Exhibit 10.12
Option Number:
Optionee Name:
KINETIC CONCEPTS,
INC.
2008 OMNIBUS STOCK INCENTIVE
PLAN
CASHLESS INTERNATIONAL STOCK
OPTION AGREEMENT
THIS AGREEMENT (the “Option
Agreement”) is made and entered into as of _______________,
200__ (the “Date of Grant”), by and between Kinetic
Concepts, Inc., a Texas corporation (the “Company”),
and [_________________________] (the
“Optionee”). Capitalized terms not defined
herein shall have the meaning ascribed to them in the
Company’s 2008 Omnibus Stock Incentive Plan (the
“Plan”). Where the context permits,
references to the Company or any of its Subsidiaries or affiliates
shall include the successors to the foregoing.
Pursuant to the Plan, the Administrator has
determined that the Optionee is to be granted an option (the
“Option”) to obtain Shares, subject to the terms and
conditions set forth in the Plan and herein (including Appendices A
and B), and hereby grants such Option.
1. Number of
Shares and Exercise Price . The Option entitles the
Optionee to obtain [_______] Shares (the “Option
Shares”) at a price of US$[______] per share (the
“Option Exercise Price”).
2. Option Term
. The term of the Option and of the Option Agreement
(the “Option Term”) shall commence on the Date of Grant
and, unless the Option is previously terminated pursuant to
Paragraph 5 below, shall terminate upon the expiration of ten (10)
years from the Date of Grant (the “Expiration
Date”). As of the Expiration Date, all rights of
the Optionee hereunder shall terminate.
3. Conditions of
Exercise .
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Subject to
Paragraph 5 below, the Option shall vest at such time or times as
are set forth in Appendix A hereto.
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Except as
otherwise provided herein, the right of the Optionee to obtain
Option Shares with respect to which the Option has become
exercisable and vested may be exercised in whole or in part at any
time or from time to time prior to the Expiration Date; provided,
however, that the Option may not be exercised for a fraction of a
Share.
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4. Method of
Exercise . This Option may be exercised, in whole or
in part, by means of any online broker assisted exercise procedure
approved by the Administrator, or by delivery of a written notice
of exercise to the Company in such form as may be approved by the
Administrator from time to time and which may be obtained from the
Company’s Equity Accounting and Administration department,
accompanied by payment in full of the aggregate Option Exercise
Price in U.S. dollars which may be made solely by means of a
cashless exercise procedure through the use of a brokerage
arrangement approved by the Administrator. All Option
Shares being exercised at any time must be sold at the time of
exercise ( i.e ., cashless sell all exercise).
5. Effect of
Termination of Employment or Service; or Change in Control
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If the
Optionee’s employment with or service to the Parent, the
Company or any of its Affiliates terminates for any reason, other
than by reason of the Optionee’s death or Disability, the
Option, to the extent vested and exercisable as of the date of such
termination, shall expire 90 days following the date of such
termination, and the Option, to the extent not vested and
exercisable as of the date of such termination, shall expire as of
such date. The Option shall not be exercisable after the
Expiration Date.
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If the
Optionee’s employment with or service to the Parent, the
Company or any of its Affiliates terminates by reason of the
Optionee’s death or Disability, any portion of the Option
that is outstanding at such time shall become fully and immediately
vested and exercisable, and shall expire 180 days following the
date of such termination. The Option shall not be
exercisable after the Expiration Date.
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If the
Optionee’s employment with or service to the Parent, the
Company or any of its Affiliates is terminated by the Company other
than for Cause within 24 months following a Change in Control, any
portion of the Option that is outstanding at such time shall become
fully and immediately vested and exercisable.
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6. Adjustments
. The Option and all rights and obligations under this
Option Agreement are subject to Section 3 of the Plan.
7.
Nontransferability of Option . Except by will or
under the laws of descent and distribution and as set forth in the
following two sentences, the Optionee may not sell, transfer,
pledge or assign the Option, and, during the lifetime of the
Optionee, only the Optionee may exercise the
Option. Notwithstanding the foregoing, during the
Optionee’s lifetime, the Administrator may, in its sole
discretion, permit the transfer, assignment or other encumbrance of
the Option. Additionally, subject to the approval of the
Administrator and to any conditions that the Administrator may
prescribe, the Optionee may, upon providing written notice to the
Company, elect to transfer the Option (i) to members of his or her
Immediate Family, provided that no such transfer may be made
in exchange for consideration, (ii) by instrument to an inter vivos
or testamentary trust in which the Option is to be passed to
beneficiaries upon the death of the Optionee, or (iii) pursuant to
a qualified domestic relations order or any similar instrument, to
the extent permitted by applicable law. Any attempted
sale, transfer, pledge, assignment, encumbrance or other
disposition of the Option contrary to the provisions hereof shall
be null and void and without effect.
8. Notice
. Whenever any notice is required or permitted
hereunder, such notice shall be in writing and shall be given by
personal delivery, facsimile, first class mail, certified or
registered with return receipt requested. Any notice
required or permitted to be delivered hereunder shall be deemed to
have been duly given on the date which it is personally delivered
or, whether actually received or not, on the fifth day after
depositing in the post or 24 hours after transmission by facsimile
to the respective parties named below.
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Kinetic
Concepts, Inc.
Attn.: Chief Financial
Officer
8023 Vantage
Drive
San Antonio,
TX 78230
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U.S.A.
Phone: 1- (210)
255-6494
Fax: 1- (210)
255-6997
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[Name of
Optionee] ________________________________________
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[Address] ________________________________________________
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Facsimile:
________________________________________________
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Either party may change such party’s
address for notices by duly giving notice pursuant
hereto.
9. Withholding
Requirements in Connection with the Option .
