EXHIBIT 10.7
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxx X. Xxxxxxxxx
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Optionee
3,000 $10.00
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Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
January 20,1989
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Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.0l per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination
Date (as defined herein). Attached is a copy of the Plan which is incorporated
in this Stock Option Agreement (the "Agreement")by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
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which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
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your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
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Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
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From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions and Company Repurchase Option.
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(a) Shares of Common Stock subject to the Option ("Optioned
Shares") and purchased upon exercise of the Option may not, without the prior
written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution (the "Transfer Restrictions"), unless and until the
Transfer Restrictions with respect to such Optioned Shares shall have lapsed as
provided herein. The Transfer Restrictions
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shall lapse in their entirety ninety days after the initial public offering of
the Common Stock by the Company is declared effective by the Securities and
Exchange Commission, provided such date occurs prior to the Employment
Termination Date, and provided further you shall have remained continuously a
director or employee of the Company or a subsidiary of the Company since the
Grant Date. From and after the Employment Termination Date, no further lapsing
of the Transfer Restrictions shall occur, and thereupon the Company shall have
the right, exercisable in accordance with Section 3(b) hereof, to repurchase all
or any portion of the Optioned Shares purchased by you upon exercise of the
Option with respect to which the Transfer Restrictions shall not have lapsed, at
a price per share equal to the Exercise Price specified on the first page of
this Agreement (the "Exercise Price"). The right of the Company to repurchase
Optioned Shares at the Exercise Price as provided in this Section 3(a) is
hereinafter referred to as the "Company Repurchase Option".
(b) The Company may exercise the Company Repurchase Option by
mailing to you at your last address listed in the records of the Company or the
relevant subsidiary of the Company, or by delivering to you, a notice that it
has exercised the Company Repurchase Option and the number of Optioned Shares
with respect to which it has exercised the Company Repurchase Option, within six
(6) months after the date that the Company shall first have been entitled to
exercise the Company Repurchase Option (the "Repurchase Option Period"). Such
notice shall be accompanied by a check payable to you in the amount of the
Exercise Price times the number of Optioned Shares with respect to which the
Company has exercised the Company Repurchase Option. Upon exercise by the
Company of the Company Repurchase Option as provided herein, the certificate or
certificates representing the Optioned Shares, and representing shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, which have been
repurchased shall forthwith be released from the escrow arrangement provided for
in Section 5 hereof and transferred of record to the Company. The Company
Repurchase Option shall lapse and be of no further force or effect if it shall
not have been exercised prior to the expiration of the Repurchase Option Period.
4. No Assignment of Rights. Except for assignments or transfers
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by will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including
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without limitation by way of execution, levy, garnishment, attachment, pledge or
bankruptcy, and no such rights or interests shall be subject to any of your
obligations or liabilities.
5. Exercise of Option; Delivery and Deposit of Certificate(s).
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You (or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank-cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only if
(1) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions and the Company
Repurchase Option to the same extent that such Tendered Shares surrendered upon
such exercise were so subject immediately prior to such surrender. Receipt by
the Company of the Exercise Notice and the Exercise Consideration shall
constitute the exercise of the Option or a part thereof. As soon as reasonably
practicable thereafter, the Company shall deliver or cause to be delivered to
you a certificate or certificates representing the number of Optioned Shares
purchased, registered in your name. If such certificate(s) represent(s) Optioned
Shares with respect to which the Transfer Restrictions shall not have lapsed,
such certificate(s) shall, immediately upon your receipt thereof, be deposited
by you, together with a stock power endorsed in blank, in escrow with the
Company. In addition, any certificate(s) representing shares of Common Stock, or
other property other than cash, distributed (including pursuant to any stock
split) in respect of Optioned Shares purchased by you (a "Non-Cash
Distribution") with respect to which the Transfer Restrictions shall not have
lapsed shall,
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immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions, and the Company Repurchase Option
to the same extent as the Optioned Shares in respect of which such Non-Cash
Distribution was made. All such deposited certificate(s) may have set forth
thereon a legend or legends (in addition to the legend referred to in Section 8
hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions and,
to the extent applicable, to the Company Repurchase Option, as provided herein.
All shares of Common Stock delivered upon the exercise of the Option as provided
herein shall be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the
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Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial
issuance to you of a certificate or certificates representing Optioned Shares or
shares (or other property) received in any Non-Cash Distribution in respect of
Optioned Shares purchased by you, you shall have ownership of such shares (or
other property), including the right to vote and receive dividends, subject,
however, in the case of any such shares (or other property) with respect to
which the Transfer Restrictions shall not have lapsed, to the Transfer
Restrictions and the Company Repurchase Option, to the extent applicable, and to
the other restrictions and limitations imposed thereon pursuant to the Plan and
this Agreement and which may be now or hereafter imposed by the Certificate of
Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions or the Company Repurchase Option.
8. Securities Laws. You hereby represent and warrant that you will
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not transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge
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and agree that any routine sales of the Optioned Shares purchased by you upon
exercise of the Option made in reliance upon Rule 144 under the Act may be made
only in limited amounts in accordance with the terms and conditions of that
Rule. You also acknowledge and agree that the certificate(s) representing
Optioned Shares delivered to you pursuant to Section 5 hereof may have set forth
thereon a legend indicating that such shares may be transferred, sold or
otherwise disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and
your transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock
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dividend payables in Common Stock or any split-up or contraction in the number
of shares of Common Stock occurring after the date of this Agreement and prior
to the exercise in full of the Option, the number of shares for which the Option
may thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any
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recapitalization is to be effected through an increase in the par value of the
Common Stock without an increase in the number of authorized shares and such new
par value will exceed the Exercise Price hereunder, the Company shall notify you
of such proposed recapitalization, and you shall then have the right,
exercisable at any time prior to such recapitalization becoming effective, to
purchase all of the Optioned Shares not theretofore purchased by you (anything
in Section 1 hereof to the contrary notwithstanding), but if you fail to
exercise such right before such recapitalization becomes effective, the Exercise
Price hereunder shall be appropriately adjusted. Upon dissolution or liquidation
of the Company, the Option shall terminate, but you (if at the time you are a
director or employee of the Company or a subsidiary of the Company) shall have
the right, immediately prior to such dissolution or liquidation, to purchase all
or any portion of the Optioned Shares not theretofore purchased by you. No
adjustment provided for in this Section 9 shall apply to any Optioned Shares
purchased prior to the effective date of such adjustment. No fraction of a share
or fractional shares shall be purchasable or deliverable under this Agreement,
but in the event any adjustment hereunder of the number of Optioned Shares shall
cause such number to include a fraction of a share, such fraction shall be
adjusted to the nearest smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
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yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to the Plan,
shall be final and conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
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right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
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13. Taxes. If the Company, in its sole discretion, determines that
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the Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or
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permitted to be given under this Agreement shall be in writing, and mailed by
registered or certified mail or delivered in hand, if to the Company to its
Secretary at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the
Optionee to the address set forth below, or such other address, in each case, as
the addressee shall last have furnished to the communicating party.
Please confirm your acceptance of the Option, your receipt of a copy
of the Plan and your acceptance of and agreement to the terms of the Plan and
this Agreement, by executing the enclosed copy of this letter and returning such
copy promptly under confidential cover to the Secretary of the Company, 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
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Name: XXXXX X. XXXXXXXXX
Title : CHIEF OPERATING OFFICER
Accepted and agreed:
/s/ Xxxxx X. Xxxxxxxxx
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Optionee
0 Xxxxx Xxxx
Xxxxx, XX 00000
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Home Address
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________ (the "Stock
Option Agreement") between the Company and me, I hereby exercise the Option
granted to me with respect to _______ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED.......................... $
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(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS...
Number and denominations(s) of certificate(s)
for shares being exercised:
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Send new certificate(s) to:
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Optionee:
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(print name) Signature
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Date
Xxxxx X. Xxxxxxxxx
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
-----------------
Amendment to Stock Option Agreement
Dated January 20, 1989
-----------------------
The Stock Option Agreement referred to above (the "Agreement") between you
and Photoelectron Corporation (the "Company") is hereby amended, effective as of
the 11th day of July, 1991, as follows:
1. Section 3 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"3. Transfer Restrictions.
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Shares of Common Stock subject to the Option ("Optioned Shares") and
purchased upon exercise of the Option, and any additional shares of
Common Stock or other shares (or other property) received in any Non-
Cash Distribution (as defined herein) in respect of such Optioned
Shares, may not, without the prior written consent of the Company, be
sold, assigned, transferred, pledged, hypothecated or otherwise
disposed of, except by will or by applicable laws of descent and
distribution or pursuant to a qualified domestic relations order (the
"Transfer Restrictions"), unless and until the Transfer Restrictions
with respect to such Optioned Shares shall have lapsed as provided
herein. The Transfer Restrictions shall lapse in their entirety
ninety days after the initial public offering of the Common Stock by
the Company is declared effective by the Securities and Exchange
Commission."
2. Section 5 is hereby amended by deleting from the third sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
third sentence shall read in its entirety as follows:
"As a condition to such consent, the Company may require that a
number of Optioned Shares acquired by you upon your exercise of the
Option equal to the number of Tendered Shares surrendered upon such
exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were
so subject immediately prior to such surrender."
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3. Section 5 is hereby amended by deleting from the seventh sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
seventh sentence shall read in its entirety as follows:
"In addition, any certificate(s) representing shares of Common Stock,
or other property other than cash, distributed (including pursuant to
any stock split) in respect of Optioned Shares purchased by you (a
"Non-Cash Distribution") with respect to which the Transfer
Restrictions shall not have lapsed shall, immediately upon your
receipt thereof, be deposited by you, together with a stock power
endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions to the same extent as
the Optioned Shares in respect of which such Non-Cash Distribution
was made."
4. Section 5 is hereby amended by deleting from the penultimate sentence
thereof the phrase "and, to the extent applicable, to the Company Repurchase
Option," so that as amended, the penultimate sentence shall read in its entirety
as follows:
"All such deposited certificate(s) may have set forth thereon a
legend or legends (in addition to the legend referred to in Section 8
hereof) indicating that the shares of Common Stock (or other
property) represented by such certificate(s) are subject to the
Transfer Restrictions as provided herein."
5. Section 6 is hereby amended by deleting from the second sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
second sentence thereof shall read in its entirety as follows:
"Upon initial issuance to you of a certificate or certificates
representing Optioned Shares (or other property) received in any Non-
Cash Distribution in respect of Optioned Shares purchased by you, you
shall have ownership of such shares (or other property), including
the right to vote and receive dividends, subject, however, in the
case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer
Restrictions, and to the other restrictions and limitations imposed
thereon pursuant to the Plan and this Agreement and which may be now
or hereafter imposed by the Certificate of Incorporation or the By-
Laws of the Company, as amended from time to time."
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6. Section 7 is hereby amended by deleting from the first sentence
thereof the phrase "or the Company Repurchase Option", so that as amended, the
first sentence thereof shall read in its entirety as follows:
"As soon as reasonably practicable after the lapse of the Transfer
Restrictions with respect to any Optioned Shares purchased by you
upon exercise of the Option, the Company shall deliver to you, or
your legal representative in the case of your death, the certificate
or certificates representing such shares and any shares (or other
property) received in any Non-Cash Distribution in respect of such
shares, previously deposited in escrow with the Company pursuant to
Section 5 hereof, without any legend referring to the Transfer
Restrictions."
7. A new Section 15 is hereby added, to read in its entirety as follows:
"15. Change of Control.
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(a) Impact of Event. In the event of a "Change of Control" as defined in
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Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the
Vested Shares shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any one
---------------------------------
of the following events: (i) when, without the prior approval of the Prior
Directors of the Company, any Person is or becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations thereunder), together with all
Affiliates and Associates (as such terms are used in Rule 12b-2 of the General
Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall determine constitutes an effective change
in the control of the Company. As used in the preceding sentence, the following
capitalized terms shall have the respective meanings set forth below:
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(1) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is defined in Rule
405 under the Securities Act of 1933 and any "group" (within the meaning of such
term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the Company's
Board of Directors immediately prior to an Electoral Event (or, if there has
been no Electoral Event, those persons sitting on the Company's Board of
Directors on the date of this Agreement) and any future director of the Company
who has been nominated or elected by a majority of the Prior Directors who are
then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of Directors,
or any tender or exchange offer for the Company's Common Stock, not approved by
the Prior Directors, by any Person other than the Company or a subsidiary of the
Company."
8. In all other respects, the Agreement shall remain in full force and
effect.
PHOTOELECTRON CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: President
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Accepted and Agreed to:
/s/ Xxxxx X. Xxxxxxxxx
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(Signature of optionee)
Name : XXXXX X. XXXXXXXXX
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(please print)
Date: 2/2/92
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PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxxx X. Xxxxxxxxxxx
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Optionee
5,000 $1.00
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Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
February 26, 1990
------------------------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.01 per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
---------------------
which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
-2-
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
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Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
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From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions and Company Repurchase Option.
----------------------------------------------------
(a) Shares of Common Stock subject to the Option ("Optioned
Shares") and purchased upon exercise of the Option may not, without the prior
written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution (the "Transfer Restrictions"), unless and until the
Transfer Restrictions with respect to such Optioned Shares shall have lapsed as
provided herein. The Transfer Restrictions
- 3 -
shall lapse in their entirety ninety days after the initial public offering of
the Common Stock by the Company is declared effective by the Securities and
Exchange Commission, provided such date occurs prior to the Employment
Termination Date, and provided further you shall have remained continuously a
director or employee of the Company or a subsidiary of the Company since the
Grant Date. From and after the Employment Termination Date, no further lapsing
of the Transfer Restrictions shall occur, and thereupon the Company shall have
the right, exercisable in accordance with Section 3(b) hereof, to repurchase all
or any portion of the Optioned Shares purchased by you upon exercise of the
Option with respect to which the Transfer Restrictions shall not have lapsed, at
a price per share equal to the Exercise Price specified on the first page of
this Agreement (the "Exercise Price"). The right of the Company to repurchase
Optioned Shares at the Exercise Price as provided in this Section 3(a) is
hereinafter referred to as the "Company Repurchase Option".
(b) The Company may exercise the Company Repurchase Option by mailing
to you at your last address listed in the records of the Company or the relevant
subsidiary of the Company, or by delivering to you, a notice that it has
exercised the Company Repurchase Option and the number of Optioned Shares with
respect to which it has exercised the Company Repurchase Option, within six (6)
months after the date that the Company shall first have been entitled to
exercise the Company Repurchase Option (the "Repurchase Option Period"). Such
notice shall be accompanied by a check payable to you in the amount of the
Exercise Price times the number of Optioned Shares with respect to which the
Company has exercised the Company Repurchase Option. Upon exercise by the
Company of the Company Repurchase Option as provided herein, the certificate or
certificates representing the Optioned Shares, and representing shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, which have been
repurchased shall forthwith be released from the escrow arrangement provided for
in Section 5 hereof and transferred of record to the Company. The Company
Repurchase Option shall lapse and be of no further force or effect if it shall
not have been exercised prior to the expiration of the Repurchase Option Period.
4. No Assignment of Rights. Except for assignments or transfers
-----------------------
by will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including
- 4 -
without limitation by way of execution, levy, garnishment, attachment, pledge or
bankruptcy, and no such rights or interests shall be subject to any of your
obligations or liabilities.
5. Exercise of Option; Delivery and Deposit of Certificate(s). You
----------------------------------------------------------
(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank-cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only if
(1) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions and the Company
Repurchase Option to the same extent that such Tendered Shares surrendered upon
such exercise were so subject immediately prior to such surrender. Receipt by
the Company of the Exercise Notice and the Exercise Consideration shall
constitute the exercise of the Option or a part thereof. As soon as reasonably
practicable thereafter, the Company shall deliver or cause to be delivered to
you a certificate or certificates representing the number of Optioned Shares
purchased, registered in your name. If such certificate(s) represent(s) Optioned
Shares with respect to which the Transfer Restrictions shall not have lapsed,
such certificate(s) shall, immediately upon your receipt thereof, be deposited
by you, together with a stock power endorsed in blank, in escrow with the
Company. In addition, any certificate(s) representing shares of Common Stock, or
other property other than cash, distributed (including pursuant to any stock
split) in respect of Optioned Shares purchased by you (a "Non-Cash
Distribution") with respect to which the Transfer Restrictions shall not have
lapsed shall,
- 5 -
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions, and the Company Repurchase Option
to the same extent as the Optioned Shares in respect of which such Non-Cash
Distribution was made. All such deposited certificate(s) may have set forth
thereon a legend or legends (in addition to the legend referred to in Section 8
hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions and,
to the extent applicable, to the Company Repurchase Option, as provided herein.
All shares of Common Stock delivered upon the exercise of the Option as provided
herein shall be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the
--------------------------------------
Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial
issuance to you of a certificate or certificates representing Optioned Shares or
shares (or other property) received in any Non-Cash Distribution in respect of
Optioned Shares purchased by you, you shall have ownership of such shares (or
other property), including the right to vote and receive dividends, subject,
however, in the case of any such shares (or other property) with respect to
which the Transfer Restrictions shall not have lapsed, to the Transfer
Restrictions and the Company Repurchase Option, to the extent applicable, and to
the other restrictions and limitations imposed thereon pursuant to the Plan and
this Agreement and which may be now or hereafter imposed by the Certificate of
Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions or the Company Repurchase Option.
