Exhibit 4(d)
NON-QUALIFIED STOCK OPTION AGREEMENT
(for Executive Officers)
THIS AGREEMENT, dated ____________, 199_, is made by and between The
Spectranetics Corporation, a Delaware corporation hereinafter referred to as the
"Company," and _________________________, an employee of the Company or a
Subsidiary of the Company, hereinafter referred to as "Employee":
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase shares of its $0.001 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which are
hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Committee, appointed to administer the Plan, has determined
that it would be to the advantage and best interest of the Company and its
shareholders to grant the non-qualified stock option provided for herein to the
Employee as an inducement to enter into or remain in the service of the Company
or its Subsidiaries and as an incentive for increased efforts during such
service, and has advised the Company thereof and instructed the undersigned
officers to issue said Option;
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:
ARTICLE I.
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates. All capitalized terms used
herein without definition shall have the meanings ascribed to such terms in the
Plan.
Section 1.1. Board
"Board" shall mean the Board of Directors of the Company.
Section 1.2. Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.3. Committee
"Committee" shall mean the Compensation Committee of the Board, or another
committee of the Board, appointed as provided in Section 8.1 of the Plan.
Section 1.4. Company
"Company" shall mean The Spectranetics Corporation, a Delaware corporation.
Section 1.5. Constructive Termination
"Constructive Termination" shall mean (i) any material change in the
nature, or material diminution in the status, of Employee's duties to or
position with the Company; (ii) reduction of Employee's annual base salary as in
effect on the date of a Change in Control or Corporate Transaction; (iii)
relocation of Employee's principal place of employment to any place more than 35
miles from the office Employee theretofore regularly occupied or (iv)
termination of Employee's employment by the Company for reasons other than (a)
willful misfeasance or willful nonfeasance of duty or breach of trust by
Employee, of which Employee is specifically notified in writing by the Company
or (b) conviction of a felony or misdemeanor by a court of competent
jurisdiction resulting in imprisonment for a period of more than 30 days.
Section 1.6. Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
Section 1.7. Option
"Option" shall mean the non-qualified option to purchase Common Stock of
the Company granted under this Agreement.
Section 1.8. Plan
"Plan" shall mean The 1997 Equity Participation Plan of The Spectranetics
Corporation.
Section 1.9. Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended from time to time.
Section 1.10. Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.11. Securities Act
"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.12. Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
Section 1.13. Termination of Employment
"Termination of Employment" shall mean the time when the employee-employer
relationship between the Employee and the Company or any Subsidiary is
terminated for any reason, with or without cause, including, but not by way of
limitation, a termination by resignation, discharge, death,
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disability or retirement; but excluding (i) terminations where there is a
simultaneous reemployment or continuing employment of the Employee by the
Company or any Subsidiary, (ii) at the discretion of the Committee, terminations
which result in a temporary severance of the employee-employer relationship and
(iii) at the discretion of the Committee, terminations which are followed by the
simultaneous establishment of a consulting relationship by the Company or a
Subsidiary with the former employee. The Committee, in its absolute discretion,
shall determine the effect of all matters and questions relating to Termination
of Employment, including, but not by way of limitation, the question of whether
a Termination of Employment resulted from a discharge for good cause, and all
questions of whether particular leaves of absence constitute Terminations of
Employment. Notwithstanding any other provision of this Agreement or of the
Plan, the Company or any Subsidiary has an absolute and unrestricted right to
terminate the Employee's employment at any time for any reason whatsoever, with
or without cause, except to the extent expressly provided otherwise in writing.
ARTICLE II.
GRANT OF OPTION
Section 2.1. Grant of Option
In consideration of the Employee's agreement to remain in the employ of the
Company or its Subsidiaries and for other good and valuable consideration, on
the date hereof the Company irrevocably grants to the Employee the option to
purchase any part or all of an aggregate of ________ shares of its $0.001 par
value Common Stock upon the terms and conditions set forth in this Agreement.
