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Exhibit 4.5
SIPEX CORPORATION
STOCK OPTION AGREEMENT
SIPEX Corporation (the "Company") hereby grants the following option
to purchase Common Stock, $.01 par value per share (the "Common Stock"), of the
Company pursuant to an action of the Board of Directors (the "Board") of the
Company on [_________________]. The terms and conditions attached hereto are
also a part hereof.
Name of employee (the "Employee" or "Optionee"):
Date of this option grant:
Number of shares of the Company's Common Stock subject to this option
("Option Shares"):
Option exercise price per share:
Number of Option Shares subject to vesting schedule:
Vesting Start Date:
Vesting Schedule. If the Employee has continued to be employed by the
Company or any Related Corporation (as defined in Section 2 hereof) on
the following dates, the Employee may exercise this option for the
number of shares of Common Stock as set forth below.
Prior to Vesting Start Date [an additional] _________ shares
One year from Vesting Start Date an additional _________ shares
Two years from Vesting Start Date an additional _________ shares
Three years from Vesting Start Date an additional _________ shares
Four years from Vesting Start Date an additional _________ shares
[Five years from Vesting Start Date - may not be applicable] an additional _________ shares
Payment alternatives: Section 6(a) (i) through (iv)
SIPEX CORPORATION
__________________________________
Signature of Optionee
__________________________________
Xxxxxx Xxxxxxx
__________________________________ By: ____________________________________
City/State/Zip Code Xxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
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SIPEX CORPORATION
STOCK OPTION AGREEMENT -- INCORPORATED TERMS AND CONDITIONS
1. GRANT AS NON-QUALIFIED STOCK OPTION. This option is a
non-statutory stock option and is not intended to qualify as an incentive stock
option under Section 422 of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder (the "Code").
2. VESTING OF OPTION IF EMPLOYMENT CONTINUES. The Employee may
exercise this option for the number of shares of Common Stock set forth on the
vesting schedule on the cover page hereof if the Employee has continued to be
employed by the Company or any present or future parent or subsidiary of the
Company (collectively, "Related Corporations") in accordance with such vesting
schedule. Notwithstanding the foregoing, the Board may, in its discretion,
accelerate the date that any installment of this option becomes exercisable. The
foregoing rights are cumulative and (subject to Sections 3 or 4 hereof if the
Employee ceases to be employed by the Company) may be exercised only before the
date which is ten years from the date of this option grant.
3. TERMINATION OF EMPLOYMENT.
(a) TERMINATION OTHER THAN FOR CAUSE. If the Employee ceases to
be employed by the Company and all Related Corporations, other than by reason of
death or disability as defined in Section 4 or termination for Cause as defined
in Section 3(c), no further installments of this option shall become
exercisable, and this option shall terminate (and may no longer be exercised)
after the passage of three months from the Employee's last day of employment,
but in no event later than the scheduled expiration date. In such a case, the
Employee's only rights hereunder shall be those which are properly exercised
before the termination of this option.
(b) TERMINATION FOR CAUSE. If the employment of the Employee is
terminated for Cause (as defined in Section 4(c)), this option shall terminate
upon the Employee's receipt of written notice of such termination and shall
thereafter not be exercisable to any extent whatsoever.
(c) DEFINITION OF CAUSE. "Cause" shall mean conduct involving
one or more of the following: (i) the substantial and continuing failure of the
Employee, after notice thereof, to render services to the Company or any Related
Entity in accordance with the terms or requirements of his employment or
business relationship; (ii) disloyalty, gross negligence, willful misconduct,
dishonesty, fraud or breach of fiduciary duty to the Company or any Related
Entity; (iii) the commission of an act of embezzlement or fraud; (iv) deliberate
disregard of the rules or policies of the Company or any Related Entity, or
breach of an employment or other agreement with the Company or any Related
Entity, which results in direct or indirect loss, damage or injury to the
Company or any Related Entity; (v) the unauthorized disclosure of any trade
secret or confidential information of the Company or any Related Entity; or (vi)
the commission of an act which constitutes unfair competition with the Company
or any Related Entity or which induces any customer or supplier to breach a
contract with the Company or any Related Entity.