8. Securities Laws. You hereby represent and warrant that you will
---------------
not transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge
- 6 -
and agree that any routine sales of the Optioned Shares purchased by you upon
exercise of the Option made in reliance upon Rule 144 under the Act may be made
only in limited amounts in accordance with the terms and conditions of that
Rule. You also acknowledge and agree that the certificate(s) representing
Optioned Shares delivered to you pursuant to Section 5 hereof may have set forth
thereon a legend indicating that such shares may be transferred, sold or
otherwise disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and
your transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of
shares of Common Stock occurring after the date of this Agreement and prior
to the exercise in full of the Option, the number of shares for which the
Option may thereafter be exercised and the Exercise Price shall be
proportionately adjusted. In the case of any reclassification or change of
outstanding shares of the Common Stock or in case of any consolidation or
merger of the Company with or into another company or in case of any sale or
conveyance to another company or entity of the property of the Company as a
whole or substantially as a whole, you shall, upon exercise of the Option be
entitled to receive shares of stock or other securities in its place
equivalent in kind and value to those shares which you would have received if
you had exercised the Option in full immediately prior to such
reclassification, change, consolidation, merger, sale or
conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any
--------
- 7 -
recapitalization is to be effected through an increase in the par value of the
Common Stock without an increase in the number of authorized shares and such new
par value will exceed the Exercise Price hereunder, the Company shall notify you
of such proposed recapitalization, and you shall then have the right,
exercisable at any time prior to such recapitalization becoming effective, to
purchase all of the Optioned Shares not theretofore purchased by you (anything
in Section 1 hereof to the contrary notwithstanding), but if you fail to
exercise such right before such recapitalization becomes effective, the Exercise
Price hereunder shall be appropriately adjusted. Upon dissolution or liquidation
of the Company, the Option shall terminate, but you (if at the time you are a
director or employee of the Company or a subsidiary of the Company) shall have
the right, immediately prior to such dissolution or liquidation, to purchase all
or any portion of the Optioned Shares not theretofore purchased by you. No
adjustment provided for in this Section 9 shall apply to any Optioned Shares
purchased prior to the effective date of such adjustment. No fraction of a share
or fractional shares shall be purchasable or deliverable under this Agreement,
but in the event any adjustment hereunder of the number of Optioned Shares shall
cause such number to include a fraction of a share, such fraction shall be
adjusted to the nearest smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to the Plan,
shall be final and conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
--------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
-8-
13. Taxes. If the Company, in its sole discretion, determines that
------
the Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or
---------------
permitted to be given under this Agreement shall be in writing, and mailed by
registered or certified mail or delivered in hand, if to the Company to its
Secretary at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the
Optionee to the address set forth below, or such other address, in each case, as
the addressee shall last have furnished to the communicating party.
Please confirm your acceptance of the Option, your receipt of a copy
of the Plan and your acceptance of and agreement to the terms of the Plan and
this Agreement, by executing the enclosed copy of this letter and returning such
copy promptly under confidential cover to the Secretary of the Company, 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------
Name: XXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
Accepted and agreed:
/s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Optionee
-------------------------
Home Address
2822d
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________
(the "Stock Option Agreement") between the Company and me, I
hereby exercise the Option granted to me with respect to _________
Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the shares
being exercised
TOTAL AMOUNT ENCLOSED............................ $_______
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denominations(s) of
certificate(s) for shares being
exercised:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Send new certificate(s) to:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Optionee:
---------------------- --------------------------------
(print name) Signature
-------------------------------
Date
2822d
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
-----------------
Amendment to Stock Option Agreement
Dated February 26, 1990
-------------------------
The Stock Option Agreement referred to above (the "Agreement") between you
and Photoelectron Corporation (the "Company") is hereby amended, effective as of
the 11th day of July, 1991, as follows:
1. Section 3 of the Agreement is hereby deleted in its entirety and replaced
with the following:
"3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares") and
purchased upon exercise of the Option, and any additional shares of
Common Stock or other shares (or other property) received in any Non-
Cash Distribution (as defined herein) in respect of such Optioned
Shares, may not, without the prior written consent of the Company, be
sold, assigned, transferred, pledged, hypothecated or otherwise
disposed of, except by will or by applicable laws of descent and
distribution or pursuant to a qualified domestic relations order (the
"Transfer Restrictions"), unless and until the Transfer Restrictions
with respect to such Optioned Shares shall have lapsed as provided
herein. The Transfer Restrictions shall lapse in their entirety
ninety days after the initial public offering of the Common Stock by
the Company is declared effective by the Securities and Exchange
Commission."
2. Section 5 is hereby amended by deleting from the third sentence
thereof the phrase "and the Company Repurchase Option", so that as
amended, the third sentence shall read in its entirety as follows:
"As a condition to such consent, the Company may require that a number
of Optioned Shares acquired by you upon your exercise of the Option
equal to the number of Tendered Shares surrendered upon such exercise
shall be subject to the Transfer Restrictions to the same extent that
such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender."
-2-
3. Section 5 is hereby amended by deleting from the seventh sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
seventh sentence shall read in its entirety as follows:
"In addition, any certificate(s) representing shares of Common Stock,
or other property other than cash, distributed (including pursuant to
any stock split) in respect of Optioned Shares purchased by you (a
"Non-Cash Distribution") with respect to which the Transfer
Restrictions shall not have lapsed shall, immediately upon your
receipt thereof, be deposited by you, together with a stock power
endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions to the same extent as
the Optioned Shares in respect of which such Non-Cash Distribution was
made."
4. Section 5 is hereby amended by deleting from the penultimate sentence
thereof the phrase "and, to the extent applicable, to the Company Repurchase
Option," so that as amended, the penultimate sentence shall read in its entirety
as follows:
"All such deposited certificate(s) may have set forth thereon a legend
or legends (in addition to the legend referred to in Section 8 hereof)
indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer
Restrictions as provided herein,"
5. Section 6 is hereby amended by deleting from the second sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
second sentence thereof shall read in its entirety as follows:
"Upon initial issuance to you of a certificate or certificates
representing Optioned Shares (or other property) received in any Non-
Cash Distribution in respect of Optioned Shares purchased by you, you
shall have ownership of such shares (or other property), including the
right to vote and receive dividends, subject, however, in the case of
any such shares (or other property) with respect to which the Transfer
Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to
the Plan and this Agreement and which may be now or hereafter imposed
by the Certificate of Incorporation or the By-Laws of the Company, as
amended from time to time."
-3-
6. Section 7 is hereby amended by deleting from the first sentence
thereof the phrase "or the Company Repurchase Option", so that as amended, the
first sentence thereof shall read in its entirety as follows:
"As soon as reasonably practicable after the lapse of the Transfer
Restrictions with respect to any Optioned Shares purchased by you upon
exercise of the Option, the Company shall deliver to you, or your
legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other
property) received in any Non-Cash Distribution in respect of such
shares, previously deposited in escrow with the Company pursuant to
Section 5 hereof, without any legend referring to the Transfer
Restrictions."
7. A new Section 15 is hereby added, to read in its entirety as follows:
"15. Change of Control.
------------------
(a) Impact of Event. In the event of a "Change of Control" as defined
----------------
in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested Shares shall
lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any
----------------------------------
one of the following events: (i) when, without the prior approval of the Prior
Directors of the Company, any Person is or becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations thereunder), together with all
Affiliates and Associates (as such terms are used in Rule 12b-2 of the General
Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by controlling or under common control with either
of the Controlling Shareholders or to any person who is not, prior to giving
effect to such sale, a stockholder of the Company, or (iii) any other event that
the Prior Directors shall determine constitutes an effective change in the
control of the Company. As used in the preceding sentence, the following
capitalized terms shall have the respective meanings set forth below:
-4-
(1) "Person" shall include any natural person any entity, any "affiliate"
of any such natural person or entity as such term is defined in Rule 405 under
the Securities Act of 1933 and any "group" (within the meaning of such term
in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the Company's
Board of Directors immediately prior to an Electoral Event (or, if there has
been no Electoral Event, those persons sitting on the Company's Board of
Directors on the date of this Agreement) and any future director of the Company
who has been nominated or elected by a majority of the Prior Directors who are
then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of Directors,
or any tender or exchange offer for the Company's Common Stock, not approved by
the Prior Directors, by any Person other than the Company or a subsidiary of the
Company.
8. In all other respects, the Agreement shall remain in full force and
effect.
PHOTOELECTRON CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxx
----------------------
Title: Vice President and
-----------------------
Chief Operating Officer
Accepted and Agreed to:
/s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
(Signature of Optionee)
Name:
-------------------------
(Please Print)
Date:
-------------------------
438ld
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxx X. Xxxxxxx
------------------------------------------------------------------
Optionee
5,000 $1.00
----------------------------- ------------------------
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
February 26, 1990
--------------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.0l per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date which
---------------------
is the earliest of (a) seven years after the Grant Date, (b) three months after
the date on which you cease to be a director or employee of the Company or a
subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
-2-
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions and Company Repurchase Option.
---------------------------------------------------
(a) Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option may not, without the prior
written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable
laws of descent and distribution (the "Transfer Restrictions"), unless and
until the Transfer Restrictions with respect to such Optioned Shares shall
have lapsed as provided herein. The Transfer Restrictions
-3-
shall lapse in their entirety ninety days after the initial public offering of
the Common Stock by the Company is declared effective by the Securities and
Exchange Commission provided such date occurs prior to the Employment
Termination Date, and provided further you shall have remained continuously a
director or employee of the Company or a subsidiary of the Company the Grant
Date. From and after the Employment Termination Date, no further lapsing of the
Transfer Restrictions shall occur, and thereupon the Company shall have the
right, exercisable in accordance with Section 3(b) hereof, to repurchase all or
any portion of the Optioned Shares purchased by you upon exercise of the Option
with respect to which the Transfer Restrictions shall not have lapsed, at a
price per share equal to the Exercise Price specified on the first page of this
Agreement (the "Exercise Price"). The right of the Company to repurchase
Optioned Shares at the Exercise Price as provided in this Section 3(a) is
hereinafter referred to as the "Company Repurchase Option".
(b) The Company may exercise the Company Repurchase Option by mailing
to you at your last address listed in the records of the Company or the relevant
subsidiary of the Company, or by delivering to you, a notice that it has
exercised the Company Repurchase Option and the number of Optioned Shares with
respect to which it has exercised the Company Repurchase Option, within six (6)
months after the date that the Company shall first have been entitled to
exercise the Company Repurchase Option (the "Repurchase Option Period"). Such
notice shall be accompanied by a check payable to you in the amount of the
Exercise Price times the number of Optioned Shares with respect to which the
Company has exercised the Company Repurchase Option. Upon exercise by the
Company of the Company Repurchase Option as provided herein, the certificate or
certificates representing the Optioned Shares, and representing shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, which have been
repurchased shall forthwith be released from the escrow arrangement provided for
in Section 5 hereof and transferred of record to the Company. The Company
Repurchase Option shall lapse and be of no further force or effect if it shall
not have been exercised prior to the expiration of the Repurchase Option Period.
4. No Assignment of Rights. Except for assignments or transfers by will
-----------------------
or the applicable laws of descent and distribution, your rights and interests
under this Agreement and the Plan may not be assigned or transferred in whole or
in part either directly or by operation of law or otherwise, including
-4-
without limitation by way of execution, levy, garnishment, attachment, pledge or
bankruptcy, and no such rights or interests shall be subject to any of your
obligations or liabilities.
5. Exercise of Option: Delivery and Deposit of Certificate(s). You (or in
----------------------------------------------------------
the case of your death, your legal representative) may exercise the Option in
whole or in part by giving written notice to the Company on the form attached
hereto as Exhibit A (the "Exercise Notice") prior to the Option Termination
Date, accompanied by full payment for the Optioned Shares being purchased (a) in
cash or by certified or bank cashier's check payable to the order of the
Company, in an amount equal to the number of Optioned Shares being purchased
multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b) in shares
of the Company's Common Stock (the "Tendered Shares") with a market value equal
to the Aggregate Exercise Price or (c) any combination of cash, certified or
bank cashier's check or Tendered Shares having a total value equal to the
Aggregate Exercise Price (such cash, check or Tendered Shares with such value
being referred to as the "Exercise Consideration"). However, Tendered Shares may
be surrendered as all or part of the Exercise Consideration only if (1) the
Common Stock is publicly traded over-the-counter or on a national securities
exchange, (2) you shall have acquired such Tendered Shares more than six months
prior to the date of exercise and, (3) if such Tendered Shares are then subject
to Transfer Restrictions, only with the prior written consent of the Company as
provided in Section 3(a) hereof. As a condition to such consent, the Company may
require that a number of Optioned Shares acquired by you upon your exercise of
the Option equal to the number of Tendered Shares surrendered upon such exercise
shall be subject to the Transfer Restrictions and the Company Repurchase Option
to the same extent that such Tendered Shares surrendered upon such exercise were
so subject immediately prior to such surrender. Receipt by the Company of the
Exercise Notice and the Exercise Consideration shall constitute the exercise of
the Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such certificate(s)
shall, immediately upon your receipt thereof, be deposited by you, together with
a stock power endorsed in blank, in escrow with the Company. In addition, any
certificate(s) representing shares of Common Stock, or other property other than
cash, distributed (including pursuant to any stock split) in respect of Optioned
Shares purchased by you (a "Non-Cash Distribution") with respect to which the
Transfer Restrictions shall not have lapsed shall,
-5-
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions, and the Company Repurchase Option
to the same extent as the Optioned Shares in respect of which such Non-Cash
Distribution was made. All such deposited certificate(s) may have set forth
thereon a legend or legends (in addition to the legend referred to in Section 8
hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions and,
to the extent applicable, to the Company Repurchase Option, as provided herein.
All shares of Common Stock delivered upon the exercise of the Option as provided
herein shall be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the
--------------------------------------
Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial
issuance to you of a certificate or certificates representing Optioned Shares or
shares (or other property) received in any Non-Cash Distribution in respect of
Optioned Shares purchased by you, you shall have ownership of such shares (or
other property), including the right to vote and receive dividends, subject,
however, in the case of any such shares (or other property) with respect to
which the Transfer Restrictions shall not have lapsed, to the Transfer
Restrictions and the Company Repurchase Option, to the extent applicable, and to
the other restrictions and limitations imposed thereon pursuant to the Plan and
this Agreement and which may be now or hereafter imposed by the Certificate of
Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions or the Company Repurchase Option.
8. Securities Laws. You hereby represent and warrant that you will not
---------------
transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge
-6-
and agree that any routine sales of the Optioned Shares purchased by you upon
exercise of the Option made in reliance upon Rule 144 under the Act may be made
only in limited amounts in accordance with the terms and conditions of that
Rule. You also acknowledge and agree that the certificate(s) representing
Optioned Shares delivered to you pursuant to Section 5 hereof may have set forth
thereon a legend indicating that such shares may be transferred, sold or
otherwise disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and
your transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any
--------
-7-
recapitalization is to be effected through an increase in the par value of the
Common Stock without an increase in the number of authorized shares and such new
par value will exceed the Exercise Price hereunder, the Company shall notify you
of such proposed recapitalization, and you shall then have the right,
exercisable at any time prior to such recapitalization becoming effective, to
purchase all of the Optioned Shares not theretofore purchased by you (anything
in Section 1 hereof to the contrary notwithstanding), but if you fail to
exercise such right before such recapitalization becomes effective, the Exercise
Price hereunder shall be appropriately adjusted. Upon dissolution or liquidation
of the Company, the Option shall terminate, but you (if at the time you are a
director or employee of the Company or a subsidiary of the Company) shall have
the right, immediately prior to such dissolution or liquidation, to purchase all
or any portion of the Optioned Shares not theretofore purchased by you. No
adjustment provided for in this Section 9 shall apply to any Optioned Shares
purchased prior to the effective date of such adjustment. No fraction of a share
or fractional shares shall be purchasable or deliverable under this Agreement,
but in the event any adjustment hereunder of the number of Optioned Shares shall
cause such number to include a fraction of a share, such fraction shall be
adjusted to the nearest smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself your personal representatives and beneficiaries, that as a condition of
the granting of the Option, any dispute or disagreement which may arise under or
as a result of or pursuant to the Plan or this Agreement shall be determined by
the Company's Board of Directors, in its sole discretion, and that any decision
made by it in good faith shall be conclusive on all parties. The interpretation
and construction by the Company's Board of Directors of any provision of, and
the determination of any question arising under, this Agreement, the Plan, or
any rule or regulation adopted pursuant to the Plan, shall be final and
conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
-8-
13. Taxes. If the Company, in its sole discretion, determines that
-----
the Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
Please confirm your acceptance of the Option, your receipt of a copy
of the Plan and your acceptance of and agreement to the terms of the Plan and
this Agreement, by executing the enclosed copy of this letter and returning such
copy promptly under confidential cover to the Secretary of the Company, 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /S/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/S/ Xxxxx X. Xxxxxxx
--------------------
Optionee
00 Xxxxx Xxxxxx Xxxxxx X.X.
---------------------------
Home Address
EXHIBIT A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________
(the "Stock Option Agreement") between the Company and me, I
hereby exercise the Option granted to me with respect to _________
Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED ......................... $______
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denominations(s) of
certificate(s)for shares being
exercised:
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
Send new certificate(s) to:
------------------------------
------------------------------
------------------------------
------------------------------
Optionee:
---------------------------- ------------------------------
(print name) Signature
-----------------------------
Date
Xxxxx X. Xxxxxxx
--
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
-----------------
Amendment to Stock Option Agreement
Dated February 26, 1990
-----------------
The Stock Option Agreement referred to above (the "Agreement") between you
and Photoelectron Corporation (the "Company") is hereby amended, effective as of
the 11th day of July, 1991, as follows:
1. Section 3 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"3.Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares") and
purchased upon exercise of the Option, and any additional shares of
Common Stock or other shares (or other property) received in any Non-
Cash Distribution (as defined herein) in respect of such Optioned
Shares, may not, without the prior written consent of the Company, be
sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of, except by will or by applicable laws of descent and distribution or
pursuant to a qualified domestic relations order (the "Transfer
Restrictions"), unless and until the Transfer Restrictions with respect
to such Optioned Shares shall have lapsed as provided herein. The
Transfer Restrictions shall lapse in their entirety ninety days after
the initial public offering of the Common Stock by the Company is
declared effective by the Securities and Exchange Commission."