Section 2.2. Purchase Price
The purchase price of the shares of stock covered by the Option shall be
$_____ per share without commission or other charge.
Section 2.3. Consideration
In consideration of the granting of this Option by the Company, the
Employee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe, for a period of at least one (1) year from the date this
Option is granted. Nothing in this Agreement or in the Plan shall confer upon
the Employee any right to continue in the employ of the Company or any
Subsidiary, or as a director of the Company, or shall interfere with or restrict
in any way the rights of the Company and its Subsidiaries, which are hereby
expressly reserved, to discharge the Employee at any time for any reason
whatsoever, with or without cause.
Section 2.4. Adjustments in Option
The Committee shall make adjustments with respect to the Option in
accordance with the provisions of Section 9.3 of the Plan.
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ARTICLE III.
PERIOD OF EXERCISABILITY
Section 3.1. Commencement of Exercisability
(a) Subject to subsection (b) and Sections 3.4 and 5.6, the Option shall
become exercisable in cumulative installments as follows:
(i) Twenty-five percent (25%) of the total number of shares covered by
the Option shall become exercisable on the first anniversary of the date
the Option is granted; and
(ii) Thereafter, an additional six and one-quarter percent (6.25%) of
the total number of shares shall become exercisable every third month on
the day of the month that the option was granted.
(b) No portion of the Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
Section 3.2. Duration of Exercisability
The installments provided for in Section 3.1 are cumulative. Each such
installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3.
Section 3.3. Expiration of Option
The Option may not be exercised to any extent by anyone after the first to
occur of the following events:
(a) The expiration of ten (10) years from the date the Option was granted;
or
(b) The expiration of three (3) months from the date of the Employee's
Termination of Employment unless such Termination of Employment results from his
death, retirement or disability (within the meaning of Section 22(e)(3) of the
Code); or
(c) The expiration of one (1) year from the date of the Employee's
Termination of Employment by reason of his death, retirement or disability
(within the meaning of Section 22(e)(3) of the Code)[; or]
(d) The effective date of either the merger or consolidation of the Company
with or into another corporation, or the exchange of all or substantially all of
the assets of the Company for the securities of another corporation, or the
acquisition by another corporation or person of all or substantially all of the
Company's assets or fifty percent (50%) or more of the Company's then
outstanding voting stock, or the liquidation or dissolution of the Company,
unless the Option is, in connection with such transaction, to be assumed by the
successor or survivor corporation (or a parent or subsidiary thereof) or unless
the Committee waives this provision in connection with such transaction. At
least ten (10) days prior to the effective date of such merger, consolidation,
exchange, acquisition, liquidation or dissolution, the Committee shall give the
Employee notice of such event if the Option has then neither been fully
exercised nor become unexercisable under this Section 3.3.
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Section 3.4. Acceleration of Exercisability
Notwithstanding the foregoing Section 3.1,
(a) In the event of any Change in Control or Corporate Transaction, the
Option shall, immediately prior to the effective date of the Change in Control
or Corporate Transaction, automatically become fully exercisable for all of the
shares of Common Stock at the time subject to the Option, and may be exercised
for any or all of those shares as fully-vested shares of Common Stock; provided,
however, that, if and to the extent the Option is, in connection with the Change
in Control or Corporate Transaction, either to be assumed by the successor or
survivor corporation (or parent thereof) or to be replaced with a comparable
right with respect to shares of the capital stock of the successor or survivor
corporation (or parent thereof), the Option shall, immediately prior to the
effective date of the Change in Control or Corporate Transaction, automatically
become immediately exercisable for fifty percent (50%) of the unvested shares of
Common Stock at the time subject to the Option. The remaining unvested shares of
Common Stock at the time subject to the Option shall vest according to the
schedule set forth in Section 3.1 above.
(b) In the event of any Constructive Termination of the Employee within one
(1) year of a Change in Control or Corporate Transaction, the Option shall
automatically become fully exercisable for all of the shares of Common Stock at
the time subject to the Option, and may be exercised for any or all of those
shares as fully-vested shares of Common Stock.
