Exhibit 4.09
OPTION AGREEMENT
OPTION AGREEMENT made effective as of the __ day of _________, 199_,
between MediVators, Inc., a Minnesota corporation (the "Company"), and
("Director").
BACKGROUND
A. Director is a member of the Board of Directors of the Company and
holds no other position in the Company.
B. The Company desires to induce Director to continue to serve the
Company as a director.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to Director
the right and option, hereinafter called the Option, to purchase all or any part
of an aggregate of ______________________ shares of the common stock, $.01 par
value, of the Company (the "Shares") (such number being subject to adjustment as
provided in paragraph 9 hereof) subject to the terms and conditions herein set
forth.
2. PURCHASE PRICE. The purchase price of the Shares covered by the
Option shall be $_____ per Share.
3. EXERCISE AND VESTING OF OPTION. The Option shall be exercisable only
to the extent that all, or any portion thereof, has vested in the Director. The
Option shall vest in the Director in five (5) equal parts of
_______________________________ Shares beginning on the date hereof and
continuing on each subsequent anniversary date (hereinafter referred to
singularly as a "Vesting Date" and collectively as "Vesting Dates") until the
Option is fully vested, as set forth in the following schedule:
Total Shares
Subject to Vested Option Vesting Date
------------------------ ------------
First Anniversary
Second Anniversary
Third Anniversary
Fourth Anniversary
Fifth Anniversary
In the event that the Director ceases to be a member of the Board of
Directors of the Company, for any reason or no reason (other than death or upon
a Change in Control as hereinafter defined), with or without cause, prior to any
Vesting Date, that
Part of the Option scheduled to vest on such Vesting Date, and all parts of the
Option scheduled to vest in the future, shall not vest and all of the Director's
rights to and under such non-vested parts of the Option shall terminate.
4. VESTING AND EXERCISE UPON DEATH. If Director dies while serving as a
director of the Company, the Option shall become fully vested in Director as of
the date of death (if not already fully vested) and may be exercised by
Director's legal representative, heirs or legatees, at any time within six (6)
months after his death. Upon the expiration of such six (6) month period, or,
if earlier, upon the expiration date of the Option as set forth in paragraph 6
hereof, the Option shall become null and void.
5. CHANGE IN CONTROL. In the event of a Change in Control (as defined
below), the Option shall become fully vested in Director as of the date of the
Change in Control. A "Change in Control" shall occur if:
(a) any person, as defined in Sections 3 (a) (9) and 13(d) (3) of the
Securities Exchange Act of 1934, as amended (the "'34 Act"), becomes the
"beneficial owner" (as defined in Rule 13d-3 promulgated pursuant to the
'34 Act), directly or indirectly, of 30% or more of the common stock of the
Company, or
(b) within any twelve-month period during the term of this Agreement,
there occurs a change in the Board of Directors with the result that the
Incumbent Members, as defined in the next sentence, do not constitute a
majority of the Board. For purposes of this paragraph, "Incumbent
Members," in respect of any twelve-month period, shall mean the members of
the Board of Directors on the date immediately preceding the commencement
of such twelve-month period, provided that any person becoming a Director
during such twelve-month period whose election or nomination for election
was supported by a majority of the Directors who, on the date of such
election or nomination for election, comprised the Incumbent Members shall
be considered one of the Incumbent Members in respect of such twelve-month
period.
6. TERM OF OPTION. To the extent vested, and except as otherwise
provided in this Agreement, the Option shall be exercisable for five (5) years
from the date of this Agreement; provided, however, that in the event that
Director ceases to be a member of the Board of Directors of the Company, for any
reason or no reason (other than due to or following a Change in Control), with
or without cause, Director or his legal representative, heirs or legatees shall
have six (6) months from the date of such termination of his position as a
director to exercise any part of the Option vested pursuant to Sections 3 or 4
of this Agreement. Upon the expiration of such six (6) month period, or, if
earlier,
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upon the expiration date of the Option as set forth above, the Option shall
terminate and become null and void.
7. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
this Agreement, the Option may be exercised by written notice to the Company.
Such notice shall state the election to exercise the Option and the number of
Shares in respect of which it is being exercised, and shall be signed by the
person or persons so exercising the Option. Such notice shall either: (a) be
accompanied by payment of the full purchase price of such Shares, in which event
the Company shall deliver a certificate or certificates representing such Shares
as soon as practicable after the notice shall be received; or (b) fix a date not
less than five (5) nor more than ten (10) business days from the date such
notice shall be received by the Company for the payment of the full purchase
price of such Shares against delivery of a certificate or certificates
representing such Shares. Payment of such purchase price may take the form of
cash, shares of stock of the Company, the total market value of which equals the
total purchase price, or any combination of cash and shares of the Company, the
total market value of which equals the total purchase price. Any such notice
shall be deemed given when received by the Company at its principal place of
business. All Shares that shall be purchased upon the exercise of the Option as
provided herein shall be fully paid and non-assessable.
8. RIGHTS OF OPTION HOLDER. Director, as holder of the Option, shall not
have any of the rights of a shareholder with respect to the Shares covered by
the Option except to the extent that one or more certificates for such Shares
shall be delivered to him upon the due exercise of all or any part of the
Option.
9. NON-TRANSFERABILITY. The Option shall not be transferable otherwise
than by will or the laws of descent and distribution, and the Option may be
exercised, during the lifetime of Director, only by Director. More particularly
(but without limiting the generality of the foregoing), the Option may not be
assigned, transferred (except as provided above), pledged, or hypothecated in
any way, shall not be assignable by operation of law, and shall not be subject
to execution, attachment, or similar process. Any attempted assignment,
transfer, pledge, hypothecation, or other disposition of the Option contrary to
the provisions hereof, and the levy of any execution, attachment, or similar
process upon the Option shall be null and void and without effect.
10. CHANGES IN CAPITAL STRUCTURE.
(a) If any shares of the Company subject to the Option shall be
affected by any recapitalization, reclassification, stock dividend, stock split
or other relevant change, then the number of shares covered by the Option,their
classification or the option
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price per share shall be appropriately adjusted by the Board of Directors of the
Company as it may deem necessary to prevent any inequity that might otherwise
result.
(b) If the Company is merged or consolidated with another
corporation, or the property or shares of the Company acquired by another
corporation, the board of directors of the Company or the board of directors of
any corporation assuming the obligations of Company hereunder shall make
appropriate provision for the protection of the Option by the substitution on an
equitable basis of appropriate shares of the Company, or the merged,
consolidated, or otherwise reorganized corporation, which will be issuable with
respect to the common shares of the Company, provided only that the excess of
the aggregate fair market value of the shares subject to the new option
immediately after said substitution over the aggregate purchase price is not
more than the excess of the fair market value of the shares subject to this
Option immediately before such substitution over the aggregate purchase price
and such new option does not give the Director additional benefits which he did
not have under this Option.
11. INVESTMENT REPRESENTATION AND CERTIFICATE. Prior to the receipt of
any Share certificates pursuant to the exercise of the Option granted hereunder,
Director shall agree to hold the Shares acquired by exercise of the Option for
investment and not with a view to resale or distribution thereof to the public,
and shall deliver to the Company a certificate to that effect.
12. GENERAL. The Company shall at all times during the term of the Option
reserve and keep available such number of Shares as will be sufficient to
satisfy the requirements of this Option Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
MEDIVATORS, INC.
By __________________________
Donald L. Sturtevant
President
OPTIONEE
______________________________
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