Exhibit 10.5
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the execution date of the Option Certificate to which it is attached
(the "Certificate"), by and between BioSource International, Inc., a California
corporation (the "Company"), and XXX XXXXX ("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Agreement.
The Company and Optionee agree as follows:
15. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the "Option"),
upon the terms and subject to the conditions set forth in this Option Agreement,
to purchase up to 30,000 SHARES of the Common Stock (the "Shares"), at the
Option Exercise Price (the "Exercise Price") of $1.688 per share.
16. TERM OF OPTION.
The Option shall terminate and expire on the date (the "Option Expiration
Date") which is ten years from the date of this Option Agreement, unless sooner
terminated as provided herein.
17. VESTING.
The Option shall become immediately exercisable upon execution of this
Agreement.
18. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the Company
of:
a. written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
b. payment of the Exercise Price of the Purchased Shares, either in
cash, by check, or by transfer to the Company of issued and outstanding
shares of Common Stock, or by any combination of the above methods of
payment. If payment is made, in whole or in part, by transfer to the
Company of issued and outstanding shares of Common Stock, the value of such
shares shall be determined as follows: (i) if, at the time of payment, the
Common Stock is traded on the National Market System or any national or
regional stock exchange, the value of each share shall be the closing sale
price of a share of Common Stock on the business day immediately preceding
the payment or, if no sale was made on that date, on the most recent date
when such a sale was made, as reported on the composite tape for securities
transactions or similar source for reporting sales of the Common Stock; or
(ii) if, at the time of payment, quotations with respect to the Common
Stock are made on the NASDAQ System, the value of each share shall be
the average of the closing bid and asked quotations of a share of Common
Stock on the business day immediately preceding the payment or, if no
quotations were made on that date, on the most recent date when such
quotations were made; or (iii) if, at the time of payment, neither (i) nor
(ii) above is applicable, the value of each share shall be the fair market
value of each share, as determined by the Board or the Administrator.
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the Purchased Shares; PROVIDED, HOWEVER, that the Company shall not
be obligated to issue a fraction or fractions of a share of its Common Stock,
and may pay to Optionee, in cash or by check, the fair market value of any
fraction or fractions of a share exercised by Optionee, which fair market value
shall be determined as set forth in the preceding paragraph.
19. RESTRICTIONS ON PURCHASED SHARES.
Optionee shall not sell, transfer (with or without consideration), assign,
pledge, hypothecate or otherwise dispose of (collectively, "Transfer" any of the
Purchased Shares unless and until ALL of the following events shall have
occurred:
a. the Purchased Shares are disposed of pursuant to and in conformity
with an effective registration statement filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), or the proposed disposition will not result
in a violation of the securities laws of any state of the United States;
and
b. If requested by the Company, Optionee shall, prior to the transfer
of such Purchased Shares, deliver to the Company a written opinion of
counsel, satisfactory to the Company and its counsel, that the proposed
disposition will comply with the requirements set forth in clause (a)
above, in which case, the Company shall bear all reasonable costs of such
counsel in preparing such opinion.
Any attempted Transfer which is not in full compliance with this Paragraph
5 shall be null and void AB INITIO, and of no force or effect.
20. ADJUSTMENTS UPON RECAPITALIZATION.
Subject to any required action by the stockholders of the Company:
a. If outstanding shares of the Common Stock shall be subdivided into
a greater number of shares of the Common Stock, or a dividend in Shares of
Common Stock or other securities of the Company convertible into or
exchangeable for shares of the Common Stock (in which latter event the
number of shares of Common Stock issuable upon the conversion or exchange
of such securities shall be deemed to have been distributed) shall be paid
in respect of the shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such
dividend shall, simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend, be proportionately
reduced, and conversely, if the outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Exercise
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately increased.
b. In the event the Company at any time, or from time to time, shall
make or issue, or fix a record date for the determination of holders of
shares of Common Stock entitled to receive, a dividend
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or other distribution payable in securities of the Company other than
shares of Common Stock or securities convertible into or exchangeable for
shares of Common Stock then and in each such event, provision shall be made
so that the holder of the Option shall receive upon exercise thereof, in
addition to the number of shares receivable thereupon, the amount of
securities of the Company which he or she would have received had his or
her Option been exercised on the date of such event and had thereafter,
during the period from the date of such event to and including the date of
exercise, retained such securities receivable by him or her as aforesaid
during such period, giving application to all adjustments called for during
such period under this Paragraph 6 with respect to the rights of the holder
of the Option.
c. When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product
by the Exercise Price in effect immediately after such adjustment.