(c) The Committee may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such acceleration of exercisability, including, but not by way of
limitation, provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the contemplated
corporate transaction, and determinations regarding whether provisions for
assumption or substitution have been made as referenced in subsection (a) above.
ARTICLE IV.
EXERCISE OF OPTION
Section 4.1. Person Eligible to Exercise
During the lifetime of the Employee, only he may exercise the Option or any
portion thereof. After the death of the Employee, any exercisable portion of the
Option may, prior to the time when the Option becomes unexercisable under
Section 3.3, be exercised by his personal representative or by any person
empowered to do so under the deceased Employee's will or under the then
applicable laws of descent and distribution.
Section 4.2. Partial Exercise
Any exercisable portion of the Option or the entire Option, if then wholly
exercisable, may be exercised in whole or in part at any time prior to the time
when the Option or portion thereof becomes unexercisable under Section 3.3;
provided, however, that each partial exercise shall be for not less than one
hundred (100) shares (or the minimum installment set forth in Section 3.1, if a
smaller number of shares) and shall be for whole shares only.
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Section 4.3. Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised solely by
delivery to the Secretary or his office of all of the following prior to the
time when the Option or such portion becomes unexercisable under Section 3.3:
(a) A written notice complying with the applicable rules established by the
Committee stating that the Option, or a portion thereof, is exercised. The
notice shall be signed by the Employee or other person then entitled to exercise
the Option or such portion; and
(b)
(i) Full cash payment to the Secretary of the Company for the shares
with respect to which such Option or portion is exercised; or
(ii) With the consent of the Committee, (A) shares of the Company's
Common Stock owned by the Employee, duly endorsed for transfer to the
Company, with a Fair Market Value on the date of delivery equal to the
aggregate exercise price of the Option or exercised portion thereof, or (B)
shares of the Company's Common Stock issuable to the Employee upon exercise
of the Option, with a Fair Market Value on the date of exercise of the
Option or any portion thereof equal to the aggregate exercise price of the
Option or exercised portion thereof; or
(iii) With the consent of the Committee, a full recourse promissory
note bearing interest (at no less than such rate as shall then preclude the
imputation of interest under the Code or successor provision) and payable
upon such terms as may be prescribed by the Committee. The Committee may
also prescribe the form of such note and the security to be given for such
note. The Option may not be exercised, however, by delivery of a promissory
note or by a loan from the Company when or where such loan or other
extension of credit is prohibited by law; or
(iv) With the consent of the Committee, property of any kind which
constitutes good and valuable consideration; or
(v) With the consent of the Committee, a notice that the Employee has
placed a market sell order with a broker with respect to shares of the
Company's Common Stock 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; or
(vi) With the consent of the Committee, any combination of the
consideration provided in the foregoing subparagraphs (i), (ii), (iii),
(iv) and (v); and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Employee or other person then
entitled to exercise such Option or portion, stating that the shares of stock
are being acquired for his own account, for investment and without any present
intention of distributing or reselling said shares or any of them except as may
be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Employee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the Company if
any sale or distribution of
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the shares by such person is contrary to the representation and agreement
referred to above. The Committee may, in its absolute discretion, take whatever
additional actions it deems appropriate to insure the observance and performance
of such representation and agreement and to effect compliance with the
Securities Act and any other federal or state securities laws or regulations.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on an Option exercise does not violate the Securities Act,
and may issue stop-transfer orders covering such shares. Share certificates
evidencing stock issued on exercise of this Option shall bear an appropriate
legend referring to the provisions of this subsection (c) and the agreements
herein. The written representation and agreement referred to in the first
sentence of this subsection (c) shall, however, not be required if the shares to
be issued pursuant to such exercise have been registered under the Securities
Act, and such registration is then effective in respect of such shares; and
(d) Full payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; with the consent of the Committee, (i) shares of
the Company's Common Stock owned by the Employee, duly endorsed for transfer,
with a Fair Market Value on the date of delivery equal to the sums required to
be withheld, or (ii) shares of the Company's Common Stock issuable to the
Employee upon exercise of the Option with a Fair Market Value on the date of
exercise of the Option or any portion thereof equal to the sums required to be
withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Employee, appropriate proof
of the right of such person or persons to exercise the Option.
