Exhibit 4(f)
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR INDEPENDENT DIRECTORS
THIS AGREEMENT, dated ____________, 199_, is made by and between The
Spectranetics Corporation, a Delaware corporation hereinafter referred to as the
"Company," and _________________________, a member of the Board of Directors of
the Company who is not an officer or employee of the Company or a Subsidiary of
the Company, hereinafter referred to as the "Independent Director":
WHEREAS, the Company wishes to afford the Independent Director the
opportunity to purchase shares of its $0.001 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which are
hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Board has determined that it would be to the advantage and
best interest of the Company and its shareholders to grant the non-qualified
stock option provided for herein to the Independent Director as an inducement to
enter into or remain in the service of the Company or its Subsidiaries and as an
incentive for increased efforts during such service, and has advised the Company
thereof and instructed the undersigned officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates. All capitalized terms used
herein without definition shall have the meanings ascribed to such terms in the
Plan.
Section 1.1. Board
"Board" shall mean the Board of Directors of the Company.
Section 1.2. Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.3. Company
"Company" shall mean The Spectranetics Corporation, a Delaware corporation.
Section 1.4. Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
Section 1.5. Option
"Option" shall mean the non-qualified option to purchase Common Stock of
the Company granted under this Agreement.
Section 1.6. Plan
"Plan" shall mean The 1997 Equity Participation Plan of The Spectranetics
Corporation.
Section 1.7. Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended from time to time.
Section 1.8. Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.9. Securities Act
"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.10. Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
Section 1.11. Termination of Directorship
"Termination of Directorship" shall mean the time when the Independent
Director ceases to be a Director for any reason, including, but not by way of
limitation, a termination by resignation, failure to be elected, death or
retirement. The Board, in its sole and absolute discretion, shall determine the
effect of all matters and questions relating to a Termination of Directorship.
ARTICLE II.
GRANT OF OPTION
Section 2.1. Grant of Option
In consideration of the Independent Director's agreement to serve as a
Director of the Company and for other good and valuable consideration, on the
date hereof the Company irrevocably grants to the Independent Director the
option to purchase any part or all of an aggregate of ________ shares of its
$0.001 par value Common Stock upon the terms and conditions set forth in this
Agreement.
Section 2.2. Purchase Price
The purchase price of the shares of stock covered by the Option shall be
$_____ per share without commission or other charge.
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Section 2.3. Consideration
In consideration of the granting of this Option by the Company, the
Independent Director agrees to serve as a Director of the Company until the next
annual meeting of stockholders of the Company. Nothing in this Agreement or in
the Plan shall confer upon the Independent Director any right to continue as a
director of the Company.
Section 2.4. Adjustments in Option
The Board shall make adjustments with respect to the Option in accordance
with the provisions of Section 9.3 of the Plan.
ARTICLE III.
PERIOD OF EXERCISABILITY
Section 3.1. Commencement of Exercisability
(a) Subject to subsection (b) and Section 5.6, the Option shall become
exercisable in installments as follows:
(i) Beginning on the first anniversary of the date of grant, up to 33%
of the shares covered by the Option;
(ii) Beginning on the second anniversary of the date of grant, up to
66% of such shares; and
(iii) Beginning on the third anniversary of the date of grant, up to
100% of such shares.
(b) Notwithstanding the foregoing, an Option held by an Independent
Director shall become immediately exercisable in full upon the death or
disability of such Independent Director, upon an unsuccessful attempt by such
Independent Director to win re-election to the Board after nomination for
election at the recommendation of the Board, or in the event of a Corporate
Transaction or Change of Control as provided in Section 3.3.
Section 3.2. Expiration of Option
The Option may not be exercised to any extent by anyone after the first to
occur of the following events:
(a) The expiration of three (3) years from the date of the Independent
Director's death;
(b) The expiration of three (3) years from the date of the Independent
Director's Termination of Directorship by reason of his permanent and total
disability (within the meaning of Section 22(e)(3) of the Code);
(c) The expiration of three (3) years from the date of the Independent
Director's retirement from the Board or an unsuccessful attempt to win
re-election to the Board after nomination for election at the recommendation of
the Board;
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(d) The expiration of twelve (12) months from the date of the Independent
Director's Termination of Directorship for any reason other than such
Independent Director's death, his permanent and total disability, retirement
from the Board or an unsuccessful attempt to win re-election to the Board after
nomination for election at the recommendation of the Board; or
(e) The expiration of ten (10) years from the date the Option was granted
[; or]
Section 3.3. Acceleration of Exercisability
(a) Notwithstanding the foregoing Section 3.2, in the event of any Change
in Control or Corporate Transaction, the Option shall, immediately prior to the
effective date of the Change in Control or Corporate Transaction, automatically
become fully exercisable for all of the shares of Common Stock at the time
subject to the Option, and may be exercised for any or all of those shares as
fully-vested shares of Common Stock.
