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EXHIBIT 10.52
BIO-PLEXUS, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of February 9, 2001 between Bio-Plexus, Inc., a
Connecticut corporation (the "Company") and John S. Metz (the "Participant").
WHEREAS, the Company is entering into this Agreement and delivering
this Agreement to the Participant as contemplated by that certain Employment
Agreement dated April 27, 2000 between the Participant and the Company, (the
"Employment Agreement").
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Participant agree as follows:
1. Grant of Option. The Company hereby grants to the Participant, a
non-statutory stock option (the "Option"), pursuant to the Company's 1991
Long-term Incentive Plan, or any successor plan thereto (the "Plan"), to
purchase up to an aggregate of 700,000 shares (the "Shares") of Common Stock, no
par value ("Common Stock"), of the Company at a price of U.S. $1.375 per Share
(the "Exercise Price"), purchasable as set forth in and subject to the terms and
conditions of this Agreement and the Plan.
2. Exercise of Option and Provisions for Termination.
(a) Terms and Exercise of Option. Subject to subsections (b) through
(h) below, the Option shall become exercisable with respect to the number of
Shares set forth below on each of the dates set forth below:
DATE NUMBER OF SHARES EXERCISABLE ON OR
AFTER DATE
April 28, 2001 233,333
April 28, 2002 233,333
April 28, 2003 233,334
(b) Expiration Date. Except as otherwise provided in this Agreement,
the Option may not be exercised after the date (hereinafter the "Expiration
Date") that is the tenth anniversary of the Date of Grant.
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(c) Exercise Procedure. Subject to the conditions set forth in this
Agreement, the Option shall be exercised by the Participant's delivery of
written notice of exercise to the chief financial officer of the Company,
specifying the number of Shares to be purchased and the aggregate Exercise Price
to be paid therefor and accompanied by payment in full in accordance with
Section 3. Such exercise shall be effective upon receipt by the chief financial
officer of the Company of such written notice together with the required
payment. The Participant may purchase less than the total number of Shares
covered hereby, provided that no partial exercise of the Option may be for any
fractional Share or for less than ten whole Shares.
(d) Continuous Employment Required. Except as otherwise provided in
this Section 2, the Option may not be exercised unless the Participant, at the
time he or she exercises the Option, is, and has been at all times since the
Date of Grant of the Option, an employee of the Company or a subsidiary thereof,
if any. For all purposes of this Agreement, (i) "employment" shall be defined in
accordance with the provisions of Section 1.421-7(h) of the Income Tax
Regulations or any successor regulations, and (ii) if the Option shall be
assumed or a new option substituted therefor in a transaction to which Section
424(a) of the Internal Revenue Code of 1986, as amended (the "Code") applies,
employment by such assuming or substituting corporation (hereinafter called the
"Successor Corporation") shall be considered for all purposes of this Agreement
to be employment by the Company. In the event that the Participant's
relationship with the Company changes during the term of the Option in a manner
that does not constitute a complete separation therefrom (for example, from
employee to consultant or director, or vice versa), the Board of Directors or a
committee thereof shall have the authority to determine whether or not such
change constitutes a cessation of employment or service for purposes of this
subsection (d).
(e) Termination of Employment. If the Participant ceases to be employed
by the Company for any reason other than death, disability or a discharge for
"Cause" (as such term is defined in the Employment Agreement or a voluntary
resignation in connection with Participant's retirement), the right to exercise
that portion of the Option which is then presently exercisable shall terminate
three months after such cessation (but in no event after the Expiration Date).
(f) Exercise Period Upon Death or Disability. If the Participant dies
or becomes disabled (within the meaning of Section 22(e) (3) of the Code) prior
to the Expiration Date, while he or she is an employee of the Company or if the
Participant dies within three months after the Participant ceases to be an
employee of the Company (other than as the result of a discharge for "Cause" as
such term is defined in the Employment Agreement), the Option shall be
exercisable with respect to all Options then presently exercisable, within the
period of one year following the date of death or disability of the Participant
(but in no event after the Expiration Date), by the Participant, the
Participant's legal representative (in the event of legal incapacity) or by the
person to whom the Option is transferred by will or the laws of descent and
distribution. Except as otherwise indicated by the context, the term
"Participant", as used in this Agreement, shall be deemed to include the estate
of the Participant, or any person who acquires the right to exercise the Option
by bequest or inheritance or otherwise by reason of the death of the
Participant.
