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EXHIBIT 4.2
FORM OF STOCK OPTION AGREEMENT FOR
OPTIONS ISSUED OUTSIDE ANY PLAN
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated __________ ____,
_______, is between THERATECH, INC., a Delaware corporation ("TTI"), and
____________________________, an individual ("Holder").
Recitals
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WHEREAS, in return for services rendered to TTI by the Holder
and/or to induce Holder to remain in its employ, TTI desires to grant to the
Holder an option to purchase shares of TTI's $0.0l par value common stock (the
"Stock") upon the terms and conditions of this Agreement.
Agreement
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In consideration of the mutual promises, covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the parties hereby agree as follows:
1. The Option. TTI hereby grants to Holder the right, subject
to the terms set forth hereinafter, to purchase from TTI fully paid and
nonassessable shares of Stock upon the terms and as set forth in the option
attached hereto as Exhibit A (the "Option"). The price per share and the number
of shares of Stock issuable upon the exercise of the Option are subject to
adjustment upon the occurrence of certain events set forth in this Agreement.
2. Exercise of Option. Upon surrender to TTI at its principal
office in Salt Lake City, Utah, of the Option to be exercised, together with
delivery of the form of subscription attached to the Option duly completed and
executed, and upon payment to TTI of the price payable therefor, Stock shall be
issued. Payment shall be made in cash or by certified or cashier's check. Upon
surrender of the Option and payment of the applicable sum, TTI shall issue and
deliver to Holder a certificate or certificates in the name of Holder for the
number of full shares of Stock purchased together with any cash, as provided in
section 6 hereof, for any fractional shares of stock otherwise issuable upon
such surrender. Such certificate or certificates shall have been issued and any
person named therein shall become a holder of record of Stock as of the date of
the surrender of the Option and payment of the appropriate
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price; provided, however, that if at the date of surrender of the Option and
payment, the transfer books for the shares of Stock or other class of stock
purchasable upon the exercise of the Option shall be closed, the certificates
for Stock for which the Option is exercised shall be issuable as of the date on
which such books shall next be opened, and until that date TTI shall be under no
duty to deliver any certificate for shares of Stock; provided, however, that the
transfer books of record, unless otherwise required by law, shall not be closed
at any one time for a period longer than thirty days. The rights of purchase
represented by the Option shall be exercisable, at the election of Holder,
either in full or in part. If an Option is exercised for less than all of the
shares of Stock specified therein at any time prior to the date of expiration of
such Option, a new option evidencing the unexercised portion of the Option will
be issued by TTI.
3. Payment of Taxes. TTI will pay all documentary stamp taxes,
if any, attributable to the initial issuance of the shares of Stock upon the
exercise of the Option; provided, however, that TTI shall not be required to pay
any tax or taxes that may be payable because of any secondary transfer which may
be involved in the issuance or delivery of the Option or certificates for the
shares of Stock delivered upon exercise of the Option.
4. Reservation of Shares of Stock. There has been reserved out
of the Stock, and TTI shall keep reserved, the number of shares sufficient to
provide for the exercise of the rights of purchase represented by the
outstanding Option. The transfer agent for the shares and every subsequent
transfer agent will be irrevocably authorized and directed to reserve such
number of authorized shares as shall be requisite for such purpose. TTI will
keep a copy of this Agreement on file with the transfer agent for the shares and
with every subsequent transfer agent. TTI will supply the transfer agent with
duly executed stock certificates for such purpose, and will provide or otherwise
make available any cash which may be payable as provided in section 6 of this
Agreement.
5. Adjustment of Option Price and Number of Shares. The number
and kind of securities purchasable upon the exercise of the Option and the price
therefor shall be subject to adjustment, from time to time, upon the happening
of certain events as follows:
(a) Adjustments. The number of shares of Stock
purchasable upon the exercise of the Option and the price
therefor shall be subject to adjustment as follows:
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(i) If at any time on or after the date hereof, the
holders of Stock shall have received, or after the record date
fixed for the determination of eligible shareholders, shall
have become entitled to receive, without payment therefor in
cash, services or other consideration:
(A) other or additional shares of
Stock or other securities or property (other
than cash) by way of dividend;
(B) any cash paid or payable
otherwise than out of retained earnings; or
(C) other or additional shares of
Stock or other securities or property
(including cash) by way of stock-split,
spin-off, split-up, reclassification,
combination of shares or similar corporate
rearrangement; then, and in each such case,
Holder shall be entitled upon the exercise
of the Option, to receive in addition to the
number of shares receivable thereupon, and
without payment of any additional
consideration, the number of shares and
other securities and property (including
cash in the cases referred to in clauses (B)
and (C) above) which Holder would hold on
the date of exercise had Holder been the
holder of record of shares of Stock on the
date hereof and had thereafter, during the
period from the date hereof to and including
the date of exercise, retained such shares
and/or all other additional stock and other
securities and property (including cash in
the cases referred to in clauses (B) and (C)
above) receivable by Holder during such
period.
