Exhibit 4.5
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BENTLEY PHARMACEUTICALS, INC.
NONQUALIFIED PERFORMANCE VESTING STOCK OPTION CONTRACT
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THIS NONQUALIFIED PERFORMANCE VESTING STOCK OPTION CONTRACT entered into on
this 19TH day of April, 1996, between BENTLEY PHARMACEUTICALS, INC., a Florida
corporation (the "Company"), and ____________________ (the "Optionee").
W I T N E S S E T H :
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1. The Company grants, as of the date hereof, to the Optionee options to
purchase an aggregate of Six Hundred Thousand (600,000) shares of the Common
Stock, $.02 par value per share, of the Company (the "Common Stock") with
one-third of such options vesting and becoming exercisable when the closing
price of the Company's Common Stock on the American Stock Exchange equals or
exceeds the exercise price of $2.89 (being 110% of the fair market value of such
shares of Common Stock on the date hereof) for twenty consecutive trading days;
one-third when the closing price equals or exceeds the exercise price of $3.68
(being 140% of the fair market value of such shares of Common Stock on the date
hereof) for twenty consecutive trading days; and one-third when the closing
price equals or exceeds the exercise price of $4.73 (being 180% of the fair
market value of such shares of Common Stock on the date hereof) for twenty
consecutive trading days. These options shall not be treated as "incentive stock
options" under Section 422 of the Internal Revenue Code. The Company intends
that such options constitute Non-Qualified Stock Options and not be considered
options issued under its existing Stock Option Plans.
2. The term of these options shall be 10 years from the date hereof. The
right to purchase shares of Common Stock under these options shall be
cumulative, so that if the full number of shares purchasable in a period shall
not be purchased, the balance may be purchased at any time or from time to time
thereafter, but not after the expiration of the options. Notwithstanding the
foregoing, the options may not be exercised at any time in an amount less than
100 shares (or the remaining shares then covered by and purchasable under the
options if less than 100) and in no event may a fraction of a share of Common
Stock be purchased under these options.
3. These options shall be exercised by giving written notice to the Company
at its principal office, presently Xxx Xxxxx Xxxxxx, Xxxxx 000, 0000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, Attn: Corporate Secretary, stating that
the Optionee is exercising these nonqualified stock options, specifying the
number of shares being purchased and accompanied by payment in full of the
aggregate purchase price therefor (a) in cash, by check, or by any other form of
consideration permitted by law, (b) with previously acquired shares of Common
Stock, or (c) a combination of the foregoing.
4. The Company shall at all times during the term of these options reserve
and keep available for issuance or delivery such number of shares of Common
Stock as will be sufficient to satisfy the requirements of these options, shall
pay all original issue taxes or transfer taxes
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with respect to the issuance or delivery of shares pursuant to the exercise of
such options and all other fees and expenses necessarily incurred by the Company
in connection therewith, except for required income tax or other withholding
amounts. As long as these options shall be outstanding, the Company shall use
its reasonable best efforts to cause all shares issuable upon the exercise of
these options to be listed (subject to official notice of issuance) on all
securities exchanges on which the shares of the Company's Common Stock may then
be listed and/or quoted on NASDAQ. The Company agrees to include the underlying
shares of Common Stock issuable upon exercise of these options in a Registration
Statement(s) to be filed by the Company with the Securities and Exchange
Commission as soon as is practicable and will use its best efforts to keep such
Registration Statement(s) effective for the entire time that these options are
in effect. The Company shall pay all filing fees, related accountants' and
counsels' fees and all other registration expenses incurred by the Company in
complying with this requirement.
5. In the event that the number of outstanding shares of Common Stock is
increased or decreased or changed into a different number or kind of shares or
securities by reason of any merger, share exchange, consolidation,
reorganization, recapitalization, reclassification, stock split, combination of
shares, exchange of shares, stock dividend or other distribution payable in
capital stock, or other increase or decrease in such shares effected without
receipt of consideration by the Company, an adjustment will be made to the
remaining outstanding options so that the proportional interest of the Optionee
after such an event will be, to the extent practicable, the same as before the
event.