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(g) Discharge for Cause. If the Participant, prior to the Expiration
Date, ceases his employment with the Company because he is discharged for
"Cause" (as such term is defined in the Employment Agreement), the right to
exercise the Option shall terminate immediately upon such cessation of
employment.
(h) Exercise Period Upon Resignation In Connection With Retirement. If
the Participant, prior to the Expiration Date, ceases his employment with the
Company due to his voluntary resignation in connection with his retirement from
the Company ("Retirement"), the right to exercise that portion of the Option
which is exercisable at the time of the Retirement shall terminate as determined
by the Board of Directors, but in any case that portion of the Option which is
exercisable at the time of the Retirement shall be exercisable within the one
year period following the date of Participant's Retirement. For purposes of this
subsection (h), Participant shall be deemed to have retired so long as following
the voluntary termination of his employment with the Company he does not
undertake employment whether full-time or part-time with any other entity.
3. Payment of Exercise Price. Payment of the aggregate Exercise Price
for Shares purchased upon exercise of the Option shall be made by delivery to
the chief financial officer of the Company of (a) cash or by a certified or
cashier's check payable to the order of the Company, (b) shares of Common Stock
(valued at the Fair Market Value, as such term is defined in the Plan, on the
date of purchase), or (c) a combination of the methods of payment set forth in
clauses (a) and (b) hereof.
4. Delivery of Shares. The Company shall, upon payment of the aggregate
Exercise Price for the number of Shares purchased and paid for, make prompt
delivery of such Shares to the Participant, provided that if any law or
regulation requires the Company to take any action with respect to such Shares
before the issuance thereof, then the date of delivery of such Shares shall be
extended for the period necessary to complete such action. No Shares shall be
issued and delivered upon exercise of the Option unless and until, in the
opinion of counsel for the Company, any applicable registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), any applicable
listing requirements of any national securities exchange on which stock of the
same class is then listed, and any other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and delivery, shall
have been fully complied with.
5. Non-transferability of Option. Except as provided in subsection (f)
of Section 2, or as otherwise agreed to by the Board of Directors or a committee
thereof, the Option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of the Option or of such rights contrary to the
provisions hereof, or upon the levy of any attachment or similar process upon
the Option or such rights, the Option and such rights shall, at the election of
the Company, become null and void.
6. No Special Employment Rights. Nothing contained in the Plan or this
Agreement shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment of the Participant for the period
within which the Option may be
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exercised. Moreover, during the period of the Participant's employment, the
Participant shall render diligently and faithfully the services which are
assigned to the Participant from time to time by the Board of Directors or by
the executive officers of the Company and shall at no time take any action which
directly or indirectly would be inconsistent with the best interests of the
foregoing entities.
7. Rights as a Shareholder. The Participant shall have no rights as a
Shareholder with respect to any Shares which may be purchased by exercise of the
Option unless and until a certificate representing such Shares is duly issued
and delivered to the Participant. No adjustment shall be made for dividends or
other rights for which the record date is prior to the date such stock
certificate is issued except as provided for in Sections 8 or 9 of this
Agreement.
8. Recapitalization. In the event that the outstanding shares of Common
Stock of the Company are changed into or exchanged for a different number or
kind of shares or other securities of the Company by reason of any
recapitalization, reclassification, stock split, stock dividend, combination or
subdivision, the Board of Directors or a committee thereof, in its discretion,
may make appropriate adjustments in the number and kind of Shares to which the
Option shall be exercisable. Such adjustment to the Option may be made without
change in the total price applicable to the unexercised portion of the Option,
and a corresponding adjustment in the Exercise Price per Share may be made. No
such adjustment shall be made which would, within the meaning of any applicable
provisions of the Code, constitute a modification, extension or renewal of the
Option or a grant of additional benefits to the Participant.
