Exhibit 10.1






EXHIBIT 10.1



FORM
OF

NON-QUALIFIED STOCK OPTION AGREEMENT

GRAYMARK HEALTHCARE, INC.




This Non-Qualified Stock Option Agreement (this “Agreement”) is made and entered into this      
day of                      2008, by and between Graymark Healthcare, Inc. (the “Company”) and                     
(“Optionee”).



WHEREAS, the Board of Directors of the Company (the “Board”) on                     , 2008, authorized the
grant of stock options (the “Options”) to Optionee that do not qualified under Section 422 of the
Internal Revenue Code of 1986, as amended, upon the terms and conditions as set forth in this
Agreement.



NOW, THEREFORE, in consideration of the mutual promises and representations herein contained,
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Optionee hereby agree as follows:




1. Definitions. The capitalized terms used herein shall have the following meanings:




1.1 Board. The Board of Directors of the Company.




1.2 Common Stock. The common stock, $.0001 par value, of the Company.




1.3 Effective Date. The date on which this Agreement becomes effective or, in absence of a
specific effective date, the date of execution of this Agreement.




1.4 Fair Market Value. The fair market value of the Common Stock on any particular day
determined as follows: (i) if the Common Stock is listed or admitted for trading on any
national securities exchange or the Capital Market of the Nasdaq Stock Market, Inc.
(“NASDAQ”), the last sale price, or if no sale occurred, the mean between the closing high
bid and low asked quotations, for such day of the Stock on the principal securities exchange
on which shares of Stock are listed; (ii) if Stock is not traded on any national securities
exchange or the Capital Market of NASDAQ, but is quoted on the Over-the-Counter Bulletin
Board or its Automated Quotation System of the Financial Industry Regulatory Association
(“FINRA’) or any similar system of automated dissemination of quotations or securities
prices in common use, the mean between the closing high bid and low asked quotations for
such day of the Stock on such system; (iii) if neither clause (i) nor (ii) is applicable,
the mean between the high bid and low asked quotations for the Stock as reported by the
National Daily Quotation Bureau, Incorporated if at least two securities dealers have
inserted both bid and asked quotations for shares of the Stock on at least five (5) of the
ten (10) preceding days; (iv) in lieu of the above, if actual transactions in the shares of
Stock are reported on a consolidated transaction reporting system, the last sale price of
the shares of Stock on such system; or (v) if none of the conditions set forth above is met,
the fair market value of shares of Stock as determined by the Board. Provided, for purposes
of determining “fair market value” of the Common Stock, such value shall be determined
without regard to any restriction other than a restriction which will never lapse.




1.5 Immediate Family. Any child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law,
or sister-in-law, and shall include adoptive relationships.




1.6 Mature Common Stock. Common Stock of the Company that has been held by the Optionee for
not less than six months and during such period has not been subject to any type of
forfeiture or restriction on transfer (other than restrictions under applicable securities
laws) on the date of exercise of the Options granted hereunder and is delivered in payment,
in whole or in part, of the aggregate Option Price of Options exercised pursuant to this
Agreement.




1.7 Options. The option rights exercisable for the purchase of the Common Stock granted to
the Optionee pursuant to this Agreement.


 


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1.8 Option Price. The price at which shares of Common Stock may be purchased by the
Optionee pursuant to exercise of the Options granted hereunder.




1.9 Personal Representative. The person designated in the will and/or such other documents
deemed acceptable to the Board as the executor or administrator of the estate of the
Optionee.



2. Option Grant. The Company hereby grants the Optionee, on the Effective Date, the Options
to purchase 15,000 shares of Common Stock to be issued upon exercise thereof as fully paid and
nonassessable at any time during the period commencing six months following the date hereof through
                    , 2013 at an Option Price of $3.75 per share.



3. Termination of Option. The Options or any unexercised portion thereof shall terminate on
expiration of the period during which the Options or any portion thereof may be exercised.



4. Manner of Exercise. The Options may be exercised in whole or in part, at any time after
such Options or any portion thereof becomes exercisable, by giving written notice to the Secretary
of the Company, or other officer designated by the Board, at the Company’s main office. Such
notice shall state the number of shares of Common Stock with respect to which the Options or any
portion thereof is being exercised and shall specify a date, not less than five nor more than 10
days after the date of such notice, as the date on which the shares will be taken up and payment
made therefor in cash, if applicable, at the principal offices of the Company. If any law or
regulation requires the Company to take any action with respect to the shares specified in such
notice, then the date for delivery of such shares against payment therefor shall be extended for
the period necessary to take such action. In the event of any failure to take up and pay for the
number of shares specified in such notice on the date set forth therein, subject to such date being
extended as provided above, the exercise of the Options shall terminate as though not exercised
with respect to such number of shares, and shall continue with the remaining shares covered by this
Agreement and not yet acquired by exercise of the Options or any portion thereof.



