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EXHIBIT 4.6
NEW VASCO OPTION AGREEMENT
This Agreement is by and among VASCO Data Security
International, Inc., a Delaware corporation ("New VASCO"), VASCO CORP., a
Delaware corporation ("Current VASCO") and the undersigned individual (the
"Optionholder"), who is the holder of options to acquire shares of common stock
of Current VASCO as set forth on Schedule I attached hereto (the "Current VASCO
Options").
Pursuant to the Prospectus of New VASCO dated _____________,
1998, as supplemented and amended prior to the Expiration Date as defined
therein (the "Prospectus"), New VASCO has offered to the Optionholder the right
to acquire the same number of shares of common stock of New VASCO, at the same
exercise price and until the same expiration date as the Current VASCO Options,
in exchange for (i) the cancellation of the Current VASCO Options and (ii) the
release set forth in Section 3 below in favor of Current VASCO or any of its
predecessor entities (the "VASCO Predecessors") consisting of VASCO Corp., a
corporation incorporated in Delaware on May 22, 1984 ("Old VASCO"), and Ridge
Point Enterprises, Inc., incorporated in Utah on January 7, 1985 and
subsequently renamed VASCO Corp. ("VASCO Utah"), and the respective successors
and assigns of each of the foregoing, including New VASCO (Current VASCO, New
VASCO, the VASCO Predecessors and all such successors and assigns being
collectively referred to hereinafter as "VASCO").
NOW, THEREFORE, for good and valuable consideration, the
receipt of which hereby is acknowledged, the parties hereto agree as follows:
1. NEW VASCO OPTIONS. Subject to the provisions set forth
herein and the terms and conditions of the 0000 XXXXX Data Security
International, Inc. Stock Option Plan, as amended, the terms of which are hereby
incorporated by reference, New VASCO hereby grants to the Optionholder options
to purchase shares of common stock of New VASCO (the "New VASCO Options") in
accordance with the provisions set forth below in Sections 1.1 through 1.6,
inclusive. The Optionholder acknowledges that the New VASCO Options are not
"Incentive Stock Options," or otherwise qualified options for federal tax
purposes, within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended ("ISOs").
1.1 GRANT OF OPTION. New VASCO hereby grants to the
Optionholder the right, privilege, and option to purchase the number of
shares of its common stock at the respective purchase price per share
as set forth on Schedule I hereto and in the manner and subject to the
conditions hereinafter provided. This award is made to the Optionholder
subject to termination as hereinafter specified.
1.2 TIME OF EXERCISE OF OPTION. The New VASCO Options may not
be exercised prior to the expiration of the respective vesting period
("Vesting Period") as set forth on Schedule I. After the expiration of
the respective Vesting Period, the applicable New VASCO Option may be
exercised at any time, and from time to time, in whole or in part,
until the termination thereof as provided in Section 1.4 below.
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1.3 METHOD OF EXERCISE. The New VASCO Options shall be
executed by written notice directed to the Committee of New VASCO
established under the 1997 VASCO Data Security International, Inc.
Stock Option Plan, as amended, at New VASCO's principal place of
business, for the number of shares specified. New VASCO shall make
immediate delivery of such shares, provided that if any law or
regulation requires New VASCO to take any action with respect to the
shares specified in such notice before the issuance thereof, then the
date of delivery of such shares shall be extended for the period
necessary to take such action.
1.4 TERMINATION OF OPTION. Except as herein otherwise stated,
the New VASCO Options to the extent vested and exercisable, and
further, to the extent not heretofore exercised, shall terminate upon
the first to occur of the following:
(a) The expiration of that number of months
specified in Schedule I as the Termination Period after the
date on which the Optionholder's employment or other
affiliation with New VASCO, Current VASCO or any subsidiary
of either entity (collectively, the "VASCO Companies"),
including a directorship, is terminated;
(b) In the event of the Optionholder's death while
employed or affiliated with the VASCO Companies, his executors
or administrators may exercise, within 60 days following the
date of his death, the New VASCO Options as to any of the
exercisable and vested shares not theretofore exercised during
his lifetime; or
(c) With respect to a specific New VASCO Option, the
respective option expiration date set forth on Schedule I.
1.5 RIGHTS PRIOR TO EXERCISE OF OPTION. The New VASCO Options
are nontransferable by the Optionholder, except in the event of his
death as provided in Section 1.4(b) above, and during his lifetime are
exercisable only by the Optionholder. The Optionholder shall have no
rights as a stockholder with respect to the option shares until proper
exercise of a New VASCO Option and delivery to the Optionholder of
certificates for such shares as herein provided.