2. Section 5 is hereby amended by deleting from the third sentence thereof
the phrase "and the Company Repurchase Option", so that as amended, the third
sentence shall read in its entirety as follows:
"As a condition to such consent, the Company may require that a number
of Optioned Shares acquired by you upon your exercise of the Option
equal to the number of Tendered Shares surrendered upon such exercise
shall be subject to the Transfer Restrictions to the same extent that
such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender."
-2-
3. Section 5 is hereby amended by deleting from the seventh sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
seventh sentence shall read in its entirety as follows:
"In addition, any certificate(s) representing shares of Common Stock, or
other property other than cash, distributed (including pursuant to any
stock split) in respect of Optioned Shares purchased by you (a "Non-Cash
Distribution") with respect to which the Transfer Restrictions shall not
have lapsed shall, immediately upon your receipt thereof, be deposited
by you, together with a stock power endorsed in blank (if applicable),
in escrow with the Company, and shall be subject to the Transfer
Restrictions to the same extent as the Optioned Shares in respect of
which such Non-Cash Distribution was made."
4. Section 5 is hereby amended by deleting from the penultimate sentence
thereof the phrase "and, to the extent applicable, to the Company
Repurchase Option," so that as amended, the penultimate sentence shall read
in its entirety as follows:
"All such deposited certificate(s) may have set forth thereon a legend
or legends (in addition to the legend referred to in Section 8 hereof)
indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer
Restrictions as provided herein."
5. Section 6 is hereby amended by deleting from the second sentence thereof
the phrase "and the Company Repurchase Option", so that as amended, the second
sentence thereof shall read in its entirety as follows:
"Upon initial issuance to you of a certificate or certificates
representing Optioned Shares (or other property) received in any Non-
Cash Distribution in respect of Optioned Shares purchased by you, you
shall have ownership of such shares (or other property), including the
right to vote and receive dividends, subject, however, in the case of
any such shares (or other property) with respect to which the Transfer
Restrictions shall not have lapsed, to the Transfer Restrictions, and to
the other restrictions and limitations imposed thereon pursuant to the
Plan and this Agreement and which may be now or hereafter imposed by the
Certificate of Incorporation or the By-Laws of the Company, as amended
from time to time."
-3-
6. Section 7 is hereby amended by deleting from the first sentence
thereof the phrase "or the Company Repurchase Option", so that as amended,
the first sentence thereof shall read in its entirety as follows:
"As soon as reasonably practicable after the lapse of the Transfer
Restrictions with respect to any Optioned Shares purchased by you upon
exercise of the Option, the Company shall deliver to you, or your
legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other
property) received in any Non-Cash Distribution in respect of such
shares, previously deposited in escrow with the Company pursuant to
Section 5 hereof, without any legend referring to the Transfer
Restrictions."
7. A new Section 15 is hereby added, to read in its entirety as follows:
"15. Change of Control.
------------------
(a) Impact of Event. In the event of a "Change of Control" as defined in
---------------
Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the
Vested Shares shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any one
---------------------------------
of the following events: (i) when, without the prior approval of the Prior
Directors of the Company, any Person is or becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations thereunder), together with all
Affiliates and Associates (as such terms are used in Rule 12b-2 of the General
Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall determine constitutes an effective change
in the control of the Company. As used in the preceding sentence, the following
capitalized terms shall have the respective meanings set forth below:
-4-
(1) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is defined in Rule
405 under the Securities Act of 1933 and any "group" (within the meaning of such
term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the Company's
Board of Directors immediately prior to an Electoral Event (or, if there has
been no Electoral Event, those persons sitting on the Company's Board of
Directors on the date of this Agreement) and any future director of the Company
who has been nominated or elected by a majority of the Prior Directors who are
then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of Directors,
or any tender or exchange offer for the Company's Common Stock, not approved by
the Prior Directors, by any Person other than the Company or a subsidiary of the
Company."
8. In all other respects, the Agreement shall remain in full force and effect.
PHOTOELECTRON CORPORATION
By:/s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------
Title: Vice President and
-----------------------
Chief Operating Officer
Accepted and Agreed to:
/s/ Xxxxx X. Xxxxxxx
-----------------------
(Signature of Optionee)
Name: Xxxxx X. Xxxxxxx
----------------
(please print)
Date: February 20, 1992
-----------------
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxx X. Xxxxxxxxx
------------------------------------------------------------------
Optionee
10,000 $1.00
------------------------------- ------------------
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
February 26, 1990
-------------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.01 per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the
---------------------
date which is the earliest of (a) seven years after the Grant Date, (b) three
months after the date on which you cease to be a director or employee of the
Company or a subsidiary of the Company (the "Employment Termination Date"), or
six months after the Employment Termination Date if such cessation is a result
of
-2-
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions and Company Repurchase Option.
----------------------------------------------------
(a) Shares of Common Stock subject to the Option ("Optioned
Shares") and purchased upon exercise of the Option may not, without the prior
written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution (the "Transfer Restrictions"), unless and until the
Transfer Restrictions with respect to such Optioned Shares shall have lapsed as
provided herein. The Transfer Restrictions
-3-
shall lapse in their entirety ninety days after the initial public offering of
the Common Stock by the Company is declared effective by the Securities and
Exchange Commission, provided such date occurs prior to the Employment
Termination Date, and provided further you shall have remained continuously a
director or employee of the Company or a subsidiary of the Company since the
Grant Date. From and after the Employment Termination Date, no further lapsing
of the Transfer Restrictions shall occur, and thereupon the Company shall have
the right, exercisable in accordance with Section 3(b) hereof, to repurchase all
or any portion of the Optioned Shares purchased by you upon exercise of the
Option with respect to which the Transfer Restrictions shall not have lapsed, at
a price per share equal to the Exercise Price specified on the first page of
this Agreement (the "Exercise Price"). The right of the Company to repurchase
Optioned Shares at the Exercise Price as provided in this Section 3(a) is
hereinafter referred to as the "Company Repurchase Option".
(b) The Company may exercise the Company Repurchase Option by mailing
to you at your last address listed in the records of the Company or the relevant
subsidiary of the Company, or by delivering to you, a notice that it has
exercised the Company Repurchase Option and the number of Optioned Shares with
respect to which it has exercised the Company Repurchase Option, within six (6)
months after the date that the Company shall first have been entitled to
exercise the Company Repurchase Option (the "Repurchase Option Period"). Such
notice shall be accompanied by a check payable to you in the amount of the
Exercise Price times the number of Optioned Shares with respect to which the
Company has exercised the Company Repurchase Option. Upon exercise by the
Company of the Company Repurchase Option as provided herein, the certificate or
certificates representing the Optioned Shares, and representing shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, which have been
repurchased shall forthwith be released from the escrow arrangement provided for
in Section 5 hereof and transferred of record to the Company. The Company
Repurchase Option shall lapse and be of no further force or effect if it shall
not have been exercised prior to the expiration of the Repurchase Option Period.
4. No Assignment of Rights. Except for assignments or transfers by will
-----------------------
or the applicable laws of descent and distribution, your rights and interests
under this Agreement and the Plan may not be assigned or transferred in whole or
in part either directly or by operation of law or otherwise, including
-4-
without limitation by way of execution, levy, garnishment, attachment, pledge or
bankruptcy, and no such rights or interests shall be subject to any of your
obligations or liabilities.
5. Exercise of Option; Delivery and Deposit of Certificate(s). You (or in
----------------------------------------------------------
the case of your death, your legal representative) may exercise the Option in
whole or in part by giving written notice to the Company on the form attached
hereto as Exhibit A (the "Exercise Notice") prior to the Option Termination
Date, accompanied by full payment for the Optioned Shares being purchased (a) in
cash or by certified or bank cashier's check payable to the order of the
Company, in an amount equal to the number of Optioned Shares being purchased
multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b) in shares
of the Company's Common Stock (the "Tendered Shares") with a market value equal
to the Aggregate Exercise Price or (c) any combination of cash, certified or
bank-cashier's check or Tendered Shares having a total value equal to the
Aggregate Exercise Price (such cash, check or Tendered Shares with such value
being referred to as the "Exercise Consideration"). However, Tendered Shares may
be surrendered as all or part of the Exercise Consideration only if (1) the
Common Stock is publicly traded over-the-counter or on a national securities
exchange, (2) you shall have acquired such Tendered Shares more than six months
prior to the date of exercise and, (3) if such Tendered Shares are then subject
to Transfer Restrictions, only with the prior written consent of the Company as
provided in Section 3(a) hereof. As a condition to such consent, the Company may
require that a number of Optioned Shares acquired by you upon your exercise of
the Option equal to the number of Tendered Shares surrendered upon such exercise
shall be subject to the Transfer Restrictions and the Company Repurchase Option
to the same extent that such Tendered Shares surrendered upon such exercise were
so subject immediately prior to such surrender. Receipt by the Company of the
Exercise Notice and the Exercise Consideration shall constitute the exercise of
the Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such certificate(s)
shall, immediately upon your receipt thereof, be deposited by you, together with
a stock power endorsed in blank, in escrow with the Company. In addition, any
certificate(s) representing shares of Common Stock, or other property other than
cash, distributed (including pursuant to any stock split) in respect of Optioned
Shares purchased by you (a "Non-Cash Distribution") with respect to which the
Transfer Restrictions shall not have lapsed shall,
-5-
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions, and the Company Repurchase Option
to the same extent as the Optioned Shares in respect of which such Non-Cash
Distribution was made. All such deposited certificate(s) may have set forth
thereon a legend or legends (in addition to the legend referred to in Section 8
hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions and,
to the extent applicable, to the Company Repurchase Option, as provided herein.
All shares of Common Stock delivered upon the exercise of the Option as provided
herein shall be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the Option
--------------------------------------
is exercised, you shall not be deemed for any purpose to be a stockholder of the
Company with respect to any of the Optioned Shares. Upon initial issuance to you
of a certificate or certificates representing Optioned Shares or shares (or
other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions and
the Company Repurchase Option, to the extent applicable, and to the other
restrictions and limitations imposed thereon pursuant to the Plan and this
Agreement and which may be now or hereafter imposed by the Certificate of
Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable after
--------------------------
the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions or the Company Repurchase Option.
8. Securities Laws. You hereby represent and warrant that you will not
---------------
transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge
-6-
and agree that any routine sales of the Optioned Shares purchased by you upon
exercise of the Option made in reliance upon Rule 144 under the Act may be made
only in limited amounts in accordance with the terms and conditions of that
Rule. You also acknowledge and agree that the certificate(s) representing
Optioned Shares delivered to you pursuant to Section 5 hereof may have set forth
thereon a legend indicating that such shares may be transferred, sold or
otherwise disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon exercise
of this Option shall be issued and delivered prior to the admission of such
shares to listing on notice of issuance on any stock exchange on which shares of
that class are then listed, nor unless and until, in the opinion of counsel for
the Company, such securities may be issued and delivered without causing the
Company to be in violation of or incur any liability under any U.S. federal,
state, or other securities law, any requirement of any securities exchange
listing agreement to which the Company may be a party, or any other requirement
of law or of any regulatory body having jurisdiction over the Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any
--------
-7-
recapitalization is to be effected through an increase in the par value of the
Common Stock without an increase in the number of authorized shares and such new
par value will exceed the Exercise Price hereunder, the Company shall notify you
of such proposed recapitalization, and you shall then have the right,
exercisable at any time prior to such recapitalization becoming effective, to
purchase all of the Optioned Shares not theretofore purchased by you (anything
in Section 1 hereof to the contrary notwithstanding), but if you fail to
exercise such right before such recapitalization becomes effective, the Exercise
Price hereunder shall be appropriately adjusted. Upon dissolution or liquidation
of the Company, the Option shall terminate but you (if at the time you are a
director or employee of the Company or a subsidiary of the Company) shall have
the right, immediately prior to such dissolution or liquidation, to purchase all
or any portion of the Optioned Shares not theretofore purchased by you. No
adjustment provided for in this Section 9 shall apply to any Optioned Shares
purchased prior to the effective date of such adjustment. No fraction of a share
or fractional shares shall be purchasable or deliverable under this Agreement,
but in the event any adjustment hereunder of the number of Optioned Shares shall
cause such number to include a fraction of a share, such fraction shall be
adjusted to the nearest smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the term
---------------------
of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to the Plan,
shall be final and conclusive.
12. Limitation of Employment Rights. The option confers upon you no right
-------------------------------
to continue in the employ or service of the Company and its subsidiaries or
interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
-8-
13. Taxes. If the Company, in its sole discretion, determines that the
-----
Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted to
--------------
be given under this Agreement shall be in writing, and mailed by registered or
certified mail or delivered in hand, if to the Company to its Secretary at 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party .
Please confirm your acceptance of the Option, your receipt of a copy of
the Plan and your acceptance of and agreement to the terms of the Plan and this
Agreement, by executing the enclosed copy of this letter and returning such copy
promptly under confidential cover to the Secretary of the Company, 000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /S/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/s/ Xxxxx X. Xxxxxxxxx
----------------------
Optionee
4 Phlox Lane
Acton MA. 01722
---------------
Home Address
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________
(the "Stock Option Agreement") between the Company and me, I
hereby exercise the Option granted to me with respect to _______
Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED......................... $_______
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denominations(s) of
certificate(s) for shares being
exercised:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Send new certificate(s) to:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Optionee:
---------------------------------- -----------------------------------
(print name) Signature
-----------------------------------
Date
Xxxxx X. Xxxxxxxxx
--
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
-----------------
Amendment to Stock Option Agreement
Dated February 26, 1990
-----------------
The Stock Option Agreement referred to above (the "Agreement") between you and
Photoelectron Corporation (the "Company") is hereby amended, effective as of the
11th day of July, 1991, as follows:
1. Section 3 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"3. Transfer Restrictions
---------------------
Shares of Common Stock subject to the Option ("Optioned Shares") and
purchased upon exercise of the Option, and any additional shares of
Common Stock or other shares (or other property) received in any
Non-Cash Distribution (as defined herein) in respect of such
Optioned Shares, may not, without the prior written consent of the
Company, be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of, except by will or by applicable laws of
descent and distribution or pursuant to a qualified domestic
relations order (the "Transfer Restrictions"), unless and until the
Transfer Restrictions with respect to such Optioned Shares shall
have lapsed as provided herein. The Transfer Restrictions shall
lapse in their entirety ninety days after the initial public
offering of the Common Stock by the Company is declared effective by
the Securities and Exchange Commission."
2. Section 5 is hereby amended by deleting from the third sentence
thereof the phrase "and the Company Repurchase Option", so that as
amended, the third sentence shall read in its entirety as follows:
"As a condition to such consent, the Company may require that a
number of Optioned Shares acquired by you upon your exercise of the
Option equal to the number of Tendered Shares surrendered upon such
exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were
so subject immediately prior to such surrender."
-2-
3. Section 5 is hereby amended by deleting from the seventh sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
seventh sentence shall read in its entirety as follows:
"In addition, any certificate(s) representing shares of Common
Stock, or other property other than cash, distributed (including
pursuant to any stock split) in respect of Optioned Shares
purchased by you (a "Non-Cash Distribution") with respect to which
the Transfer Restrictions shall not have lapsed shall, immediately
upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the
Company, and shall be subject to the Transfer Restrictions to the
same extent as the Optioned Shares in respect of which such Non-
Cash Distribution was made."
4. Section 5 is hereby amended by deleting from the penultimate
sentence thereof the phrase "and, to the extent applicable, to the Company
Repurchase Option," so that as amended, the penultimate sentence shall read in
its entirety as follows:
"All such deposited certificate(s) may have set forth thereon a
legend or legends (in addition to the legend referred to in Section
8 hereof) indicating that the shares of Common Stock (or other
property) represented by such certificate(s) are subject to the
Transfer Restrictions as provided herein."
