Exhibit 4.5
EMPLOYEE BASE STOCK OPTION AGREEMENT
AGREEMENT dated as of October 2, 1995, by and
between InnoTech, Inc., a Delaware corporation, with
principal offices located at 5568 Airport Road, Roanoke,
Virginia 24012 (the "Company"), and _____________________
_____________________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, on August 15, 1995, the Board of
Directors of the Company authorized the grant to the
Optionee of an option to purchase _______________ shares of
common stock of the Company, $.001 par value (the "Common
Stock"), conditioned upon the Optionee's acceptance thereof
upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Optionee desires to acquire said
option on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises
and the mutual agreements hereinafter set forth, and for
other good and valuable consideration, the parties hereto
hereby agree as follows:
1. The Company hereby grants to the Optionee an
option to purchase up to ___________ shares of Common Stock
at a purchase price of $0.01 per share, subject to
adjustment in the manner set forth in Section 11 hereof and
to the other terms and conditions set forth herein.
2. (i) Subject to clause (ii) of this Section
and to Section 11(ii) hereof, options to purchase ______
shares of Common Stock shall be exercisable commencing on
August 23, 1995, options to purchase ______ shares of Common
Stock shall be exercisable commencing on October 2, 1995,
and options to purchase ____ shares of Common Stock shall be
exercisable commencing on each of October 2, 1996, October
2, 1997, October 2, 1998, October 2, 1999 and October 2,
2000. Subject to clause (ii) of this Section, Section 9 and
Section 11(ii) hereof, all options granted hereunder shall
terminate on August 23, 2005.
(ii) Notwithstanding the provisions of clause
(i), this option shall become immediately exercisable upon
the first to occur of the Change in Control Date, or the
date the Optionee's employment with the Company or a direct
or indirect majority-owned subsidiary corporation of the
Company (a "Subsidiary") shall terminate for any reason
other than a termination due to Optionees committing a fraud
against the Company or a Subsidiary. For purposes hereof,
the Change in Control Date shall mean the date of the first
to occur of a Liquidation or a Sale. A "Liquidation" shall
occur upon the voluntary or involuntary liquidation,
dissolution or winding-up of the Company. A "Sale" shall
occur, in any single transaction or series of related
transactions, upon (A) a sale, abandonment, transfer, lease
or disposition of all or substantially all of the properties
and assets of the Company (other than to any wholly-owned
subsidiary of the Company) followed by a liquidation
distribution, (B) a sale, transfer or other disposition by
the Company's shareholders of Company securities
representing in excess of 50% of the Common Stock equivalent
voting rights of the Company (on a fully-diluted basis) or
(C) a merger or consolidation of the Company with or into
any other entity or entities (other than a merger of the
Company with and into a wholly-owned subsidiary of the
Company with no change in the beneficial ownership of the
Company).
3. Except as provided in Section 9 hereof, this
option may not be exercised unless the Optionee is in the
employ of the Company or a Subsidiary at the time of such
exercise and shall have been such an employee continuously
since the date of grant of this option.
4. This option shall not be deemed an "Incentive
Stock Option" under the Internal Revenue Code of 1986, as
amended (the "Code"). Accordingly, the Optionee
acknowledges that, under existing laws and regulations,
exercise of the option may be a taxable event under the
Code. In such event, the Optionee will be subject to a
withholding tax on the difference between the purchase price
of the shares received from the Company and their fair
market value on the date of exercise. Any such tax shall be
paid to the Company by the Optionee within two days of
receipt of a notice from the Company containing the amount
thereof.
5. Subject to the terms and conditions set forth
herein, the Optionee may exercise this option at any time as
to all or any of the shares of Common Stock then purchasable
in accordance with Sections 2 and 3 hereof by delivering to
the Company written notice specifying:
(i) The number of whole shares of Common
Stock to be purchased together with payment in full of
the aggregate exercise price of such shares, provided
that this option may not be exercised for fewer than
one hundred (100) shares of Common Stock or the number
of shares of Common Stock remaining subject to this
option, whichever is smaller;
(ii) The address to which dividends,
notices, reports, etc. are to be sent; and
(iii) The Optionee's social security
number.
Only one stock certificate will be issued unless the
Optionee otherwise requests in writing.
6. The exercise price of the shares of Common
Stock as to which the option is exercised shall be paid in
full in U.S. dollars, in cash, or by certified or bank
cashier's check payable to the order of the Company, free
from all collection charges. The exercise price for the
shares of Common Stock covered by this option may also be
paid in shares of Common Stock owned by the Optionee having
a market value on the date of exercise equal to the
aggregate exercise price, or in a combination of cash and
Common Stock. In addition to the foregoing methods of
payment in respect of the exercise of the option, the
exercise price of this option may also be paid by delivery
to the Company or its designated agent of an executed
irrevocable option exercise form together with irrevocable
instructions to a broker-dealer to sell a sufficient portion
of the shares of Common Stock underlying the option and
deliver the sale proceeds directly to the Company in payment
of the exercise price. For purposes of this option, the
market value per share of Common Stock shall be the last
sale price regular way on the date of reference, or, in case
no sale takes place on such date, the average of the closing
bid and asked prices regular way, in either case on the
principal national securities exchange on which the Common
Stock is listed or admitted to trading, or if the Common
Stock is not listed or admitted to trading on any national
securities exchange, the last sale price reported on the
NASDAQ Stock Market on such date, or the average of the
closing bid and asked prices of the Common Stock as reported
thereon on the date in reference, whichever is applicable,
or if there are no such prices reported on the NASDAQ Stock
Market on such date, as furnished to the Company by any New
York Stock Exchange member selected from time to time by the
Company for such purpose. If there is no bid or asked price
reported on any such date, the market value shall be
determined by the Company in good faith. The Optionee shall
not be entitled to any rights as a stockholder of the
Company in respect of any shares of Common Stock covered by
this option until such shares of Common Stock shall have
been paid in full and issued to the Optionee.