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9. Reorganization or Change in Control of the Company.
(a) Reorganization. In case (i) the Company is merged or consolidated
with another corporation and the Company is not the surviving corporation, (ii)
all or substantially all of the assets or more than 50% of the outstanding
voting stock of the Company is acquired by any other corporation or (iii) of a
reorganization or liquidation of the Company prior to the Expiration Date, the
Board of Directors of the Company or a committee thereof, or the board of
directors of any corporation assuming the obligations of the Company, may, as to
the Option, either (x) make appropriate provision for the protection of the
Option by the substitution on an equitable basis of appropriate stock of the
Company, or of the merged, consolidated or otherwise reorganized corporation
which will be issuable in respect of the shares of Common Stock of the Company,
provided that no additional benefits shall be conferred upon the Participant as
a result of such substitution, and the excess of the aggregate fair market value
of the Shares subject to the Option immediately after such substitution over the
purchase price thereof is not more than the excess of the aggregate fair market
value of the Shares subject to the Option immediately before such substitution
over the purchase price thereof, or (y) upon written notice to the Participant,
provide that the Option must be exercised within a specified number of days of
the date of such notice or it will be terminated. In any such case, the Board of
Directors or a committee thereof may, in its discretion, accelerate the exercise
dates of the Option; provided, however, that paragraph (b) below shall govern
acceleration of options with respect to the events described in clauses (i),
(ii) and (iii) of the definition of Change in Control (as such term is defined
in the Employment Agreement.)
(b) Change in Control. In case, prior to the Expiration Date, of a
Change in Control (as such term is defined in the Employment Agreement), the
Option, regardless of the date of grant, shall immediately become exercisable
with respect to 100% of the Common Stock subject to the Option. Notwithstanding
the foregoing, in the event of the occurrence of a Change in Control, a portion
of the Option will continue to be subject to the vesting provisions set forth in
Section 2(a), such portion having a value equal to the excess of (i) the portion
of the value of the Option that is treated as contingent on a change in control
(as determined pursuant to Proposed Treasury Regulations Section 1.280G-1
Q/A-24(b) amounts payable to Employee pursuant to Section 5(e) of the Employment
Agreement (ii) 2.99 times the Employee's "base amount" (as determined under Code
Section 280G(b)(3). For purposes of all calculations made pursuant to this
paragraph (b), reference is made to Proposed Treasury Regulations Section
1.280G-1, Q/A-24(e), examples 6 and 7.
10. Withholding Taxes. The Company's obligation to deliver Shares upon
the exercise of the Option shall be subject to the Participant's satisfaction of
all applicable federal, state and local income and employment tax withholding
requirements.
11. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, in any jurisdiction, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force and effect
to the fullest extent permitted by law in such jurisdiction, and such invalidity
or unenforceability shall have no effect in any other jurisdiction.
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12. The Plan. The Plan, a summary of which has been distributed with
this Agreement is incorporated herein by reference and is made a part of this
Agreement as if fully set forth herein. This Agreement is subject to, and the
Company and the Participant agree to be bound by, all of the terms and
conditions of the Plan. The Plan shall control in the event there is any express
conflict between the Plan and the terms hereof, and on such matters that are not
expressly covered in this Agreement. Subsequent amendments to the Plan shall
not, without the consent of the Participant, adversely affect the Participant's
rights under this Agreement. Capitalized terms used herein which are not
otherwise defined herein shall have the meaning ascribed thereto in the Plan.
