Exhibit 10.1
HearUSA, Inc.
FORM OF
NONQUALIFIED OPTION
AGREEMENT
THIS AGREEMENT
is made as of __________, 2009
(“Date of Grant”), between HearUSA, Inc., a Delaware
corporation (hereinafter referred to as the “Company”),
and ____________________ (hereinafter referred to as the
“Optionee”).
WITNESSETH:
WHEREAS, Optionee is [an employee]
[a director] of the Company; and
WHEREAS, in accordance with the
HearUSA, Inc. Amended and Restated 2007 Incentive Compensation Plan
(the "Plan"), and the Company’s compensation arrangements for
its [employees] [non-employee directors], the Company desires to
compensate Optionee for his service in part through the grant of
options to purchase shares of the Company’s common stock, par
value $.10 per share (the "Common Stock"),
NOW, THEREFORE, in consideration of
the premises, the Company and the Optionee agree as
follows:
1.
Grant of Option . Pursuant to action of the Compensation
Committee of the Board of Directors of the Company (the
“Committee”) [and then approval by the full Board of
Directors], and subject to the terms and conditions of the Plan and
this Agreement, the Company has granted to the Optionee the right
(the “Option”) to purchase all or any part of an
aggregate of ___________________________ (__________) (the
“Optioned Shares”) of the Common Stock. The terms,
conditions and provisions of the Plan are incorporated by reference
herein and in all cases the terms and conditions of the Plan shall
control in any case of conflict between the Plan and the terms of
this Agreement. Capitalized terms used herein shall have the
meanings ascribed to them in the Plan unless otherwise herein
defined. This option is not intended to qualify as, and will not be
treated as, an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended.
2.
Option Price . The exercise price per share (“Option
Price”) is $_______ for each Optioned Share, which represents
the market price of the Common Stock on the Date of
Grant.
3.
Term of Option . The term of the Option is for a period of
ten (10) years from the Date of Grant, subject to earlier
termination as provided herein, and the Option may be exercised
during such term only in accordance with the provisions of the Plan
and the terms of this Agreement.
4.
Exercise of Option . Except as otherwise provided herein,
the Option shall be exercisable only by the Optionee during the
Optionee’s lifetime as follows:
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(i)
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Schedule of Right to
Exercise .
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(a)
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The Option shall not be exercisable
for a period of one (1) year following the Date of Grant. Except as
otherwise provided in this paragraph 4, the Option shall vest and
become exercisable ratably over _____ years (i.e., in _____ equal
installments) commencing on the first anniversary of the Date of
Grant; and such installments shall be cumulative; provided,
however, that the Optionee is [employed by the Company] [serving on
the Board of Directors] at such time or times.
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(b)
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The vested portion of the Option
need not be exercised all at one time with respect to the total
number of vested Optioned Shares, but may be exercised with respect
to any vested part of such Shares, subject to the provisions of
this paragraph 4, from time to time during the term of the Option.
To the extent that the Option is not exercised with respect to the
total number of such vested Optioned Shares, the remaining vested
Optioned Shares shall remain subject to the Option at any time
thereafter in accordance with the terms of this Agreement.
Notwithstanding anything herein to the contrary, in no event may
the Option be exercised for a fractional Share.
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(c)
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The Option shall not be exercisable
after the expiration of the term provided in paragraph 3 hereof,
and except as provided in subparagraph (i) (d) of this paragraph 4,
the Option shall be exercisable only if the Optionee is currently
[emloyed by] [serving on the Board of Directors] of the
Company.
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(d)
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In the event of the Optionee’s
separation from service [on the Board of Directors] by reasons of
death, disability [or the end of his elected term on the Board of
Directors without reelection or reappointment], then and only to
the extent that the Optionee would have been entitled to exercise
the Option immediately prior to such separation, the Option may be
exercised within a period of ________________ from the date of such
separation, and, unless exercised, the Option shall expire at the
end of such period. Notwithstanding anything herein to the
contrary, in no event may the Option be exercised after the
expiration of its term. In the event of the Optionee’s
disability or death, the Option may be exercised as provided herein
by the Optionee or on the Optionee’s behalf by the
Optionee’s legal representative (in the event of the
Optionee’s disability), or by the person or persons
(including the Optionee’s estate) to whom the
Optionee’s rights under the Option shall have passed by will
or by the laws of descent and distribution (in the event of the
Optionee’s death).
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[If the Optionee is removed from his
position as a director of the Company for cause, this Option shall
be deemed canceled and terminated on the day of such separation
from service.]
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(ii)
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Method of Exercise
. The Option shall be exercisable
by delivery of written notice of such exercise to the Company,
accompanied by payment of the Option Price of the Optioned Shares
with respect to which the Option is being exercised. Each such
notice of exercise shall:
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(a)
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state the election to exercise the
Option, the number of shares of Common Stock with respect to which
it is being exercised, the address and Social Security Number of
the person in whose name the certificate(s) evidencing the Optioned
Shares are to be issued;
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(b)
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contain such representations and
agreements as to investment intent with respect to such Optioned
Shares as may be satisfactory to the Company’s
counsel;
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(c)
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be signed by the person entitled to
exercise the Option and, if the Option is being exercised by any
person or persons other than the Opt
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