5. Section 6 is hereby amended by deleting from the second sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
second sentence thereof shall read in its entirety as follows:
"Upon initial issuance to you of a certificate or certificates
representing Optioned Shares (or other property) received in any
Non-Cash Distribution in respect of Optioned Shares purchased by
you, you shall have ownership of such shares (or other property),
including the right to vote and receive dividends, subject,
however, in the case of any such shares (or other property) with
respect to which the Transfer Restrictions shall not have lapsed,
to the Transfer Restrictions, and to the other restrictions and
limitations imposed thereon pursuant to the Plan and this Agreement
and which may be now or hereafter imposed by the Certificate of
Incorporation or the By-Laws of the Company, as amended from time
to time."
-3-
6. Section 7 is hereby amended by deleting from the first sentence thereof the
phrase "or the Company Repurchase Option", so that as amended, the first
sentence thereof shall read in its entirety as follows:
"As soon as reasonably practicable after the lapse of the Transfer
Restrictions with respect to any Optioned Shares purchased by you
upon exercise of the Option, the Company shall deliver to you, or
your legal representative in the case of your death, the certificate
or certificates representing such shares and any shares (or other
property) received in any Non-Cash Distribution in respect of such
shares, previously deposited in escrow with the Company pursuant to
Section 5 hereof, without any legend referring to the Transfer
Restrictions."
7. A new Section 15 is hereby added, to read in its entirety as follows:
"15. Change of Control.
-----------------
(a) Impact of Event. In the event of a "Change of Control" as defined
---------------
in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the
Vested Shares shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any
--------------------------------
one of the following events: (i) when, without the prior approval of the Prior
Directors of the Company, any Person is or becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations thereunder), together with all
Affiliates and Associates (as such terms are used in Rule 12b-2 of the General
Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall determine constitutes an effective change
in the control of the Company. As used in the preceding sentence, the following
capitalized terms shall have the respective meanings set forth below:
-4-
(1) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is defined in Rule
405 under the Securities Act of 1933 and any "group" (within the meaning of such
term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company."
8. In all other respects, the Agreement shall remain in full force and
effect.
PHOTOELECTRON CORPORATION
By:/S/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------
Title: President
---------------------------
Accepted and Agreed to:
/S/ Xxxxx X. Xxxxxxxxx
-------------------------------
(Signature of Optionee)
Name: Xxxxx X Xxxxxxxxx
--------------------------
(please print)
Date: 2/2/92
--------------------------
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxx X. Xxxxxxxxxx
-----------------------------------------------------------------------
Optionee
5,000 $1.00
---------------------------------- ---------------------------
Number of Shares of Exercise Price
Common Stock Subject to the Option Per Share
February 26, 1990
-------------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.01 per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date which
---------------------
is the earliest of (a) seven years after the Grant Date, (b) three months after
the date on which you cease to be a director or employee of the Company or a
subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
-2-
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions and Company Repurchase Option.
---------------------------------------------------
(a) Shares of Common Stock subject to the Option ("Optioned
Shares") and purchased upon exercise of the Option may not, without the prior
written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution (the "Transfer Restrictions"), unless and until the
Transfer Restrictions with respect to such Optioned Shares shall have lapsed as
provided herein. The Transfer Restrictions
-3-
shall lapse in their entirety ninety days after the initial public offering of
the Common Stock by the Company is declared effective by the Securities and
Exchange Commission, provided such date occurs prior to the Employment
Termination Date, and provided further you shall have remained continuously a
director or employee of the Company or a subsidiary of the Company since the
Grant Date. From and after the Employment Termination Date, no further lapsing
of the Transfer Restrictions shall occur, and thereupon the Company shall have
the right, exercisable in accordance with Section 3(b) hereof, to repurchase all
or any portion of the Optioned Shares purchased by you upon exercise of the
Option with respect to which the Transfer Restrictions shall not have lapsed, at
a price per share equal to the Exercise Price specified on the first page of
this Agreement (the "Exercise Price"). The right of the Company to repurchase
Optioned Shares at the Exercise Price as provided in this Section 3(a) is
hereinafter referred to as the "Company Repurchase Option".
(b) The Company may exercise the Company Repurchase Option by
mailing to you at your last address listed in the records of the Company or the
relevant subsidiary of the Company, or by delivering to you, a notice that it
has exercised the Company Repurchase Option and the number of Optioned Shares
with respect to which it has exercised the Company Repurchase Option, within six
(6) months after the date that the Company shall first have been entitled to
exercise the Company Repurchase Option (the "Repurchase Option Period"). Such
notice shall be accompanied by a check payable to you in the amount of the
Exercise Price times the number of Optioned Shares with respect to which the
Company has exercised the Company Repurchase Option. Upon exercise by the
Company of the Company Repurchase Option as provided herein, the certificate or
certificates representing the Optioned Shares, and representing shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, which have been
repurchased shall forthwith be released from the escrow arrangement provided for
in Section 5 hereof and transferred of record to the Company. The Company
Repurchase Option shall lapse and be of no further force or effect if it shall
not have been exercised prior to the expiration of the Repurchase Option Period.
4. No Assignment of Rights. Except for assignments or transfers by will
-----------------------
or the applicable laws of descent and distribution, your rights and interests
under this Agreement and the Plan may not be assigned or transferred in whole or
in part either directly or by operation of law or otherwise, including
-4-
without limitation by way of execution, levy, garnishment, attachment, pledge or
bankruptcy, and no such rights or interests shall be subject to any of your
obligations or liabilities.
5. Exercise of Option Delivery and Deposit of Certificate(s). You (or
---------------------------------------------------------
in the case of your death, your legal representative) may exercise the Option in
whole or in part by giving written notice to the Company on the form attached
hereto as Exhibit A (the "Exercise Notice") prior to the Option Termination
Date, accompanied by full payment for the Optioned Shares being purchased (a) in
cash or by certified or bank cashier's check payable to the order of the
Company, in an amount equal to the number of Optioned Shares being purchased
multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b) in shares
of the Company's Common Stock (the "Tendered Shares") with a market value equal
to the Aggregate Exercise Price or (c) any combination of cash, certified or
bank cashier's check or Tendered Shares having a total value equal to the
Aggregate Exercise Price (such cash, check or Tendered Shares with such value
being referred to as the "Exercise Consideration"). However, Tendered Shares may
be surrendered as all or part of the Exercise Consideration only if (1) the
Common Stock is publicly traded over-the-counter or on a national securities
exchange, (2) you shall have acquired such Tendered Shares more than six months
prior to the date of exercise and, (3) if such Tendered Shares are then subject
to Transfer Restrictions, only with the prior written consent of the Company as
provided in Section 3(a) hereof. As a condition to such consent, the Company may
require that a number of Optioned Shares acquired by you upon your exercise of
the Option equal to the number of Tendered Shares surrendered upon such exercise
shall be subject to the Transfer Restrictions and the Company Repurchase Option
to the same extent that such Tendered Shares surrendered upon such exercise were
so subject immediately prior to such surrender. Receipt by the Company of the
Exercise Notice and the Exercise Consideration shall constitute the exercise of
the Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such certificate(s)
shall, immediately upon your receipt thereof, be deposited by you, together with
a stock power endorsed-in blank, in escrow with the Company. In addition, any
certificate(s) representing shares of Common Stock, or other property other than
cash, distributed (including pursuant to any stock split) in respect of Optioned
Shares purchased by you (a "Non-Cash Distribution") with respect to which the
Transfer Restrictions shall not have lapsed shall,
-5-
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions, and the Company Repurchase Option
to the same extent as the Optioned Shares in respect of which such Non-Cash
Distribution was made. All such deposited certificate(s) may have set forth
thereon a legend or legends (in addition to the legend referred to in Section 8
hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions and,
to the extent applicable, to the Company Repurchase Option, as provided herein.
All shares of Common Stock delivered upon the exercise of the Option as provided
herein shall be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the Option
--------------------------------------
is exercised, you shall not be deemed for any purpose to be a stockholder of the
Company with respect to any of the Optioned Shares. Upon initial issuance to you
of a certificate or certificates representing Optioned Shares or shares (or
other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions and
the Company Repurchase Option, to the extent applicable, and to the other
restrictions and limitations imposed thereon pursuant to the Plan and this
Agreement and which may be now or hereafter imposed by the Certificate of
Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable after
--------------------------
the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions or the Company Repurchase Option.
8. Securities Laws. You hereby represent and warrant that you will not
---------------
transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge
-6-
and agree that any routine sales of the Optioned Shares purchased by you upon
exercise of the Option made in reliance upon Rule 144 under the Act may be made
only in limited amounts in accordance with the terms and conditions of that
Rule. You also acknowledge and agree that the certificate(s) representing
Optioned Shares delivered to you pursuant to Section 5 hereof may have set forth
thereon a legend indicating that such shares may be transferred, sold or
otherwise disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any
--------
-7-
recapitalization is to be effected through an increase in the par value of the
Common Stock without an increase in the number of authorized shares and such new
par value will exceed the Exercise Price hereunder, the Company shall notify you
of such proposed recapitalization, and you shall then have the right,
exercisable at any time prior to such recapitalization becoming effective, to
purchase all of the Optioned Shares not theretofore purchased by you (anything
in Section 1 hereof to the contrary notwithstanding), but if you fail to
exercise such right before such recapitalization becomes effective, the Exercise
Price hereunder shall be appropriately adjusted. Upon dissolution or liquidation
of the Company, the Option shall terminate, but you (if at the time you are a
director or employee of the Company or a subsidiary of the Company) shall have
the right, immediately prior to such dissolution or liquidation, to purchase all
or any portion of the Optioned Shares not theretofore purchased by you. No
adjustment provided for in this Section 9 shall apply to any Optioned Shares
purchased prior to the effective date of such adjustment. No fraction of a share
or fractional shares shall be purchasable or deliverable under this Agreement,
but in the event any adjustment hereunder of the number of Optioned Shares shall
cause such number to include a fraction of a share, such fraction shall be
adjusted to the nearest smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this
Agreement and shall pay all fees and expenses necessarily incurred by the
Company in connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to the Plan,
shall be final and conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
-8-
13. Taxes. If the Company, in its sole discretion, determines that the
-----
Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
Please confirm your acceptance of the Option, your receipt of a copy of
the Plan and your acceptance of and agreement to the terms of the Plan and this
Agreement, by executing the enclosed copy of this letter and returning such copy
promptly under confidential cover to the Secretary of the Company, 000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /S/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/S/ Xxxxx X. Xxxxxxxxxx
-----------------------
Optionee
00 Xxxxxxxx Xx., Xxxxxxxxxx X.X. 02864
-------------------------------------
Home Address
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________
(the "Stock Option Agreement") between the Company and me, I
hereby exercise the Option granted to me with respect to _______
Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED......................... $_______
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denominations(s) of
certificate(s) for shares being
exercised:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Send new certificate(s) to:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Optionee:
---------------------------------- -----------------------------------
(print name) Signature
-----------------------------------
Date
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
-----------------
Amendment to Stock Option Agreement
Dated February 26, 1990
-------------------
The Stock Option Agreement referred to above (the "Agreement") between you
and Photoelectron Corporation (the "Company") is hereby amended, effective as of
the 11th day of July, 1991, as follows:
1. Section 3 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"3. Transfer Restrictions.
---------------------
Shares of Common Stock subject to the Option ("Optioned Shares") and
purchased upon exercise of the Option, and any additional shares of
Common Stock or other shares (or other property) received in any Non-
Cash Distribution (as defined herein) in respect of such Optioned
Shares, may not, without the prior written consent of the Company, be
sold, assigned, transferred, pledged, hypothecated or otherwise
disposed of, except by will or by applicable laws of descent and
distribution or pursuant to a qualified domestic relations order (the
"Transfer Restrictions"), unless and until the Transfer Restrictions
with respect to such Optioned Shares shall have lapsed as provided
herein. The Transfer Restrictions shall lapse in their entirety ninety
days after the initial public offering of the Common Stock by the
Company is declared effective by the Securities and Exchange
Commission."
2. Section 5 is hereby amended by deleting from the third sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
third sentence shall read in its entirety as follows:
"As a condition to such consent, the Company may require that a number
of Optioned Shares acquired by you upon your exercise of the Option
equal to the number of Tendered Shares surrendered upon such exercise
shall be subject to the Transfer Restrictions to the same extent that
such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender."
-2-
3. Section 5 is hereby amended by deleting from the seventh sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
seventh sentence shall read in its entirety as follows:
"In addition, any certificate(s) representing shares of Common Stock,
or other property other than cash, distributed (including pursuant to
any stock split) in respect of Optioned Shares purchased by you (a
"Non-Cash Distribution") with respect to which the Transfer
Restrictions shall not have lapsed shall, immediately upon your
receipt thereof, be deposited by you, together with a stock power
endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions to the same extent as
the Optioned Shares in respect of which such Non-Cash Distribution was
made."
4. Section 5 is hereby amended by deleting from the penultimate sentence
thereof the phrase "and, to the extent applicable, to the Company Repurchase
Option," so that as amended, the penultimate sentence shall read in its entirety
as follows:
"All such deposited certificate(s) may have set forth thereon a legend
or legends (in addition to the legend referred to in Section 8 hereof)
indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer
Restrictions as provided herein."
5. Section 6 is hereby amended by deleting from the second sentence
thereof the phrase "and the Company Repurchase Option", so that as amended, the
second sentence thereof shall read in its entirety as follows:
"Upon initial issuance to you of a certificate or certificates
representing Optioned Shares (or other property) received in any Non-
Cash Distribution in respect of Optioned Shares purchased by you, you
shall have ownership of such shares (or other property), including the
right to vote and receive dividends, subject, however, in the case of
any such shares (or other property) with respect to which the Transfer
Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to
the Plan and this Agreement and which may be now or hereafter imposed
by the Certificate of Incorporation or the By-Laws of the Company, as
amended from time to time."
-3-
6. Section 7 is hereby amended by deleting from the first sentence thereof the
phrase "or the Company Repurchase Option", so that as amended, the first
sentence thereof shall read in its entirety as follows:
"As soon as reasonably practicable after the lapse of the Transfer
Restrictions with respect to any Optioned Shares purchased by you upon
exercise of the Option, the Company shall deliver to you, or your
legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other
property) received in any Non-Cash Distribution in respect of such
shares, previously deposited in escrow with the Company pursuant to
Section 5 hereof, without any legend referring to the Transfer
Restrictions."
7. A new Section 15 is hereby added, to read in its entirety as follows:
"15. Change of Control.
-----------------
(a) Impact of Event. In the event of a "Change of Control" as defined in
---------------
Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested Shares shall
lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any one
---------------------------------
of the following events: (i) when, without the prior approval of the Prior
Directors of the Company, any Person is or becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations thereunder), together with all
Affiliates and Associates (as such terms are used in Rule 12b-2 of the General
Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall determine constitutes an effective change
in the control of the Company. As used in the preceding sentence, the following
capitalized terms shall have the respective meanings set forth below:
-4-
(1) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is defined in Rule
405 under the Securities Act of 1933 and any "group" (within the meaning of such
term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
8. In all other respects, the Agreement shall remain in full force and
effect.
PHOTOELECTRON CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
--------------------------
Title: Vice President and
-----------------------
Chief Operating Officer
Accepted and Agreed to:
/s/ Xxxxx X. Xxxxxxxxxx
-----------------------
(Signature of Optionee)
Name: Xxxxx X. Xxxxxxxxxx
-------------------
(please print)
Date: February 10, 1992
-----------------
[PC 7/91]
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxx X. Xxxxxxx
--------------------------------------------------------------------------------
Optionee
3,000 $0.40
---------------------- ----------------------------
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
July 11, 1991
----------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.01 per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
---------------------
which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
- 2 -
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option, and any additional shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, may not, without the
prior written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer
- 3 -
Restrictions with respect to such Optioned Shares shall have lapsed as provided
herein. The Transfer Restrictions shall lapse in their entirety ninety days
after the initial public offering of the Common Stock by the Company is declared
effective by the Securities and Exchange Commission.
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment, attachment,
pledge or bankruptcy, and no such rights or interests shall be subject to any of
your obligations or liabilities.
5. Exercise of Option; Delivery and Deposit of Certificate(s). You
----------------------------------------------------------
(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only if
(1) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender. Receipt by the Company of the Exercise
Notice and the Exercise Consideration shall constitute the exercise of the
Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such
- 4 -
certificate(s) shall, immediately upon your receipt thereof, be deposited by
you, together with a stock power endorsed in blank, in escrow with the Company.
