EXHIBIT 4.2
CONCEPTUS, INC.
EMPLOYMENT COMMENCEMENT NONSTATUTORY STOCK OPTION
THIS EMPLOYMENT COMMENCEMENT NONSTATUTORY STOCK OPTION (the "Agreement"),
dated as of April 5, 2004, is made by and between Conceptus, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxx III, an employee of the Company (the
"Optionee").
WHEREAS, the Board of Directors of the Company has determined that it would
be to the advantage and best interest of the Company and its stockholders to
grant the nonstatutory stock option provided for herein (the "Option") to
Optionee in connection with his initial commencement of employment with the
Company and that such grant is an essential inducement to Optionee's commencing
employment with the Company as its Vice President, Sales.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Definitions.
(a) "Acquisition" means (i) any consolidation or merger of the
Company with or into any other corporation or other entity or person in which
the stockholders of the Company prior to such consolidation or merger own less
than fifty percent (50%) of the Company's voting power immediately after such
consolidation or merger, or (ii) a sale of all or substantially all of the
assets of the Company.
(b) "Administrator" means the Board or a committee of the Board
designated by the Board as being responsible for conducting the general
administration of this Option, as applicable.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended, or
any successor statute or statutes thereto. Reference to any particular Code
section shall include any successor section.
(e) "Common Stock" means the Common Stock of the Company, par value
$0.003 per share.
(f) "Company" means Conceptus, Inc., a Delaware corporation.
(g) "Consultant" means any consultant or adviser if: (i) the
consultant or adviser renders bona fide services to the Company or any Parent or
Subsidiary of the Company; (ii) the services rendered by the consultant or
adviser are not in connection with the offer or sale of securities in a
capital-raising transaction and do not directly or indirectly promote or
maintain a market for the Company's securities; and (iii) the consultant or
adviser is a natural person who has contracted directly with the Company or any
Parent or Subsidiary of the Company to render such services.
(h) "Director" means a member of the Board.
(i) "Employee" means any person, including an Officer or Director,
who is an employee (as defined in accordance with Section 3401(c) of the Code)
of the Company or any Parent or Subsidiary of the Company. A Service Provider
shall not cease to be an Employee in the case of (i) any leave of absence
approved by the Company or (ii) transfers between locations of the Company or
between the Company, its Parent, any Subsidiary, or any successor.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto. Reference to any
particular Exchange Act section shall include any successor section.
(k) "Fair Market Value" means, as of any date, the value of a share
of Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including, without limitation, the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for a share of such stock (or
the closing bid, if no sales were reported) as quoted on such exchange or system
for the last market trading day prior to the time of determination, as reported
in The Wall Street Journal or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for a share of the
Common Stock on the last market trading day prior to the day of determination;
or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(l) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(m) "Parent" means any corporation, whether now or hereafter existing
(other than the Company), in an unbroken chain of corporations ending with the
Company if each of the corporations other than the last corporation in the
unbroken chain owns stock possessing more than fifty percent of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
(n) "Securities Act" means the Securities Act of 1933, as amended, or
any successor statute or statutes thereto. Reference to any particular
Securities Act section shall include any successor section.
(o) "Service Provider" means an Employee, Director or Consultant.
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(p) "Share" means a share of Common Stock, as adjusted in accordance
with Section 10 below.
(q) "Subsidiary" means any corporation, whether now or hereafter
existing (other than the Company), in an unbroken chain of corporations
beginning with the Company if each of the corporations other than the last
corporation in the unbroken chain owns stock possessing more than fifty percent
of the total combined voting power of all classes of stock in one of the other
corporations in such chain.
2. Grant of Option. In consideration of Optionee's agreement to render
services to the Company and for other good and valuable consideration, the
Company grants to Optionee an Option to purchase the Common Stock (the "Shares")
set forth below, at the exercise price set forth below (the "Exercise Price"),
subject to the terms and conditions of this Agreement. The terms of Optionee's
grant are set forth below:
Date of Grant: April 5, 2004
Vesting Commencement Date: April 5, 2004
Exercise Price per Share: $12.74
Total Number of Shares Granted: 125,000
Total Exercise Price: $1,592,500
Term/Expiration Date: April 4, 2014
This Option is a nonstatutory stock option and is not intended to qualify
as an incentive stock option within the meaning of Section 422 of the Code.
3. Exercise and Vesting Schedule. The Shares subject to this Option shall
vest and become exercisable according to the following schedule:
12.5% of the Shares subject to this Option shall vest and become
exercisable upon Optionee's completion of six (6) months of service as a
Service Provider measured from the Vesting Commencement Date, and 1/48th of
the Shares subject to this Option shall vest each month thereafter, subject
to the Optionee continuing to be a Service Provider on such dates.