5. Payment of Purchase Price. Payment of the Option Price for shares of Common Stock
purchased pursuant to this Agreement shall be made by (i) payment in cash or check made payable to
the Company or (ii) delivery to the Company of shares of Mature Common Stock, or (iii) a
combination of the foregoing. If Optionee elects to pay for all or part of the shares of Common
Stock purchasable upon exercise of the Options by delivery of Mature Common Stock, a share
certificate or certificates, together with a duly executed stock power authorizing the transfer of
such shares to the Company, shall be delivered to the Company with the notice of exercise. In the
event the number of such shares of Mature Common Stock delivered for credit and payment against the
aggregate Option Price of the exercised Options have a Fair Market Value less than the full
purchase price, Optionee shall pay in cash or by check the difference between the Fair Market Value
of the Common Stock to be conveyed to the Company and the full aggregate Option Price. In the
event the share certificate delivered is for a number of shares of Mature Common Stock in excess of
that number to be conveyed to the Company for credit against the aggregate Option Price, the
Company cause to be issued to the Optionee a new share certificate representing the number of
shares in excess of the nearest whole number of shares having a Fair Market Value not in excess of
the amount required to pay the full aggregate Option Price. No fractional shares of Common Stock
shall be accepted in payment, or reissued, by the Company under the provisions of this Section.



6. Delivery of Shares. No shares of Common Stock shall be delivered upon exercise of the
Options or any portion thereof until (i) the purchase price shall have been paid in full in the
manner provided herein, (ii) applicable taxes, if any, required to be withheld have been paid or
withheld in full, (iii) approval of any government authority required in connection with the
Options, or the issuance of the Common Stock hereunder, has been received by the Company, and (iv)
if required by the Board, Optionee has delivered to the Board evidence satisfactory to the Company,
that any action or actions required of the Optionee under Section 13 hereof have been taken.



7. No Employment Rights. Nothing in this Agreement shall confer upon the Optionee any rights
to become or be or continue to be an employee or consultant of the Company or of any of its
subsidiaries, or interfere in any


 


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way with the right of the Company to terminate the Optionee as a director, employee or
consultant of the Company at any time.




8. Shareholder Rights. Optionee shall not have a right as a shareholder with respect
to any shares of Common Stock subject to the Options prior to the purchase of such shares of Common
Stock by exercise of the Options.



9. Non-Transferability of Option. Except as otherwise herein provided, the Options shall not
be transferable other than (i) by will or the laws of descent and distribution, (ii) to members of
the Immediate Family of Optionee, or (iii) an individual retirement account maintained for the
benefit of Optionee. Except as provided hereinabove, the Options may not be assigned, transferred,
pledged or hypothecated in any way, shall not be assignable by operation of law and shall not be
subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation, or other disposition of the Options contrary to the provisions hereof shall be null
and void and without effect.



10. Exercise by the Personal Representative of Optionee. In the event of the death or
disability of the Optionee during any period that the Options or any portion thereof is exercisable
by the Optionee, the Personal Representative of the Optionee may exercise the Options if otherwise
exercisable.



11. Right to Exercise upon Company Ceasing to Exist. In the event the Options or any portion
thereof shall not be exercisable in the further event of the dissolution or liquidation of the
Company or any merger, consolidation or combination in which the Company is not the surviving
corporation, the Optionee shall have the right immediately prior to such dissolution, liquidation,
merger, consolidation or combination, as the case may be, to exercise, in whole or in part, the
then remaining unexercised portion of the Options whether or not then exercisable, but limited to
that number of shares of Common Stock that can be acquired without causing the Optionee to have an
“excess parachute payment” as determined under Section 280G of the Code determined by taking into
account all of the Optionee’s “parachute payments” determined under Section 280G of the Code.
Provided, the foregoing notwithstanding, after the Optionee has been afforded the opportunity to
exercise the then exercisable Options or any portion thereof as provided herein, and to the extent
the Options or any portion thereof is not timely exercised as provided herein, then, the terms and
provisions of this Agreement will thereafter continue in effect, and the Optionee will be entitled
to exercise any such remaining and unexercised portion of the Options in accordance with the terms
and provisions of this Agreement as such Options or portion thereafter shall be or becomes
exercisable. Provided further, for the purposes of this provision, if any merger, consolidation or
combination occurs in which the Company is not the surviving corporation and is the result of a
mere change in the identity, form, or place of organization of the Company accomplished in
accordance with Section 368(a)(1)(F) of the Code, such event shall not cause an acceleration of the
exercisability of the Options or any portion thereof granted hereunder.



