EXHIBIT 10.29
STOCK OPTION CERTIFICATE
THE OPTION RIGHTS REPRESENTED BY THIS STOCK OPTION CERTIFICATE DO NOT
CONSTITUTE A SECURITY WHICH IS REQUIRED TO BE REGISTERED UPON THE GRANT OF
THESE OPTION RIGHTS (AND THEREFORE HAVE NOT BEEN REGISTERED) WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, INSOFAR AS THE RECIPIENT OF THIS OPTION HAS NOT AND
WILL NOT BE REQUIRED TO PAY OR GIVE ANY CONSIDERATION WITH RESPECT TO THE
GRANT OF THESE OPTION RIGHTS, NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION REVIEWED OR PASSED UPON THE ACCURACY OR ADEQUACY OF THE
RECIPIENT'S STOCK OPTION CERTIFICATE. THE OPTION RIGHTS REPRESENTED BY
THIS STOCK OPTION CERTIFICATE CONSTITUTE A SECURITY WHICH HAS NOT BEEN
REGISTERED OR QUALIFIED, AS THE CASE MAY BE, UNDER THE SECURITIES LAWS OF
ANY STATE OR TERRITORY OF THE UNITED STATES WHICH MAY BE APPLICABLE, IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION OR QUALIFICATION, AS THE CASE
MAY BE, AFFORDED BY SUCH STATE OR TERRITORIAL SECURITIES LAWS INCLUDING,
WITHOUT LIMITATION, WITH THE CALIFORNIA DEPARTMENT OF CORPORATIONS, IN
RELIANCE UPON THE EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 25102(o)
OF THE CALIFORNIA BLUE SKY LAW, AS AMENDED, NOR HAS NAY SUCH SECURITIES
REGULATORY AGENCY REVIEWED OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
STOCK OPTION CERTIFICATE.
This Stock Option Certificate is entered into between STAAR Surgical
Company, a Delaware corporation (the "Company"), whose principal executive
office is located at 1911 Walker Avenue, Monrovia, California 91016, and VOLKER
D. ANHAEUSSER (the "Recipient") whose address is c/o 10900 Wilshire Boulevard,
Suite 500, Los Angeles, California 90024, pursuant to that certain 1998 STAAR
Surgical Company Stock Plan (the "Plan") adopted by the Board of Directors on
April 17, 1998 and approved by the shareholders on May 29, 1998.
1. GRANT OF OPTION. This Stock Option Certificate certifies that the
Company has granted to the Recipient, pursuant to the terms of the Plan, an
option (the "Option") to purchase, in whole or in part, forty thousand (40,000)
shares of the Company's voting common stock, par value $.01 (the "Common Stock")
(collectively and severally, the "Option Shares"), at the price of thirteen
dollars and sixty-two and one-half cents ($13.625) per Option Share (the "Option
Price"), subject to the following terms and conditions.
2. PLAN; PLAN SUMMARY. Subject to the terms of this Stock Option
Certificate, the Recipient's rights to purchase the Option Shares are governed
by the Plan, the terms of which are incorporated herein by this reference.
3. CHARACTER OF OPTION. This Option (i) is [X] a Non-Qualified Option or
(ii) is [___]
an Incentive Option.
4. CAPACITY OF RECIPIENT. This Option is granted to the Recipient in the
Recipient's capacity as (i) [_____] an employee, (ii) [X] a director, or (iii)
[_____] a consultant.
5. EXPIRATION OF OPTION. The right to exercise the Options granted by this
Stock Option Certificate shall expire and be null and void and of no further
force or effect to the extent not exercised by 5:00 p.m. Pacific Time, on the
30th day of May 2010 (the "Option Expiration Date"). Notwithstanding the
foregoing, to the extent the Option is not fully vested, the right to exercise
the Option shall be subject to earlier expiration as provided in Article X of
the Plan.
6. EXERCISE VESTING CONDITIONS. The Option Shares are subject to Article
V, Section 5.05 of the Plan and to the following vesting schedule:
Cumulative Vested
Percentage of
Date Shares
- ------------ -----------------
May 31, 2000 20,000
May 31, 2001 20,000
7. MANNER OF EXERCISE AND PAYMENT. This Option shall be exercised by
delivery of this Option Certificate to the Secretary of the Company, together
with:
(a) A Consent of Spouse (as such consent is defined in the Plan)
from the spouse of the Recipient, if any, duly signed by such spouse; and
(b) Full payment for the Option Shares to be purchased in goods
funds (in U.S. dollars) by cash or check, and/or the following items (if
checked by the Company); (i) [X] shares of Common Stock pursuant to
Article VIII of the Plan, (ii) [__] surrender of relinquishment of rights
to acquire Common Stock as more particularly described below, or (iii)
[X] a full-recourse promissory note as more particularly described
below.