In addition, any certificate(s) representing shares of Common Stock, or other
property other than cash, distributed (including pursuant to any stock split) in
respect of Optioned Shares purchased by you (a "Non-Cash Distribution") with
respect to which the Transfer Restrictions shall not have lapsed shall,
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions to the same extent as the Optioned
Shares in respect of which such Non-Cash Distribution was made. All such
deposited certificate(s) may have set forth thereon a legend or legends (in
addition to the legend referred to in Section 8 hereof) indicating that the
shares of Common Stock (or other property) represented by such certificate(s)
are subject to the Transfer Restrictions as provided herein. All shares of
Common Stock delivered upon the exercise of the Option as provided herein shall
be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the
--------------------------------------
Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial issuance
to you of a certificate or certificates representing Optioned Shares or shares
(or other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to the Plan
and this Agreement and which may be now or hereafter imposed by the Certificate
of Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will
---------------
not transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the
- 5 -
Securities Act of 1933, as amended (the "Act"), the rules and regulations
thereunder and all applicable state securities laws and the rules and
regulations thereunder. You hereby acknowledge and agree that any routine sales
of the Optioned Shares purchased by you upon exercise of the Option made in
reliance upon Rule 144 under the Act may be made only in limited amounts in
accordance with the terms and conditions of that Rule. You also acknowledge and
agree that the certificate(s) representing Optioned Shares delivered to you
pursuant to Section 5 hereof may have set forth thereon a legend indicating that
such shares may be transferred, sold or otherwise disposed of only after receipt
by the Company of an opinion of counsel reasonably satisfactory to it that the
transfer, sale or other disposition will not violate the Act or the regulations
thereunder or any applicable state securities laws or the regulations
thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to
- 6 -
hold the Optioned Shares (together with all other shares, stock and securities
thereafter issued in respect thereof) to the time of the exercise of the Option;
provided, that if any recapitalization is to be effected through an increase in
--------
the par value of the Common Stock without an increase in the number of
authorized shares and such new par value will exceed the Exercise Price
hereunder, the Company shall notify you of such proposed recapitalization, and
you shall then have the right, exercisable at any time prior to such
recapitalization becoming effective, to purchase all of the Optioned Shares not
theretofore purchased by you (anything in Section 1 hereof to the contrary
notwithstanding), but if you fail to exercise such right before such
recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to
the Plan, shall be final and conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
- 7 -
13. Taxes. If the Company, in its sole discretion, determines that
-----
the Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or
--------------
permitted to be given under this Agreement shall be in writing, and mailed by
registered or certified mail or delivered in hand, if to the Company to its
Secretary at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the
Optionee to the address set forth below, or such other address, in each case, as
the addressee shall last have furnished to the communicating party.
15. Change of Control.
-----------------
(a) Impact of Event. In the event of a "Change of Control" as
---------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested Shares
shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means
---------------------------------
any one of the following events: (i) when, without the prior approval of the
Prior Directors of the Company, any Person is or becomes the beneficial owner
(as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the rules and regulations thereunder), together with
all Affiliates and Associates (as such terms are used in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall determine
- 8 -
constitutes an effective change in the control of the Company. As used in the
preceding sentence, the following capitalized terms shall have the respective
meanings set forth below:
(1) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is defined in Rule
405 under the Securities Act of 1933 and any "group"(within the meaning of such
term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy of the
Plan and your acceptance of and agreement to the terms of the Plan and this
Agreement, by executing the enclosed copy of this letter and returning such copy
promptly under confidential cover to the Secretary of the Company, 000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/s/ Xxxx X. Xxxxxxx
-------------------
Optionee
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
---------------------
Home Address
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________ (the "Stock
Option Agreement") between the Company and me, I hereby exercise the Option
granted to me with respect to _______ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED.................................... $_______
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denomination(s) of
certificate(s) for shares being
exercised:
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Send new certificate(s) to:
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Optionee:
------------------------------- ---------------------------------------------
(print name) Signature
---------------------------------------------
Date
[PC 7/91]
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxx X. Xxxxxxx
--------------------------------------------------------------------------------
Optionee
4,000 $1.50
---------------------------- ---------------------------
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
May 13, 1992
--------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.0l per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
---------------------
which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
- 2 -
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions.
---------------------
Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option, and any additional shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, may not, without the
prior written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer
- 3 -
Restrictions with respect to such Optioned Shares shall have lapsed as provided
herein. The Transfer Restrictions shall lapse in their entirety ninety days
after the initial public offering of the Common Stock by the Company is declared
effective by the Securities and Exchange Commission.
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment, attachment,
pledge or bankruptcy, and no such rights or interests shall be subject to any of
your obligations or liabilities.
5. Exercise of Option; Delivery and Deposit of Certificate(s). You
----------------------------------------------------------
(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only if
(1) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender. Receipt by the Company of the Exercise
Notice and the Exercise Consideration shall constitute the exercise of the
Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such
- 4 -
certificate(s) shall, immediately upon your receipt thereof, be deposited by
you, together with a stock power endorsed in blank, in escrow with the Company.
In addition, any certificate(s) representing shares of Common Stock, or other
property other than cash, distributed (including pursuant to any stock split) in
respect of Optioned Shares purchased by you (a "Non-Cash Distribution") with
respect to which the Transfer Restrictions shall not have lapsed shall,
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions to the same extent as the Optioned
Shares in respect of which such Non-Cash Distribution was made. All such
deposited certificate(s) may have set forth thereon a legend or legends (in
addition to the legend referred to in Section 8 hereof) indicating that the
shares of Common Stock (or other property) represented by such certificate(s)
are subject to the Transfer Restrictions as provided herein. All shares of
Common Stock delivered upon the exercise of the Option as provided herein shall
be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the
--------------------------------------
Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial issuance
to you of a certificate or certificates representing Optioned Shares or shares
(or other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to the Plan
and this Agreement and which may be now or hereafter imposed by the Certificate
of Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will
---------------
not transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the
- 5 -
Securities Act of 1933, as amended (the "Act"), the rules and regulations
thereunder and all applicable state securities laws and the rules and
regulations thereunder. You hereby acknowledge and agree that any routine sales
of the Optioned Shares purchased by you upon exercise of the Option made in
reliance upon Rule 144 under the Act may be made only in limited amounts in
accordance With the terms and conditions of that Rule. You also acknowledge and
agree that the certificate(s) representing Optioned Shares delivered to you
pursuant to Section 5 hereof may have set forth thereon a legend indicating that
such shares may be transferred, sold or otherwise disposed of only after receipt
by the Company of an opinion of counsel reasonably satisfactory to it that the
transfer, sale or other disposition will not violate the Act or the regulations
thereunder or any applicable state securities laws or the regulations
thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to
- 6 -
hold the Optioned Shares (together with all other shares, stock and securities
thereafter issued in respect thereof) to the time of the exercise of the Option;
provided, that if any recapitalization is to be effected through an increase in
--------
the par value of the Common Stock without an increase in the number of
authorized shares and such new par value will exceed the Exercise Price
hereunder, the Company shall notify you of such proposed recapitalization, and
you shall then have the right, exercisable at any time prior to such
recapitalization becoming effective, to purchase all of the Optioned Shares not
theretofore purchased by you (anything in Section 1 hereof to the contrary
notwithstanding), but if you fail to exercise such right before such
recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to the Plan,
shall be final and conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
- 7 -
13. Taxes. If the Company, in its sole discretion, determines that the
-----
Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
-----------------
(a) Impact of Event. In the event of a "Change of Control" as
---------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested Shares
shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any
----------------------------------
one of the following events: (i) when, without the prior approval of the Prior
Directors of the Company, any Person is or becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations thereunder), together with all
Affiliates and Associates (as such terms are used in Rule 12b-2 of the General
Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall determine
- 8 -
constitutes an effective change in the control of the Company. As used in the
preceding sentence, the following capitalized terms shall have the respective
meanings set forth below:
(1) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is defined in Rule
405 under the Securities Act of 1933 and any "group" (within the meaning of such
term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's
Board of Directors on the date of this Agreement) and any future director of
the Company who has been nominated or elected by a majority of the Prior
Directors who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy of the
Plan and your acceptance of and agreement to the terms of the Plan and this
Agreement, by executing the enclosed copy of this letter and returning such
copy promptly under confidential cover to the Secretary of the Company, 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
-------------------------
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Accepted and agreed:
/s/ Xxxx X. Xxxxxxx
-------------------------------
Optionee
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
-------------------------------
Home Address
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________ (the "Stock
Option Agreement") between the Company and me, I hereby exercise the Option
granted to me with respect to _______ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED........................... $_______
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denominations(s) of certificate(s)
for shares being exercised:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
Send new certificate(s) to:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
Optionee:
------------------------------- ----------------------------------------------
(print name) Signature
----------------------------------------------
Date
[PC 7/91]
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxx X. Xxxxxxxxx
--------------------------------------------------------------------------------
Optionee
35,000 $1.50
--------------------------- ----------------------------
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
May 13, 1992
-----------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.0l per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
---------------------
which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
- 2 -
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option, and any additional shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, may not, without the
prior written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer
- 3 -
Restrictions with respect to such Optioned Shares shall have lapsed as provided
herein. The Transfer Restrictions shall lapse in their entirety ninety days
after the initial public offering of the Common Stock by the Company is declared
effective by the Securities and Exchange Commission.
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment, attachment,
pledge or bankruptcy, and no such rights or interests shall be subject to any of
your obligations or liabilities.
5. Exercise of Option; Delivery and Deposit of Certificate(s). You
----------------------------------------------------------
(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only if
(1) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender. Receipt by the Company of the Exercise
Notice and the Exercise Consideration shall constitute the exercise of the
Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such
- 4 -
certificate(s) shall, immediately upon your receipt thereof, be deposited by
you, together with a stock power endorsed in blank, in escrow with the Company.
In addition, any certificate(s) representing shares of Common Stock, or other
property other than cash, distributed (including pursuant to any stock split) in
respect of Optioned Shares purchased by you (a "Non-Cash Distribution") with
respect to which the Transfer Restrictions shall not have lapsed shall,
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions to the same extent as the Optioned
Shares in respect of which such Non-Cash Distribution was made. All such
deposited certificate(s) may have set forth thereon a legend or legends (in
addition to the legend referred to in Section 8 hereof) indicating that the
shares of Common Stock (or other property) represented by such certificate(s)
are subject to the Transfer Restrictions as provided herein. All shares of
Common Stock delivered upon the exercise of the Option as provided herein shall
be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the
--------------------------------------
Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial issuance
to you of a certificate or certificates representing Optioned Shares or shares
(or other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to the Plan
and this Agreement and which may be now or hereafter imposed by the Certificate
of Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will
---------------
not transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the
- 5 -
Securities Act of 1933, as amended (the "Act"), the rules and regulations
thereunder and all applicable state securities laws and the rules and
regulations thereunder. You hereby acknowledge and agree that any routine sales
of the Optioned Shares purchased by you upon exercise of the Option made in
reliance upon Rule 144 under the Act may be made only in limited amounts in
accordance with the terms and conditions of that Rule. You also acknowledge and
agree that the certificate(s) representing Optioned Shares delivered to you
pursuant to Section 5 hereof may have set forth thereon a legend indicating that
such shares may be transferred, sold or otherwise disposed of only after receipt
by the Company of an opinion of counsel reasonably satisfactory to it that the
transfer, sale or other disposition will not violate the Act or the regulations
thereunder or any applicable state securities laws or the regulations
thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to
- 6 -
hold the Optioned Shares (together with all other shares, stock and securities
thereafter issued in respect thereof) to the time of the exercise of the Option;
provided, that if any recapitalization is to be effected through an increase in
--------
the par value of the Common Stock without an increase in the number of
authorized shares and such new par value will exceed the Exercise Price
hereunder, the Company shall notify you of such proposed recapitalization, and
you shall then have the right, exercisable at any time prior to such
recapitalization becoming effective, to purchase all of the Optioned Shares not
theretofore purchased by you (anything in Section 1 hereof to the contrary
notwithstanding), but if you fail to exercise such right before such
recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to the Plan,
shall be final and conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
- 7 -
13. Taxes. If the Company, in its sole discretion, determines that the
-----
Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
-----------------
(a) Impact of Event. In the event of a "Change of Control" as
---------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested Shares
shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any
---------------------------------
one of the following events: (i) when, without the prior approval of the Prior
Directors of the Company, any Person is or becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations thereunder), together with all
Affiliates and Associates (as such terms are used in Rule 12b-2 of the General
Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall determine
- 8 -
constitutes an effective change in the control of the Company. As used in the
preceding sentence, the following capitalized terms shall have the respective
meanings set forth below:
(1) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is defined in Rule
405 under the Securities Act of 1933 and any "group" (within the meaning of such
term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy of the
Plan and your acceptance of and agreement to the terms of the Plan and this
Agreement, by executing the enclosed copy of this letter and returning such copy
promptly under confidential cover to the Secretary of the Company, 000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Accepted and agreed:
/s/ Xxxxx X. Xxxxxxxxx
--------------------------
Optionee
0 Xxxxx Xxxx
Xxxxx, XX 00000
--------------------------
Home Address
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________ (the "Stock
Option Agreement") between the Company and me. I hereby exercise the Option
granted to me with respect to _______ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED........................... $________
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denomination(s) of
certificate(s) for shares being
exercised:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Send new certificate(s) to:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Optionee:
--------------------------------- ------------------------------------
(print name) Signature
------------------------------------
Date
[PC 7/91]
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxx X. Xxxxxxx
--------------------------------------------------------------------------------
Optionee
6,000 $1.50
------------------------ --------------------------
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
March 9, 1993
-------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.0l per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
---------------------
which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
- 2 -
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions.
---------------------
Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option, and any additional shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, may not, without the
prior written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer
- 3 -
Restrictions with respect to such Optioned Shares shall have lapsed as provided
herein. The Transfer Restrictions shall lapse in their entirety ninety days
after the initial public offering of the Common Stock by the Company is declared
effective by the Securities and Exchange Commission.
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment, attachment,
pledge or bankruptcy, and no such rights or interests shall be subject to any of
your obligations or liabilities.
5. Exercise of Option; Delivery and Deposit of Certificate(s). You
----------------------------------------------------------
(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only if
(1) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender. Receipt by the Company of the Exercise
Notice and the Exercise Consideration shall constitute the exercise of the
Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such
- 4 -
certificate(s) shall, immediately upon your receipt thereof, be deposited by
you, together with a stock power endorsed in blank, in escrow with the Company.
In addition, any certificate(s) representing shares of Common Stock, or other
property other than cash, distributed (including pursuant to any stock split) in
respect of Optioned Shares purchased by you (a "Non-Cash Distribution") with
respect to which the Transfer Restrictions shall not have lapsed shall,
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions to the same extent as the Optioned
Shares in respect of which such Non-Cash Distribution was made. All such
deposited certificate(s) may have set forth thereon a legend or legends (in
addition to the legend referred to in Section 8 hereof) indicating that the
shares of Common Stock (or other property) represented by such certificate(s)
are subject to the Transfer Restrictions as provided herein. All shares of
Common Stock delivered upon the exercise of the Option as provided herein shall
be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the Option
--------------------------------------
is exercised, you shall not be deemed for any purpose to be a stockholder of
the Company with respect to any of the Optioned Shares. Upon initial issuance
to you of a certificate or certificates representing Optioned Shares or
shares (or other property) received in any Non-Cash Distribution in respect
of Optioned Shares purchased by you, you shall have ownership of such shares
(or other property), including the right to vote and receive dividends,
subject, however, in the case of any such shares (or other property) with
respect to which the Transfer Restrictions shall not have lapsed, to the
Transfer Restrictions, and to the other restrictions and limitations imposed
thereon pursuant to the Plan and this Agreement and which may be now or
hereafter imposed by the Certificate of Incorporation or the By-Laws
of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable after
--------------------------
the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will not
---------------
transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the
- 5 -
Securities Act of 1933, as amended (the "Act"), the rules and regulations
thereunder and all applicable state securities laws and the rules and
regulations thereunder. You hereby acknowledge and agree that any routine sales
of the Optioned Shares purchased by you upon exercise of the Option made in
reliance upon Rule 144 under the Act may be made only in limited amounts in
accordance with the terms and conditions of that Rule. You also acknowledge and
agree that the certificate(s) representing Optioned Shares delivered to you
pursuant to Section 5 hereof may have set forth thereon a legend indicating that
such shares may be transferred, sold or otherwise disposed of only after receipt
by the Company of an opinion of counsel reasonably satisfactory to it that the
transfer, sale or other disposition will not violate the Act or the regulations
thereunder or any applicable state securities laws or the regulations
thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock dividend payable
------------------------------
in Common Stock or any split-up or contraction in the number of shares of Common
Stock occurring after the date of this Agreement and prior to the exercise in
full of the Option, the number of shares for which the Option may thereafter be
exercised and the Exercise Price shall be proportionately adjusted. In the case
of any reclassification or change of outstanding shares of the Common Stock or
in case of any consolidation or merger of the Company with or into another
company or in case of any sale or conveyance to another company or entity of the
property of the Company as a whole or substantially as a whole, you shall, upon
exercise of the Option, be entitled to receive shares of stock or other
securities in its place equivalent in kind and value to those shares which you
would have received if you had exercised the Option in full immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance and had
continued to
- 6 -
hold the Optioned Shares (together with all other shares, stock and securities
thereafter issued in respect thereof) to the time of the exercise of the Option;
provided, that if any recapitalization is to be effected through an increase in
--------
the par value of the Common Stock without an increase in the number of
authorized shares and such new par value will exceed the Exercise Price
hereunder, the Company shall notify you of such proposed recapitalization, and
you shall then have the right, exercisable at any time prior to such
recapitalization becoming effective, to purchase all of the Optioned Shares not
theretofore purchased by you (anything in Section 1 hereof to the contrary
notwithstanding), but if you fail to exercise such right before such
recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the term
---------------------
of this Agreement reserve and keep available such number of shares of the Common
Stock as will be sufficient to satisfy the requirements of this Agreement and
shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to the Plan,
shall be final and conclusive.