Section 4.4. Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on which
such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The receipt by the Company of full payment for such shares, including
payment of all amounts which, under federal, state or local tax law, the Company
(or other employer corporation) is required to withhold upon exercise of the
Option; and
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(e) The lapse of such reasonable period of time following the exercise of
the Option as the Committee may from time to time establish for reasons of
administrative convenience.
Section 4.5. Rights as Shareholder
The Employee shall not be, nor have any of the rights or privileges of, a
shareholder of the Company in respect of any shares purchasable upon the
exercise of any part of the Option unless and until certificates representing
such shares shall have been issued by the Company to such Employee.
ARTICLE V.
OTHER PROVISIONS
Section 5.1. Administration
The Committee shall have the power to interpret the Plan and this Agreement
and to adopt such rules for the administration, interpretation and application
of the Plan as are consistent therewith and to interpret, amend or revoke any
such rules. All actions taken and all interpretations and determinations made by
the Committee in good faith shall be final and binding upon the Employee, the
Company and all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Option. In its absolute discretion, the
Board may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan and this Agreement except with respect to
matters which under Rule 16b-3 or Section 162(m) of the Code, or any regulations
or rules issued thereunder, are required to be determined in the sole discretion
of the Committee.
Section 5.2. Option Not Transferable
Neither the Option nor any interest or right therein or part thereof shall
be sold, pledged, assigned, or transferred in any manner other than by will or
the laws of descent and distribution, unless and until such Option has been
exercised, or the shares underlying such Option have been issued, and all
restrictions applicable to such shares have lapsed. Neither the Option nor any
interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of the Employee or his successors in interest or shall
be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect, except to
the extent that such disposition is permitted by the preceding sentence.
Section 5.3. Shares to Be Reserved
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
Section 5.4. Notices
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Employee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
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notice which is required to be given to the Employee shall, if the Employee is
then deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service; provided, however,
that any notice to be given by the Employee relating to the exercise of the
Option or any portion thereof shall be deemed duly given upon receipt by the
Secretary or his office.
Section 5.5. Titles
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
Section 5.6. Shareholder Approval
The Plan will be submitted for approval by the Company's shareholders
within twelve (12) months after the date the Plan was initially adopted by the
Board. This Option may not be exercised to any extent by anyone prior to the
time when the Plan is approved by the shareholders, and if such approval has not
been obtained by the end of said twelve-month period, this Option shall
thereupon be cancelled and become null and void.
Section 5.7. Construction
This Agreement shall be administered, interpreted and enforced under the
internal laws of the State of Colorado without regard to conflicts of laws
thereof.
Section 5.8. Conformity to Securities Laws
The Employee acknowledges that the Plan is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including, without limitation, the applicable exemptive
conditions of Rule 16b-3. Notwithstanding anything herein to the contrary, the
Plan shall be administered, and the Option is granted and may be exercised, only
in such a manner as to conform to such laws, rules and regulations. To the
extent permitted by applicable law, the Plan and this Agreement shall be deemed
amended to the extent necessary to conform to such laws, rules and regulations.
Section 5.9. Amendments
This Agreement and the Plan may be amended without the consent of the
Employee provided that such amendment would not impair any rights of the
Employee under this Agreement. No amendment of this Agreement shall, without the
consent of the Employee, impair any rights of the Employee under this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto.
THE SPECTRANETICS CORPORATION
By ___________________________
Name:
Title:
_______________________________
Employee
_______________________________
_______________________________
_______________________________
Address
Employee's Taxpayer
Identification Number:
_______________________________
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