Exhibit 10.1
INNOVEX, INC.
STOCK OPTION AGREEMENT
This Option is hereby issued pursuant to the terms and conditions set
forth in this Option Agreement (the "Agreement") and is not issued pursuant to
any existing Stock Option Plan of Innovex, Inc. (the "Company").
I. NOTICE OF STOCK OPTION GRANT
Optionee: Xxxxxxx X. Xxx
You have been granted an option to purchase Common Stock of the
Company, subject to the terms and conditions of this Option Agreement, as
follows:
Date of Grant May 6, 2009
Vesting Commencement Date May 6, 2010
Exercise Price per Share $0.22
Total Number of Shares Granted 225,000
Type of Option Nonstatutory Stock Option
Term/Expiration Date May 6, 2019
1. Exercise and Vesting Schedule. This Option may be exercised in
whole or in part and shall vest in accordance with the following vesting
schedule:
a. One-third of the total number of options granted hereunder shall
vest on the Vesting Commencement Date;
b. One-third of the total number of options granted hereunder shall
vest on the first anniversary of the Vesting Commencement Date; and
c. One-third of the total number of options granted hereunder shall
vest on the second anniversary of the Vesting Commencement Date.
2. Termination Period. This Option may be exercised, to the extent
it is then vested, for 30 days after termination of employment; provided,
however, that if the employment is terminated as a result of the Optionee's
deliberate, willful or gross misconduct as determined by the Compensation
Committee of the Board, if any, or such other committee of the Board of
Directors as may be designated, all rights under this Option Agreement shall
terminate and expire upon such termination. Notwithstanding the foregoing:
2.1 If the Optionee dies while in the employ of the
Corporation or a Subsidiary, or within not more than one month
after termination of his or her employment, the Optionee's rights
under the option may be exercised in whole or in part, without
regard to any installment exercise restrictions, at any time
within six months following such death by his or her personal
representative or by the person or persons to whom such rights
under the Option shall pass by will or by the laws of descent and
distribution.
2.2 If the employment of the Optionee is terminated because of
permanent disability, the Optionee, or his or her legal
representative, may at any time within not more than six months
after termination of his or her employment, exercise his or her
Option rights in whole or in part, without regard to any
installment exercise restrictions.
II. AGREEMENT
1. Grant of Option. The Company hereby grants to the Optionee named
in the Notice of Grant above (the "Optionee"), an option (the "Option") to
purchase a number of Shares, as set forth above, at the exercise price per share
set forth above (the "Exercise Price"), subject to the terms and conditions set
forth in this Option Agreement.
The Option will be administered by the Compensation Committee of the
Company's Board of Directors (the "Committee"). Any or all functions of the
Committee specified in this Agreement may be exercised by the Board of
Directors, unless this Agreement specifically states otherwise. The Committee
has the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Option as it may, from time-to-time, deem
advisable; to interpret the terms and provisions of this Option Agreement and to
otherwise supervise the administration of the Option. The Committee may not
amend, alter or terminate the Option without the written consent of Optionee.
All decisions made by the Committee pursuant to this Agreement will be final and
binding on all persons, including the Company and Optionee.
2. Exercise of Option.
(a) Right to Exercise. Subject to subsection (i) below, this
Option is exercisable during its term in accordance with the Vesting Schedule
set out in the Notice of Grant and the provisions of this Option Agreement;
provided, however, that the Committee may, in its discretion, accelerate the
exercise date for any unexercisable options when the Committee deems such action
to be appropriate under the circumstances. In the event of Optionee's death,
disability or other termination of Optionee's employment, the exercisability of
the Option is governed by Section 2 of Article I of this Option Agreement.
(i) Extraordinary Corporate Transactions. In the event
that one of the following occur, the Optionee shall have the right within a
30-day period prior to or concurrently with such dissolution, liquidation,
merger, consolidation, acquisition, separation, reorganization or similar
occurrence, to exercise any unexpired Option granted hereunder without regard to
any installment exercise restrictions:
2
1) upon dissolution or liquidation of the
Corporation, or similar occurrence,
2) upon any merger, consolidation, acquisition,
separation, reorganization, or similar
occurrence, where the Corporation will not be
a surviving entity or
3) upon a transfer of substantially all of the
assets of the Corporation or more than 80% of
the outstanding Common Stock.
(b) Method of Exercise. This Option is exercisable by delivery
of an exercise notice, in the form attached as Exhibit A (the "Exercise
Notice"), which shall state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised (the "Exercised
Shares"), and such other representations and agreements as may be required by
the Company. The Exercise Notice shall be signed by the Optionee and shall be
delivered in person or by certified mail to the principal financial officer of
the Company. The Exercise Notice shall be accompanied by payment of the
aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed
to be exercised upon receipt by the Company of such fully executed Exercise
Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares are then
listed. Assuming such compliance, for income tax purposes the Exercised Shares
shall be considered transferred to the Optionee on the date the Option is
exercised with respect to such Exercised Shares.