12. Limitation of Employment Rights. The Option confers upon you no right
-------------------------------
to continue in the employ or service of the Company and its subsidiaries or
interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
- 7 -
13. Taxes. If the Company, in its sole discretion, determines that the
-----
Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted to
--------------
be given under this Agreement shall be in writing, and mailed by registered or
certified mail or delivered in hand, if to the Company to its Secretary at 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
------------------
(a) Impact of Event. In the event of a "Change of Control" as defined in
---------------
Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the
Vested Shares shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any one
---------------------------------
of the following events: (i) when, without the prior approval of the Prior
Directors of the Company, any Person is or becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations thereunder), together with all
Affiliates and Associates (as such terms are used in Rule 12b-2 of the General
Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company,
(ii) the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall determine
- 8 -
constitutes an effective change in the control of the Company. As used in the
preceding sentence, the following capitalized terms shall have the respective
meanings set forth below:
(1) "Person" shall include any natural person, any entity,
any "affiliate" of any such natural person or entity as such term is defined
in Rule 405 under the Securities Act of 1933 and any "group" (within the
meaning of such term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting
on the Company's Board of Directors immediately prior to an Electoral Event (or,
if there has been no Electoral Event, those persons sitting on the Company's
Board of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company
or a subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy
of the Plan and your acceptance of and agreement to the terms of the Plan and
this Agreement, by executing the enclosed copy of this letter and returning such
copy promptly under confidential cover to the Secretary of the Company, 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/s/ Xxxx X. Xxxxxxx
-----------------------------
Optionee
000 Xxxxxxxxx Xxx.
Cambridge, Mass 02138
-----------------------------
Home Address
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________
(the "Stock Option Agreement") between the Company and me, I
hereby exercise the Option granted to me with respect to _______
Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED................................ $_______
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denomination(s) of
certificate(s) for shares being
exercised:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Send new certificate(s) to:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Optionee:
----------------------------------- -----------------------------------
(print name) Signature
-----------------------------------
Date
[PC 7/91]
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
XXXXX X. XXXXXXXXX
--------------------------------------------------------------------------------
Optionee
15,000 $1.50
------------------------------ ----------------------------------
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
March 9, 1993
--------------------
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.01 per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
---------------------
which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of
-2-
your death, provided that immediately on the Employment Termination Date, the
Option shall terminate with respect to any Optioned Shares (as defined herein)
that are not Vested Shares (as defined herein) and as to which the Transfer
Restrictions (as defined herein) shall not have lapsed or (c) the date of the
dissolution or liquidation of the Company. The date on which the Option shall
terminate in whole or in part as provided in this Section 1 is hereinafter
referred to as the "Option Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option, and any additional shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, may not, without the
prior written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer
-3-
Restrictions with respect to such Optioned Shares shall have lapsed as provided
herein. The Transfer Restrictions shall lapse in their entirety ninety days
after the initial public offering of the Common Stock by the Company is declared
effective by the Securities and Exchange Commission.
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment, attachment,
pledge or bankruptcy, and no such rights or interests shall be subject to any of
your obligations or liabilities.
5. Exercise of Option; Delivery and Deposit of Certificate(s). You
----------------------------------------------------------
(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only if
(1) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender. Receipt by the Company of the Exercise
Notice and the Exercise Consideration shall constitute the exercise of the
Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such
-4-
certificate(s) shall, immediately upon your receipt thereof, be deposited by
you, together with a stock power endorsed in blank, in escrow with the Company.
In addition, any certificate(s) representing shares of Common Stock, or other
property other than cash, distributed (including pursuant to any stock split) in
respect of Optioned Shares purchased by you (a "Non-Cash Distribution") with
respect to which the Transfer Restrictions shall not have lapsed shall,
immediately upon your receipt thereof, be deposited by you, together with a
stock power endorsed in blank (if applicable), in escrow with the Company, and
shall be subject to the Transfer Restrictions to the same extent as the Optioned
Shares in respect of which such Non-Cash Distribution was made. All such
deposited certificate(s) may have set forth thereon a legend or legends (in
addition to the legend referred to in Section 8 hereof) indicating that the
shares of Common Stock (or other property) represented by such certificate(s)
are subject to the Transfer Restrictions as provided herein. All shares of
Common Stock delivered upon the exercise of the Option as provided herein shall
be fully paid and non-assessable.
6. Rights With Respect to Optioned Shares. Prior to the date the
--------------------------------------
Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial issuance
to you of a certificate or certificates representing Optioned Shares or shares
(or other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to the Plan
and this Agreement and which may be now or hereafter imposed by the Certificate
of Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will
---------------
not transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the
-5-
Securities Act of 1933, as amended (the "Act"), the rules and regulations
thereunder and all applicable state securities laws and the rules and
regulations thereunder. You hereby acknowledge and agree that any routine sales
of the Optioned Shares purchased by you upon exercise of the Option made in
reliance upon Rule 144 under the Act may be made only in limited amounts in
accordance with the terms and conditions of that Rule. You also acknowledge and
agree that the certificate(s) representing Optioned Shares delivered to you
pursuant to Section 5 hereof may have set forth thereon a legend indicating that
such shares may be transferred, sold or otherwise disposed of only after receipt
by the Company of an opinion of counsel reasonably satisfactory to it that the
transfer, sale or other disposition will not violate the Act or the regulations
thereunder or any applicable state securities laws or the regulations
thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to
-6-
hold the Optioned Shares (together with all other shares, stock and securities
thereafter issued in respect thereof) to the time of the exercise of the Option;
provided, that if any recapitalization is to be effected through an increase in
--------
the par value of the Common Stock without an increase in the number of
authorized shares and such new par value will exceed the Exercise Price
hereunder, the Company shall notify you of such proposed recapitalization, and
you shall then have the right, exercisable at any time prior to such
recapitalization becoming effective, to purchase all of the Optioned Shares not
theretofore purchased by you (anything in Section 1 hereof to the contrary
notwithstanding), but if you fail to exercise such right before such
recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation and construction by the Company's Board of Directors of any
provision of, and the determination of any question arising under, this
Agreement, the Plan, or any rule or regulation adopted pursuant to the Plan,
shall be final and conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
-7-
13. Taxes. If the Company, in its sole discretion, determines that
-----
the Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
-----------------
(a) Impact of Event. In the event of a "Change of Control" as
---------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested Shares
shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means any
---------------------------------
one of the following events: (i) when, without the prior approval of the
Prior Directors of the Company, any Person is or becomes the beneficial
owner (as defined in Section 13(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the rules and regulations thereunder),
together with all Affiliates and Associates (as such terms are used in Rule
12b-2 of the General Rules and Regulations of the Exchange Act) of such
Person, directly or indirectly, of 50% or more of the outstanding Common
Stock of the Company, (ii) the sale or other transfer by Thermo Electron
Corporation or Photoelectron Investments Corporation of Liberia (the
"Controlling Shareholders") of 50% or more of their collective
stockholdings in the Company to any Person, other than any Person that is
controlled by, controlling or under common control with either of the
Controlling Shareholders or to any person who is not, prior to giving
effect to such sale, a stockholder of the Company, or (iii) any other event
that the Prior Directors shall determine
-8-
constitutes an effective change in the control of the Company. As used in
the preceding sentence, the following capitalized terms shall have the
respective meanings set forth below:
(1) "Person" shall include any natural person, any entity,
any "affiliate" of any such natural person or entity as such term is
defined in Rule 405 under the Securities Act of 1933 and any "group"
(within the meaning of such term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or,
if there has been no Electoral Event, those persons sitting on the
Company's Board of Directors on the date of this Agreement) and any future
director of the Company who has been nominated or elected by a majority of
the Prior Directors who are then members of the Board of Directors of the
Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock,
not approved by the Prior Directors, by any Person other than the Company
or a subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy
of the Plan and your acceptance of and agreement to the terms of the Plan
and this Agreement, by executing the enclosed copy of this letter and
returning such copy promptly under confidential cover to the Secretary of
the Company, 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President & CEO
Accepted and agreed:
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Optionee
0 Xxxxx Xxxx
Xxxxx, XX 00000
-----------------------------------
Home Address
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated _____________________ (the "Stock
Option Agreement") between the Company and me, I hereby exercise the Option
granted to me with respect to _______ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED.............................. $_________
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS ...
Number and denominations(s) of
certificate(s) for shares being
exercised:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Send new certificate(s) to:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Optionee:
------------------------------- -----------------------------------
(print name) Signature
-----------------------------------
Date
[PC 7/91]
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxx X. Xxxxxxx
=====================
Optionee
12,000 $1.50
======================= ====================
Number of Shares of Exercise Price
Common Stock Subject to Per Share
the Option
December 1, 1993
=======================
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.01 per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date which is
---------------------
the earliest of (a) seven years after the Grant Date, (b) three months after the
date on which you cease to be a director or employee of the Company or a
subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of your
death, provided that immediately on the Employment Termination Date, the Option
shall terminate with respect to any Optioned Shares (as defined herein) that are
not Vested Shares (as defined herein) and to which the Transfer Restrictions (as
defined
2
herein) shall not have lapsed or (c) the date of the dissolution or liquidation
of the Company. The date on which the Option shall terminate in whole or in part
as provided in this Section 1 is hereinafter referred to as the "Option
Termination Date.
2. Exercise of Option. Subject to the terms of this Agreement, the Option
------------------
shall be exercisable in installments during the period beginning on the first
anniversary of the Grant Date and ending on the Option Termination Date as set
forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing table
are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and all
fractional shares shall be rounded down to next lower whole number of shares.
3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares") and
purchased upon exercise of the Option, and any additional shares of Common Stock
or other shares (or other property) received in any Non-Cash Distribution (as
defined herein) in respect of such Optioned Shares, may not, without the prior
written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer Restrictions with
respect to such Optioned Shares shall have lapsed as provided herein. The
Transfer Restrictions shall lapse in their entirety ninety days after the
initial public offering of the Common Stock by the Company is declared effective
by the Securities and Exchange Commission.
3
4. No Assignment of Rights. Except for assignments or transfers by will
-----------------------
or the applicable laws of descent and distribution, your rights and interests
under Agreement and the Plan may not be assigned or transferred in whole or in
part either directly or by operation of law or otherwise, including without
limitation by way of execution, levy, garnishment, attachment, pledge or
bankruptcy, and no such rights or interests shall be subject to any of your
obligations or liabilities.
5. Exercise of Option: Delivery and Deposit of Certificate(s). You (or in
----------------------------------------------------------
the case of your death, your legal representative) may exercise the Option in
whole or in part by giving written notice to the Company on the form attached
hereto as Exhibit A (the "Exercise Notice") prior to the Option Termination
Date, accompanied by full payment for the Optioned Shares being purchased (a) in
cash or by certified or bank cashier's check payable to the order of the
Company, in an amount equal to the number of Optioned Shares being purchased
multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b) in shares
of the Company's Common Stock (the "Tendered Shares") with a market value equal
to the Aggregate Exercise Price or (c) any combination of cash, certified or
bank cashier's check or Tendered Shares having a total value equal to the
Aggregate Exercise Price (such cash, check or Tendered Shares with such value
being referred to as the "Exercise Consideration"). However, Tendered Shares may
be surrendered as all or part of the Exercise Consideration only if(1) the
Common Stock is publicly traded over-the-counter or on a national securities
exchange, (2) you shall have acquired such Tendered Shares more than six months
prior to the date of exercise and, (3) if such Tendered Shares are then subject
to Transfer Restrictions, only with the prior written consent of the Company as
provided in Section 3(a) hereof. As a condition to such consent, the Company may
require that a number of Optioned Shares acquired by you upon your exercise of
the Option equal to the number of Tendered Shares surrendered upon such exercise
shall be subject to the Transfer Restrictions to the same extent that such
Tendered Shares surrendered upon such exercise were so subject immediately prior
to such surrender. Receipt by the Company of the Exercise Notice and the
Exercise Consideration shall constitute the exercise of the Option or a part
thereof. As soon as reasonably practicable thereafter, the Company shall deliver
or cause to be delivered to you a certificate or certificates representing the
number of Optioned Shares purchased, registered in your name. If such
certificate(s) represent(s) Optioned Shares with respect to which the Transfer
Restrictions shall not have lapsed, such certificate(s) shall, immediately upon
your receipt thereof, be deposited by you, together with a stock power endorsed
in blank, in escrow with the Company. In addition, any certificate(s)
representing shares of Common Stock, or other property other than cash,
distributed (including pursuant to any stock split) in respect of Optioned
Shares purchased by you (a "Non-Cash Distribution") with respect to which the
Transfer Restrictions shall not have lapsed shall, immediately upon your receipt
thereof, be deposited by you, together with a stock power endorsed in blank (if
applicable), in escrow with the Company, and shall be subject to the Transfer
Restrictions to the same extent as the Optioned Shares in respect of which such
Non-Cash Distribution was made. All such deposited certificate(s) may have set
forth thereon a legend or legends (in addition to the legend referred to in
Section 8 hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions as
provided herein. All shares of Common Stock delivered upon the exercise of the
Option as provided herein shall be fully paid and non-assessable.
4
6. Rights With Respect to Optioned Shares. Prior to the date the Option
--------------------------------------
is exercised, you shall not be deemed for any purpose to be a stockholder of the
Company with respect to any of the Optioned Shares. Upon initial issuance to you
of a certificate or certificates representing Optioned Shares or shares
(or other property) received in any Non-Cash Distribution in respect of
Optioned Shares purchased by you, you shall have ownership of such shares
(or other property), including the right to vote and receive dividends,
subject, however, in the case of any such shares (or other property) with
respect to which the Transfer Restrictions shall not have lapsed, to the
Transfer Restrictions, and to the other restrictions and limitations imposed
thereon pursuant to the Plan and this Agreement and which may be now or
hereafter imposed by the Certificate of Incorporation or the By-Laws
of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable after
--------------------------
the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will not
---------------
transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge and agree that
any routine sales of the Optioned Shares purchased by you upon exercise of the
Option made in reliance upon Rule 144 under the Act may be made only in limited
amounts in accordance with the terms and conditions of that Rule. You also
acknowledge and agree that the certificate(s) representing Optioned Shares
delivered to you pursuant to Section 5 hereof may have set forth thereon a
legend indicating that such shares may be transferred, sold or otherwise
disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other
5
securities law, any requirement of any securities exchange listing agreement to
which the Company may be a party, or any other requirement of law or of any
regulatory body having jurisdiction over the Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any recapitalization is to
be effected through an increase in the par value of the Common Stock without an
increase in the number of authorized shares and such new par value will exceed
the Exercise Price hereunder, the Company shall notify you of such proposed
recapitalization, and you shall then have the right, exercisable at any time
prior to such recapitalization becoming effective, to purchase all of the
Optioned Shares not theretofore purchased by you (anything in Section 1 hereof
to the contrary notwithstanding), but if you fail to exercise such right before
such recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company,
the Option shall terminate, but you (if at the time you are a director or
employee of the Company or a subsidiary of the Company) shall have the right,
immediately prior to such dissolution or liquidation, to purchase all or any
portion of the Optioned Shares not theretofore purchased by you. No adjustment
provided for in this Section 9 shall apply to any Optioned Shares purchased
prior to the effective date of such adjustment. No fraction of a share or
fractional shares shall be purchasable or deliverable under this Agreement, but
in the event any adjustment hereunder of the number of Optioned Shares shall
cause such number to include a fraction of a share, such fraction shall be
adjusted to the nearest smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation
6
and construction by the Company's Board of Directors of any provision of, and
the determination of any question arising under, this Agreement, the Plan, or
any rule or regulation adopted pursuant to the Plan, shall be final and
conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
13. Taxes. If the Company, in its sole discretion, determines that the
-----
Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
------------------
(a) Impact of Event. In the event of a "Change of Control" as
---------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested
Shares shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means
----------------------------------
any one of the following events: (i) when, without the prior approval of the
Prior Directors of the Company, any Person is or becomes the beneficial owner
(as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the rules and regulations thereunder), together with
all Affiliates and Associates (as such terms are used in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall
7
determine constitutes an effective change in the control of the Company. As used
in the preceding sentence, the following capitalized terms shall have the
respective meanings set forth below:
(1) "Person" shall include any natural person, any entity,
any "affiliate" of any such natural person or entity as such term is defined in
Rule 405 under the Securities Act of 1933 and any "group" (within the meaning of
such term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy of the
Plan and your acceptance of and agreement to the terms of the Plan and this
Agreement, by executing the enclosed copy of this letter and returning such copy
promptly under confidential cover to the Clerk of the Company, 000-0 Xxxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Optionee
000 Xxxxxxxxx Xxx Xxxxxxxxx, Xxxx 00000
-----------------------------------------
Home Address
8
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated ____________ (the "Stock Option
Agreement") between the Company and me, I hereby exercise the Option granted to
me with respect to _____ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED............................. $_______________
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS
Number and denominations(s) of certificate(s) for shares being exercised:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
Send new certificate(s) to:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
Optionee:
----------------------------- ------------------------------
(print name) Signature
------------------------------
Date
[PC 7/91]
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxxx X. Xxxxxxxxxxx
============================
Optionee
5,000 $1.50
======================= =================
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
December 1, 1993
======================
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.01 per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
---------------------
which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of your
death, provided that immediately on the Employment Termination Date, the Option
shall terminate with respect to any Optioned Shares (as defined herein) that are
not Vested Shares (as defined herein) and as to which the Transfer Restrictions
(as defined
2
herein) shall not have lapsed or (c) the date of the dissolution or liquidation
of the Company. The date on which the Option shall terminate in whole or in part
as provided in this Section 1 is hereinafter referred to as the "Option
Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option, and any additional shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, may not, without the
prior written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer Restrictions with
respect to such Optioned Shares shall have lapsed as provided herein. The
Transfer Restrictions shall lapse in their entirety ninety days after the
initial public offering of the Common Stock by the Company is declared effective
by the Securities and Exchange Commission.