4. DEATH; DISABILITY.
(a) DEATH. If the Employee dies while in the employ of the
Company or any Related Corporation, this option may be exercised, to the extent
otherwise exercisable on the date of his or her death, by the Employee's estate,
personal representative or beneficiary to whom this option has been assigned
pursuant to Section 9, at any time within 180 days after the date of death, but
not later than the scheduled expiration date.
(b) DISABILITY. If the Employee ceases to be employed by the
Company and all Related Corporations by reason of his disability, this option
may be exercised, to the extent otherwise exercisable on the date of the
termination of his employment, at any time within 180 days after such
termination, but not later than the scheduled expiration date. The term
disability means "permanent and total disability" as defined in Section 22(e)(3)
of the Code.
(c) EFFECT OF TERMINATION. At the expiration of the 180-day
period provided in paragraph (a) or (b) of this Section 4 or the scheduled
expiration date, whichever is the earlier, this option shall terminate (and
shall no longer be exercisable) and the only rights hereunder shall be those as
to which the option was properly exercised before such termination.
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5. PARTIAL EXERCISE. This option may be exercised in part at any time
and from time to time within the above limits, except that this option may not
be exercised for a fraction of a share.
6. PAYMENT OF ALTERNATIVES. (a) The exercise price shall be paid in
the following manner:
(i) in cash or by check;
(ii) subject to paragraph 6(b) below, by delivery of
shares of the Company's Common Stock having a
fair market value equal, as of the date of
exercise, to the option exercise price;
(iii) by delivery of an assignment satisfactory in
form and substance to the Company of a
sufficient amount of the proceeds from the sale
of the Option Shares and an instruction to the
broker or selling agent to pay that amount to
the Company; or
(iv) by any combination of the foregoing.
In the case of (ii) above, fair market value as of the
date of exercise shall be determined as of the last business day for
which such prices or quotes are available prior to the date of
exercise and shall mean (i) the average (on that date) of the high
and low prices of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the
Common Stock is then traded on a national securities exchange; or
(ii) the last reported sale price (on that date) of the Common Stock
on the Nasdaq National Market, if the Common Stock is not then traded
on a national securities exchange; or (iii) the closing bid price (or
average of bid prices) last quoted (on that date) by an established
quotation service for over-the-counter securities, if the Common
Stock is not reported on the Nasdaq National Market. If the Common
Stock is not publicly traded at the time of exercise, "fair market
value" shall mean the fair value of the Common Stock as determined by
the Board after taking into consideration all factors which it deems
appropriate, including, without limitation, recent sale and offer
prices of the Common Stock in private transactions negotiated at
arm's length.
(b) LIMITATIONS ON PAYMENT BY DELIVERY OF COMMON STOCK. If the
Employee delivers Common Stock held by the Employee ("Old Stock") to the Company
in full or partial payment of the option price, and the Old Stock so delivered
is subject to restrictions or limitations imposed by agreement between the
Employee and the Company, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to the extent
that the Employee paid for the Option Shares by delivery of Old Stock, in
addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Employee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company unless such Common
Stock has been owned by the Employee free of any substantial risk of forfeiture
for at least six months.
7. METHOD OF EXERCISING OPTION. Subject to the terms and conditions
of this Agreement, this option may be exercised by written notice to the Company
at its principal executive office, or to such transfer agent as the Company
shall designate. Such notice shall state the election to exercise this option
and the number of Option Shares for which it is being exercised and shall be
signed by the person or persons so exercising this option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares as
soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Employee
and if the Employee shall so request in the notice exercising this option, shall
be registered in the name of the Employee and another person jointly, with right
of survivorship). In the event this option shall be exercised, pursuant to
Section 4 hereof, by any person or persons other than the Employee, such notice
shall be accompanied by appropriate proof of the right of such person or persons
to exercise this option.
8. SECURITIES LAWS RESTRICTIONS ON RESALE. Until registered under the
Securities Act of 1933, as amended, or any successor statute (the "Securities
Act"), the Option Shares will be of an illiquid nature and will be deemed to be
"restricted securities" for purposes of the Securities Act. Accordingly, such
shares must be sold in
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compliance with the registration requirements of the Securities Act or an
exemption therefrom. Unless the Option Shares have been registered under the
Securities Act, each certificate evidencing any of the Option Shares shall bear
a legend substantially as follows:
"The shares represented by this certificate are subject to
restrictions on transfer and may not be sold, exchanged, transferred,
pledged, hypothecated or otherwise disposed of except in accordance
with and subject to all the terms and conditions of a certain Stock
Option Agreement dated as of [_______________], a copy of which the
Company will furnish to the holder of this certificate upon request
and without charge."
