EXHIBIT 10.4
TRIPATH IMAGING, INC.
780 Plantation Drive
Burlington, NC 27215
August 3, 2004
[Name of Director]
[Address]
[City, State, Zip Code]
Dear _________________:
This letter agreement is being entered into by and between you and TriPath
Imaging, Inc. (the "Company"), a Delaware corporation, in connection with that
certain option agreement dated as of _________ (the "Option Agreement") by and
between you and the Company. Capitalized terms not otherwise defined in this
letter agreement shall have the meanings set forth in the Option Agreement.
The parties hereby agree to amend the Option Agreement as follows:
1. The Option Agreement is hereby amended by adding the following
language immediately after Section 10 of the Option Agreement:
"11. Notwithstanding any other provision of the Plan, if a
Change in Control (as herein defined) occurs on or before August 3,
2006, and (a) the Optionee's service with the Company as a member of
the Board has not terminated as of, or immediately prior to, the
effective time of the Change in Control, and (b) the surviving
entity in such Change of Control does not provide the Optionee with
the opportunity to serve as a member of the board of directors of
the surviving entity for a period of not less than the balance of
the Optionee's then current term as a member of the Board, then this
Option, or any substitute option issued herefor, shall (x) become
immediately vested and exercisable in full notwithstanding the
original option exercise schedule, and (y) remain exercisable
following the cessation of the Optionee's service as a director for
a period equal to the shorter of (I) twelve (12) months, or (II) the
remaining balance of the original term of this Option.
For purposes of this Option, a "Change in Control" means the
consummation and closing of an event or occurrence set forth in
either or both of clauses (a) and (b) below (including the
consummation and closing of an event or occurrence that constitutes
a Change in Control under one clause but is specifically exempted
from the other clause):
(a) the acquisition by an individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership of any capital
stock of the Company if, after such acquisition, such Person
beneficially owns (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) 50% or more of either (A) the
then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power
of the then-outstanding securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that for purposes of this
paragraph (a), the following acquisitions shall not constitute a
Change in Control: (I) any acquisition directly from the Company
(excluding an acquisition pursuant to the exercise, conversion of
exchange of any security exercisable for, convertible into or
exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security
acquired such security directly from the Company or an underwriter
or agent of the Company), (II) any acquisition by the Company, (III)
any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled
by the Company, or (IV) any acquisition by any corporation pursuant
to a transaction which complies with subclause (A) of clause (b) of
this Section 11; or
(b) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share exchange
involving the Company or a sale, lease, exchange or other
disposition of all or substantially all of the assets of the Company
(a "Business Combination"), unless, immediately following such
Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock and the combined voting
power of the then outstanding securities entitled to vote generally
in the election of directors, respectively, of the resulting or
acquiring corporation in such Business Combination (which shall
include, without limitation, a corporation which as a result of such
transaction owns the Company or substantially all of the Company's
assets either directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to herein as the
"Acquiring Corporation") in substantially the same proportions as
their ownership, immediately prior to such Business Combination, of
the Outstanding Company Stock and Outstanding Company Voting
Securities, respectively."
2. Except as set forth above, the Option Agreement remains unmodified
and in full force and effect.
3. This Agreement may be signed in one of more counterparts, each of
which shall be deemed an original and all of which, taken together,
shall be deemed one and the same document.
Please sign below where indicated to acknowledge your agreement to the
foregoing.
Sincerely,
TRIPATH IMAGING, INC.
By: _________________________________
Name: Arthur T. King, Ph.D.
Title: Chairman of the Nominating and
Governance Committee
AGREED TO AND ACCEPTED BY:
__________________________
[Director's Name]