1.6 RESTRICTIONS ON DISPOSITION. All shares acquired by the
Optionholder pursuant to this Agreement shall be subject to any
restrictions on sale, encumbrance and other disposition under
applicable securities laws.
2. CANCELLATION OF CURRENT VASCO OPTIONS. The Current VASCO
Options hereby are canceled and shall be of no further force and effect. The
Optionholder hereby agrees to the cancellation of the Current VASCO Options and
recognizes that the New VASCO Options granted under this Agreement are not,
although the Current VASCO Options may have been, ISOs.
3. RELEASE. The Optionholder hereby forever releases and
fully discharges VASCO, and each of them, from and against the following:
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First, only to those direct or indirect state blue sky securities claims and
federal securities law claims which are mature, ripened claims of which the
releasor had knowledge, or a duty to make reasonable inquiry, before signing
the release, including, without limitation, state blue sky securities claims
and federal securities law claims which are as a result of acts or omissions
which occurred on or before the date of the Prospectus which arise from or
are in connection with
(i) (a) the failure by Old VASCO to document whether an amendment to
its Certificate of Incorporation was duly authorized or to file a
Certificate of Amendment with the Delaware Secretary of State to amend its
Certificate of Incorporation in December 1984 to effect a three-for-one
stock split to increase the 50,000 authorized shares of its common stock to
150,000 authorized common shares and to provide for 600,000 shares of
non-voting common stock prior to purportedly effecting the stock split and
issuing a number of such non-voting common shares which cannot be
determined due to the unavailability of documentation concerning any
purported issuance of such non-voting common shares, (b) the failure of Old
VASCO to document whether director and stockholder approval was obtained
for an amendment to its Certificate of Incorporation increasing the number
of authorized shares of common stock to 6,900,000 shares in September 1986,
(c) the purported issuance of 317,181 shares of preferred stock in November
1989 by VASCO Utah at a time when the issuance of preferred shares was not
authorized by VASCO Utah's charter, (d) the purported issuance of 317,181
shares of preferred stock by Current VASCO in connection with the 1990
merger when, although Current VASCO's Certificate of Incorporation
authorized 500,000 shares of preferred stock, the rights, powers and
preferences of such stock were not specified in Current VASCO's Certificate
of Incorporation and its Certificate of Incorporation did not provide its
Board of Directors the power to designate such rights, powers and
preferences, and the issuance of Current VASCO Common Stock pursuant to the
conversion of such preferred stock, and (e) the failure to properly
authorize, approve or effect any of the foregoing actions;
(ii) (a) a failure to properly design, approve, adopt, administer, or
authorize the number of shares subject to, a stock option plan or program,
including, without limitation, actions required to allow for options
awarded thereunder to be treated as incentive stock options under the
Internal Revenue Code of 1986, as amended (the "Code"), and (b) the failure
of Old VASCO, VASCO Utah and/or Current VASCO to (1) document approval by
the Board of Directors and stockholders of stock option plans, (2) specify
and authorize the number of shares of stock to be subject to such plans,
(3) reserve the number of shares subject to such plans, (4) document the
authorization for the grant of options pursuant to such plans and the
issuance of shares upon exercise of such options, and (5) design such plans
in a manner that would ensure options granted thereunder would be treated
as incentive stock options;
(iii) (a) the failure to document the approval by Old VASCO's
stockholders of the September 1986 reorganization through the share
exchange undertaken by Old VASCO and Ridge Point/VASCO Utah, (b) the
failure to document whether all stockholders of Old VASCO voluntarily
exchanged their shares for shares of Ridge Point/VASCO Utah, (c) the
failure to document the mechanics of exchange of 6,900,000 common shares of
Old VASCO for 12,800,000 common shares of Ridge Point/VASCO Utah, (d) the
following procedural irregularities which call into question the validity
of the intended 1990 merger of VASCO Utah and Current VASCO, as well as
Current VASCO's title to the assets of VASCO Utah purportedly succeeded to
by Current VASCO by virtue of the merger: (1) the incorporation of Current
VASCO, after the date of the 1990 merger agreement, (2) Current VASCO's
approval of the plan of merger, including approval of the plan of merger
prior to the incorporation of Current VASCO, the lack of documented
stockholder approval as called for by the plan of merger and the
effectiveness of the approval by Current VASCO's then Board of Directors,
(3) the authorization and issuance of shares of common and preferred stock
by Current VASCO pursuant to the merger, (4) the adoption of Current
VASCO's initial bylaws, appointment of Current VASCO's initial directors
and the election of its initial officers, (5) the administrative
dissolution of VASCO Utah in July 1990 prior to the filing of a Certificate
of Merger with the State of Delaware in August 1990, and (6) the failure to
file Articles of Merger with the State of Utah in connection with the
intended merger of VASCO Utah and Current VASCO in August 1990, and (e) the
failure properly to authorize, approve, effect or consummate any of the