7. As soon as practicable after the Company
receives and collects payment for shares of Common Stock
covered by this option, it shall deliver a certificate or
certificates representing the shares of Common Stock so
purchased to the Optionee.
8. This option is personal to the Optionee and
during the Optionee's lifetime may be exercised only by the
Optionee. This option and the rights and privileges
conferred hereby may not be transferred, assigned, pledged
or hypothecated in any way and shall not be subject to
execution, attachment or similar process. Upon any attempt
to transfer, assign, pledge, hypothecate or otherwise
dispose of this option or any right or privilege conferred
hereby contrary to the provisions hereof, or upon the levy
of any attachment or similar process on the rights and
privileges conferred hereby, this option and the rights and
privileges conferred hereby shall immediately become null
and void.
9. In the event that the Optionee's employment
as an employee of the Company and, if applicable, each
Subsidiary (hereinafter the "Optionee's employment") is
terminated prior to the time that this option has been fully
exercised, this option shall be exercisable, as to any
remaining shares of Common Stock subject hereto, as follows:
(i) If the Optionee's employment is
terminated because the Optionee committed a fraud
against the Company or a Subsidiary, this option and
any unexercised portion thereof shall terminate and
shall cease to be exercisable.
(ii) If the Optionee's employment is
terminated for any reason other than because the
Optionee committed a fraud against the Company or a
Subsidiary (including, without limitation, by reason of
Optionee's voluntary resignation), this option and any
unexercised portion thereof shall terminate except to
the extent such option is exercised by the Optionee,
his legal representative or the executor or
administrator of his estate, as the case may be, within
twelve (12) months after the date of such termination
of his employment.
Notwithstanding any other provisions of this Section 9 to
the contrary, this option shall in no event be exercisable
after the date of termination of such option specified in
Section 2 hereof.
10. This option does not confer on the Optionee
any right to continue in the employ of the Company or any
Subsidiary or interfere in any way with the right of the
Company or any Subsidiary to determine the terms of the
Optionee's employment.
11. (i) In the event of a reorganization,
recapitalization, stock split, reverse stock split, stock
dividend, combination of shares or any other similar change
in the corporate structure or shares of the Company, the
number of shares covered by any unexercised portion of this
option and the related purchase price per share shall be
adjusted proportionately.
(ii) Notwithstanding anything in Sections 6
and 7 to the contrary, in the event of a Sale, the Optionee
shall, upon the consummation thereof, automatically receive
a payment equal to the excess, if any, of the Sale
consideration receivable by the holder of a share of Common
Stock in such a Sale (the "Sale Consideration") over the
exercise price hereof, for each share of Common Stock the
Optionee shall then be entitled to acquire hereunder. The
value of the Sale Consideration receivable by the holder of
a share of Common Stock, if it shall be other than cash,
shall be determined, in good faith, by the Board of
Directors of the Company. Upon payment to the Optionee of
the Sale Consideration, the Optionee shall have no further
rights in connection with the option granted hereunder, and
this Agreement shall be terminated.
12. Anything in this Agreement to the contrary
notwithstanding, the Optionee hereby agrees that he shall
not sell, transfer by any means or otherwise dispose of the
shares of Common Stock acquired by him without registration
under the Securities Act of 1933, as amended (the "Act"),
and any applicable state securities laws unless (a)
exemptions from the Act and any such state securities laws
are available thereunder, and (b) the Optionee has furnished
the Company with notice of such proposed transfer and the
Company's legal counsel, in its reasonable opinion, shall
deem such proposed transfer to be so exempt.
13. Any notice, demand, request or consent to be
given or served in connection herewith shall be in writing
and shall be deemed to have been given and received by the
respective parties designated therein on the day on which
delivered by messenger to the receiving party at the address
set forth herein (or at such other address as such party
shall specify to the other parties in writing pursuant to
this Section) or, if sent by certified or registered mail,
postage prepaid, return receipt requested, on the second day
after the day on which mailed to such party at such address.
14. (i) This Agreement shall be construed in
accordance with, and governed by, the laws of the State of
Delaware applicable to agreements made and to be entirely
performed within such State.
(ii) Subject to the provisions of Section 8
hereof, this Agreement shall be binding upon and inure to
the benefit of each party hereto and to the extent not
prohibited herein, their respective heirs, successors,
assigns and representatives.
(iii) This Agreement may be executed in two
or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and
the same instrument.
(iv) This Agreement may not be amended,
except pursuant to a written instrument signed by each of
the parties hereto. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate
or be construed as a waiver of any other or subsequent
breach.
15. The Company and the Optionee hereby
acknowledge and agree that the issuance of the option
pursuant to this Agreement (including the shares of Common
Stock underlying the option) constitute an exempt offer and
sale pursuant to Rule 701 promulgated under the Act, and
that for purposes of said Rule this Agreement constitutes a
written contract relating to the compensation of the
Optionee (as defined in Rule 701(b)(1)(ii)). In connection
with the foregoing, the Company agrees to make any filings
and/or to take any other actions which are required in order
to comply with the exemption provided by Rule 701.
IN WITNESS WHEREOF, this Base Stock Option
Agreement has been executed by the parties hereto as of the
date first set forth above.
INNOTECH, INC.
By:_______________________
Name:
Title:
OPTIONEE:
_____________________________