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Exhibit
10.4
MIMEDX,
INC.
2006 STOCK INCENTIVE
PLAN
Nonqualified Stock Option
Award Agreement
(Non-employee Directors
and Independent Contractors)
THIS AGREEMENT
(together with Schedule A, attached hereto, the
“Agreement”), effective as of the date specified as the
“Grant Date” on Schedule A attached hereto, between
MIMEDX, INC., a Florida corporation (the
“Corporation”), and the individual identified on
Schedule A attached hereto, an individual in service to the
Corporation or an Affiliate (the
“Participant”).
R E C
I T A L S :
In furtherance of
the purposes of the MiMedx, Inc. 2006 Stock Incentive Plan, as it
may be hereafter amended (the “Plan”), the Corporation
and the Participant hereby agree as follows:
1. Incorporation
of Plan . The rights and duties of the Corporation and the
Participant under this Agreement shall in all respects be subject
to and governed by the provisions of the Plan, the terms of which
are incorporated herein by reference. In the event of any conflict
between the provisions in the Agreement and those of the Plan, the
provisions of the Plan shall govern. Unless otherwise defined
herein, capitalized terms in this Agreement shall have the same
definitions as set forth in the Plan.
2. Grant of
Option; Term of Option . The Corporation hereby grants to the
Participant pursuant to the Plan, as a matter of separate
inducement and agreement in connection with his or her service to
the Corporation, and not in lieu of any salary or other
compensation for his or her services, the right and Option (the
“Option”) to purchase all or any part of such aggregate
number of shares (the “Shares”) of common stock of the
Corporation (the “Common Stock”) at a purchase price
(the “Option Price”) as specified on Schedule A,
attached hereto and subject to such other terms and conditions as
may be stated herein or in the Plan or on Schedule A. The
Participant expressly acknowledges that the terms of Schedule A
shall be incorporated herein by reference and shall constitute part
of this Agreement. The Corporation and the Participant further
acknowledge and agree that the signatures of the Corporation and
the Participant on the Grant Notice contained in Schedule A shall
constitute their acceptance of all of the terms of this Agreement
and their agreement to be bound by the terms of this Agreement
. The Option shall be designated as a Nonqualified Option, as
stated on Schedule A. Except as otherwise provided in the Plan or
this Agreement, this Option will expire if not exercised in full by
the Expiration Date specified on Schedule A.
3. Exercise of
Option . Subject to the terms of the Plan and this Agreement,
the Option shall become exercisable on the date or dates, and
subject to such conditions,
as are set forth on Schedule
A attached hereto. To the extent that an Option which is
exercisable is not exercised, such Option shall accumulate and be
exercisable by the Participant in whole or in part at any time
prior to expiration of the Option, subject to the terms of the Plan
and this Agreement. The Participant expressly acknowledges that
the Option may vest and be exercisable only upon such terms and
conditions as are provided in this Agreement and the Plan .
Upon the exercise of an Option in whole or in part and payment of
the Option Price in accordance with the provisions of the Plan and
this Agreement, the Corporation shall, as soon thereafter as
practicable, deliver to the Participant a certificate or
certificates for the Shares purchased. Payment of the Option Price
may be made (i) in cash or by cash equivalent; and, where
permitted by applicable law, payment may also be made (ii) by
delivery (by either actual delivery or attestation) of shares of
Common Stock owned by the Participant (subject to such terms and
conditions, if any, as may be determined by the Administrator);
(iii) by shares of Common Stock withheld upon exercise but
only if and to the extent that payment by such method does not
result in variable accounting or other accounting consequences
deemed unacceptable to the Corporation; (iv) in the event that
a Public Market (as defined in the Plan) for the Common Stock
exists, by delivery of written notice of exercise to the
Corporation and delivery to a broker of written notice of exercise
and irrevocable instructions to promptly deliver to the Corporation
the amount of sale or loan proceeds to pay the Option Price;
(v) by such other payment methods as may be approved by the
Administrator and which are acceptable under applicable law; or
(vi) by any combination of the foregoing methods. Shares
delivered or withheld in payment of the Option Price shall be
valued at their Fair Market Value on the date of exercise,
determined in accordance with the terms of the Plan.
4. No Right of
Employment or Service; Forfeiture of Option . Neither the Plan,
this Agreement nor any other action related to the Plan shall
confer upon the Participant any right to continue in the employment
or service of the Corporation or an Affiliate or interfere with the
right of the Corporation or an Affiliate to terminate the
Participant’s employment or service at any time. Except as
otherwise expressly provided in the Plan or this Agreement or as
determined by the Administrator, all rights of the Participant with
respect to the Option shall terminate upon termination of the
services of the Participant with the Corporation or an Affiliate.
Notwithstanding any thing to the contrary herein or in the Plan, if
Participant’s services as director, consultant or otherwise
on behalf of the Corporation terminate for any reason prior to the
expiration of ninety (90) days from the date of commencement
of such services, then all Options granted, whether or not vested,
shall upon such termination be forfeited in full and shall no
longer be of any force or effect.
5. Termination
of Service . Unless the Administrator determines otherwise (and
unless the Participant becomes an Employee after the date of this
Agreement, in which case he or she shall be subject to the
provisions of Section 7(d)(iii) of the Plan), subject to any
requirements imposed under Code Section 409A, the Option may
be exercised only to the extent vested and exercisable on the
Participant’s Termination Date (unless the termination was
for Cause, and must be exercised, if at all , prior to the first to
occur of the following, as applicable: (a) the close of the
period of three months next succeeding the Termination Date; or
(b) the close of the Option Period. If the services
of
2
he Participant are terminated
for Cause (as defined in the Plan), the Option shall lapse and no
longer be exercisable as of his or her Termination Date, as
determined by the Administrator.
6.
Nontransferability of Option . The Option shall not be
transferable (including by sale, assignment, pledge or
hypothecation) other than by will or the laws of intestate
succession, except as may be permitted by the Administrator in a
manner consistent with the registration provisions of the
Securities Act of 1933, as amended (the “Securities
Act”). Except as may be permitted by the preceding sentence,
the Option shall be exercisable during the Participant’s
lifetime only by him or her or by his or her guardian or legal
representative. The designation of a beneficiary in accordance with
the Plan does not constitute a transfer.
7. Superseding
Agreement; Binding Effect . This Agreement supersedes any
statements, representations or agreements of the Corporation with
respect to the grant of the Option or any related rights, and the
Participant hereby waives any rights or claims related to any such
statements, representations or agreements. This Agreement does not
supersede or amend any existing confidentiality agreement,
nonsolicitation agreement, noncompetition agreement, employment
agreement or any other similar agreement between the Participant
and the Corporation, including, but not limited to, any restrictive
covenants contained in such agreements. This Agreement shall be
binding upon and shall inur
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