foregoing actions;
(iv) (a) the failure to properly document any stockholder approval of
the dissolution of Old VASCO and to document actions taken to dissolve,
liquidate and wind-up Old VASCO in August 1987, (b) the failure properly to
approve or effect the foregoing dissolution, liquidation or winding up of
Old
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VASCO, (c) the failure to vest effectively title and ownership in VASCO
Utah of Old VASCO's assets and to document the assumption by VASCO Utah of
Old VASCO's liabilities, and (d) the administrative dissolution of VASCO
Utah in July 1990 prior to the intended merger transaction with Current
VASCO and before the filing of a Certificate of Merger with the State of
Delaware in August 1990; and
(v) a failure to afford security holders appraisal, preemptive or
other rights, whether accorded by statute or by the articles of
incorporation, certificate of incorporation or bylaws of Current VASCO or
any of its predecessors, in connection with any of the matters described in
the foregoing clauses (i), (ii), (iii) or (iv) including, without
limitation, (a) the failure of Old VASCO to document whether it afforded
its stockholders, in connection with any issuances of Old VASCO capital
stock subsequent to the initial issuance of 50,000 common shares in
connection with the incorporation of Old VASCO in May 1984, the preemptive
rights to purchase, upon the issuance or sale of Old VASCO stock (or
securities convertible into Old VASCO stock), shares (or securities) in
proportion to the amount of Old VASCO common stock then owned by such
holder, subject to conditions and time limitations prescribed (and at a
price determined as permitted by law), by Old VASCO's Board of Directors,
as provided for in the Old VASCO Certificate of Incorporation and (b) the
failure of VASCO Utah to document whether it afforded its stockholders the
appraisal rights provided for by Utah law in connection with the intended
1990 merger of VASCO Utah with Current VASCO;
and all demands, payments, obligations, actions or causes of action,
assessments, losses, liabilities, damages (including without limitation
special, consequential, exemplary, punitive and similar damages), reasonable
costs and expenses paid or incurred, or diminutions in value of any kind or
character (whether or not asserted prior to the date hereof, fixed or unfixed,
conditional or unconditional, xxxxxx or inchoate, liquidated or unliquidated,
secured or unsecured, accrued, absolute, contingent or otherwise), that the
holder of Current VASCO Securities now has or ever had against Current VASCO,
any of its predecessor entities, or their respective assets, together with the
respective successors and assigns of Current VASCO and any of its predecessor
entities, arising from or in connection with the foregoing.
Second, to all direct or indirect claims an exchanging holder may have
arising from any and all common law, statutory, regulatory, or other claims
other than state blue sky securities claims and federal securities law claims
as a result of acts or omissions occurring on or before the date of the
Prospectus which arise from or are in connection with
(i) any prior authorization, designation or issuance of stock, any
stock split, reclassification, redesignation, dividend or distribution of
or upon stock, any amendment to the certificate or articles of
incorporation or bylaws including, without limitation, those affecting the
amount, rights, powers or preferences of stock, and any failure to properly
authorize, approve or effect any of the foregoing actions, including those
items set forth in (a) through (e) in (i) above;
(ii) any failure to properly design, approve, adopt, administer, or
authorize the number of shares subject to any stock option plan or program
including, without limitation, those items set forth in (a) through (b) in
(ii) above;
(iii) any organization or any merger, consolidation, share exchange,
reorganization, recapitalization, sale of assets or like event, or any
failure properly to authorize, approve, effect or consummate same,
including, without limitation, those items set forth in (a) through (e) in
(iii) above;
(iv) the dissolution, liquidation or winding up of any Current VASCO's
predecessors, or any failure properly to approve or effect said
dissolution, liquidation or winding up, including, without limitation,
those items set forth in (a) through (e) in (iv) above; and
(v) any failure to afford security holders any appraisal, preemptive
or other rights, whether accorded by statute or by the articles of
incorporation, certificate of incorporation or bylaws of Current VASCO or
any of its predecessors, in connection with any of the matters described in
the foregoing clauses (i), (ii), (iii) or (iv) including, without
limitation, those items set forth in (a) and (b) in (v) above;
and all demands, payments, obligations, actions or causes of action,
assessments, losses, liabilities, damages (including without limitation
special, consequential, exemplary, punitive and similar damages),
reasonable costs and expenses paid or incurred, or diminutions in value of any
kind or character (whether or not known or asserted prior to the date hereof,
fixed or unfixed, conditional or unconditional, xxxxxx or inchoate, liquidated
or unliquidated, secured or unsecured, accrued, absolute, contingent or
otherwise), that the holder of Current VASCO Securities now has or ever had
against Current VASCO, any of its predecessor entities, or their respective
assets, together with the respective successors and assigns of Current VASCO
and any of its predecessor entities, arising from or in connection with the
foregoing.