8. FORFEITURE; VESTING CONDITIONS. The Option Shares: (i) [__] will be
fully vested upon date of grant, or (ii) [X] are subject to Article V, Section
5.05 of the Plan and to the vesting schedule set forth above , and are subject
to Article X of the Plan and to the forfeiture provisions included therein
relating to the Recipient's continued performance of services in the capacity
indicated above.
9. VESTING ON CHANGE OF CONTROL. Any unvested Option Shares shall
immediately vest upon the occurrence of a Change In Control or an Approved
Corporate Transaction.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Recipient hereby
represents, warrants and covenants to the Company, each of which is deemed to be
a separate representation, warranty or covenant, whichever the case may be,
that:
(a) The Recipient's legal permanent residence and domicile is in the
State of
California.
(b) The Recipient, if a natural person, is eighteen (18) or over.
(c) The Recipient has received a copy of the Plan which explains the
administration and operation of the Plan and certain other relevant matters
pertaining to the Plan, and has read and understood the Plan.
(d) By reason of the Recipient's business or financial experience,
the Recipient can be reasonably assumed to have the capacity to protect the
Recipient's own interests in connection with the transaction contemplated by
this Stock Option Certificate.
(e) Before purchasing the Option Shares, the Recipient has had the
opportunity, to the extent the Recipient has determined to be necessary, to be
provided with financial and other written information about the Company; to ask
questions and receive answers concerning the terms and conditions of this Stock
Option Certificate, an investment in the Option Shares, and the business of the
Company and its finances; and that the Recipient has, to the extent he has
availed himself of this opportunity, received satisfactory information and
answers.
(f) Prior to exercising the Option, the Recipient had the
opportunity to consult with Recipient's investment advisors who are independent
of the Company, including, without limitation, investment, tax, accounting and
legal advisors relative to (i) the investment merits of a proposed investment in
the Option Shares and (ii) the tax consequences of the grant and exercise of the
Option and the subsequent disposition of the Option Shares and the effect of
same upon the Recipient's personal financial circumstances, and that the
Recipient has, to the extent he has availed himself of this opportunity,
received satisfactory information and answers from such investment advisors.
(g) The Recipient has been informed and understands and agrees as
follows: there are substantial restrictions on the transferability of the Option
Shares as are more particularly described in Article XI, Section 11.02 of the
plan and, as a result of such restrictions, it may not be possible for the
Recipient to sell or otherwise liquidate the Option Shares in the case of
emergency and/or other need, and the Recipient must therefore be able to hold
the Option Shares until the lapse of said restrictions; the Recipient must have
adequate means of providing for the Recipient's current needs and personal
contingencies; the Recipient must have not need for liquidity in an investment
in the Option Shares; and the Recipient has evaluated the Recipient's financial
resources and investment position in view of the foregoing; and that the
Recipient is able to bear the economic risk of an investment in the Option
Shares.
(h) The Option Shares are being purchased by the Recipient as
principal and not by any other person, with the Recipient's own funds and not
with the funds of any other person, and for the account of the Recipient and not
as nominee or agent and not for the account of any other person. The Recipient
is purchasing the Option Shares for investment for an indefinite period and not
with a view to the sale of distribution of any part or all thereof by public or
private sale or other disposition. Nor person other than the Recipient will have
an interest, beneficial or otherwise, in the Option Shares, and the Recipient is
not obligated to transfer the Option Shares to any other person nor does the
Recipient have any agreement or understanding to do so.
(i) To the best of the Recipient's knowledge and belief the offer
and sale of the Option Shares was not accomplished by the publication of any
advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio; nor
was the offer and sale of the Option Shares accomplished through any seminar or
meeting to which the Recipient was invited by any such publication or
advertisement.
Each representation, warranty and covenant of the Recipient shall be
deemed made as of the time of grant of this Option, shall be deemed remade at
any time the Recipient exercises this Option, and shall survive the date closing
with respect to the exercise of the last Option hereunder.