3
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment, attachment,
pledge or bankruptcy, and no such rights or interests shall be subject to any of
your obligations or liabilities.
5. Exercise of Option: Delivery and Deposit of Certificate(s). You
----------------------------------------------------------
(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only
if (1) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender. Receipt by the Company of the Exercise
Notice and the Exercise Consideration shall constitute the exercise of the
Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such certificate(s)
shall, immediately upon your receipt thereof, be deposited by you, together with
a stock power endorsed in blank, in escrow with the Company. In addition, any
certificate(s) representing shares of Common Stock, or other property other than
cash, distributed (including pursuant to any stock split) in respect of Optioned
Shares purchased by you (a "Non-Cash Distribution") with respect to which the
Transfer Restrictions shall not have lapsed shall, immediately upon your receipt
thereof, be deposited by you, together with a stock power endorsed in blank (if
applicable), in escrow with the Company, and shall be subject to the Transfer
Restrictions to the same extent as the Optioned Shares in respect of which such
Non-Cash Distribution was made. All such deposited certificate(s) may have set
forth thereon a legend or legends (in addition to the legend referred to in
Section 8 hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions as
provided herein. All shares of Common Stock delivered upon the exercise of the
Option as provided herein shall be fully paid and non-assessable.
4
6. Rights With Respect to Optioned Shares. Prior to the date the
--------------------------------------
Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial issuance
to you of a certificate or certificates representing Optioned Shares or shares
(or other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to the Plan
and this Agreement and which may be now or hereafter imposed by the Certificate
of Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will
---------------
not transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge and agree that
any routine sales of the Optioned Shares purchased by you upon exercise of the
Option made in reliance upon Rule 144 under the Act may be made only in limited
amounts in accordance with the terms and conditions of that Rule. You also
acknowledge and agree that the certificate(s) representing Optioned Shares
delivered to you pursuant to Section 5 hereof may have set forth thereon a
legend indicating that such shares may be transferred, sold or otherwise
disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and
your transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other
5
securities law, any requirement of any securities exchange listing agreement to
which the Company may be a party, or any other requirement of law or of any
regulatory body having jurisdiction over the Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any recapitalization is to
be effected through an increase in the par value of the Common Stock without an
increase in the number of authorized shares and such new par value will exceed
the Exercise Price hereunder, the Company shall notify you of such proposed
recapitalization, and you shall then have the right, exercisable at any time
prior to such recapitalization becoming effective, to purchase all of the
Optioned Shares not theretofore purchased by you (anything in Section 1 hereof
to the contrary notwithstanding), but if you fail to exercise such right before
such recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation
6
and construction by the Company's Board of Directors of any provision of, and
the determination of any question arising under, this Agreement, the Plan, or
any rule or regulation adopted pursuant to the Plan, shall be final and
conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
13. Taxes. If the Company, in its sole discretion, determines that
-----
the Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
------------------
(a) Impact of Event. In the event of a "Change of Control" as
---------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested
Shares shall lapse in their entirety.
(b) Definition of "Change of Control" "Change of Control" means
---------------------------------
any one of the following events: (i) when, without the prior approval of the
Prior Directors of the Company, any Person is or becomes the beneficial owner
(as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the rules and regulations thereunder), together with
all Affiliates and Associates (as such terms are used in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall
7
determine constitutes an effective change in the control of the Company. As used
in the preceding sentence, the following capitalized terms shall have the
respective meanings set forth below:
(1) "Person" shall include any natural person, any entity,
any "affiliate" of any such natural person or entity as such term is defined in
Rule 405 under the Securities Act of l933 and any "group" (within the meaning of
such term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy
of the Plan and your acceptance of and agreement to the terms of the Plan and
this Agreement, by executing the enclosed copy of this letter and returning such
copy promptly under confidential cover to the Clerk of the Company, 000-0 Xxxxxx
Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/s/ Xxxxxx Xxxxxxxxxxx
--------------------------------
Optionee
000 Xxxxx Xx Xxxxxxx, XX 00000
--------------------------------
Home Address
8
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated ___________ (the "Stock Option
Agreement") between the Company and me, I hereby exercise the Option granted
to me with respect to Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED............................... $_______________
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS
Number and denominations(s) of certificate(s) for shares being exercised:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
Send new certificate(s) to:
_______________________________
_______________________________
_______________________________
_______________________________
Optionee:
_____________________________ __________________________
(print name) Signature
__________________________
Date
[PC 7/91]
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxx X. Xxxxxxx
======================
Optionee
20,000 $1.50
==================== ==================
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
December 1 1993
===================
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.0l per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination
Date (as defined herein). Attached is a copy of the Plan which is incorporated
in this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date
---------------------
which is the earliest of (a) seven years after the Grant Date, (b) three months
after the date on which you cease to be a director or employee of the Company or
a subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of your
death, provided that immediately on the Employment Termination Date, the Option
shall terminate with respect to any Optioned Shares (as defined herein) that are
not Vested Shares (as defined herein) and as to which the Transfer Restrictions
(as defined
2
herein) shall not have lapsed or (c) the date of the dissolution or liquidation
of the Company. The date on which the Option shall terminate in whole or in part
as provided in this Section 1 is hereinafter referred to as the "Option
Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option, and any additional shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, may not, without the
prior written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer Restrictions with
respect to such Optioned Shares shall have lapsed as provided herein. The
Transfer Restrictions shall lapse in their entirety ninety days after the
initial public offering of the Common Stock by the Company is declared effective
by the Securities and Exchange Commission.
3
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment, attachment,
pledge or bankruptcy, and no such rights or interests shall be subject to any of
your obligations or liabilities.
5. Exercise of Option: Delivery and Deposit of Certificate(s). You
---------------------------------------------------------
(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only
if (l) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender. Receipt by the Company of the Exercise
Notice and the Exercise Consideration shall constitute the exercise of the
Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such certificate(s)
shall, immediately upon your receipt thereof, be deposited by you, together with
a stock power endorsed in blank, in escrow with the Company. In addition, any
certificate(s) representing shares of Common Stock, or other property other than
cash, distributed (including pursuant to any stock split) in respect of Optioned
Shares purchased by you (a "Non-Cash Distribution") with respect to which the
Transfer Restrictions shall not have lapsed shall, immediately upon your receipt
thereof, be deposited by you, together with a stock power endorsed in blank (if
applicable), in escrow with the Company, and shall be subject to the Transfer
Restrictions to the same extent as the Optioned Shares in respect of which such
Non-Cash Distribution was made. All such deposited certificate(s) may have set
forth thereon a legend or legends (in addition to the legend referred to in
Section 8 hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions as
provided herein. All shares of Common Stock delivered upon the exercise of the
Option as provided herein shall be fully paid and non-assessable.
4
6. Rights With Respect to Optioned Shares. Prior to the date the
--------------------------------------
Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial issuance
to you of a certificate or certificates representing Optioned Shares or shares
(or other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to the Plan
and this Agreement and which may be now or hereafter imposed by the Certificate
of Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable
--------------------------
after the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will
---------------
not transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge and agree that
any routine sales of the Optioned Shares purchased by you upon exercise of the
Option made in reliance upon Rule 144 under the Act may be made only in limited
amounts in accordance with the terms and conditions of that Rule. You also
acknowledge and agree that the certificate(s) representing Optioned Shares
delivered to you pursuant to Section 5 hereof may have set forth thereon a
legend indicating that such shares may be transferred, sold or otherwise
disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and
your transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other
5
securities law, any requirement of any securities exchange listing agreement to
which the Company may be a party, or any other requirement of law or of any
regulatory body having jurisdiction over the Company.
9. Dilution and Other Adjustments. In the event of any stock
------------------------------
dividend payable in Common stock or any split-up or contraction in the number of
shares of Common Stock occurring after the date of this Agreement and prior to
the exercise in full of the Option, the number of shares for which the Option
may thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any recapitalization is to
be effected through an increase in the par value of the Common Stock without an
increase in the number of authorized shares and such new par value will exceed
the Exercise Price hereunder, the Company shall notify you of such proposed
recapitalization, and you shall then have the right, exercisable at any time
prior to such recapitalization becoming effective, to purchase all of the
Optioned Shares not theretofore purchased by you (anything in Section 1 hereof
to the contrary notwithstanding), but if you fail to exercise such right before
such recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
---------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
-----------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation
6
and construction by the Company's Board of Directors of any provision of, and
the determination of any question arising under, this Agreement, the Plan, or
any rule or regulation adopted pursuant to the Plan, shall be final and
conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
13. Taxes. If the Company, in its sole discretion, determines that
-----
the Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
------------------
(a) Impact of Event. In the event of a "Change of Control" as
---------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested
Shares shall lapse in their entirety.
(b) Definition of "Change of Control" "Change of Control" means
---------------------------------
any one of the following events: (i) when, without the prior approval of the
Prior Directors of the Company, any Person is or becomes the beneficial owner
(as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the rules and regulations thereunder), together with
all Affiliates and Associates (as such terms are used in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall
7
determine constitutes an effective change in the control of the Company. As used
in the preceding sentence, the following capitalized terms shall have the
respective meanings set forth below:
(1) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is defined in Rule
405 under the Securities Act of 1933 and any "group" (within the meaning of such
term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy
of the Plan and your acceptance of and agreement to the terms of the Plan and
this Agreement, by executing the enclosed copy of this letter and returning such
copy promptly under confidential cover to the Clerk of the Company, 000-0 Xxxxxx
Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/s/ Xxxxx X. Xxxxxxx
---------------------------------
Optionee
00 Xxxxx Xxxxxx
Xxxxxx, Xx0X 00X
---------------------------------
Home Address
8
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated ___________ (the "Stock Option
Agreement") between the Company and me, I hereby exercise the Option granted to
me with respect to _____ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED................................... $__________
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS
Number and denominations(s) of certificate(s) for shares being exercised:
________________________________
________________________________
________________________________
________________________________
________________________________
Send new certificate(s) to:
________________________________
________________________________
________________________________
________________________________
Optionee:
____________________________ ______________________________
(print name) Signature
______________________________
Date
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxx X. Xxxxxxxxx
==================
Optionee
20,000 $1.50
=========================== ==================
Number of Shares of Exercise Price
Common Stock Subject Per Share
to the Option
December 1, 1993
================
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.0l per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date which
----------------------
is the earliest of (a) seven years after the Grant Date, (b) three months after
the date on which you cease to be a director or employee of the Company or a
subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of your
death, provided that immediately on the Employment Termination Date, the Option
shall terminate with respect to any Optioned Shares (as defined herein) that are
not Vested Shares (as defined herein) and as to which the Transfer Restrictions
(as defined
2
herein) shall not have lapsed or (c) the date of the dissolution or liquidation
of the Company. The date on which the Option shall terminate in whole or in part
as provided in this Section 1 is hereinafter referred to as the "Option
Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing
table are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and
all fractional shares shall be rounded down to next lower whole number of
shares.
3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares")
and purchased upon exercise of the Option, and any additional shares of Common
Stock or other shares (or other property) received in any Non-Cash Distribution
(as defined herein) in respect of such Optioned Shares, may not, without the
prior written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer Restrictions with
respect to such Optioned Shares shall have lapsed as provided herein. The
Transfer Restrictions shall lapse in their entirety ninety days after the
initial public offering of the Common Stock by the Company is declared effective
by the Securities and Exchange Commission.
3
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment,
attachment, pledge or bankruptcy, and no such rights or interests shall be
subject to any of your obligations or liabilities.
5. Exercise of Option: Delivery and Deposit of Certificate(s). You (or
-----------------------------------------------------------
in the case of your death, your legal representative) may exercise the Option in
whole or in part by giving written notice to the Company on the form attached
hereto as Exhibit A (the "Exercise Notice") prior to the Option Termination
Date, accompanied by full payment for the Optioned Shares being purchased (a) in
cash or by certified or bank cashier's check payable to the order of the
Company, in an amount equal to the number of Optioned Shares being purchased
multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b) in shares
of the Company's Common Stock (the "Tendered Shares") with a market value equal
to the Aggregate Exercise Price or (c) any combination of cash, certified or
bank cashier's check or Tendered Shares having a total value equal to the
Aggregate Exercise Price (such cash, check or Tendered Shares with such value
being referred to as the "Exercise Consideration"). However, Tendered Shares may
be surrendered as all or part of the Exercise Consideration only if (1) the
Common Stock is publicly traded over-the-counter or on a national securities
exchange, (2) you shall have acquired such Tendered Shares more than six months
prior to the date of exercise and, (3) if such Tendered Shares are then subject
to Transfer Restrictions, only with the prior written consent of the Company as
provided in Section 3(a) hereof. As a condition to such consent, the Company may
require that a number of Optioned Shares acquired by you upon your exercise of
the Option equal to the number of Tendered Shares surrendered upon such exercise
shall be subject to the Transfer Restrictions to the same extent that such
Tendered Shares surrendered upon such exercise were so subject immediately prior
to such surrender. Receipt by the Company of the Exercise Notice and the
Exercise Consideration shall constitute the exercise of the Option or a part
thereof. As soon as reasonably practicable thereafter, the Company shall deliver
or cause to be delivered to you a certificate or certificates representing the
number of Optioned Shares purchased, registered in your name. If such
certificate(s) represent(s) Optioned Shares with respect to which the Transfer
Restrictions shall not have lapsed, such certificate(s) shall, immediately upon
your receipt thereof, be deposited by you, together with a stock power endorsed
in blank, in escrow with the Company. In addition, any certificate(s)
representing shares of Common Stock, or other property other than cash,
distributed (including pursuant to any stock split) in respect of Optioned
Shares purchased by you (a "Non-Cash Distribution") with respect to which the
Transfer Restrictions shall not have lapsed shall, immediately upon your receipt
thereof, be deposited by you, together with a stock power endorsed in blank (if
applicable), in escrow with the Company, and shall be subject to the Transfer
Restrictions to the same extent as the Optioned Shares in respect of which such
Non-Cash Distribution was made. All such deposited certificate(s) may have set
forth thereon a legend or legends (in addition to the legend referred to in
Section 8 hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions as
provided herein. All shares of Common Stock delivered upon the exercise of the
Option as provided herein shall be fully paid and non-assessable.
4
6. Rights With Respect to Optioned Shares. Prior to the date the Option
---------------------------------------
is exercised, you shall not be deemed for any purpose to be a stockholder of the
Company with respect to any of the Optioned Shares. Upon initial issuance to you
of a certificate or certificates representing Optioned Shares or shares (or
other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to the Plan
and this Agreement and which may be now or hereafter imposed by the Certificate
of Incorporation or the By-Laws of the Company, as amended from time to time.
