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EXHIBIT 10.48
NEITHER THIS OPTION AGREEMENT NOR THE SHARES ISSUABLE BY COMPREHENSIVE
CARE CORPORATION (THE "COMPANY) UPON EXERCISE HEREOF, HAVE BEEN OR WILL BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE, AND THIS OPTION IS BEING ISSUED IN RELIANCE UPON EXEMPTIONS FROM
THE REGISTRATION REQUIREMENTS ARISING THEREUNDER, AND MAY NOT BE SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE
WITH ALL APPLICABLE STATE AND FEDERAL SECURITIES LAWS AND UPON FURNISHING THE
COMPANY AN OPINION OF COUNSEL, THAT THE PROPOSED TRANSFER WOULD BE IN
COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL SECURITIES LAWS. ANY
DOCUMENTS EVIDENCING THIS SECURITY, INCLUDING STOCK CERTIFICATES EVIDENCING THE
UNDERLYING SHARES, WILL CONTAIN A SIMILAR LEGEND. THE COMPANY SHALL PLACE
NOTATIONS WITH RESPECT TO THESE RESTRICTIONS ON ITS SECURITIES RECORDS AND
SHALL INFORM THE TRANSFER AGENT, OF SUCH RESTRICTIONS.
NON-QUALIFIED STOCK OPTION AGREEMENT
This Option Agreement ("Agreement") is made effective as of February
2, 1993 ("Option Grant Date"), by and between Comprehensive Care Corporation, a
Delaware corporation, ("Company") and Fred C. Follmer ("Optionee").
In consideration of the foregoing and of the mutual covenants set
forth herein and other good and valuable consideration, the parties hereto
agree as set forth below.
1. The Option. Optionee may, at Optionee's option and on the
terms and conditions set forth herein, purchase all or any part of an aggregate
of 500,000 shares of common stock at the price per share of $1.00, $1.50, $2.00
and $2.00, vesting at the rate of twenty-five percent, at the end of the first
year and at the end of each year thereafter at the rate of twenty-five percent
("Option") pursuant to Exhibit A.
2. Vesting and Exercisability of Option. Subject to the
limitations set forth herein, the option granted shall vest and be exercisable
in accordance with the following rules:
A. General. Subject to the other provisions of this
Section 2, Option shall vest and become exercisable at such times and in such
installments as set forth in Section 1. Unless otherwise provided in this
Section 2, the Option may be exercised when the installments accrue and at any
time thereafter until, and including, the day before the Termination Date (as
defined below). Option shall remain exercisable until the Termination Date,
notwithstanding the subsequent grant of additional options with different start
or termination dates. Optionee acknowledges that Optionee has no right
whatsoever to exercise the Option granted hereunder with respect to any share
covered by an installment until such installment accrues as provided in Section
1.
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B. Termination of Option. All installments of the
Option shall expire and terminate on February 1, 2003 ("Termination Date").
C. Termination of Employment. In the event that the
employment of the Optionee is terminated for any reason, any installments under
the option held by such Optionee which have not accrued as of the employment
termination date shall expire and become unexercisable as of the employment
termination date. In the event that Optionee's employment with the Company is
terminated "for cause", then the option granted hereunder to such terminated
Optionee, whether vested or not, shall expire and become unexercisable as of
the effective date of the termination of employment of the Optionee. All
accrued installments as of the employment termination date shall remain
exercisable for three (3) months following the employment termination date.
3. Exercise of Option. The Option may be exercised in accordance
with this Section as to all or any portion of the Shares covered by an accrued
installment of the Option from time to time during the applicable option
period, except that the Option shall not be exercisable with respect to
fractions of a Share. The Option may be exercised, in whole or in part, by
giving written notice of exercise to the Company, which notice shall specify
the number of Shares to be purchased and shall be accompanied by payment in
full of the purchase price in accordance with Section 4. The Option shall be
deemed exercised when such written notice of exercise has been received by the
Company. No Shares shall be issued until full payment has been made and the
Optionee has satisfied such other conditions as may be required by applicable
law, rules, or regulations, or as may be adopted or imposed by the Company.
Until the issuance of stock certificates, no right to vote or receive dividends
or any other rights as a stockholder shall exist with respect to optioned
Shares notwithstanding the exercise of the Option. No adjustment will be made
for a dividend or other rights for which the record date is prior to the date
the stock certificate is issued.
4. Payment of Option Exercise Price. Except as otherwise
provided in this Section, the entire option exercise price shall be paid at the
time the option is exercised by cashier's check or such other means as deemed
acceptable by the Company.
5. Option Not Transferable. The Option granted under this
Agreement may not be sold, pledged, hypothecated, assigned, encumbered, gifted
or otherwise transferred or alienated in any manner.