11. MISCELLANEOUS
(a) PREPARATION OF STOCK OPTION CERTIFICATE. This Stock Option
Certificate was prepared by the Company or its legal counsel solely on behalf of
the Company. It is acknowledged by the Recipient that he or she was not
represented by the Company or any of its officers, directors, employees or
agents (including the Company's legal counsel) in connection with the
transaction contemplated by this Stock Option Certificate, and that the
Recipient had separate and independent advice of counsel. In light of the
foregoing it is acknowledged by the Recipient that the Company shall not be
construed to be solely responsible for the drafting hereof, and that any
ambiguity in the Plan or this Stock Option Certificate, or the interpretation
thereof or hereof, shall not be construed against the Company as the alleged
draftsman of this Stock Option Certificate.
(b) INTERPRETATION.
(i) Entire Agreement/No Collateral Representations. The
Recipient acknowledges and agrees that this Stock Option Certificate, together
with and subject to the Plan: (1) is the final, complete and exclusive statement
of the agreement of the parties with respect to the subject matter hereof; (2)
supersedes any prior or contemporaneous agreements or understandings of any
kind, oral or written (collectively and severally, the "prior agreements"), and
that any such prior agreements are of no force or effect except as expressly set
forth herein; and (3) may not be varied, supplemented or contradicted by
evidence of prior agreements, or by evidence of subsequent oral agreements.
(ii) Amendment; Waiver. Except as expressly otherwise provided
herein, neither this Stock Option Certificate nor any of its terms may be
amended, supplemented, discharged or terminated (other than by performance),
except as provided in the Plan or by a written instrument or instruments signed
by all of the parties to this Stock Option Certificate. No waiver of any acts or
obligations hereunder shall be effective unless such waiver shall be in a
written instrument or instruments signed by each party claimed to have given or
consented to such waiver and each party affected by such waiver.
(iii) Severability. If any term or provision of this Stock
Option Certificate or the application thereof to any person or circumstance
shall, to any extent, be determined to be invalid, illegal or unenforceable
under present or future laws effective during the term of this Stock Option
Certificate, then, and in that event: (A) the performance of the offending term
or provision (but only to the extent its
application is invalid, illegal or unenforceable) shall be excused as if it had
never been incorporated into this Stock Option Certificate, and, in lieu of such
excused provision, there shall be added a provision as similar in terms and
amount to such excused provision as may be possible and be legal, valid and
enforceable, and (B) the remaining part of this Stock Option Certificate
(including the application of the offending term or provision to persons or
circumstances other than those as to which it is held invalid, illegal or
unenforceable) shall not be affected thereby and shall continue in full force
and effect to the fullest extent provided by law.
(iv) No Reliance Upon Prior Representation. The Recipient
acknowledges that neither the Company nor any of its officers, directors,
employees or agents have made any oral representation or promise which would
induce the Recipient prior to executing this Stock Option Certificate to change
the Recipient's position to the Recipient's detriment, partially perform, or
part with value in reliance upon such representation or promise; the Recipient
acknowledges that he or she has taken such action at its own risk; and the
Recipient represents that he or she has not so changed his or her position,
performed or parted with value prior to the time of his or her execution of this
Stock Option Certificate.
(c) ENFORCEMENT. This Stock Option Certificate and the rights and
remedies of each party arising out of or relating to this Stock Option
Certificate shall be solely governed in accordance with the laws (without regard
to the conflicts of law principles thereof) of the state of Delaware.
(d) SUCCESSORS AND ASSIGNS. The Recipient may not assign his rights
or benefits or delegate any of his duties or obligations under this Stock Option
Certificate, in whole or in part, without the prior written consent of the
Company, except pursuant to the terms of the Plan. Subject to the foregoing, all
of the representations, warranties, covenants, conditions and provisions of this
Stock Option Certificate shall be binding upon and shall inure to the benefit of
each party and such party's respective successors and permitted assigns,
spouses, heirs, executors, administrators, and personal and legal
representatives.