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Except as expressly provided with respect to state blue sky
securities claims and federal securities law claims, the Optionholder hereby
irrevocably waives his rights under any applicable statute, rule, regulation,
legal principle, or legal doctrine that provides that a general release does
not extend to claims which a releasing party does not know or suspect to exist
in its favor at the time of executing such release, which if known by the
releasing party would have materially affected its settlement with the released
party.
4. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS OF
OPTIONHOLDER. The Optionholder hereby represents, warrants and covenants that
(i) the Optionholder has received and adequately studied the Prospectus, (ii)
the Optionholder has had adequate opportunity to consult legal counsel of
Optionholder's choice regarding this Agreement, (iii) the Optionholder has
executed and delivered this Agreement and the release set forth herein pursuant
to the free will of the Optionholder with the intention that the release be a
general release to the full extent provided herein, (iv) the Optionholder has
not sold, assigned or otherwise transferred any rights or remedies arising from
or in connection with the Corporate Matters, and (v) the Current VASCO Options
are the only options held by the Optionholder to acquire capital stock of
Current VASCO or any of the VASCO Predecessors. Current VASCO and the
Optionholder each acknowledges and agrees that this Agreement does not affect
any rights or claims the Optionholder may have against VASCO arising out of any
matter or transaction arising from and after the date of the Prospectus.
Further, it is expressly understood that this Agreement (i) will effect a
release of Associated Corporate Matter Claims (as defined in the
Prospectus) the Optionholder may have even if less than all of the
Optionholder's Current VASCO Securities (as defined in the Prospectus) are
exchanged in the Exchange Offer (as defined in the Prospectus), and (ii) does
not release and discharge (a) any rights or remedies Current VASCO in its own
right, or as successor to the rights of the VASCO Predecessors, may have against
any person or entity arising out of the Corporate Matters, or (b) any rights or
remedies unrelated to the Corporate Matters the Optionholder has as a current
stockholder of Current VASCO.
5. EXCHANGE OFFER; EFFECTIVE DATE. This Agreement is subject
to the terms and conditions of the Exchange Offer, as defined in the Prospectus,
and will become effective and binding on the parties hereto upon acceptance by
New VASCO of shares of common stock of Current VASCO tendered pursuant to the
Exchange Offer. Without limiting the foregoing, the Optionholder has the right
to withdraw this Agreement in accordance with the specific provisions in the
Prospectus under the heading "THE EXCHANGE OFFER - Withdrawal Rights."
6. GENERAL. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements or understandings, oral or written, with respect
to the subject matter hereof. This Agreement shall be governed by and construed
in accordance with the internal laws and not the conflicts of law rules of the
State of Illinois, and the invalidity or unenforceability of any term or
provision of this Agreement shall not affect the validity or enforceability of
any other term or provision hereof. This Agreement is binding on and inures to
the benefit of the parties hereto and their respective successors and assigns
and, in addition, the provisions of the release set forth in Section 3 inure to
the benefit of each of the entities included within the above definition of
VASCO.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement.
New VASCO: VASCO DATA SECURITY INTERNATIONAL, INC.
By
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Its
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Current VASCO: VASCO CORP.
By
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Its
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Optionholder: Printed Name
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Signature
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Title
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Address
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Dated , 1998
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SCHEDULE I
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NUMBER OF PER SHARE OPTION EXERCISE OPTION TERMINATION
SHARES PRICE VESTING PERIOD EXPIRATION DATE PERIOD
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