For purposes of this Agreement, Shares subject to this Option shall vest
and become exercisable based on Optionee's continuous status as a Service
Provider.
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4. Exercise of Option.
(a) Right to Exercise.
(i) This Option shall become exercisable cumulatively according
to the vesting schedule set out in Section 3 above.
(ii) This Option may not be exercised for a fraction of a Share.
(iii) In the event of Optionee's death, disability or other
termination of Optionee's continuous status as an Employee or Consultant, the
exercisability of this Option is governed by Sections 7, 8, 9 and 10 below.
(iv) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in Section 2 above.
(b) Method of Exercise. This Option shall be exercisable by delivery
of an exercise notice, in the form attached as Exhibit A (the "Exercise
Notice"), which shall state the election to exercise this Option, the number of
Shares in respect of which this 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 completed by Optionee and delivered to
the President, the Chief Financial Officer or Secretary of the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise Price
as to all Exercised Shares, including payment of any applicable withholding tax.
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 and
payment of any applicable withholding tax, which may be paid by the withholding
of shares otherwise issuable upon exercise having a Fair Market Value equal to
the statutory minimum amount required to be withheld.
5. Method of Payment. Payment of the aggregate Exercise Price shall be by
any of the following, or a combination thereof, at the election of Optionee:
(a) cash,
(b) check,
(c) with the consent of the Administrator, other Shares which (x) in
the case of Shares acquired from the Company, have been owned by the Optionee
for more than six (6) months on the date of surrender, and (y) have a Fair
Market Value on the date of surrender equal to the aggregate exercise price of
the Shares as to which such Option shall be exercised,
(d) with the consent of the Administrator, surrendered Shares then
issuable upon exercise of the Option having a Fair Market Value on the date of
exercise equal to the aggregate exercise price of the Option or exercised
portion thereof,
(e) property of any kind which constitutes good and valuable
consideration,
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(f) with the consent of the Administrator, delivery of a notice that
the Holder has placed a market sell order with a broker with respect to Shares
then issuable upon exercise of the Option and that the broker has been directed
to pay a sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the Option exercise price, provided that payment of such
proceeds is then made to the Company upon settlement of such sale, or
(g) with the consent of the Administrator, any combination of the
foregoing methods of payment.
6. Restrictions on Exercise. No Shares shall be issued pursuant to the
exercise of this Option unless such issuance and such exercise comply with all
relevant provisions of law, including, without limitation, the Securities Act,
the Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of the Nasdaq Stock Market or any stock exchange upon which the
Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. Assuming such
compliance, for income tax purposes the Exercised Shares shall be considered
transferred to Optionee on the date this Option is exercised with respect to
such Exercised Shares. As a condition to the exercise of this Option, the
Company may require the person exercising this Option 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 the Company, such a representation is required
by any of the aforementioned relevant provisions of law.
7. Termination of Relationship. In the event the Optionee ceases to be a
Service Provider (other than by reason of Optionee's death or the total and
permanent disability of Optionee as defined in Code Section 22(e)(3)), Optionee
may exercise this Option to the extent this Option was vested at the date on
which Optionee's status as Service Provider terminates, but only within three
(3) months from such date (and in no event later than the expiration date of the
term of this Option as set forth in Section 2). To the extent that Optionee was
not entitled to exercise this Option at the date of such termination, or if
Optionee does not exercise this Option (which Optionee was entitled to exercise)
within the time specified herein, this Option shall terminate.
8. Disability of Optionee. In the event the Optionee ceases to be a
Service Provider as a result of Optionee's total and permanent disability as
defined in Code Section 22(e)(3), Optionee may exercise this Option for a period
of twelve (12) months following termination of Optionee's status as a Service
Provider by reason of disability (but in no event later than the expiration date
of the term of this Option as set forth in Section 2). To the extent that
Optionee was not entitled to exercise this Option in this period, or if Optionee
does not exercise this Option (which Optionee was entitled to exercise) within
the time specified herein, this Option shall terminate.
9. Death of Optionee. If an Optionee dies while a Service Provider, the
Option may be exercised, but only to the extent that the Option is vested on the
date of death, for twelve (12) months following the Optionee's termination. If,
at the time of death, the Optionee is not vested as to this entire Option, the
Shares covered by the unvested portion of the Option shall immediately cease to
be issuable under the Option. The Option may be exercised by the
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executor or administrator of the Optionee's estate or, if none, by the person(s)
entitled to exercise the Option under the Optionee's will or the laws of descent
or distribution. If the Option is not so exercised within the time specified
herein, the Option shall terminate.
