Exhibit 4.6
EMPLOYEE SUCCESS 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
an initial exercise price (as adjusted, the "Base Exercise
Price") of $1.10 per share (which price the Company's Board of
Directors has determined to be at least the fair market value
of the Common Stock as of the date this grant was authorized).
The exercise price for each share of Common Stock which may be
purchased hereunder shall be increased by 7.5% of the then
existing Base Exercise Price (and rounded off to the nearest
whole cent) on September 1, 1996, and on each December 1,
March 1, June 1 and September 1 thereafter until this option
shall have either been exercised in full or shall have
terminated in accordance with the terms hereof. The Base
Exercise Price shall be adjusted on September 1, 1997, and on
each September 1 thereafter to equal the exercise price
determined under the preceding sentence as of such date.
Notwithstanding the foregoing, the Base Exercise Price per
share of Common Stock under this Agreement shall be fixed at
$1.96 during the term of this option upon the consummation of
a "Designated Offering", as such term is defined in the
Company's Amended and Restated Certificate of Incorporation,
as amended from time to time. In addition, the exercise price
shall be subject to adjustment in the manner set forth in
Section 11 hereof and to the other terms and conditions set
forth herein.
2. Subject to the provisions of Section 11(ii)
hereof, this option shall be exercisable during the period
commencing on October 2, 1995, and terminating on August 23,
2000.
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 direct or indirect majority-owned
subsidiary corporation of the Company (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
thousand (1,000) 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
for cause, based on objective factors determined in good
faith by the Company, this option and any unexercised
portion thereof shall terminate and shall cease to be
exercisable.
(ii) If the Optionee's employment is terminated
other than for cause (including, without limitation, by
reason of his 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 case of 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 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), or
a sale, abandonment, transfer, lease, or disposition of all or
substantially all of the properties and assets of the Company
(other than to a wholly-owned subsidiary of the Company)
followed by a liquidation distribution, in any single
transaction or series of related transactions (collectively,
a "Sale"), the Optionee shall, 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) constitutes 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 Employee Success Stock
Option Agreement has been executed by the parties hereto as of
the date first set forth above.
INNOTECH, INC.
By:____________________________
Name:
Title:
OPTIONEE:
_____________________________