3. Method of Payment. Payment of the aggregate Exercise Price shall
be by either by certified or bank check, or by any other form of legal
consideration deemed sufficient by the Committee, including a properly executed
exercise notice together with irrevocable instructions to a broker acceptable to
the Company to promptly deliver to the Company the amount of sale proceeds to
pay the exercise price. As determined by the Committee, in its sole discretion,
payment in full or in part may also be made in the form of unrestricted Stock
already owned by the Optionee. No shares of Stock shall be issued until full
payment therefore has been made. An Optionee shall have the rights to dividends
and other rights of a shareholder with respect to shares subject to the option
when the Optionee has given written notice of exercise and has paid in full for
such shares.
4. Non-Transferability of Option. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by the Optionee. The
terms of this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the terms of this Option Agreement.
3
6. Registration. If any law or regulation of the Securities and
Exchange Commission or of any other body having jurisdiction shall require the
Corporation or the Optionee to take any action in connection with the exercise
of an option, then notwithstanding any contrary provision of this Option
agreement, the date for exercise of such Option and the delivery of the shares
purchased thereunder shall be deferred until the completion of the necessary
action. In the event that the Corporation shall deem it necessary, the
Corporation may condition the grant or exercise of an Option granted under this
Agreement upon the receipt of a satisfactory certificate that the Optionee is
acquiring the option or the shares obtained by exercise of the Option for
investment purposes and not with the view or intent to resell or otherwise
distribute such Option or shares. In such event, the stock certificate
evidencing such shares shall bear a legend referring to applicable laws
restricting transfer of such shares. In the event that the Corporation shall
deem it necessary to register under the Securities Act of 1933, as amended, or
any other applicable statute, any Options or any shares with respect to which an
option shall have been granted or exercised, then the Optionee shall cooperate
with the Corporation and take such action as is necessary to permit registration
or qualification of such Options or shares.
7. Tax Withholding. Upon notification of the amount due and prior
to, or concurrently with, the delivery to the Optionee of a certificate
representing any shares purchased pursuant to the exercise of an option, the
Optionee shall promptly pay to the Corporation any amount necessary to satisfy
applicable federal, state or local withholding tax requirements.
8. Notices. Notices required hereunder shall be given in person or
by first class mail to the address of Optionee shown on the records of the
Company, and to the Company at its principal executive office.
9. Survival of Terms. This Agreement shall apply to and bind
Optionee and the Company and their respective permitted assignees and
transferees, heirs, legatees, executors, administrators and legal successors.
10. Entire Agreement; Governing Law; Notice. This Option Agreement,
together with Exhibit A, constitute the entire agreement of the parties with
respect to the subject matter of this Option Agreement and supersedes in its
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Optionee. This Option Agreement is governed by the internal substantive laws but
not the choice of law rules of Minnesota.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
THE OPTION IS EARNED ONLY BY CONTINUING EMPLOYMENT (NOT THROUGH THE ACT OF BEING
HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE
FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT SHALL CONFER UPON
OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT, NOR SHALL IT
INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE
OPTIONEE'S EMPLOYMENT WITH OR WITHOUT CAUSE.
4
By your signature and the signature of the Company's representative
below, you and the Company agree that this Option is granted under and governed
by the terms and conditions of this Option Agreement. Optionee has reviewed
Option Agreement in their entirety, has had an opportunity to obtain the advice
of counsel prior to executing this Option Agreement and fully understands all
provisions of this Option Agreement.
OPTIONEE INNOVEX, INC.
/s/ Xxxxxxx X. Xxx By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------- -------------------------------------
Xxxxxxx X. Xxx Xxxxx X. Xxxxxxxxxx
Its: President and Chief Executive Officer
5
EXHIBIT A
---------
INNOVEX, INC.
EXERCISE NOTICE
Innovex, Inc.
0000 Xxxxxx Xxxxx, Xxxxx X000
Xxxxxxxx, XX 00000
Attention: Principal Financial Officer
1. Exercise of Option. Effective as of today, _____________________,
_____________________, the undersigned ("Purchaser") hereby elects to purchase
_________ shares (the "Shares") of the Common Stock of Innovex, Inc. (the
"Company") under and pursuant to the Stock Option Agreement dated November ___,
2009 (the "Option Agreement"). The purchase price for the Shares shall be
$______________, as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company
the full purchase price for the Shares.
3. Representation of Optionee. Optionee acknowledges that Optionee
has received, read and understood the Option Agreement and agrees to abide by
and be bound by their terms and conditions.
4. Rights as Shareholder. Subject to the terms and conditions of
this Agreement, Optionee shall have all of the rights of a shareholder of the
Company with respect to the Shares from and after the date that Optionee
delivers full payment of the Exercise Price until such time as Optionee disposes
of the Shares.
5. Tax Consultation. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
6. Entire Agreement; Governing Law. The Option Agreement is
incorporated herein by reference. This Agreement and the Option Agreement
constitute the entire agreement of the parties and supersede in their entirety
all prior undertakings and agreements of the Company and Optionee with respect
to the subject matter hereof, and such agreement is governed by Minnesota law
except for that body of law pertaining to conflict of laws.
1
Submitted by: Accepted by:
OPTIONEE: INNOVEX, INC.
_________________________________ By:_____________________________
Signature
_________________________________ Its:____________________________
Print Name
---------------------------------
Social Security Number
Address:
------------------------------------
------------------------------------
------------------------------------
2