6. Restrictions on Issuance of Shares.
A. No Shares shall be issued or delivered upon exercise
unless and until there shall have been compliance with all applicable
requirements of the Securities Act of 1933, all applicable listing requirements
of any national securities exchange on which Shares are then listed, and any
other requirement of law or of any regulatory body having jurisdiction over
such issuance and delivery. The inability of the Company to obtain any
required permits, authorizations, or approvals necessary for the lawful
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issuance and sale of any Shares hereunder on terms deemed reasonable by the
Company shall relieve the Company of any liability in respect of the
nonissuance or sale of such Shares as to which such requisite permits,
authorizations, or approvals shall not have been obtained.
B. As a condition to the granting or exercise of the
Option, the Company may require the person receiving or exercising such option
to make any representation and/or warranty to the Company as may be required
under any applicable law or regulation, including but not limited to a
representation that the Option and/or Shares are being acquired only for
investment and without any present intention to sell or distribute each Option
and/or Shares if such representation IS required under the Securities Act of
1933 or any other applicable law, rule, or regulation.
7. Taxes. On the Exercise Date, the Optionee must pay to the
Company the amount of the federal, state and local tax withholding obligation
arising from the exercise of the Option;
A. in cash equal to the minimum withholding;
B. if the Exercise Price for the Option Shares is paid
by a broker, dealer or other "creditor" (as defined by Regulation T issued by
the Board of Governors of the Federal Reserve System) with the Optionee making
a Tax Withholding Election to have such broker, dealer or other "creditor"
deliver to the Company cash in the amount of tax withholding due after the
Optionee has delivered to the Company instructions acceptable to the Company
regarding the delivery of the number of Option Shares being exercised to such
broker, dealer or other "creditor".
8. Legends on Option and Stock Certificates. Each certificate
representing Shares acquired upon exercise of the option shall be endorsed with
all legends, if any, required by applicable federal and state securities laws
to be placed on the certificate. The determination of which legends, if any,
shall be placed upon said Shares shall be made by the Company in its sole
discretion and such decision shall be final and binding.
9. Certain Representations and Warranties. Executive expressly
acknowledges, represents and agrees:
A. Optionee understands that the option is not issued
under the Company's existing stock option plans.
B. That the Shares are not now registered under
applicable securities laws or listed on any national securities exchange, and
that the Company may require, as a condition to the granting or exercise of the
Option, that the person receiving or exercising the option must make such
representations or warranties to the Company as may be required under
applicable law or regulation, including but not limited to a representation
that the Option and/or Shares are being acquired only for investment and
without any present intention to sell or distribute such Option or Shares.
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C. That Optionee understands that the existence and
execution of this Agreement is not sufficient by itself to cause any exercise
of the Option.
D. That Optionee is a person subject to the provisions
of Section 16 of the Securities Exchange Act of 1934, and Optionee has been
advised to consult with a competent federal securities law advisor as to the
reporting obligations or potential liability for short swing profits under
Section 16 with respect to the granting, investing and exercise of the Option.
E. Nothing in this Agreement shall be construed to
create any contract of employment between the Company and the Optionee or
confer upon Optionee any right to continue in the employment of the Company.
The Company shall have the right to deal with Optionee in the same manner as if
this Agreement did not exist including without limitation the hiring,
discharge, compensation and conditions of employment of Optionee.
10. Agreement Binding on Successors. The terms of this Agreement
shall be binding upon the executors, administrators, heir and successors of
Optionee and Optionee may not transfer or assign this Agreement, except in
compliance with all applicable state and federal securities laws and upon
furnishing the Company an opinion of counsel to that effect.
11. Governing Law. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the internal
laws, and not the laws pertaining to conflicts or choice of laws, of the State
of Missouri applicable to agreements made and to be performed wholly within the
State of Missouri.
12. Necessary Acts. Executive agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
13. 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 and unenforceable provision was not contained
herein.
14. Notice. Any notice or other communication required or
permitted to be given pursuant to the Agreement must be in writing and may be
given by registered or certified mail, and if given by registered or certified
mail, shall be determined to have been given and received when a registered or
certified letter containing such notice, properly addressed with postage
prepaid, is deposited in the United States mails; and if given otherwise than
by registered or certified mail, it shall be deemed to have been given
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when delivered to and received by the party to whom addressed. Notice shall be
given to Optionee at his most recent address shown in the Company's records.
Notice to the Company shall be addressed to the Company at the address of the
Company's principal executive offices, to the attention of the Secretary of the
Company.
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement effective as the date first written above.
COMPREHENSIVE CARE CORPORATION
By ________________________________
Its ________________________________
OPTIONEE
____________________________________
Fred C. Follmer
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Option Agreement - Follmer
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EXHIBIT A
Date Exercisable Number of Shares and Price
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Year One 2/2/94 125,000 at $1.00 per share
Year Two 2/2/95 125,000 at $1.50 per share
Year Three 2/2/96 125,000 at $2.00 per share
Year Four 2/2/97 125,000 at $2.00 per share