EXHIBIT 4.06
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"), OR UNDER ANY STATE SECURITIES LAWS. THESE SECURITIES ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT WITH RESPECT TO THESE SECURITIES UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
STOCK OPTION AGREEMENT
This Stock Option Agreement is made as of September 11, 1997 by and between
Asymetrix Corporation, a Washington corporation ("Asymetrix"), and Xxx Xxxxx, an
individual residing in the State of Washington ("Optionee").
RECITALS
A. Optionee is an employee of Asymetrix pursuant to a written Employment
Agreement made effective as of September 11, 1997.
B. Pursuant to that certain Amended and Restated Agreement and Plan of
Reorganization made as of June 24, 1997, a condition to the closing of the
merger of a subsidiary of Asymetrix with and into Aimtech Corporation, is that
Optionee be granted an option to purchase 19,431 shares of the Series 4 Class B
Stock of Asymetrix at a price per share as set forth herein.
1. GRANT OF OPTION.
Asymetrix hereby grants to Optionee, as a matter of separate agreement and not
in lieu of any other compensation for services, the right and option (the
"Option") to purchase up to an aggregate total of 19,431 shares of the Series 4
Class B Stock of Asymetrix (the "Option Shares") at a purchase price of $0.68
per share, for an aggregate exercise price for the Option Shares of $13,213.08.
Upon conversion of the Series 4 Class B Stock into Common Stock of Asymetrix
pursuant to the terms of the Statement of Designation of Rights and Preferences
of the Series 4 Class B Stock, the Option shall, to the extent not previously
exercised, automatically be converted into an option to purchase that number of
shares of Common Stock into which the Series 4 Stock would have been converted
if the Option had been exercised, with the per share exercise price for such
Common Stock being determined by dividing the number of shares of Common Stock
then subject to the Option by the aggregate exercise price for the unexercised
Option Shares immediately prior to the conversion. As used herein, Option
Shares means shares of either Series 4 Class B Stock or the Common Stock into
which such shares are converted, either before or after exercise of the Option.
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2. TAXES AND WITHHOLDING.
Optionee shall be responsible for the payment of all income and other taxes
related to the exercise of the Option and the sale of any Option Shares. Prior
to delivery of any Option Shares purchased upon exercise of the Option,
Asymetrix shall determine the amount of any federal or state income tax, if any,
which is required to be withheld under applicable law and shall collect from the
Optionee the amount of any such tax to the extent not previously withheld.
3. RIGHTS AS SHAREHOLDER.
The Optionee shall not have any rights as a shareholder with respect to any
shares subject to this Option until the earlier of (i) the date that a stock
certificate or such shares as to which the Optionee has exercised this Option
has been issued to the Optionee or (ii) 14 days after all steps required for the
valid exercise of this Option have been completed. Asymetrix shall issue such
certificate as expeditiously as possible.
4. SECURITIES REGULATION
(a) Compliance; Condition to Exercise. The Option Shares shall not be
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issued with respect to this Option unless the exercise of this Option and the
issuance and delivery of the Option Shares shall comply with all relevant
provisions of law, including, without limitation, any applicable state
securities laws, the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the shares may then be listed,
and shall further be subject to the approval of counsel for Asymetrix with
respect to such compliance. Inability of Asymetrix to obtain from any
regulatory body having jurisdiction, the authority deemed by Asymetrix's counsel
to be necessary for the lawful issuance and sale of any shares hereunder, shall
relieve Asymetrix of any liability in respect of the non-issuance or sale of
shares as to which such requisite authority shall not have been obtained.
IMPORTANT: THE OPERATION OF THE FEDERAL OR STATE SECURITIES LAWS MAY
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PROHIBIT THE ISSUANCE OF STOCK TO CERTAIN OPTIONEES UPON EXERCISE OF
OPTIONS UNLESS A REGISTRATION STATEMENT IS EFFECTIVE. ACCORDINGLY, THE
OPTIONEE HEREUNDER MAY NOT, UNDER CERTAIN CIRCUMSTANCES, BE ABLE TO
EXERCISE THIS OPTION AND PURCHASE STOCK WHEN THE OPTIONEE DESIRES TO DO SO.