(ii) If there is any reclassification or
change of the outstanding securities of TTI or any
reorganization of TTI (or any other corporation, the
stock or other securities of which are at the time
receivable upon exercise of the Option) on or after
the date hereof, or if TTI (or any such other
corporation) shall consolidate with or merge into
another corporation or convey all, or substantially
all, of its assets to another corporation, then
Holder shall, upon the exercise of the Option at any
time after the consummation of such reclassification,
reorganization, consolidation, merger or conveyance
be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise
of the Option prior to such consummation, the shares
or
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other securities or property to which Holder would
have been entitled upon consummation, if Holder had
exercised the Option immediately prior thereto, all
subject to further adjustment as provided herein. The
provisions of this subparagraph (ii) shall similarly
apply to successive reclassifications,
consolidations, mergers, sales or transfers.
(iii) Whenever the number of shares of Stock
purchasable upon the exercise of the Option or the
price is adjusted as herein provided, TTI shall cause
to be promptly mailed to Holder by first class mail,
postage prepaid, notice of adjustment and a statement
setting forth the number of shares of Stock
purchasable upon the exercise of the Option, and the
price after such adjustment, a brief statement of the
facts requiring such adjustment, and the computation
by which such adjustment was made.
(iv) For the purposes of this section 5(a),
the term "Stock" shall include any class of stock
resulting from successive changes or
reclassifications of shares of Stock consisting
solely of changes in par value, or from par value to
no par value, or from no par value to par value. If
at any time, as a result of any adjustment made
pursuant to this section 5, Holder shall become
entitled to purchase any shares of TTI other than
shares of Stock, the number of such other shares
purchasable upon exercise of the Option and the price
of such shares shall be subject to the adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with
respect to the shares of Stock contained in this
section 5.
(b) Preservation of Purchase Rights Upon
Reclassification, Consolidation, etc. In case of any
consolidation of TTI with, or merger of TTI into, another
corporation, or in case of any sale or conveyance to another
corporation of all or substantially all of the property of
TTI, TTI, or such successor or purchasing corporation, shall
execute with Holder an agreement that Holder shall have the
rights thereafter to purchase upon exercise of the Option the
kind and amount of shares of Stock and other securities and
property which Holder would have owned or have been entitled
to receive after the happening of such consolidation, merger,
sale or action if Holder had exercised the Option immediately
prior thereto. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this section 5. The provisions
of this
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section 5(b) shall similarly apply to successive
consolidations, mergers, sales or conveyances.
(c) Statement on Option. Notwithstanding any
adjustments in the price or the number or kind of shares
purchasable upon the exercise of the Option, the Option issued
may continue to express the same price and number and kind of
shares as are stated in the Option initially issuable pursuant
to this Agreement.
6. Fractional Interests. TTI shall not be required to issue
fractional shares upon the exercise of the Option. If any fraction of a share
would, except for the provisions of this section 6, be issuable on the exercise
of the Option, TTI shall pay an amount in cash equal to the then current fair
market price multiplied by such fraction.
7. No Rights as Shareholder; Notices. Nothing contained in
the Agreement or the Option shall be construed as conferring upon Holder or
Holder's transferees any rights whatsoever as a shareholder of TTI, including
the right to vote, receive dividends, consent or receive notices as a
shareholder in respect of any meeting of shareholders for the election of
directors of TTI or any other matter. If, however, at any time prior to the
expiration of the Option and prior to complete exercise thereof, any of the
following events shall occur: (a) TTI shall declare any dividend payable in the
securities upon its shares of Stock or make any distribution (other than a cash
dividend) to the holders of Stock; (b) TTI shall offer to the holders of Stock
any additional securities convertible into Stock or any right to subscribe
thereto; or (c) a dissolution, liquidation or winding up of TTI (other than in
connection with a consolidation, merger or sale of all or substantially all of
its assets) shall be proposed; then in any one or more of the above events, TTI
shall give notice of such event, in writing, to Holder at least twenty days
prior to the date fixed as a record date or the date of closing the transfer
books for the determination of the shareholders entitled to such dividend,
distribution or subscription rights, or for the determination of shareholders
entitled to vote on such proposed dissolution, liquidation or winding up. Such
notice shall specify the record date or the date of closing the transfer books,
as the case may be.