10. Adjustments Upon Changes in Capitalization, Merger or Asset Sale.
(a) In the event that the Administrator determines that any dividend
or other distribution (whether in the form of cash, Common Stock, other
securities, or other property), recapitalization, reclassification, stock split,
reverse stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, liquidation, dissolution, or sale, transfer, exchange
or other disposition of all or substantially all of the assets of the Company,
or exchange of Common Stock or other securities of the Company, issuance of
warrants or other rights to purchase Common Stock or other securities of the
Company, or other similar corporate transaction or event, in the Administrator's
sole discretion, affects the Common Stock such that an adjustment is determined
by the Administrator to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended by the Company to be
made available under this Agreement, then the Administrator shall, in such
manner as it may deem equitable, adjust any or all of:
(i) the number and kind of shares of Common Stock (or other
securities or property) subject to this Option; and
(ii) the Exercise Price.
(b) In the event of any transaction or event described in Section
10(a), the Administrator, in its sole discretion, and on such terms and
conditions as it deems appropriate, by action taken prior to the occurrence of
such transaction or event and either automatically or upon the Optionee's
request, is hereby authorized to take any one or more of the following actions
whenever the Administrator determines that such action is appropriate in order
to prevent dilution or enlargement of the benefits or potential benefits
intended by the Company to be made available under this Agreement or to
facilitate such transaction or event:
(i) To provide for either the purchase of the Option for an
amount of cash equal to the amount that could have been obtained upon the
exercise of this Option or realization of the Optionee's rights had this Option
been currently exercisable or fully vested or the replacement of this Option
with other rights or property selected by the Administrator in its sole
discretion;
(ii) To provide that the Option shall be exercisable as to all
shares covered thereby, notwithstanding anything to the contrary in this
Agreement;
(iii) To provide that the Option be assumed by the successor or
survivor corporation, or a parent or subsidiary thereof, or shall be substituted
for by similar options, rights or awards covering the stock of the successor or
survivor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices;
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(iv) To make adjustments in the number and type of shares of
Common Stock (or other securities or property) subject to this Option and/or in
the terms and conditions (including the exercise price), and the criteria
included in the Option; and
(v) To provide that immediately upon the consummation of such
event, this Option shall not be exercisable and shall terminate; provided, that
for a specified period of time prior to such event, this Option shall be
exercisable as to all Shares covered thereby, and the restrictions imposed under
this Agreement upon some or all Shares may be terminated, notwithstanding
anything to the contrary in this Agreement.
(c) If the Company undergoes an Acquisition, then any surviving
corporation or entity or acquiring corporation or entity, or affiliate of such
corporation or entity, may assume this Option or may substitute similar stock
awards (including an award to acquire the same consideration paid to the
stockholders in the transaction described in this subsection 10(c)) for this
Option. In the event any surviving corporation or entity or acquiring
corporation or entity in an Acquisition, or affiliate of such corporation or
entity, does not assume this Option or does not substitute similar stock awards
for this Option, then (i) if Optionee's status as a Service Provider has not
terminated prior to such event, the vesting of this Option (and, if applicable,
the time during which this Option may be exercised) shall be accelerated and
made fully exercisable and all restrictions thereon shall lapse at least ten
(10) days prior to the closing of the Acquisition (and the Option terminated if
not exercised prior to the closing of such Acquisition), and (ii) if Optionee's
status as a Service Provider not terminated prior to such event then this Option
shall be terminated if not exercised prior to the closing of the Acquisition.
(d) The existence of this Agreement and the Option shall not affect
or restrict in any way the right or power of the Company or the stockholders of
the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or its
business, any merger or consolidation of the Company, any issue of stock or of
options, warrants or rights to purchase stock or of bonds, debentures, preferred
or prior preference stocks whose rights are superior to or affect the Common
Stock or the rights thereof or which are convertible into or exchangeable for
Common Stock, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
11. 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 Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of Optionee.
12. Term of Option. This Option may be exercised only within the term set
out in Section 2 and may be exercised during such term only in accordance with
the terms of this Agreement.
13. Powers of the Administrator. The Administrator shall have the
authority, in its discretion, to interpret this Option; to accelerate or defer
(with the consent of Optionee) the exercise date of this Option; and to make all
other determinations deemed necessary or advisable for the administration of
this Option. Optionee hereby agrees to accept as binding, conclusive
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and final all decisions or interpretations of the Administrator upon any
questions arising under this Option.
