▇▇▇▇▇▇.▇▇▇, INC. (FKA EMPOWER HEALTH CORPORATION)
AMENDED & RESTATED 1997 STOCK OPTION PLAN
AMENDED & RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED NONQUALIFIED STOCK OPTION AGREEMENT (the
"Agreement") is granted by ▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation (the
"Company") upon the following terms and conditions and pursuant and subject to
the ▇▇▇▇▇▇.▇▇▇, Inc. (fka Empower Health Corporation) Amended & Restated 1997
Stock Option Plan (the "Plan"). Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined meanings in this Agreement. This
Amended and Restated Non-Qualified Stock Option Agreement amends and restates in
its entirety the Stock Option Agreement dated August 6, 2001 previously entered
into by the parties.
I. NOTICE OF STOCK OPTION GRANT.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
You ("Optionee") have been granted an option (the "Option") to purchase
shares of Common Stock of the Company (the "Option Shares" or "Shares"), subject
to the terms and conditions of the Plan and this Agreement. The terms of your
grant are set forth below:
Date of Grant: August 6, 2001
Vesting Commencement Date: August 6, 2001
Exercise Price per Share: $0.128 per share
Total Number of Shares Granted: 500,000
Total Exercise Price: $64,000.00
Type of Option: Non-Qualified Stock Option
Term/Expiration Date: August 6, 2008 (Seventh anniversary
of Date of Grant)
II. AGREEMENT
1. GRANT OF OPTION. The Company grants to the Optionee an option to
purchase, on the terms and conditions hereinafter set forth, the number of
shares specified above
of the Company's Common Stock, par value $0.001 per share, at the option price
per share specified above.
2. PERIOD OF OPTION. This Option will expire at the close of business on
the Expiration Date, except that: (a) if the Optionee dies on or before the
Expiration Date, this Option shall expire as provided in Section 9 below; or (b)
if the Optionee ceases on or before the Expiration Date to be an Employee,
consultant or Director, this Option may be exercised one year after such
termination (or, if Optionee remains in Continuous Status (as defined below) as
an Employee, consultant or Director until the date that is 18 months following
the Date of Grant of this Option, three years after such termination) to the
extent exercisable immediately prior to such termination, but in no event later
than the Expiration Date. The term "Employee", as used in this Option, means any
executive and other salaried or non-salaried employee of the Company and/or one
or more of its subsidiary corporations. The term "consultant" shall have the
meaning set forth in Section 1 of the Plan. The term "Director" shall mean any
director of the Company whether compensated for such services or not.
For purposes of this Agreement, "Continuous Status" as an Employee,
consultant or Director shall mean the absence of any interruption or termination
of service as an Employee, consultant or Director. Continuous Status as an
Employee, consultant or Director shall not be considered interrupted in the case
of sick leave, military leave, or any other leave of absence approved by the
Committee (as defined in the Plan), provided that such leave is for a period of
not more than 90 days or reemployment upon the expiration of such leave is
guaranteed by contract or statute. For purposes of this Agreement, a change in
status from an Employee to a consultant or from a consultant to an Employee will
not constitute a termination of employment.
3. EXERCISE. Subject to the other provisions of this Option, the Shares
subject to this Option shall vest according to the following schedule:
Subject to the following paragraphs, this Option shall vest and become
exercisable with respect to twenty-five percent (25%) of the shares of the
Company's Common Stock subject to the Option on the Option's Vesting
Commencement Date, and thereafter, with respect to twenty-five percent (25%) of
the Shares on each successive twelve-month anniversary following the one-year
anniversary of the Option's Vesting Commencement Date (each, a "Vesting Date"),
commencing with the first such anniversary, such that this Option shall be
vested and exercisable with respect to one hundred percent (100%) of the Shares
on the third anniversary of the Option's Vesting Commencement Date; provided,
however, that Optionee has remained in Continuous Status as an Employee,
Director or Consultant as of each Vesting Date.
Notwithstanding the foregoing, this Option shall vest and become
exercisable with respect to one hundred percent (100%) of the Shares subject to
the Option immediately prior to the earlier of (i) Optionee's termination of
employment with the Company for Good Reason or by the Company for any reason
other than Cause, death or Disability (each such term as defined in that certain
Employment Agreement between the Company and Optionee, dated as of August 22,
2000, as may be amended from time to time), or (ii) in addition to the
conditions (if any) upon which the Option may automatically accelerate and
become exercisable in accordance with the Plan, upon the consummation of the
following: (a) any sale, merger, consolidation, tender offer or similar
acquisition of shares, or other transaction or series of related transactions
2
(each a "Transaction") as a result of which at least a majority of the voting
power of the Company is not held, directly or indirectly, by the persons or
entities who held the Company's securities with voting power before such
Transaction; (b) a sale or other disposition of all or substantially all of the
Company's assets, whether in one transaction or a series of related
transactions; or (c) individuals who on the date hereof constitute the Board of
Directors and any new Director (other than a Director designated by a person or
entity who has entered into an agreement to effect a transaction described in
clause (a) or (b) above) whose nomination and/or election to the Board of
Directors was approved by a vote of at least a majority of the Directors then
still in office who either were Directors on the date hereof or whose election
or nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board of Directors.