7. Release of Optioned Shares. As soon as reasonably practicable after
---------------------------
the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will not
----------------
transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge and agree that
any routine sales of the Optioned Shares purchased by you upon exercise of the
Option made in reliance upon Rule 144 under the Act may be made only in limited
amounts in accordance with the terms and conditions of that Rule. You also
acknowledge and agree that the certificate(s) representing Optioned Shares
delivered to you pursuant to Section 5 hereof may have set forth thereon a
legend indicating that such shares may be transferred, sold or otherwise
disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other
5
securities law, any requirement of any securities exchange listing agreement to
which the Company may be a party, or any other requirement of law or of any
regulatory body having jurisdiction over the Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
-------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any recapitalization is to
be effected through an increase in the par value of the Common Stock without an
increase in the number of authorized shares and such new par value will exceed
the Exercise Price hereunder, the Company shall notify you of such proposed
recapitalization, and you shall then have the right, exercisable at any time
prior to such recapitalization becoming effective, to purchase all of the
Optioned Shares not theretofore purchased by you (anything in Section 1 hereof
to the contrary notwithstanding), but if you fail to exercise such right before
such recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
----------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
------------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation
6
and construction by the Company's Board of Directors of any provision of, and
the determination of any question arising under, this Agreement, the Plan, or
any rule or regulation adopted pursuant to the Plan, shall be final and
conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
13. Taxes. If the Company, in its sole discretion, determines that the
-----
Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
-----------------
(a) Impact of Event. In the event of a "Change of Control" as
---------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested Shares
shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means
---------------------------------
any one of the following events: (i) when, without the prior approval of the
Prior Directors of the Company, any Person is or becomes the beneficial owner
(as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the rules and regulations thereunder), together with
all Affiliates and Associates (as such terms are used in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall
7
determine constitutes an effective change in the control of the Company. As used
in the preceding sentence, the following capitalized terms shall have the
respective meanings set forth below:
(1) "Person" shall include any natural person, any entity,
any "affiliate" of any such natural person or entity as such term is defined in
Rule 405 under the Securities Act of 1933 and any "group" (within the meaning of
such term in Rule l3d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy of
the Plan and your acceptance of and agreement to the terms of the Plan and this
Agreement, by executing the enclosed copy of this letter and returning such copy
promptly under confidential cover to the Clerk of the Company, 000-0 Xxxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Operating officer
Accepted and agreed:
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Optionee
0 Xxxxx Xxxx
Xxxxx, XX 00000
--------------------------------
Home Address
8
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated ___________ (the "Stock Option
Agreement") between the Company and me, I hereby exercise the Option granted to
me with respect to _____ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED.................................. $_____________
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS
Number and denominations(s) of certificate(s) for shares being exercised:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
Send new certificate(s) to:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
Optionee:
------------------------------- ------------------------------
(print name) Signature
------------------------------
Date
PHOTOELECTRON CORPORATION
STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxx X. Xxxxxxxxxx
============================
Optionee
5,000 $1.50
======================= =================
Number of Shares of Exercise Price
Common Stock Subject to Per Share
the Option
December 1, 1993
================
Grant Date
We are pleased to inform you that, pursuant to the Photoelectron
Corporation Stock Option Plan (the "Plan"), you have been granted the option to
acquire the number of shares of common stock, par value $.0l per share (the
"Common Stock"), of Photoelectron Corporation (the "Company") specified above,
subject to the provisions of the Plan and the terms, conditions and restrictions
hereinafter set forth (the "Option"), to be exercisable any time after the Grant
Date specified above (the "Grant Date") and prior to the Option Termination Date
(as defined herein). Attached is a copy of the Plan which is incorporated in
this Stock Option Agreement (the "Agreement") by reference and made a part
hereof. The Option granted hereunder is intended to be a non-statutory stock
option and not a "qualified", "incentive", or "employee stock purchase plan"
stock option as those terms are defined in Sections 422, 422A and 423,
respectively, of the Internal Revenue Code of 1986, as amended.
1. Termination of Option. The Option shall terminate on the date which
----------------------
is the earliest of (a) seven years after the Grant Date, (b) three months after
the date on which you cease to be a director or employee of the Company or a
subsidiary of the Company (the "Employment Termination Date"), or six months
after the Employment Termination Date if such cessation is a result of your
death, provided that immediately on the Employment Termination Date, the Option
shall terminate with respect to any Optioned Shares (as defined herein) that are
not Vested Shares (as defined herein) and as to which the Transfer Restrictions
(as defined
2
herein) shall not have lapsed or (c) the date of the dissolution or liquidation
of the Company. The date on which the Option shall terminate in whole or in part
as provided in this Section 1 is hereinafter referred to as the "Option
Termination Date."
2. Exercise of Option. Subject to the terms of this Agreement, the
-------------------
Option shall be exercisable in installments during the period beginning on the
first anniversary of the Grant Date and ending on the Option Termination Date as
set forth in the following table:
Period Percentage of Option Exercisable
------ --------------------------------
From and after one year
from the Grant Date 20%
From and after two years
from the Grant Date 40%
From and after three years
from the Grant Date 60%
From and after four years
from the Grant Date 80%
From and after five years
from the Grant Date 100%
Shares that have become exercisable in accordance with the foregoing table
are referred to herein as "Vested Shares".
No fractional shares shall be issued upon exercise of the Option; and all
fractional shares shall be rounded down to next lower whole number of shares.
3. Transfer Restrictions.
----------------------
Shares of Common Stock subject to the Option ("Optioned Shares") and
purchased upon exercise of the Option, and any additional shares of Common Stock
or other shares (or other property) received in any Non-Cash Distribution (as
defined herein) in respect of such Optioned Shares, may not, without the prior
written consent of the Company, be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or by the applicable laws
of descent and distribution or pursuant to a qualified domestic relations order
(the "Transfer Restrictions"), unless and until the Transfer Restrictions with
respect to such Optioned Shares shall have lapsed as provided herein. The
Transfer Restrictions shall lapse in their entirety ninety days after the
initial public offering of the Common Stock by the Company is declared effective
by the Securities and Exchange Commission.
3
4. No Assignment of Rights. Except for assignments or transfers by
-----------------------
will or the applicable laws of descent and distribution, your rights and
interests under this Agreement and the Plan may not be assigned or transferred
in whole or in part either directly or by operation of law or otherwise,
including without limitation by way of execution, levy, garnishment, attachment,
pledge or bankruptcy, and no such rights or interests shall be subject to any of
your obligations or liabilities.
5. Exercise of Option: Delivery and Deposit of Certificate(s). You
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(or in the case of your death, your legal representative) may exercise the
Option in whole or in part by giving written notice to the Company on the form
attached hereto as Exhibit A (the "Exercise Notice") prior to the Option
Termination Date, accompanied by full payment for the Optioned Shares being
purchased (a) in cash or by certified or bank cashier's check payable to the
order of the Company, in an amount equal to the number of Optioned Shares being
purchased multiplied by the Exercise Price (the "Aggregate Exercise Price"), (b)
in shares of the Company's Common Stock (the "Tendered Shares") with a market
value equal to the Aggregate Exercise Price or (c) any combination of cash,
certified or bank cashier's check or Tendered Shares having a total value equal
to the Aggregate Exercise Price (such cash, check or Tendered Shares with such
value being referred to as the "Exercise Consideration"). However, Tendered
Shares may be surrendered as all or part of the Exercise Consideration only
if (l) the Common Stock is publicly traded over-the-counter or on a national
securities exchange, (2) you shall have acquired such Tendered Shares more than
six months prior to the date of exercise and, (3) if such Tendered Shares are
then subject to Transfer Restrictions, only with the prior written consent of
the Company as provided in Section 3(a) hereof. As a condition to such consent,
the Company may require that a number of Optioned Shares acquired by you upon
your exercise of the Option equal to the number of Tendered Shares surrendered
upon such exercise shall be subject to the Transfer Restrictions to the same
extent that such Tendered Shares surrendered upon such exercise were so subject
immediately prior to such surrender. Receipt by the Company of the Exercise
Notice and the Exercise Consideration shall constitute the exercise of the
Option or a part thereof. As soon as reasonably practicable thereafter, the
Company shall deliver or cause to be delivered to you a certificate or
certificates representing the number of Optioned Shares purchased, registered in
your name. If such certificate(s) represent(s) Optioned Shares with respect to
which the Transfer Restrictions shall not have lapsed, such certificate(s)
shall, immediately upon your receipt thereof, be deposited by you, together with
a stock power endorsed in blank, in escrow with the Company. In addition, any
certificate(s) representing shares of Common Stock, or other property other than
cash, distributed (including pursuant to any stock split) in respect of Optioned
Shares purchased by you (a "Non-Cash Distribution") with respect to which the
Transfer Restrictions shall not have lapsed shall, immediately upon your receipt
thereof, be deposited by you, together with a stock power endorsed in blank (if
applicable), in escrow with the Company, and shall be subject to the Transfer
Restrictions to the same extent as the Optioned Shares in respect of which such
Non-Cash Distribution was made. All such deposited certificate(s) may have set
forth thereon a legend or legends (in addition to the legend referred to in
Section 8 hereof) indicating that the shares of Common Stock (or other property)
represented by such certificate(s) are subject to the Transfer Restrictions as
provided herein. All shares of Common Stock delivered upon the exercise of the
Option as provided herein shall be fully paid and non-assessable.
4
6. Rights With Respect to Optioned Shares. Prior to the date the
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Option is exercised, you shall not be deemed for any purpose to be a stockholder
of the Company with respect to any of the Optioned Shares. Upon initial issuance
to you of a certificate or certificates representing Optioned Shares or shares
(or other property) received in any Non-Cash Distribution in respect of Optioned
Shares purchased by you, you shall have ownership of such shares (or other
property), including the right to vote and receive dividends, subject, however,
in the case of any such shares (or other property) with respect to which the
Transfer Restrictions shall not have lapsed, to the Transfer Restrictions, and
to the other restrictions and limitations imposed thereon pursuant to the Plan
and this Agreement and which may be now or hereafter imposed by the Certificate
of Incorporation or the By-Laws of the Company, as amended from time to time.
7 Release of Optioned Shares. As soon as reasonably practicable after
--------------------------
the lapse of the Transfer Restrictions with respect to any Optioned Shares
purchased by you upon exercise of the Option, the Company shall deliver to you,
or your legal representative in the case of your death, the certificate or
certificates representing such shares and any shares (or other property)
received in any Non-Cash Distribution in respect of such shares, previously
deposited in escrow with the Company pursuant to Section 5 hereof, without any
legend referring to the Transfer Restrictions.
8. Securities Laws. You hereby represent and warrant that you will not
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transfer, sell or otherwise dispose of any Optioned Shares purchased by you
except in compliance with the Securities Act of 1933, as amended (the "Act"),
the rules and regulations thereunder and all applicable state securities laws
and the rules and regulations thereunder. You hereby acknowledge and agree that
any routine sales of the Optioned Shares purchased by you upon exercise of the
Option made in reliance upon Rule 144 under the Act may be made only in limited
amounts in accordance with the terms and conditions of that Rule. You also
acknowledge and agree that the certificate(s) representing Optioned Shares
delivered to you pursuant to Section 5 hereof may have set forth thereon a
legend indicating that such shares may be transferred, sold or otherwise
disposed of only after receipt by the Company of an opinion of counsel
reasonably satisfactory to it that the transfer, sale or other disposition will
not violate the Act or the regulations thereunder or any applicable state
securities laws or the regulations thereunder.
By accepting this Option, you represent and agree for yourself and your
transferees by will or the laws of descent and distribution that any shares
purchased upon any exercise of this Option shall be acquired for your personal
account and not with a view to or for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered prior to the admission of
such shares to listing on notice of issuance on any stock exchange on which
shares of that class are then listed, nor unless and until, in the opinion of
counsel for the Company, such securities may be issued and delivered without
causing the Company to be in violation of or incur any liability under any U.S.
federal, state, or other
5
securities law, any requirement of any securities exchange listing agreement to
which the Company may be a party, or any other requirement of law or of any
regulatory body having jurisdiction over the Company.
9. Dilution and Other Adjustments. In the event of any stock dividend
-------------------------------
payable in Common Stock or any split-up or contraction in the number of shares
of Common Stock occurring after the date of this Agreement and prior to the
exercise in full of the Option, the number of shares for which the Option may
thereafter be exercised and the Exercise Price shall be proportionately
adjusted. In the case of any reclassification or change of outstanding shares of
the Common Stock or in case of any consolidation or merger of the Company with
or into another company or in case of any sale or conveyance to another company
or entity of the property of the Company as a whole or substantially as a whole,
you shall, upon exercise of the Option, be entitled to receive shares of stock
or other securities in its place equivalent in kind and value to those shares
which you would have received if you had exercised the Option in full
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance and had continued to hold the Optioned Shares (together with all
other shares, stock and securities thereafter issued in respect thereof) to the
time of the exercise of the Option; provided, that if any recapitalization is to
be effected through an increase in the par value of the Common Stock without an
increase in the number of authorized shares and such new par value will exceed
the Exercise Price hereunder, the Company shall notify you of such proposed
recapitalization, and you shall then have the right, exercisable at any time
prior to such recapitalization becoming effective, to purchase all of the
Optioned Shares not theretofore purchased by you (anything in Section 1 hereof
to the contrary notwithstanding), but if you fail to exercise such right before
such recapitalization becomes effective, the Exercise Price hereunder shall be
appropriately adjusted. Upon dissolution or liquidation of the Company, the
Option shall terminate, but you (if at the time you are a director or employee
of the Company or a subsidiary of the Company) shall have the right, immediately
prior to such dissolution or liquidation, to purchase all or any portion of the
Optioned Shares not theretofore purchased by you. No adjustment provided for in
this Section 9 shall apply to any Optioned Shares purchased prior to the
effective date of such adjustment. No fraction of a share or fractional shares
shall be purchasable or deliverable under this Agreement, but in the event any
adjustment hereunder of the number of Optioned Shares shall cause such number to
include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
10. Reservation of Shares. The Company shall at all times during the
----------------------
term of this Agreement reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this Agreement
and shall pay all fees and expenses necessarily incurred by the Company in
connection with this Agreement and the issuance of Optioned Shares.
11. Determination of Rights. You hereby represent and warrant for
------------------------
yourself, your personal representatives and beneficiaries, that as a condition
of the granting of the Option, any dispute or disagreement which may arise under
or as a result of or pursuant to the Plan or this Agreement shall be determined
by the Company's Board of Directors, in its sole discretion, and that any
decision made by it in good faith shall be conclusive on all parties. The
interpretation
6
and construction by the Company's Board of Directors of any provision of, and
the determination of any question arising under, this Agreement, the Plan, or
any rule or regulation adopted pursuant to the Plan, shall be final and
conclusive.
12. Limitation of Employment Rights. The Option confers upon you no
-------------------------------
right to continue in the employ or service of the Company and its subsidiaries
or interferes in any way with the right of the Company and its subsidiaries to
terminate your employment or services as a director at any time.
13. Taxes. If the Company, in its sole discretion, determines that
-----
the Company or any subsidiary of the Company or any other person has incurred or
will incur any liability to withhold any income or other taxes or governmental
charges by reason of the grant of the Option, or the issuance of Option Shares
to you upon the exercise thereof, you will, promptly upon demand therefor by the
Company or any such subsidiary of the Company, pay to the Company or such
subsidiary any amount requested by it for the purpose of satisfying such
liability. If the amount so requested is not paid promptly, the Company may
refuse to permit the issuance to you of Options Shares and may, without further
consent by you, cancel the Option Shares issued to you.
14. Communications. Any communication or notice required or permitted
--------------
to be given under this Agreement shall be in writing, and mailed by registered
or certified mail or delivered in hand, if to the Company to its Secretary at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and if to the Optionee to the
address set forth below, or such other address, in each case, as the addressee
shall last have furnished to the communicating party.
15. Change of Control.
------------------
(a) Impact of Event. In the event of a "Change of Control" as
----------------
defined in Section 15(b), the following provision shall apply:
(i) The Transfer Restrictions applicable to the Vested Shares
shall lapse in their entirety.
(b) Definition of "Change of Control". "Change of Control" means
----------------------------------
any one of the following events: (i) when, without the prior approval of the
Prior Directors of the Company, any Person is or becomes the beneficial owner
(as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the rules and regulations thereunder), together with
all Affiliates and Associates (as such terms are used in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act) of such Person, directly or
indirectly, of 50% or more of the outstanding Common Stock of the Company, (ii)
the sale or other transfer by Thermo Electron Corporation or Photoelectron
Investments Corporation of Liberia (the "Controlling Shareholders") of 50% or
more of their collective stockholdings in the Company to any Person, other than
any Person that is controlled by, controlling or under common control with
either of the Controlling Shareholders or to any person who is not, prior to
giving effect to such sale, a stockholder of the Company, or (iii) any other
event that the Prior Directors shall
7
determine constitutes an effective change in the control of the Company. As used
in the preceding sentence, the following capitalized terms shall have the
respective meanings set forth below:
(1) "Person" shall include any natural person, any entity,
any "affiliate" of any such natural person or entity as such term is defined in
Rule 405 under the Securities Act of 1933 and any "group" (within the meaning of
such term in Rule 13d-5 under the Exchange Act);
(2) "Prior Directors" shall mean the persons sitting on the
Company's Board of Directors immediately prior to an Electoral Event (or, if
there has been no Electoral Event, those persons sitting on the Company's Board
of Directors on the date of this Agreement) and any future director of the
Company who has been nominated or elected by a majority of the Prior Directors
who are then members of the Board of Directors of the Company; and
(3) "Electoral Event" shall mean any contested election of
Directors, or any tender or exchange offer for the Company's Common Stock, not
approved by the Prior Directors, by any Person other than the Company or a
subsidiary of the Company.
Please confirm your acceptance of the Option, your receipt of a copy of
the Plan and your acceptance of and agreement to the terms of the Plan and this
Agreement, by executing the enclosed copy of this letter and returning such copy
promptly under confidential cover to the Clerk of the Company, 000-0 Xxxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
PHOTOELECTRON CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Accepted and agreed:
/s/ Xxxxx X. Xxxxxxxxxx
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Optionee
P.O. Box 7005 Cumberland, RI 02864
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Home Address
8
Exhibit A
PHOTOELECTRON CORPORATION
STOCK OPTION
EXERCISE NOTICE
Pursuant to the Stock Option Agreement dated ____________ (the "Stock Option
Agreement") between the Company and me, I hereby exercise the Option granted to
me with respect to ____________ Option Shares.
Enclosed is the Exercise Consideration
covering the purchase price of the
shares being exercised
TOTAL AMOUNT ENCLOSED............................$_____________
(check payable to PHOTOELECTRON CORPORATION)
I represent and warrant that the shares covered by this exercise notice are
being acquired for my personal account and not with a view to or for sale in
connection with any distribution thereof.
CERTIFICATE DELIVERY INSTRUCTIONS
Number and denominations(s) of certificate(s) for shares being exercised:
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Send new certificate(s) to:
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Optionee:
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(print name) Signature
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Date