14. Successors and Assigns. Subject to the provisions of Section 10 above,
the Company may assign any of its rights under this Option to single or multiple
assignees, and this Option shall inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Option shall be binding upon Optionee and his heirs, executors,
administrators, successors and assigns.
15. Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or by the Company forthwith to the
Administrator, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Administrator shall be final and binding on
the Company and on Optionee.
16. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
17. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Option.
18. Entire Agreement; Governing Law; Severability. This Option and the
exhibit hereto constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their 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 Agreement is
governed by the internal substantive laws, but not the choice of law rules, of
California. Should any provision of this Option be determined by a court of law
to be illegal or unenforceable, the other provisions shall nevertheless remain
effective and shall remain enforceable.
19. Shareholder Approval Not Required. Rule 4350(i) promulgated by the
National Association of Securities Dealers, Inc. ("NASD") generally requires
shareholder approval for stock option plans or other equity compensation
arrangements adopted by companies whose securities are listed on the Nasdaq
Stock Market pursuant to which options or stock may be acquired by officers,
directors, employees, or consultants of such companies. NASD Rule
4350(i)(1)(A)(iv) provides an exception to this requirement for issuances of
securities to a person not previously an employee or director of the issuer, or
following a bona fide period of non-employment, as an inducement material to the
individual's entering into employment with the issuer, provided such issuances
are approved by either the issuer's compensation committee comprised of a
majority of independent directors or a majority of the issuer's independent
directors. The grant of this Option is made to the Optionee, who has not
previously been an employee or director of the Company, as an inducement
material to the Optionee's entering into employment with the Company, and this
Option has been approved by the Company's compensation committee comprised of a
majority of the Company's independent directors or a
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majority of the Company's independent directors. Accordingly, pursuant to NASD
Rule 4350(i)(1)(A)(iv), the issuance of this Option and the Shares issuable upon
exercise of this Option are not subject to the approval of the Company's
shareholders.
20. NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS AN EMPLOYEE OR CONSULTANT AT THE WILL OF THE COMPANY (AND
NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR PURCHASING
SHARES HEREUNDER).
OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO
NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN
EMPLOYEE OR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND
SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE
OPTIONEE'S RELATIONSHIP AS AN EMPLOYEE OR CONSULTANT AT ANY TIME, WITH OR
WITHOUT CAUSE.
(Signature Page Follows)
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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 of this Agreement. Optionee has reviewed the Option, has had an
opportunity to obtain the advice of counsel prior to executing this Option and
fully understands all provisions of the Option. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
OPTIONEE: CONCEPTUS, INC.
/s/ Xxxxx Xxxx III By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------- -------------------------
Name: Xxxxx Xxxx III Name: Xxxxxxx X. Xxxxxxxxxx
Date: May 7, 2004 Title: Executive Vice President
Residence Address:
[Residence Address]
-----------------------------------
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EXHIBIT A
CONCEPTUS, INC.
EXERCISE NOTICE
Conceptus, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Secretary
1. Exercise of Option. Effective as of today, _____________, ____, the
undersigned ("Purchaser") hereby elects to purchase _______ shares (the
"Shares") of the Common Stock of Conceptus, Inc. (the "Company") under and
pursuant to the Employment Commencement Nonstatutory Stock Option dated
________, 2004 (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.
Cash Exercise _______ (Payment Attached)
Same-Day Sale _______ (Broker Paid)
Sell-to-Cover _______ (Broker Paid)
Other _______ (Please Specify: __________________)
3. Representations of Purchaser. Purchaser acknowledges that Purchaser
has received, read and understood the Option Agreement and agrees to abide by
and be bound by its terms and conditions.
4. Rights as Stockholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the Shares, no right to vote or receive dividends or
any other rights as a stockholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Shares so acquired shall
be issued to Purchaser as soon as practicable after the exercise of the Option.
No adjustment will be made for a dividend or other right for which the record
date is prior to the date of issuance, except as provided in Section 10 of the
Option Agreement.
5. Tax Consultation. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in
connection with the purchase or disposition of the Shares and that Purchaser is
not relying on the Company for any tax advice.
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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 with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company
and Purchaser with respect to the subject matter hereof, and may not be modified
adversely to the Purchaser's interest except by means of a writing signed by the
Company and Purchaser. This Agreement is governed by the internal substantive
laws, but not the choice of law rules, of California.
Submitted by: Accepted by:
PURCHASER: CONCEPTUS, INC.
__________________________________________ By: ____________________________
Signature
Name: ____________________________________ Its: ___________________________
Address: Address:
__________________________________________
__________________________________________
Date Received:
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