4. CERTAIN LIMITATIONS ON EXERCISE. No fractional shares may be
purchased hereunder.
5. INTENTIONALLY LEFT BLANK.
6. METHOD OF EXERCISE OF OPTION. During the term of this Option,
Optionee may exercise his or her option, from time to time, to the extent then
exercisable, by written notice directed to the Company at its principal place of
business. Such written notice shall specify the number of Option Shares he or
she is purchasing pursuant to this Agreement and the method of payment for such
shares, and shall be accompanied by the original of this Agreement so that an
appropriate endorsement can be made hereto to reflect the Option Shares so
purchased and to reduce accordingly the number of Option Shares thereafter to be
subject to the terms hereof. The Option Price for the number of Option Shares
being purchased shall be payable as follows: (a) in cash, (b) by delivery of
certificates representing shares of Common Stock having an equivalent fair
market value or by arranging with the Company and Optionee's broker to deliver
the appropriate Option Price from the concurrent market sale of the acquired
shares, or (c) a combination of any of the foregoing. Upon receipt of such
written notice, the original hereof, and full payment of the Option Price for
the number of Option Shares being purchased, the Company shall make delivery of
a certificate representing the number of such shares purchased as promptly as
possible thereafter, provided that, if any law or regulation requires the
Company to take any action with respect to such shares specified in such notice
before the issuance thereof, then the sale, issuance and delivery of such shares
shall be deferred for the period necessary to take such action.
Optionee's withholding tax due upon exercise of this Option may be
satisfied either by a cash payment or the retention from the exercise of a
number of shares of Common Stock with a fair market value equal to the required
withholding tax, as the Optionee and Company may agree. If Optionee is subject
to the reporting and other provisions of Section 16 under the Exchange Act, the
election of a partial cash settlement of the Option in order to satisfy the tax
withholding requirements upon exercise of this option may be made only during a
ten-day "window" period each fiscal quarter beginning on the third business day
following the date of release of the Company's financial data for the quarter
and ending on the twelfth business day following such date, and shall be subject
to the approval of the Company.
3
7. NON-TRANSFERABILITY OF OPTION. This Option shall be exercisable,
during the lifetime of the Optionee, only by him or her. This Option shall not
be transferable by the Optionee otherwise than by will or the laws of descent
and distribution unless approval in writing is obtained from the Committee
("Committee Approval"). Committee Approval shall only be available for a
transfer to a charitable organization, a family trust or member of the
Optionee's immediate family. Upon any other attempt to transfer, assign, pledge
or otherwise dispose of this Option, except as expressly permitted in this
Section 7, this Option shall immediately terminate and become null and void.
8. TERMINATION OF EMPLOYMENT OR SERVICE RELATIONSHIP. This Option
confers no right upon the Optionee with respect to the continuation of his or
her employment or service relationship with the Company or any of its
subsidiaries, and shall not interfere with the right of the Company or its
subsidiaries to terminate his or her employment or service relationship at any
time.
9. DEATH OF OPTIONEE. If the Optionee dies, this Option may be exercised
(to the extent exercisable at Optionee's date of death) at any time during the
year next succeeding such death, but in no event after the Expiration Date, by
the person or persons to whom his or her rights hereunder shall have passed by
will or by laws of descent and distribution.
10. ADJUSTMENT UPON THE OCCURRENCE OF CERTAIN EVENTS. The number of
shares subject to this Option and the exercise price per share are subject to
appropriate adjustment in the manner provided by the Plan for stock splits,
stock dividends, recapitalization or similar events which would change the
capital structure of the Company. No adjustment, however, shall result in or
entitle the Optionee to the issuance of fractional shares.
11. NOTICE. Any notice hereunder by the Optionee shall be given to the
Company in writing and such notice and any payment by the Optionee hereunder
shall be deemed duly given or made only upon receipt thereof at the Company's
office at Santa Monica, California, or at such other address as the Company may
designate by notice to the Optionee. Any notice or other communication to the
Optionee hereunder shall be in writing and any communication and any delivery to
the Optionee hereunder shall be deemed duly given or made if mailed, delivered
or made to the Optionee at such address as the Optionee may have on file with
the Company or in care of the Company at its principal office in Santa Monica,
California.
