Option Agreement
AGREEMENT made this 27th day of April, 1992, by and between Timothy Fitzpatrick
(the "Optionee") and Accelr8 Technology Corporation (the "Optionor" or the
"Company"), a Colorado corporation.
The Optionor desires, by affording Optionee an opportunity to purchase its no
par value common shares, to advance the interests of the Optionor and its
shareholders by encouraging and enabling Optionee, upon whose judgment,
initiative and effort the Optionor is independent for the successful conduct of
its business, to acquire and retain a proprietary interest in the Optionor
through ownership of its stock.
IT IS THEREFORE AGREED:
1. Option. Optionee is hereby granted the option to purchase 500,000 shares of
Common Stock, no par value ("Common Stock" or "Stock"), of the Optionor, which
Option must be exercised, if at all, on or before the dates set forth in Section
3 below, and in the increments also set forth in Section 3 below. If such option
is exercised shall be given to the Optionor in the manner provided by this
Agreement.
2. Exercise Price. The exercise price of the 500,000 shares subject to this
Agreement shall be $.09 per share ("Exercise Price").
3. Exercise of Option. One quarter of the shares subject to option will vest and
become exercisable every twelve months over a four year period which begins
April 27, 1993, and will remain exercisable for three years following the
original date such increment vested. Thus, 125,000 shares will vest and become
exercisable on April 27, 1993, 1994, 1995, and 1996 respectively, and shall
remain exercisable until 5:00 P.M., Denver time, on April 27, 1996, 1997, 1998,
1999, respectively. Exercise must be in the form of a written request, presented
to the Secretary of the Company at the Company's offices, substantially in the
form attached hereto as Exhibit A, and accompanied by evidence of ownership of
the option. Shares issued upon exercise of the option shall be unregistered
shares of Common Stock. Such Stock will be restricted stock of the Optionor and
will bear a legend to that effect.
4. Transfer and Termination. Unvested portions of Optionee's option shall become
void upon termination of employment of the Optionee with the Optionor, whether
or not such termination is voluntary or involuntary. The options herein granted,
whether vested or unvested, may not be voluntarily transferred or assigned, in
whole or in part, without the express written consent of the Optionor. The
options may not be pledged or hypothecated in any way and no option shall be
subject to execution, attachment or similar process without the express written
consent of the Optionor.
5. Adjustments of Exercise Price:
(A) If the Optionor should at any time or from time to time hereafter issue any
Stock as a stock dividend or other distribution to shareholders, then forthwith
upon such issue, the Exercise Price shall be adjusted to a price (computed to
the nearest cent) determined by dividing (i) the sum of the number of shares of
Stock outstanding immediately prior to such issue multiplied by the Exercise
Price in effect immediately prior to such issue by (ii) the total number of
shares of Stock outstanding immediately after such issue.
(B) If the Optionor should at any time or from time to time hereafter reduce the
amount of the Stock then outstanding by reverse stock split or otherwise, then
forthwith upon such reduction, the Exercise Price shall be adjusted to a price
(computed to the nearest cent) determined by dividing (i) the sum of the number
of shares of stock outstanding immediately prior to such reduction multiplied by
the Exercise Price in effect immediately prior to such reduction, by (ii) the
total number of shares of Stock outstanding immediately after such reduction.
(C) No Adjustment for Small Amounts. Anything in this Section 5 to the contrary
notwithstanding, the Optionor shall not be required to give effect to any
adjustment in the Exercise Price unless and until the net effect of one or more
adjustments, determined as above provided, shall have required a change of the
Exercise Price at least one cent, but when the cumulative net effect of more
than one adjustment so determined shall be to change the actual Exercise Price
by at least one cent, such change in the Exercise Price shall thereupon be given
effect.
(D) Number of Shares Adjusted. Upon any adjustment of the Exercise Price, the
Holder of the option under this Agreement shall thereafter (until another such
adjustment) be entitled to purchase, at the new Exercise Price, the number of
shares, calculated to the nearest full share, obtained by multiplying the number
of shares of Stock initially issuable upon exercise of Options under this
Agreement by the Exercise Price in effect on the date hereof and dividing the
product so obtained by the new Exercise Price.
(E) Stock Defined for Purpose of Section 5. Whenever reference is made in this
Section 5 to the issue or sale of shares of Stock, the term "Stock" shall mean
the Stock of the Optionor of the class authorized as of the date hereof and any
other class of stock ranking on a parity with such Stock. However, shares
issuable upon exercise of this Option Agreement shall include only shares of the
class designated as no par value Common Stock of the Optionor as of the date
hereof.