d. In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 6(a) or 6(b) of this Agreement), or the
consolidation of the Company with, or a sale of substantially all of the
assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or merger of the Company with, another person
where, in each such case, the Company is the "surviving corporation," as
defined in Paragraph 6(j) below, Optionee shall thereafter be entitled upon
exercise of the Option to purchase the kind and number of shares of stock
or other securities or property of the surviving corporation receivable
upon such event by a holder of the number of shares of the Common Stock
which the Option entitles Optionee to purchase from the Company immediately
prior to such event; and in any such case, appropriate adjustment shall be
made in the application of the provisions set forth in this Agreement with
respect to Optionee's rights and interests thereafter, to the end that the
provisions set forth in this Agreement (including the specified changes and
other adjustments to the Exercise Price) shall thereafter be applicable in
relation to any shares or other property thereafter purchasable upon
exercise of the Option.
e. A consolidation of the Company with, or a sale of substantially all
of the assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or the Merger of the Company with, any other
person (other than a consolidation, sale or merger in which the Company is
the "Surviving Corporation," as defined in Paragraph 6(j) below) shall
cause the Option to terminate on the Effective Date of such consolidation,
sale or merger; PROVIDED, HOWEVER, that the Optionee shall have the right
during a ten day period ending on the fifth day prior to such
consolidation, sale or merger to exercise the Option, in whole or in part,
without regard to the installment provision set forth in Paragraph 3 of
this Option Agreement; but any exercise of the Option which except for the
provisions of this Paragraph 6(e) would not then be exercisable, shall be
conditioned upon the actual occurrence of such consolidation, sale or
merger, and if such consolidation, sale of merger is abandoned or otherwise
does not occur, for any reason, the Optionee's exercise of the Option
during such ten day period shall be null and void, and of no force and
effect; PROVIDED, FURTHER, that if such consolidation, sale or merger is to
be consummated, in whole or in part, by the tender of Common Stock to the
Surviving Corporation, the Optionee hereby agrees to tender the Shares
issued upon exercise of his or her Option to the Surviving Corporation, if
so directed by the board of directors of the Company, and to vote such
Shares for or against such consolidation, sale or merger, as directed by
the board of directors of the Company. For purposes of this Paragraph 6(e)
and subject to the previous sentence, any exercise of the Option by
Optionee pursuant to this Paragraph 6 shall be deemed no occur immediately
prior to the consummation of such consolidation, sale or merger.
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f. If the Company is dissolved or liquidated then the Option shall
terminate on the effective date of such dissolution or liquidation;
PROVIDED, HOWEVER, the Optionee shall have the right during a ten day
period ending on the fifth day prior to such dissolution or liquidation to
exercise his or her Option in whole or in part, without regard to any of
the installment provisions set forth in Paragraph 3 of this Agreement; but
the exercise of the Option which except for the provisions of this
Paragraph 6(f) would not then be exercisable, shall be conditioned upon the
actual occurrence of such dissolution or liquidation, and if such
dissolution or liquidation were not to occur, the Optionee's exercise of
the Option during such ten day period shall be null and void, and of no
force and effect. For purposes of the this Paragraph 6(f) and subject to
the previous sentence, any exercise of the Option by Optionee pursuant to
this Paragraph 6(f) shall be deemed to occur immediately prior to the
consummation of such dissolution or liquidation.
g. To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Administrator, and its determination shall be final, binding and
conclusive.
h. The provisions of this Paragraph 6 are intended to be exclusive,
and Optionee shall have no other rights upon the occurrence of any of the
events described in this Paragraph 6.
i. The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all or
any part of its business or assets.
j. The determination as to which party is the "surviving corporation"
in a consolidation, sale or merger shall be made on the basis of the
relative equity interests of the stockholders in the corporation existing
after the consolidation, sale or merger, as follows: If following any
consolidation, sale or merger the holders of outstanding voting securities
of the Company prior to the consolidation, sale or merger own equity
securities possessing more than 50% of the voting power of the corporation
existing after the consolidation, sale or merger, then for purposes of this
Agreement, the Company shall be the surviving corporation. In all other
cases, the Company shall not be the surviving corporation. In making the
determination of ownership by the stockholders of a corporation,
immediately after a consolidation, sale or merger, of securities pursuant
to this Paragraph 6(j), securities which they owned immediately prior to
such consolidation, sale or merger as stockholders of another party to the
transaction shall be disregarded.
21. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Agreement, Optionee acknowledges and agrees that neither
the Company nor any other person or entity is under any oral obligation to sell
or transfer to Optionee any option or equity security of the Company. By signing
this Agreement, Optionee specifically waives all rights which he or she may have
had prior to the date of this Agreement under any oral agreement or promise by
the Company to receive any option or equity security of the Company.