(b) The Board may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such acceleration of exercisability, including, but not by way of
limitation, provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the contemplated
corporate transaction.
ARTICLE IV.
EXERCISE OF OPTION
Section 4.1. Person Eligible to Exercise
During the lifetime of the Independent Director, only he may exercise the
Option or any portion thereof. After the death of the Independent Director, any
exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.2, be exercised by his personal representative or
by any person empowered to do so under the deceased Independent Director's will
or under the then applicable laws of descent and distribution.
Section 4.2. Partial Exercise
Any exercisable portion of the Option or the entire Option, if then wholly
exercisable, may be exercised in whole or in part at any time prior to the time
when the Option or portion thereof becomes unexercisable under Section 3.2;
provided, however, that each partial exercise shall be for not less than one
hundred (100) shares (or the minimum installment set forth in Section 3.1, if a
smaller number of shares) and shall be for whole shares only.
Section 4.3. Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised solely by
delivery to the Secretary or his office of all of the following prior to the
time when the Option or such portion becomes unexercisable under Section 3.2:
(a) A written notice complying with the applicable rules established by the
Board stating that the Option, or a portion thereof, is exercised. The notice
shall be signed by the Independent Director or other person then entitled to
exercise the Option or such portion; and
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(b)
(i) Full cash payment to the Secretary of the Company for the shares
with respect to which such Option or portion is exercised; or
(ii) With the consent of the Board, (A) shares of the Company's Common
Stock owned by the Independent Director, duly endorsed for transfer to the
Company, with a Fair Market Value on the date of delivery equal to the
aggregate exercise price of the Option or exercised portion thereof, or (B)
shares of the Company's Common Stock issuable to the Independent Director
upon exercise of the Option, with a Fair Market Value on the date of
exercise of the Option or any portion thereof equal to the aggregate
exercise price of the Option or exercised portion thereof; or
(iii) With the consent of the Board, a full recourse promissory note
bearing interest (at no less than such rate as shall then preclude the
imputation of interest under the Code or successor provision) and payable
upon such terms as may be prescribed by the Board. The Board may also
prescribe the form of such note and the security to be given for such note.
The Option may not be exercised, however, by delivery of a promissory note
or by a loan from the Company when or where such loan or other extension of
credit is prohibited by law; or
(iv) With the consent of the Board, property of any kind which
constitutes good and valuable consideration; or
(v) With the consent of the Board, a notice that the Independent
Director has placed a market sell order with a broker with respect to
shares of the Company's Common Stock then issuable upon exercise of the
Option, and that the broker has been directed to pay a sufficient portion
of the net proceeds of the sale to the Company in satisfaction of the
Option exercise price; or
(vi) With the consent of the Board, any combination of the
consideration provided in the foregoing subparagraphs (i), (ii), (iii),
(iv) and (v); and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Board, signed by the Independent Director or other person
then entitled to exercise such Option or portion, stating that the shares of
stock are being acquired for his own account, for investment and without any
present intention of distributing or reselling said shares or any of them except
as may be permitted under the Securities Act and then applicable rules and
regulations thereunder, and that the Independent Director or other person then
entitled to exercise such Option or portion will indemnify the Company against
and hold it free and harmless from any loss, damage, expense or liability
resulting to the Company if any sale or distribution of the shares by such
person is contrary to the representation and agreement referred to above. The
Board may, in its absolute discretion, take whatever additional actions it deems
appropriate to insure the observance and performance of such representation and
agreement and to effect compliance with the Securities Act and any other federal
or state securities laws or regulations. Without limiting the generality of the
foregoing, the Board may require an opinion of counsel acceptable to it to the
effect that any subsequent transfer of shares acquired on an Option exercise
does not violate the Securities Act, and may issue stop-transfer orders covering
such shares. Share certificates evidencing stock issued on exercise of this
Option shall bear an appropriate legend referring to the provisions of this
subsection (c) and the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to such exercise
have been registered under the Securities Act, and such registration is then
effective in respect of such shares; and
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(d) Full payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; with the consent of the Board, (i) shares of the
Company's Common Stock owned by the Independent Director, duly endorsed for
transfer, with a Fair Market Value on the date of delivery equal to the sums
required to be withheld, or (ii) shares of the Company's Common Stock issuable
to the Independent Director upon exercise of the Option with a Fair Market Value
on the date of exercise of the Option or any portion thereof equal to the sums
required to be withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Independent Director,
appropriate proof of the right of such person or persons to exercise the Option.
