailed by registered or
certified mail, postage prepaid, return receipt requested, to the following
addresses (or to such other address as one party may from time to time designate
in writing to the other party hereto):
If to the Corporation: InfoMed Holdings, Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
If to the Optionee: At the address set forth in Schedule I
to this Agreement
14. SEVERABILITY. The provisions of this Agreement, and of each separate
section and subsection, are severable, and if any one or more provisions may be
determined to be illegal or otherwise enforceable, in whole or in part, the
remaining provisions, and any unenforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
INFOMED HOLDINGS, INC.
By:
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Chief Executive Officer
OPTIONEE:
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Name:
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EXHIBIT A
[DATE]
InfoMed, Inc.
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Attention: President
Re: Exercise of Stock Option
Dear Sir:
The undersigned, __________________, pursuant to that certain Stock
Option Agreement dated as of __________, 199_, by and between InfoMed, Inc.
and the undersigned (the "Agreement"), hereby exercises the Option granted
under the Agreement for the following number of Option Shares, subject to
the terms and conditions of the Agreement:
Number of Option Shares Being Purchased:
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Total Purchase Price and Amount Remitted:
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Very truly yours,
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[Name]
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EXHIBIT A
SCHEDULE I
Name of Optionee:
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Number of Option Shares:
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Exercise Price (as of Effective Date):
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Effective Date of Option:
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Expiration Date of Option:
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