6. Officer's Certificate. Whenever the Exercise Price shall be adjusted as
required by the provisions of Section 5 hereof, the Optionor shall forthwith
file in the custody of its Secretary or an Assistant Secretary at its principal
office, and with its Transfer Agent, if any, an officer's certificate showing
the adjusted Exercise Price determined as herein provided and setting forth in
reasonable detail the facts requiring such adjustment. Each such officer's
certificate shall be made available ~t all reasonable times for inspection by
the Optionee and the Optionor shall, promptly after each such adjustment,
deliver a copy of such certificate to the Optionee. Such certificate shall be
conclusive as to the correctness of such adjustment if the Optionee under this
Agreement does not give written notice of an objection to the Optionor within 15
days after such officer's certificate was mailed or otherwise delivered to the
Optionee. If the Optionor is given written notice of objection, and the parties
cannot reconcile the dispute, it shall be arbitrated pursuant to the laws of the
State of Colorado, or as the parties otherwise agree.
7. Notice of Optionee. So long as options under this Agreement shall be
outstanding and unexercised (i) if the Optioner shall pay any dividend or make
any distribution upon the Stock, or (ii) if the Optionor shall offer to the
holders of Stock for subscription or purchase by them any shares of stock of any
class or any other rights or (iii) if any capital reorganization of the
Optionor, reclassification of the capital stock of the Optionor, consolidation
or merger of the Optionor with or into another corporation, sale, lease or
transfer of all or substantially all of the property and assets of the Optionor
to another corporation, or voluntary, or involuntary dissolution, liquidation or
winding up of the Optionor shall be effected, then, in any such case, the
Optionor shall cause to be delivered to the Optionee, at least ten days prior to
the date specified in (A) or (B) below, as the case may be, a notice containing
a brief description of the proposed action and stating the date on which (A) a
record is to be taken of the purpose of such dividend, distribution or rights,
or (B) such reclassification, reorganization, consolidation, merger, conveyance,
lease, dissolution, liquidation or winding up is to take place and the date, if
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any, is to be fixed, as of which the holders of Stock of record shall be
entitled to exchange their shares of Stock for securities or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up.
8. Termination of Agreement. This Agreement shall terminate and all rights
thereunder shall cease upon the occurrence of any of the following events:
(a) Mutual agreement of the parties.
(b) The administration of the Optionor's affairs in any bankruptcy or
receivership action, or other proceedings for the relief of debtors.
(c) Expiration of the incremental exercise portions of the Optionee's
Option, unexercised in whole or in part, on April 27, 1996, 1997,
1998, and 1999.
9. Benefit. This Agreement shall bind the respective parties, jointly and
severally, their successors, assigns, administrators, and executors.
10. Arbitration. in the event any controversy or claim arising out of this
Agreement cannot be settled by the parties, such controversy or claim shall be
settled by arbitration in accordance with the Uniform Arbitration Act as adopted
in Colorado, and judgment on the award may be entered in
any court having jurisdiction thereof.
11. Notice. All communications, notices and demands of any kind which any party
may be required or desire to give to or serve on the other party shall be made
in writing and sent by registered or certified mail, postage paid, return
receipt requested, to the addresses then shown on the books and records of the
Optionor.
IN WlTNESS WHEREOF, the foregoing has been signed as of the date first written
above.
ACCELR8 TECHNOLOGY CORPORATION
By: /s/ Thomas V. Geimer By: /s/ Timothy Fitzpatrick
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Name
6828 S. Elizabeth Street
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Address
Littleton, CO 80122
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Social Security Number
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EXHIBIT A
OPTION EXERCISE FORM
Accelr8 Technology Corporation
Date:________________, 199_
The undersigned hereby elects irrevocably to exercise his or its rights under
the Option Agreement dated April 27, 1992, and to purchase ________________
shares of Common Stock of the Company called for thereby, and hereby makes
payment of $ ____________ (At the rate of $.09 per share of Common Stock)
payable to Accelr8 Technology Corporation in payment of the Exercise Price
pursuant thereto, and if such number of shares shall not be all of the shares
purchasable hereunder, the undersigned retains the right to exercise the balance
of the option in accordance with the Option Agreement.
Please issue the shares of Common Stock as to which this option is exercised in
accordance with instructions given below.
Signature:
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Signature Guaranteed:
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By:
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INSTRUCTIONS FOR ISSUANCE OF STOCK
Name
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(Print in Block Letters)
Address
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NOTICE: The signature to this form to exercise must correspond with the name as
written upon the face of the Option Agreement or an Assignment thereof in every
particular without alteration or enlargement or any change whatsoever, and must
be guaranteed by a bank, other than a savings bank, or by a trust company or by
a firm having membership on a registered national securities exchange.
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