ASYMETRIX HAS NO OBLIGATION TO FILE A REGISTRATION STATEMENT RELATING TO
THE SHARES COVERED BY THIS OPTION.
(b) Representations by Optionee. As a condition to the exercise of this
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Option, Asymetrix may require the Optionee to represent and warrant at the time
of any such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares, if, in the
opinion of counsel for Asymetrix, such representation is
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required by any relevant provision of the laws referred to in Section 4(a). At
the option of Asymetrix, a stop transfer order against any shares may be placed
on the official stock books and records of Asymetrix, and a legend indicating
that the shares may not be pledged, sold or otherwise transferred unless an
opinion of counsel is provided (concurred in by counsel for Asymetrix) stating
that such transfer is not in violation of any applicable law or regulation, may
be stamped on the stock certificate in order to assure exemption from
registration. The Board of Directors may also require such other action or
agreement by the Optionee as may from time to time be necessary to comply with
the federal and state securities laws.
(c) Restrictions on Transfer. Optionee understands and acknowledges that
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the Option Shares must be held indefinitely unless a subsequent disposition
thereof is registered under the Securities Act and applicable state securities
laws or unless, in the opinion of counsel for Asymetrix, exemption from
registration and qualification are available. Optionee understands that only
Asymetrix may file a registration statement and that Asymetrix is under no
obligation to do so. Optionee understands that exemptions from registration or
qualification may not be available or may not permit Optionee to transfer the
Option Shares in the amounts or at the times proposed by Optionee. The
financial condition of Optionee is such that Optionee is able to bear all risks
of holding the Option Shares for an indefinite period of time.
5. MARKET STAND-OFF.
Optionee will not, to the extent requested by Asymetrix or an underwriter of
securities of Asymetrix, sell or otherwise transfer or dispose of any Option
Shares then owned by the Optionee (other than to donees of the Optionee who
agree to be similarly bound) for up to one hundred eighty (180) days following
the effective date of any registration statement (other than a registration
statement relating to any employee benefit plan or to any acquisition, merger,
consolidation or other corporate reorganization) of Asymetrix filed under the
Securities Act of 1933, as amended; provided, however, that:
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(i) such agreement shall not apply to Option Shares sold pursuant to such
registration statement;
(ii) all executive officers and directors of Asymetrix then holding
Asymetrix Common Stock enter into a similar agreement, and any other Asymetrix
stockholder owning at least as many shares of Asymetrix Common Stock as the
Optionee is also requested by Asymetrix or the underwriter to enter into a
similar agreement; and
(iii) in an offering other than Asymetrix's initial public offering, such
agreement shall apply only for a period of 90 days from the effective date of
the registration statement filed under the Securities Act with respect thereto.
In order to enforce the foregoing covenant, Asymetrix shall have the right to
place restrictive legends on the certificates representing the Option Shares
subject to this Section and to impose stop transfer instructions with respect to
the Option Shares until the end of such period.
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6. OPTION ADJUSTMENTS.
The aggregate number of Option Shares and the exercise price per share thereof
(but not the aggregate exercise price for all unexercised Option Shares) shall
each be proportionately adjusted for any increase or decrease in the number of
issued shares of Series 4 Class B Stock (or, after conversion thereof, Common
Stock) of Asymetrix resulting from a split-up or consolidation of shares or any
like capital adjustment, or the payment of any stock dividend, or any other
increase or decrease in the number of shares of Series 4 Class Stock (or, after
conversion thereof, Common Stock) of Asymetrix without the receipt of
consideration by Asymetrix. In the event of any adjustment in the number of
shares covered by any option, any fractional shares resulting from such
adjustment shall be disregarded and each such option shall cover only the number
of full shares resulting from such adjustment.