(e) NOTICES. Unless otherwise specifically provided in this Stock
Option Certificate, all notices, demands, requests, consents, approvals or other
communications (collectively and severally called "notices") required or
permitted to be given hereunder, or which are given with respect to this Stock
Option Certificate, shall be in writing, and shall be given by: (A) personal
delivery (which form of notice shall be deemed to have been given upon
delivery), (B) by telegraph or by private airborne/overnight delivery service
(which forms of notice shall be deemed to have been given upon confirmed
delivery by the delivery agency), (C) by electronic or facsimile or telephonic
transmission, provided the receiving party has a compatible device or confirms
receipt thereof (which forms of notice shall be deemed delivered upon confirmed
transmission or confirmation of receipt), or (D) by mailing in the United States
mail by registered or certified mail, return receipt requested, postage prepaid
(which forms of notice shall be deemed to have been given upon the fifth {5th}
business day following the date mailed).
WHEREFORE, the parties hereto have for purposes of this Stock Option
Certificate executed this Stock Option Certificate in the City of Monrovia,
County of Los Angeles, State of California, effective as of the 31st day of May
2000.
COMPANY:
STAAR Surgical Company,
a Delaware corporation
By: ________________________________
William C. Huddleston, President
ATTEST:
By: ________________________________
John Santos, Chief Financial Officer
RECIPIENT:
/s/ Volker D. Anhaeusser
------------------------------------
Volker D. Anhaeusser
NOTICE OF EXERCISE OF STOCK OPTION
[To be signed by the Recipient only upon exercise of Option]
TO: Secretary
STAAR Surgical Company
1911 Walker Avenue
Monrovia, California 91016
The undersigned, the holder of an Option under that certain Stock Option
Certificate dated effective the 31st day of May 2000 (the "Option Certificate"),
between STAAR Surgical Company, a Delaware corporation (the "Company") and the
undersigned (the "Recipient"), hereby irrevocably elects, in accordance with the
terms and conditions of that certain 1998 STAAR Surgical Company Stock Plan (the
"Plan") adopted by the Board of Directors on April 17, 1998 and approved by the
shareholders on May 29, 1998, under which the Option Certificate was granted, to
exercise the undersigned's Option to purchase ____________________________
(______)(1) shares of the Company's voting common stock, $ .01 per share par
value ("Common Stock") (collectively and severally, the "Option Shares"), for
the aggregate purchase price of _____________________ ($______)(2).
(1) Insert number of Option Shares as specified in the Option Certificate
which are vested Option Shares (as defined by the Plan) which the
Recipient is exercising the Option to purchase.
(2) Number of Option Shares to be exercised as hereinabove specified
multiplied by the Option Price per share.
The Recipient hereby remakes, reaffirms and reacknowledges all agreements,
representations, warranties and covenants set forth in the Option Certificate as
of the date of the Recipient's notice, all of which shall survive the Closing
with respect to the shares of Common Stock purchased hereby.
The Recipient hereby acknowledges that the following legend (or any
variation thereof determined appropriate by the Company) will be placed on the
share certificate or certificates for the Option Shares to comply with
applicable federal and state securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN (1)
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION AFFORDED BY SUCH ACT, OR (2)
REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE OR
TERRITORY OF THE UNITED STATES WHICH MAY BE APPLICABLE, IN RELIANCE UPON
AN EXEMPTION FROM REGISTRATION OR QUALIFICATION AFFORDED BY SUCH STATE OR
TERRITORIAL SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR THE
HOLDER'S OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT WITH A VIEW FOR
RESALE OR DISTRIBUTION. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED
UNLESS (A) THEY HAVE BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933 AS WELL AS UNDER THE SECURITIES LAWS OF ANY STATE OR TERRITORY
OF THE UNITED STATES AS MAY THEN BE APPLICABLE, OR (B) THE TRANSFER AGENT
(OR THE COMPANY IF THEN ACTING
AS ITS TRANSFER AGENT) IS PRESENTED WITH EITHER A WRITTEN OPINION
SATISFACTORY TO COUNSEL FOR THE COMPANY OR A NO-ACTION OR INTERPRETIVE
LETTER FROM THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION AND ANY
APPLICABLE STATE OR TERRITORIAL SECURITIES REGULATORY AGENCY TO THE EFFECT
THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED UNDER THE
CIRCUMSTANCES OF SUCH SALE OR TRANSFER.
(Signature must conform in all respects to name of the Recipient as
specified in the Plan, unless the undersigned is the Recipient's
Successor, in which case the undersigned must submit appropriate
proof of the right of the undersigned to exercise the Option.)
Signature:________________________________________
Print Name:_______________________________________
Address:__________________________________________
__________________________________________________
Date:________________