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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 _____________,
1997, 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 all direct or
indirect demands, claims, payments,
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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 Optionholder
now has or ever had against VASCO or the assets of Current VASCO or any of the
VASCO Predecessors 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 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 (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 by 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, and (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;
(ii) any failure to properly design, approve, adopt,
administer, or authorize the number of shares subject to, any stock
option plan or program, including 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"), including,
beginning in 1985, the failure by Old VASCO, VASCO Utah and/or Current
VASCO to (a) document approval by the Board of Directors and
stockholders of stock option plans, (b) specify and authorize the
number of shares of stock to be subject to such plans, (c) reserve the
number of shares subject to such plans, (d) document the authorization
for the grant of options pursuant to such plans and the issuance of
shares upon exercise of such options, and (e) design such plans in a
manner that would ensure options granted thereunder would be treated
as incentive stock options;
(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 (a) the failure to document the approval by
Old VASCO's stockholders of the September 1986 reorganization through
the share exchange undertaken
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by Old VASCO and Ridge Point Enterprises, Inc./VASCO Utah, (b) the
failure to document whether all stockholders of Old VASCO voluntarily
exchanged their shares for shares of Ridge Point Enterprises,
Inc./VASCO Utah, (c) the failure to document the mechanics of the
exchange of 6,900,000 common shares of Old VASCO for 12,800,000 common
shares of Ridge Point Enterprises, Inc./VASCO Utah, and (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, and (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, (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;
(iv) the dissolution, liquidation or winding up of any of
Current VASCO's predecessors, or any failure properly to approve or
effect said dissolution, liquidation or winding up, including (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 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 (c) 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) 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 (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.
(The matters listed in the foregoing clauses (i), (ii), (iii),
(iv) and (v) are collectively referred to in this document and the Prospectus as
the "Corporate Matters").
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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. Notwithstanding the
foregoing, to the extent federal or state securities laws limit the release of
a claim under a federal securities law or under a state securities law, as
applicable, to mature, ripened claims of which the releasing party had
knowledge before signing the release, the release of a federal securities law
claim or state securities law claim shall be limited to a release of mature,
ripened claims of which the releasing party had knowledge prior to the signing
the release.
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 any and all 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 , 1997
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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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