(a) Regardless
of any action the Company or the Optionee’s
employer (the “Employer”) takes with respect to any or
all income tax, social insurance, payroll tax, payment on account
or other tax-related withholding (“Tax-Related Items”),
the Optionee acknowledges that the ultimate liability for all
Tax-Related Items legally due by him or her is and remains the
Optionee’s responsibility and that the Company
and/or the Employer (1) make no representations or
undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the Option grant, including the
grant, vesting or exercise of the Option; and (2) do not
commit to structure the terms of the grant or any aspect of the
Option to reduce or eliminate the Optionee’s liability for
Tax-Related Items.
Prior to exercise of the Option, the Optionee
will pay or make adequate arrangements satisfactory to the Company
and/or the Employer to satisfy all withholding and
payment on account obligations of the Company and/or
the Employer. In this regard, the Optionee authorizes
the Company and/or the Employer, at their discretion,
to satisfy the obligations with regard to all Tax-Related Items
legally payable by the Optionee by one or a combination of the
following: (1) withholding from the
Optionee’s wages or other cash compensation paid to the
Optionee by the Company and/or the Employer; or
(2) withholding from proceeds of the immediate sale of Shares
upon exercise of the Option.
Finally, the Optionee will pay to the Company
or the Employer any amount of Tax-Related Items that
the Company or the Employer may be required to
withhold as a result of the Optionee’s participation in the
Plan or the Optionee’s exercise of Shares that cannot be
satisfied by the means previously described. The Company
may refuse to honor the exercise if the Optionee fails to comply
with his or her obligations in connection with the Tax-Related
Items as described in this Paragraph.
10. Compliance with
Laws .
(a) Shares shall not
be issued or sold pursuant to the exercise of the Option granted
hereunder unless the exercise of such Option and the issuance and
delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the U.S.
Securities Act of 1933, as amended, the U.S. Exchange Act, the
requirements of any stock exchange upon which the Shares may then
be listed, and the applicable local laws, and shall be further
subject to the approval of counsel for the Company with respect to
such compliance. The Company shall be under no
obligation to effect the registration pursuant to the U. S.
Securities Act of 1933, as amended, of any interests in the Plan or
any Shares to be issued hereunder or to effect similar compliance
under any state or local laws.
(b) All certificates
for Shares delivered under the Plan shall be subject to such
stock-transfer orders and other restrictions as the Administrator
may deem advisable under the rules, regulations, and other
requirements of the U.S. Securities and Exchange Commission, any
stock exchange upon which the Shares may then be listed, and any
applicable federal, state, or local securities law, and the
Administrator may cause a legend or legends to be placed on any
such certificates to make appropriate reference to such
restrictions. The Administrator may require, as a
condition of the issuance and delivery of certificates evidencing
Shares pursuant to the terms hereof, that the recipient of such
Shares make such agreements and representations as the
Administrator, in its sole discretion, deems necessary or
desirable.
11. Protections
Against Violations of Agreement . No purported sale,
assignment, mortgage, hypothecation, transfer, pledge, encumbrance,
gift, transfer in trust (voting or other) or other disposition of,
or creation of a security interest in or lien on, any of the Option
Shares by any holder thereof in violation of the provisions of this
Option Agreement or the Articles of Incorporation or the Bylaws of
the Company, will be valid, and the Company will not transfer any
of such Option Shares on its books nor will any of such Option
Shares be entitled to vote, nor will any dividends be paid thereon,
unless and until there has been full compliance with such
provisions to the satisfaction of the Company. The
foregoing restrictions are in addition to and not in lieu of any
other remedies, legal or equitable, available to enforce said
provisions.
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The Plan is
established voluntarily by the Company, it is discretionary in
nature and it may be modified, amended, suspended or terminated by
the Company at any time, unless otherwise provided in the Plan and
this Option Agreement;
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The grant of
the Option is voluntary and occasional and does not create any
contractual or other right to receive future grants of Options, or
benefits in lieu of Options, even if Options have been granted
repeatedly in the past;
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All decisions
with respect to future Option grants, if any, will be at the sole
discretion of the Company;
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Participation
in the Plan is voluntary;
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The Option is
an extraordinary item that does not constitute compensation of any
kind for services of any kind rendered to the Company or the
Subsidiary (or Affiliate), and which is outside the scope of the
Optionee’s employment contract, if any;
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The Option is
not a part of normal or expected compensation or salary for any
purposes, including, but not limited to, calculating any severance,
resignation, termination, redundancy, end of service payments,
bonuses, long-service awards, pension or retirement benefits or
similar payments;
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The future
value of the underlying Shares is unknown and cannot be predicted
with certainty;
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If the
underlying Shares do not increase in value, the Option will have no
value;
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In
consideration of the grant of the Option, no claim or entitlement
to compensation or damages shall arise from termination of the
Option or diminution in value of the Option resulting from
termination of the Optionee’s active employment by the
Company or the Subsidiary (or Affiliate) (for any reason whatsoever
and whether or not in breach of local labor laws) and the Optionee
hereby releases the Company and the Subsidiary (or Affiliate) from
any such claim that may arise; if, notwithstanding the foregoing,
any such claim is found by a court of competent jurisdiction to
have arisen, then, by signing this Option Agreement, the Optionee
shall be deemed irrevocably to have waived the Optionee’s
entitlement to pursue such claim;
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Notwithstanding
any terms or conditions of the Plan to the contrary, in the event
of involuntary termination of the Optionee’s employment
(whether or not in breach of local labor laws), the
Optionee’s right to receive the Option and vest in Options
under the Plan, if any, will terminate effective as of the date
that the Optionee is no longer actively employed and will not be
extended by any notice period mandated under local law (
e.g. , active empl
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