12. CONSTRUCTION. The construction of this Option is vested in the Board
of Directors of the Company or the Committee, if the Board shall have delegated
such responsibility to such Committee, whose construction shall be final and
conclusive.
13. MISCELLANEOUS. Optionee shall not be deemed for any purpose to be a
stockholder of the Company with respect to any shares subject to this Option
except to the extent that this Option shall have been exercised with respect
thereto and, in addition, a certificate shall have been issued therefor and
delivered to Optionee.
14. OPTIONEE REPRESENTATIONS. Optionee agrees, by acceptance of this
Option, that, upon issuance of any shares hereunder, that, unless such shares
are then registered under applicable federal and state securities laws, (i)
acquisition of such shares will be for investment
4
and not with a view to the distribution thereof, and (ii) the Company may
require an investment letter from Optionee in such form as may be recommended by
Company counsel.
15. RESTRICTIONS ON TRANSFER. Optionee shall be permitted to sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any shares purchased under this Option, except when prohibited from
making such disposition by reasonable restrictions of the Company's Board of
Directors which are promulgated during the term of Optionee's employment,
consultancy or directorship.
SIGNATURE PAGE TO FOLLOW
5
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which shall constitute one
document.
▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
Title: President
________________________________
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
THE OPTION HEREOF IS EARNED ONLY BY CONTINUING CONSULTANCY OR EMPLOYMENT
AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING
GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN THE
▇▇▇▇▇▇.▇▇▇, INC. (FKA EMPOWER HEALTH CORPORATION) AMENDED & RESTATED
1997 STOCK OPTION PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL
CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF
EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY
WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S
EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that
he is familiar with the terms and provisions thereof. Optionee hereby accepts
this Option subject to all of the terms and provisions hereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option. Optionee
further agrees to notify the Company upon any change in the residence address
indicated below.
Dated: August 6, 2001 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Residence Address:
6
EXHIBIT A
▇▇▇▇▇▇.▇▇▇, INC. (FKA EMPOWER HEALTH CORPORATION)
AMENDED & RESTATED 1997 STOCK OPTION PLAN
EXERCISE NOTICE
▇▇▇▇▇▇.▇▇▇, Inc.
Attention: Secretary
A. Exercise of Option. Effective as of today, ___________, _____, the
undersigned ("Optionee") hereby elects pursuant to this Exercise Notice (this
"Agreement") to exercise Optionee's option to purchase _________ shares of the
Common Stock (the "Shares") of ▇▇▇▇▇▇.▇▇▇, Inc. (the "Company") under and
pursuant to the ▇▇▇▇▇▇.▇▇▇, Inc. (fka Empower Health Corporation) Amended &
Restated 1997 Stock Option Plan (the "Plan") and the Amended and Restated
Non-Qualified Stock Option Agreement dated _____________, _____ (the "Option
Agreement").
B. Representations of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Plan and the Option Agreement. Optionee agrees
to abide by and be bound by their terms and conditions.
C. Rights as Stockholder. Until the stock certificate evidencing such
Shares is issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to Shares subject to the Option, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such stock certificate
promptly after the Option is exercised. 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 5 of the Plan. Optionee
shall enjoy rights as a stockholder until such time as Optionee disposes of the
Shares.
D. Tax Consultation. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
E. Restrictive Legends.
1. Legends. Optionee understands and agrees that the Company shall
cause any other legends that may be required by state or federal securities laws
to be placed upon any certificate(s) evidencing ownership of the Shares.
2. Refusal to Transfer. The Company shall not be required (i) to
transfer on its
books any Shares that have been sold or otherwise transferred in violation of
any of the provisions of this Agreement or (ii) to treat as owner of such Shares
or to accord the right to vote or pay dividends to any purchaser or other
transferee to whom such Shares shall have been so transferred.
F. Successors and Assigns. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon Optionee and his or her heirs, executors, administrators, successors and
assigns.
G. Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or by the Company forthwith to the
Committee, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Committee shall be final and binding on the
Company and on Optionee.
H. Governing Law; Severability. This Agreement shall be governed by and
construed in accordance with the laws of the State of California excluding that
body of law pertaining to conflicts of law. Should any provision of this
Agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable.
I. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
J. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
K. Delivery of Payment. Optionee herewith delivers to the Company the
full Exercise Price for the Shares, as well as any applicable withholding tax.
2
L. Entire Agreement. 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 and supersede in their entirety
all prior undertakings and agreements of the Company and Optionee with respect
to the subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: ▇▇▇▇▇▇.▇▇▇, INC.
___________________________________ By: __________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: _________________________________
Address:
____________________________________
____________________________________
____________________________________
3