8. Restrictive Legends. Each certificate for Stock and each
Option issued hereunder shall bear any legends required under the federal
securities laws.
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9. Notices. Any notice pursuant to this Agreement shall be
made in writing and shall be deemed to have been duly given if delivered or
mailed postage prepaid, by certified mail, return receipt requested,
To TTI: 4l7 Xxxxxx Xxx
------- Xxxxx 000
Xxxx Xxxx Xxxx, XX 00x00
To Holder:
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Each party hereto may from time to time change the address to which notices are
to be delivered or mailed by notice to the other party in accordance with this
section 9.
10. Successors. All the covenants and provisions of this
Agreement by or for the benefit of either party shall bind and inure to the
benefit of their respective successors and assigns hereunder.
11. Merger or Consolidation of TTI. TTI will not merge or
consolidate with or into any other corporation unless the corporation resulting
from such merger or consolidation shall expressly assume, by supplemental
agreement satisfactory in form to Holder and duly executed and delivered to
Holder, the due and punctual performance and observance of each and every
covenant and condition of this Agreement to be performed and observed by TTI.
12. Survival of Representations and Option. All statements
contained in any instrument delivered by or on behalf of the parties hereto, or
in connection with the transactions contemplated by this Agreement, shall be
deemed to be representations and options hereunder. Notwithstanding any
investigations made by or on behalf of the parties to this Agreement, all
representations, warranties and
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agreements made by the parties to this Agreement or pursuant hereto shall
survive, except that if a party hereto has actual knowledge at the date hereof,
of facts which would constitute a breach. Such breach shall be waived by such
party if such party consummates the transactions contemplated by this Agreement.
13. Applicable Law. This Agreement and the Option issued
hereunder shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be construed in accordance with Delaware
law.
14. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give any person or corporation other than TTI and Holder
any legal or equitable right, remedy or claim under this Agreement and this
Agreement shall be for the sole and exclusive benefit of TTI and Holder.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the respective dates set forth below, to be effective for all
purposes as of the day and year first above written.
THERATECH, INC.
Date: By:
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Xxxxxx X. Xxxxx, Ph.D.
President & Chief Executive Officer
Date:
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No. A
EXHIBIT A
OPTION TO PURCHASE __________ SHARES OF COMMON
STOCK COMMENCING _____________________
AND VOID 5 YEARS AFTER THAT DATE
THERATECH, INC.
A Delaware Corporation
This certifies that, for value received, ___________________,
the registered holder hereof (the "Optionholder"), is,
IF, BUT ONLY IF, __________________ HAS REMAINED IN THE EMPLOY
OF THERATECH, INC. CONTINUOUSLY FROM ______________________ THROUGH
__________________________, entitled to purchase from TheraTech, Inc., a
Delaware corporation (the "Company"), at any time from __________ to __________,
at the purchase price of $__________ per share, (the "Option Price"), the number
of shares of Common Stock, $0.0l par value per share, of the Company set forth
above. The number of shares purchasable upon exercise of this Option and the
Option Price per share shall be subject to adjustment from time to time as set
forth in the Option Agreement referred to below.
This Option may be exercised in whole or in part by
presentation of this Option with the Form of Subscription attached hereto duly
executed and simultaneous payment of the Option Price (subject to adjustment) at
the principal office of the Company in Salt Lake City, Utah. Payment of such
price shall be made at the option of the Optionholder in cash or by certified
funds.
This Option evidences the right to purchase an aggregate of up
to __________ shares of Common Stock, $0.0l par value per share, of the Company
and is issued under and in accordance with a STOCK OPTION AGREEMENT dated as of
___________________ (the "Option Agreement"), between the Company and the
Optionholder and is subject to the terms and provisions contained in the Option
Agreement, to all of which the Optionholder of this Option by acceptance hereof
consents.
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Upon any partial exercise of this Option, there shall be
signed and issued to the Optionholder, a new Option in respect to the shares as
to which this Option shall not have been exercised. No fractional shares will be
issued hereunder, but the Company shall pay the cash value of any fraction upon
the exercise of one or more Options.
This Option does not entitle the Optionholder to any of the
rights of a shareholder of the Company.
Dated as of this ____ day of ___________________, 1993.
THERATECH, INC.
By:
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Xxxxxx X. Xxxxx, Ph.D.
President and
Chief Executive Officer
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