Section 4.4. Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on which
such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Board shall, in its absolute discretion, deem necessary or advisable;
and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Board shall, in its absolute discretion,
determine to be necessary or advisable; and
(d) The receipt by the Company of full payment for such shares, including
payment of all amounts which, under federal, state or local tax law, the Company
(or other employer corporation) is required to withhold upon exercise of the
Option; and
(e) The lapse of such reasonable period of time following the exercise of
the Option as the Board may from time to time establish for reasons of
administrative convenience.
Section 4.5. Rights as Shareholder
The Independent Director shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such
Independent Director.
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ARTICLE V.
OTHER PROVISIONS
Section 5.1. Administration
The Board shall conduct the general administration of the Plan with respect
to the Option granted under this Agreement. All actions taken and all
interpretations and determinations made by the Board in good faith shall be
final and binding upon the Independent Director, the Company and all other
interested persons. No member of the Board shall be personally liable for any
action, determination or interpretation made in good faith with respect to the
Plan or the Option. In its absolute discretion, the Board may at any time and
from time to time exercise any and all rights and duties of the Board under the
Plan and this Agreement except with respect to matters which under Rule 16b-3 or
Section 162(m) of the Code, or any regulations or rules issued thereunder, are
required to be determined in the sole discretion of the Board.
Section 5.2. Option Not Transferable
Neither the Option nor any interest or right therein or part thereof shall
be sold, pledged, assigned, or transferred in any manner other than by will or
the laws of descent and distribution, unless and until such Option has been
exercised, or the shares underlying such Option have been issued, and all
restrictions applicable to such shares have lapsed. Neither the Option nor any
interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of the Independent Director or his successors in
interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect, except to the extent that such disposition is permitted
by the preceding sentence.
Section 5.3. Shares To Be Reserved
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
Section 5.4. Notices
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Independent Director shall be addressed to him at the address given
beneath his signature hereto. By a notice given pursuant to this Section 5.4,
either party may hereafter designate a different address for notices to be given
to him. Any notice which is required to be given to the Independent Director
shall, if the Independent Director is then deceased, be given to the Independent
Director's personal representative if such representative has previously
informed the Company of his status and address by written notice under this
Section 5.4. Any notice shall be deemed duly given when enclosed in a properly
sealed envelope or wrapper addressed as aforesaid, deposited (with postage
prepaid) in a post office or branch post office regularly maintained by the
United States Postal Service; provided, however, that any notice to be given by
the Independent Director relating to the exercise of the Option or any portion
thereof shall be deemed duly given upon receipt by the Secretary or his office.
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Section 5.5. Titles
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
Section 5.6. Shareholder Approval
The Plan will be submitted for approval by the Company's shareholders
within twelve (12) months after the date the Plan was initially adopted by the
Board. This Option may not be exercised to any extent by anyone prior to the
time when the Plan is approved by the shareholders, and if such approval has not
been obtained by the end of said twelve-month period, this Option shall
thereupon be cancelled and become null and void.
Section 5.7. Construction
This Agreement shall be administered, interpreted and enforced under the
internal laws of the State of Colorado without regard to conflicts of laws
thereof.
Section 5.8. Conformity to Securities Laws
The Independent Director acknowledges that the Plan is intended to conform
to the extent necessary with all provisions of the Securities Act and the
Exchange Act and any and all regulations and rules promulgated by the Securities
and Exchange Commission thereunder, including, without limitation, the
applicable exemptive conditions of Rule 16b-3. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Option is granted and
may be exercised, only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by applicable law, the Plan and this
Agreement shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.
Section 5.9. Amendments
This Agreement and the Plan may be amended without the consent of the
Independent Director provided that such amendment would not impair any rights of
the Independent Director under this Agreement. No amendment of this Agreement
shall, without the consent of the Independent Director, impair any rights of the
Independent Director under this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto.
THE SPECTRANETICS CORPORATION
By ___________________________
Name:
Title:
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________________________________________
Independent Director
________________________________________
________________________________________
________________________________________
Address
Independent Director's Taxpayer
Identification Number:
________________________________________
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