6. Notwithstanding the foregoing, the Optionee acknowledges that the Common
Stock to be received by him upon the exercise of these options may not be resold
unless (a) a registration statement under the Securities Act of 1933, as amended
(the "Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the options shall be effective and current at the time or
(b) there is an exemption from registration under the Securities Act for the
issuance of the shares of Common Stock. At the request of the Company, the
Optionee shall execute and deliver to the Company his representation and
warranty, in form and substance satisfactory to the Company, that the shares of
Common Stock to be issued upon the exercise of the options are being acquired by
the Optionee for his own account, for investment only and not with a view to the
resale or distribution thereof. In addition, the Company may require the
Optionee to represent and warrant to the Company in writing that any subsequent
resale or distribution of shares of Common Stock by him will be made only
pursuant to (i) a Registration Statement under the Securities Act which is
effective and current with respect to the Shares of Common Stock being sold, or
(ii) a specific exemption from the registration requirements of the Securities
Act, but in claiming such exemption, the Optionee shall prior to any offer of
sale or sale of such shares of Common Stock provide the Company with a favorable
written opinion of counsel, in form and substance satisfactory to the Company,
as to the applicability of such exemption to the proposed sale or distribution.
7. The Company may affix appropriate legends upon the certificates for
shares of Common Stock issued upon exercise of these options and may issue such
"stop transfer" instructions to its transfer agent in respect of such shares as
it determines, in its discretion, to
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be necessary or appropriate under the registration requirements of the
Securities Act.
8. The Company may withhold cash and/or shares of Common Stock in the
amount necessary to satisfy its obligation to withhold taxes or require the
Optionee to pay the Company such amount in cash promptly upon demand.
9. In the event that the employment with the Company shall be terminated
for any reason (other than by reason of death or disability), these options may
be exercised (to the extent that the Optionee was entitled to do so at the
termination of his employment) at any time until the expiration of these
options; provided, however, that if the Company terminates the Optionee's
employment after a change in control of the Company, all options shall vest
immediately and be exercisable in accordance with the terms of the Optionee's
employment agreement. In the event that the employment of the Optionee shall be
terminated by disability, the remaining unexercised portion of the options may
be exercised by the Optionee (notwithstanding that the options had not yet
become exercisable with respect to all or part of such shares at the date of
termination) at any time until the expiration of these options. If the Optionee
shall die while he is employed by the Company or during the period following
termination of employment in which the Optionee had a right to exercise the
options, such options may by exercised, as to all or any part of the remaining
unexercised portion of the options (notwithstanding that the options had not yet
become exercisable with respect to all or a part of such shares at the date of
death) by a legatee or legatees of such options under the Optionee's last will,
or by his personal representatives or distributees, at any time within twelve
months after his death, but not thereafter and in no event after the date on
which, except for such death, the options would otherwise expire.
10. The Optionee represents and agrees that he will comply with all
applicable laws relating to the grant and exercise of these options and the
disposition of the shares of Common Stock acquired upon exercise of the options,
including without limitation, federal and state securities and "blue sky" laws.
11. These options are not transferable otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Optionee, only by him or his legal representatives.
12. This Contract shall be binding upon and inure to the benefit of any
successor or assign of the Company and to any heir, distributee, executor,
administrator or legal representative entitled by law to the Optionee's rights
hereunder.
13. This Contract shall be governed by and construed in accordance with the
laws of the State of Florida.
14. The invalidity or illegality of any provision herein shall not affect
the validity of any other provision.
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15. Any notice to be given hereunder shall be in writing addressed to the
Company at Xxx Xxxxx Xxxxxx, Xxxxx 000, 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx,
Xxxxxxx 00000, Attention: Corporate Secretary, and any notice to Optionee shall
be addressed to 0 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000 or at such other
address as either party may hereafter designate in writing to the other. Any
such notice shall be deemed to have been duly given if and when enclosed in a
properly sealed envelope or wrapper, addressed as aforesaid, registered, with
return receipt requested, and deposited, first class postage and registry fees
prepaid, in a post office or branch post office regularly maintained by the
United States Government.
16. This Agreement embodies the entire agreement and understanding between
the Company and the Optionee and supersedes all prior agreements and
understandings relating to the subject matter hereof (with the exception of the
Optionee's Employment Agreement which governs in the event of termination as a
result of a change of ownership), but does not replace or have any effect on
other options issued to the Optionee by the Company, and this Agreement may not
be modified or amended or any term or provision hereof waived or discharged
except in writing, signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the
day and year first above written.
BENTLEY PHARMACEUTICALS, INC.
By: _________________________
_________________________
Optionee
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