13. Acknowledgement and Legend.
(a) The Participant acknowledges and agrees that (i) because of his
position with the Company, the Participant may be deemed to be an "affiliate"
thereof (as such term is defined in Rule 144 promulgated under the Securities
Act); (ii) the resale by an affiliate of the Company of the Shares acquired upon
any exercise of the Option is restricted by law, notwithstanding any
registration of the Shares on Form S-8 (or similar successor form) promulgated
under the Securities Act; (iii) any resale of the Shares by an affiliate of the
Company pursuant to said Rule 144 would be subject to the volume limitations
contained in paragraph (e) thereof; and (iv) the Participant will not sell such
Shares in violation of Rule 144(e) or any other rule or regulation under the
Securities Act.
(b) Legend on Stock Certificates. So long as the Participant remains an
affiliate of the Company, all stock certificates representing Shares issued to
the Participant upon exercise of the Option shall have affixed thereto a legend
substantially in the following form, in addition to any other legends required
by applicable state law:
"The Shares of stock represented by this certificate are
subject to the volume limitations of Rule 144(e) promulgated
under the Securities Act of 1933, as amended."
By making payment upon exercise of the Option, the Participant
shall be deemed to have reaffirmed, as of the date of such payment, the
representations made in this Section 11.
14. Miscellaneous; Notices.
(a) This Agreement and any instrument delivered pursuant to this
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Connecticut, without regard to the conflicts of law rules thereof.
(b) Any controversy or claim arising out of or relating to this
Agreement, or any breach thereof, shall be resolved through final and binding
arbitration in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association then in effect. Judgment upon any arbitration
award rendered may be entered in any court having jurisdiction thereof. The
arbitration shall be held in the area where the Company then has its principal
place of business. The arbitration award may include an award of attorneys' fees
and costs.
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(c) This Agreement shall extend to, be binding upon and inure to the
benefit of Participant and his legal representatives, heirs, successors and
assigns (subject, however, to the limitations set forth in Section 5 with
respect to transfer of this Agreement or any rights hereunder), and upon the
Company and its successors and assigns, regardless of any change in the business
structure of the Company, be it through spinoff, merger, sale of stock, sale of
assets or any other transaction.
(d) This Agreement and the Plan contain the entire agreement of the
parties with respect to the subject matter hereof. With the consent of the
Participant, the Board of Directors or a committee thereof, may amend this
Agreement in a manner not inconsistent with the Plan.
(e) No value deemed to be received by Participant as a result of the
award of Award Shares hereunder will constitute "earnings" with respect to which
any other employee benefits of Participant are determined.
(f) The waiver of any breach of any duty, term or condition of this
Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or of any other duty, term or condition of this
Agreement.
(g) All notices pursuant to this Agreement will be in writing and will
be sent by personal delivery, telecopier, electronic mail or by prepaid
registered or certified mail, return receipt requested, addressed to the parties
hereto at the addresses set forth beneath their names on the signature page
hereto or to such other addresses as may hereafter be specified by like notice
in writing by either of the parties, and will be deemed given (i) upon receipt
if by personal delivery, (ii) on the day on which delivered if delivered by
telecopier (with confirmation of receipt (such receipt to be established by
acceptable protocol)), (iii) upon mailing if sent by registered or certified
mail or (iv) when transmitted if delivered by electronic mail (with satisfactory
evidence of transmittal (such evidence of transmittal to be established by
acceptable protocol)). Copies of all notices shall be sent to: Paul, Hastings,
Janofsky & Walker LLP, 1055 Washington Boulevard, Stamford, Connecticut 06901,
Attention: Esteban A. Ferrer, Esq., Telecopier No. 203-359-3031, E-mail Address:
eaferrer@phjw.com.
(h) The headings of the sections of this Agreement are inserted for
convenience of reference only and will not be deemed to constitute a part hereof
or to affect the meaning hereof.
(i) This Agreement may be executed in counterparts, each of which will
be deemed an original but all of which will together constitute one and the same
agreement.
Date of Grant: BIO-PLEXUS, INC.
October 26, 2000 By:
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Name:
Title:
Address: 129 Reservoir Road
Vernon, CT 06066
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PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing Agreement and agrees to
the terms and conditions thereof. The undersigned hereby acknowledges receipt of
a copy of the Company's summary of the Plan.
PARTICIPANT
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Name:
Title:
Address:
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