Form of Non-statutory Stock Option Agreement for 2004 Stock and
Exhibit 10.3
NON-STATUTORY STOCK OPTION AGREEMENT
FOR MEMBERS OF THE BOARD OF DIRECTORS
THIS AGREEMENT is made as of «STARTDATE» (the “Grant Date”) between E-Z-EM, Inc. (the “Company”) and «FIRSTNAM» «LASTNAM» (the “Optionee”). Terms used but not defined herein have the same meaning as in the Company’s 2004 Stock and Incentive Award Plan (the “Plan”) unless the context suggests otherwise. All references to Sections in this Agreement refer to Sections of this Agreement unless otherwise indicated.
1. The Company hereby grants to the Optionee a Non-Statutory Stock Option to purchase «NOOPTIONS» shares of Common Stock subject to the terms and conditions of this Agreement and the Plan (the “Option”). The terms and conditions of the Plan have been or are being delivered to the Optionee and are incorporated herein by this reference. In the event of any conflict between this Agreement and the Plan, the Plan shall control. The Option will not be treated as an incentive stock option within the meaning of Section 422 of the Code.
2. (a) The purchase price per share subject to the Option is «PRICE». The purchase price may be paid in whole or in part (i) in money, (ii) by bank-certified, cashier’s or personal check subject to collection, (iii) by a stockbroker-assisted exercise procedure that complies with the Plan and any additional terms and conditions that the Committee may at any time impose, or (iv) in shares of Common Stock which have been owned by the Optionee for at least six months or which were acquired on the open market and which are surrendered to the Company actually or by attestation. Shares of Common Stock thus surrendered shall be valued at their Fair Market Value on the date of exercise.
(b) At no time may the Option be exercised for fewer than 100 of the shares that are subject to the Option unless the Option is exercisable pursuant to the other provisions of this Agreement only with respect to fewer than 100 shares at that time, in which case the Option may be exercised only for the full balance of the shares with respect to which the Option is exercisable at that time.
3. (a) The Option shall expire on «EXPIRES» (the “Expiration Date”), unless before that date it terminates in accordance with the terms and conditions of this Agreement or is cancelled in accordance with Section 9(f) of the Plan. If the Option has not expired, terminated or been cancelled during the Optionee’s service on the Board of Directors of the Company (the “Board”), it shall terminate on cessation of such service, but only if such service ceases for cause within the meaning of the Company’s By-Laws as amended and restated on the Grant Date. If such service ceases for any other reason, then, subject to Section 4, to the extent that the Option is exercisable after cessation of such service pursuant to Section 7 or 8 but is not exercised within the applicable period set forth in Section 7 or 8, the Option shall terminate at the expiration of the applicable period set forth in Section 7 or 8. Any provision of this Agreement to the contrary notwithstanding, in no event may the Option be exercised on or after the Expiration Date.
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(b) For the avoidance of doubt, a transfer of the Optionee from the service of the Company to the service of a Subsidiary, or from the service of a Subsidiary to the service of the Company or another Subsidiary, or from the status of a director to that of a consultant, shall not be deemed a cessation of the Optionee’s Board service solely for purposes of this Agreement, but if the Optionee is a director or consultant of a Subsidiary that ceases to be a Subsidiary (for example, because the Company sells or spins off the Subsidiary) and the Optionee is not then a director or consultant of the Company or another Subsidiary, the Optionee’s Board service shall be deemed to cease for purposes of this Agreement when the Subsidiary ceases to be a Subsidiary.
(c) In the event that, before the Expiration Date, the Company is dissolved or liquidated, or is merged, consolidated or otherwise combined with another corporation and is not the surviving corporation, the Committee may terminate the Option at the time of the transaction without the consent of the Optionee but only if not less than 15 days nor more than 90 days prior to such transaction the Optionee is notified in writing that the Option will terminate at the time of the transaction and that the Optionee will have the right, subject to Section 4, to exercise the Option during the 15 day period (or a specified longer period) prior to the transaction (the “Pre-Transaction Exercise Period”) to the extent hereafter provided. Subject to Section 4 and Section 7(b), the Option shall be exercisable during the Pre-Transaction Exercise Period to the extent of all of the shares that are subject to the Option, irrespective of the provisions of Section 5(a), unless the Optionee’s Board service ceased before the commencement of the Pre-Transaction Exercise Period, in which case to the extent that the Option is exercisable at the time of exercise during the Pre-Transaction Exercise Period pursuant to Section 7 or 8.