12. Adjustments upon Changes in Capitalization. The aggregate number of shares of Common
Stock for which the Options are exercisable hereunder, the Option Price and the total number of
shares of Common Stock that may be purchased by the Optionee upon exercise of the Options or any
portion thereof shall be appropriately adjusted by the Board to reflect any recapitalization, stock
split, merger, consolidation, reorganization, combination, liquidation, stock dividend or similar
transaction involving the Company, except that a dissolution or liquidation of the Company or a
merger or consolidation in which the Company is not the surviving or the resulting corporation,
shall cause the Options granted hereunder to terminate upon the effective date of such dissolution,
liquidation, merger or consolidation. Provided, that for the purposes of hereof, if any merger,
consolidation or combination occurs in which the Company is not the surviving corporation and is
the result of a mere change in the identity, form or place of organization of the Company
accomplished in accordance with Section 368(a)(1)(F) of the Code, such event will not cause a
termination.



13. Transferability of Shares of Common Stock. In the event a registration statement
with respect to the issuance of shares of Common Stock to the Optionee upon the exercise of the
Options or any portion thereof is not in effect at the time of such issuance of shares by the
Company at the time of the proposed transfer of the Common Stock, Optionee shall not offer, sell,
hypothecate, transfer or otherwise dispose of any of the shares of Common Stock issued pursuant to
the exercise of the Options or any portion thereof unless either (i) a registration statement with
respect to such shares of Common Stock is then in effect under the Securities Act of 1933, as
amended (the “Act”), and any applicable


 


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state securities laws, and such offer, sale, transfer or other disposition is accompanied by a
prospectus relating to such registration statement and meeting the requirements of Section 10 of
the Act; or (ii) counsel satisfactory to the Company renders a reasonable opinion in writing and
addressed to the Company and its counsel, that, in the opinion of counsel, such proposed offer,
sale, transfer or other disposition of such shares of Common Stock is exempt from the provisions of
Section 5 of the Act and the applicable state securities laws in view of the circumstances of such
proposed offer, sale, transfer or other disposition.




14. Federal and State Taxes. Upon exercise of the Options, in whole or in part, the Optionee
may incur certain liabilities for federal, state or local taxes and the Company may be required to
withhold such taxes for payment to the applicable taxing authorities. Upon determination by the
Company of the amount of taxes required to be withheld, if any, with respect to the shares to be
issued pursuant to the Options or any portion thereof, Optionee shall either pay to the Company in
cash or by check an amount equal to the taxes required to be paid on such transaction or Optionee
shall authorize the Company to withhold from amounts owing by the Company to Optionee an amount
equal to the amount of federal, state or local taxes required to be withheld with respect to the
shares to be issued upon exercise of the Options or the portion thereof.



Optionee’s authorization of the Company to withhold taxes pursuant to this Section 14 shall be
in such form and content deemed acceptable to the Company. Payment or authorization shall be
completed prior to the delivery of any shares of Common Stock pursuant to this Agreement. An
authorization to withhold taxes pursuant to this Section 14 shall be irrevocable unless and until
the tax liability of Optionee has been fully paid.



15. Binding Effect. This Stock Option Agreement shall be binding upon and shall inure to the
benefit of any successor in interest of the Company, and, to the extent herein provided and as
provided in the Plan, shall be binding upon and inure to the benefit of Optionee’s Personal
Representative, heirs and successors in interest.



16. Amendments. This Agreement may be amended only by a written agreement executed by the
Company and the Optionee if the amendment will cancel, reduce or otherwise alter the Options
granted hereunder, and in such event, any such amendment shall only be made upon the mutual consent
of the parties hereto, which consent (of either party) may be withheld for any reason.



THIS AGREEMENT is executed on the date first above written.



	 	 	 	 	 
	“Company” 	GRAYMARK HEALTHCARE, INC.

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 
	“Optionee” 	                                   
                                   


 	 
	 	 	 
	 	 	 
	 	 	 
	 



 


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