22. INVESTMENT INTENT.
Optionee represents and agrees that if he or she exercises the Option in
whole or in part, he or she will acquire the Shares upon such exercise for the
purpose of investment and not with a view to the distribution of such Shares,
and that upon each exercise of the Option he or she will furnish to the Company
a written statement to such effect.
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23. LEGEND ON STOCK CERTIFICATES. Optionee agrees that the Company may
place on each certificate representing the Purchased Shares the following
legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), HAVE BEEN TAKEN
FOR INVESTMENT, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE ACT AND
THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION
THEREUNDER.
24. NO RIGHTS AS STOCKHOLDER.
Optionee shall have no rights as a stockholder with respect to the Shares
until the date of the issuance to Optionee of a stock certificate or stock
certificates evidencing such Shares. Except as may be provided in Paragraph 6 of
this Agreement, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued.
25. MODIFICATION.
The Board or the Administrator may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised).
26. WITHHOLDING.
a. The Company shall be entitled to require as a condition of delivery
of any Purchased Shares upon exercise of any Option that the Optionee agree
to remit, at the time of such delivery or at such later date as the Company
may determine, an amount sufficient to satisfy all federal, state and local
withholding tax requirements relating thereto, and Optionee agrees to take
such other action required by the Company to satisfy such withholding
requirements.
b. With the consent of the Administrator, and in accordance with any
rules and procedures from time to time adopted by the Administrator,
Optionee may elect to satisfy his or her obligations under Paragraph 12(a)
above by (i) directing the Company to withhold a portion of the Shares
otherwise deliverable (or to tender back to the Company a portion of the
Shares issued where the Optionee (a "Section 16(b) Recipient") is required
to report the ownership of the Shares pursuant to Section 16(a) of the
Securities Exchange Act of 1934, as amended, and has not made an election
under Section 83(b) of the Code (a "Withholding Right")); or (ii) tendering
other shares of the Common Stock of the Company which are already owned by
Optionee which in all cases have a fair market value (as determined in
accordance with the provisions of Paragraph 4(b) hereof) on the date as of
which the amount of tax to be withheld is determined (the "Tax Date") equal
to the amount of taxes to be paid by such method.
c. To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Administrator:
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i. the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 12(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
ii. unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable;
and
iii. no Election is valid unless the Administrator has the right
and power, in its sole discretion, with or without cause or reason
therefor, to consent to the Election, to refuse to consent to the
Election, or to disapprove the Election; and if the Administrator has
not consented to the Election on or prior to the Tax Date, the
Election will be deemed approved.
iv. If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(1) the Election cannot be made during the six calendar
month period commencing with the date of grant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior to such date); and
(2) the Election must be made any day six calendar months or
more prior to the Tax Date.
27. CHARACTER OF OPTION
The Option is intended to constitute a non-statutory stock option and DOES
NOT constitute an "incentive stock option" as that term is defined in Section
422 of the Code.
28. GENERAL PROVISIONS.
a. FURTHER ASSURANCES. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
b. NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
(1) If to the Company, to:
BIOSOURCE INTERNATIONAL, INC.
000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
(2) If to Optionee, to the address set forth in the records of
the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given
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by mail, 72 hours after such communication is deposited in the mail by
first-class certified mail, return receipt requested, postage prepaid, addressed
as aforesaid, or (ii) if given by any other means, when delivered at the address
specified in this subparagraph (b).
c. TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may at
any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
d. OPTION NON-TRANSFERABLE. Optionee may not sell, transfer, assign or
otherwise dispose of the Option except by will or the laws of descent and
distribution, and only Optionee may exercise the Option during his or her
lifetime.
e. SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs and personal representatives.
f. GOVERNING LAW. This option agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts made in, and to be performed within, that state.
g. ATTORNEYS' FEES. In the event that any action, suit or other
proceeding is instituted upon any breach of this Option Agreement, the
prevailing party shall be paid by the other party thereto an amount equal
to all of the prevailing party's costs and expenses, including attorneys'
fees incurred in each and every such action, suit or proceeding (including
any and all appeals or petitions therefrom). As used in this Option
Agreement, "attorneys' fees" shall mean the full and actual cost of any
legal services actually performed in connection with the matter involved
calculated on the basis of the usual fee charged by the attorney performing
such services and shall not be limited to "reasonable attorneys' fees" as
defined in any statute or rule of court.
h. MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted, for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable by any of the
parties hereto without the prior written consent of the other party hereto.
IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Option Agreement as of the date set forth below.
DATED: June 1, 1995
BIOSOURCE INTERNATIONAL, INC.
By: /S/ XXXXX XXXXXXXXXXX
-----------------------------------
Its: Chief Executive Officer
OPTIONEE
By: /S/ XXX XXXXX
-----------------------------------
Xxx Xxxxx
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