4. In the event the Optionee becomes employed by, associated in any way with, or the beneficial owner of more than 1% of the equity of, any business (other than AngioDynamics, Inc.) which competes, directly or indirectly, with the Company’s business in any geographical area where the Company then does business, or if the Optionee engages in criminal conduct with respect to the Company, a Subsidiary, or any of their property, shareholders, employees, officers or directors, or engages in conduct involving moral turpitude, the Option shall immediately terminate and the Optionee shall have no rights hereunder.
5. (a) Except as provided otherwise in the Plan, the Option shall become exercisable.
(b) Subject to Section 9(f) of the Plan, any portion of the Option which
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does not expire or terminate in accordance with Section 3 or 4 or become exercisable pursuant to Section 3(c) or Section 5(a) before the date, if any, on which a Change in Control occurs while the Optionee is providing Board service to the Company or a Subsidiary, shall become exercisable on that date.
6. The Option shall not be transferable otherwise than by will or by the laws of descent and distribution or to a Beneficiary and during the lifetime of the Optionee shall be exercisable only by the Optionee.
7. In the event the Optionee’s Board service ceases for any reason other than death or disability, the Option may be exercised (but only if it has not expired or terminated on or before the date of exercise as provided in Section 3 or 4 and only to the extent that it is exercisable under Section 3(c) or Section 5 on the date such employment ceases) only during the 180 days after the date of such cessation.
Notwithstanding the foregoing, (a) if the Optionee dies or becomes disabled within the meaning of Section 8 during the aforementioned 180 day period, then that 180 day period shall be extended for an additional 180 days, and (b) in the event of a cessation of the Optionee’s Board service for cause within the meaning of the Company’s By-Laws as amended and restated on the Grant Date, the Option shall terminate at the time the Optionee’s Board service so ceases.
8. In the event the Optionee’s Board service ceases by reason of death or disability, the Option may be fully exercised as to all Shares covered hereby (if it has not expired or terminated on or before the date of exercise as provided in Sections 3 or 4 but regardless of whether it is exercisable under Section 3(c) or Section 5 on the date such Board service ceases) only during the one year period after the date of such cessation. “Disability” as used herein means a medical condition that would entitle the Optionee to receive benefits (either immediately or after expiration of a waiting period) under the long-term disability insurance program of the Company that is in effect on the Grant Date, if such program were in effect on the date of such cessation and the Optionee were a participant therein.
9. Nothing herein or in the Plan shall confer upon the Optionee any right to continue as a member of the Board or otherwise in the service of the Company or a Subsidiary.
10. The Option and the Plan are subject to adjustments, changes and amendments as provided in the Plan.
11. This Agreement shall bind and inure to the benefit of the Company, its successors and assigns, and the Optionee and the Optionee’s Beneficiary, subject to the Plan.
12. This Agreement will be governed by and construed under the laws of Delaware, without giving effect to the principles of conflicts of laws thereof. The existence of the Option shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business, or any merger or
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consolidation of the Company, or any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks ahead of or affecting the stock or the rights thereof or convertible into or exchangeable for stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. Except as expressly provided in Section 9(f) or 10 of the Plan, the issuance by the Company of shares of stock of any class, or securities convertible into or exchangeable for shares of stock of any class, for cash or property, or for labor or services, either upon direct sale or upon the exercise of options, rights or warrants to subscribe therefor, or to purchase the same, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of stock subject to the Option.
13. The Committee, in its sole and absolute discretion, shall resolve any disputes, claims or interpretive issues arising hereunder and the Committee’s determinations shall be final and uncontestable.
14. By signing this Agreement the Optionee irrevocably agrees to and accepts the terms and conditions of the Option as set forth or incorporated by reference in this Agreement and the terms and conditions of the Plan applicable to the Option.
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective from the date first above written.
| E-Z-EM, Inc. By: _________________________ Dennis J. Curtin Senior VP & CFO __________________________ «FIRSTNAM» «LASTNAM» |
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