7. TERM OF OPTION.
(a) Term. This Option shall expire and shall to the extent not previously
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exercised no longer be exercisable on the earlier to occur of the following:
(i) September 10, 2007; or
(ii) immediately prior to the closing of (1) any consolidation or
merger of the Company with or into any other corporation or corporations in
which the holders of the Company's outstanding shares immediately before such
consolidation or merger do not, immediately after such consolidation or merger,
retain stock representing a majority of the voting power of the surviving
corporation of such consolidation or merger or stock representing a majority of
the voting power of a corporation that wholly owns, directly or indirectly, the
surviving corporation of such consolidation or merger; (2) the sale, transfer or
assignment of securities of the Company representing a majority of the voting
power of all the Company's outstanding voting securities by the holders thereof
to an acquiring party in a single transaction or series of related transactions;
(3) any other sale, transfer or assignment of securities of the Company
representing over fifty percent (50%) of the voting power of the Company's then
outstanding voting securities by the holders thereof to any acquiring party; or
(4) the sale of all or substantially all the Company's assets.
(b) Survival. The provisions of Sections 4(c), 5 and 8 shall survive the
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termination or expiration of the Option as to all Option shares with respect to
which the Option was exercised prior to its termination or expiration.
8. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed in all respects by the
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laws of the State of Washington as such laws are applied to agreements between
Washington residents entered into and to be performed entirely within
Washington. Venue of any action to enforce this Agreement shall be in the state
or federal courts located in King County, Washington, and the parties hereby
submit to the jurisdiction of such courts.
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(b) Successors and Assigns. Except as otherwise expressly provided in
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this Agreement, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors, heirs, permitted assigns, transferees and
administrators of the parties to this Agreement.
(c) Entire Agreement. This Agreement contains all the agreements,
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understandings, representations, conditions, warranties and covenants, and
constitutes the sole and entire agreement between the parties hereto pertaining
to the subject matter hereof and supersedes all prior communications or
agreements, written or oral, other than any confidentiality or non-disclosure
agreements. This Agreement may not be modified except by written instrument
signed by each party.
(d) Notices. All notices, requests, demands or other communications which
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are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given (i) on the date of delivery
if delivered by hand or by confirmed facsimile, (ii) upon the third day after
such notice is deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, or (iii) upon the
date of the courier's verification of delivery at the specified address if sent
by a nationally recognized overnight express courier. Notices shall be made to
the addresses set forth on the signature page or such other address as may be
specified by notice hereunder.
(e) Delays or Omissions. It is agreed that no delay or omission to
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exercise any right, power or remedy accruing to either party upon any breach of
default of the other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default therefore or thereafter
occurring.
(f) Attorney's Fees. The prevailing party in any litigation concerning
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this Agreement shall be entitled to the costs of collections and enforcement,
including but not limited to reasonable attorney's fees, court costs and all
reasonable and necessary expenses.
(g) Injunctive Relief. Optionee acknowledges that the breach, or
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threatened breach, of Section 5 of this Agreement could give rise to irreparable
injury to Asymetrix which would be inadequately compensated in money damages.
Accordingly, Asymetrix may seek and obtain a restraining order and/or an
injunction prohibiting the breach, or threatened breach, of any provision of
this Agreement, in addition to, and not in limitation of, any other legal
remedies which may be available to Asymetrix.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
ASYMETRIX CORPORATION
By: /s/ Xxxxx Xxxxxxxxx /s/ Xxx Xxxxx
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XXX XXXXX
Name: Xxxxx Xxxxxxxxx
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Title: CEO
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000 - 000xx Xxxxxx XX Address: 0000 000 Xxx XX
Xxxxxxxx, XX 00000 -----------------------------
Attn.: General Counsel Xxxxxxx, XX 00000
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