9. OPTION NOT TRANSFERABLE. This option is not transferable or
assignable except by will or by the laws of descent and distribution. During the
Optionee's lifetime only the Optionee can exercise this option.
10. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of
this option imposes no obligation on the Optionee to exercise it.
11. ADJUSTMENTS. In the event of any stock split, stock dividend,
extraordinary cash dividend, recapitalization, reorganization, merger,
consolidation, combination, exchange of shares, liquidation, spin-off, split-up,
or other similar change in capitalization or event, the number and class of
securities, vesting schedule and exercise price per share of this option shall
be adjusted by the Company (or a substituted option may be granted) to the
extent the Board shall determine, in good faith, that such an adjustment (or
substitution) is appropriate. Except as is expressly provided in this Section
11, no adjustment shall be made for dividends or similar rights for which the
record date is prior to such date of exercise.
12. WITHHOLDING TAXES. If the Company or any Related Corporation in
its discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, or in connection with the transfer of, or the
lapse of restrictions on, any Common Stock or other property acquired pursuant
to this option, the Optionee hereby agrees that the Company or any Related
Corporation may withhold from the Optionee's wages or any other remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
13. ARBITRATION. Any dispute, controversy, or claim arising out of,
in connection with, or relating to the performance of this Agreement or its
termination shall be settled by arbitration in the Commonwealth of
Massachusetts, pursuant to the rules then obtaining of the American Arbitration
Association. Any award shall be final, binding and conclusive upon the parties
and a judgment rendered thereon may be entered in any court having jurisdiction
thereof.
14. PROVISION OF DOCUMENTATION TO OPTIONEE. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement.
15. MISCELLANEOUS.
(a) NOTICES. All notices hereunder shall be in writing and
shall be deemed given when sent by certified or registered mail,
postage prepaid, return receipt requested, if to the Optionee, to the
address set forth on the cover pages hereof or at the address shown
on the records of the Company, and if to the Company, to the
Company's principal executive offices, attention of the Corporate
Secretary.
(b) ENTIRE AGREEMENT; MODIFICATION. This Agreement
constitutes the entire agreement between the parties relative to the
subject matter hereof, and supersedes all proposals, written or oral,
and all other communications between the parties relating to the
subject matter of this Agreement. This Agreement may be modified,
amended or rescinded only by a written agreement executed by both
parties.
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(c) FRACTIONAL SHARES. If this option becomes exercisable
for a fraction of a share because of the adjustment provisions
contained herein, such fraction shall be rounded down.
(d) NO RIGHTS AS STOCKHOLDER. The Optionee shall not have
any rights as a stockholder with respect to any shares of Common
Stock for which this option is exercisable until such Optionee
becomes the record holder of such shares of Common Stock.
(e) NO OBLIGATION OF CONTINUED EMPLOYMENT. This Agreement
imposes no obligation on the Company or Related Corporation to
continue the employment of the Employee. The Company expressly
reserves the right any time to dismiss or terminate its relationship
with the Employee free from any liability or claim under this
Agreement.
(f) ISSUANCES OF SECURITIES; CHANGES IN CAPITAL STRUCTURE.
Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares
subject to this option. No adjustments need be made for dividends
paid in cash or in property other than securities of the Company. If
there shall be any change in the Common Stock of the Company through
merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, combination or exchange of shares, spin-off,
split-up or other similar change in capitalization or event, the
restrictions contained in this Agreement shall apply with equal force
to additional and/or substitute securities, if any, received by the
Optionee in exchange for, or by virtue of his or her ownership of,
Option Shares, except as otherwise determined by the Board.
(g) DISSOLUTION OR LIQUIDATION. In the event of the
proposed dissolution or liquidation of the Company, then the Board
shall, as to outstanding options, at its discretion provide, upon
written notice to the Optionee (i) that all options must be
exercised, to the extent then exercisable, within a specified number
of days of the date of such notice, at the end of which period, the
options shall terminate or (ii) that such options (including those
which have not yet vested) shall be exercisable within a specified
number of days of such notice, at the end of which period the options
shall terminate.
(h) SEVERABILITY. The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way
affect the validity, legality or enforceability of any other
provision.
(i) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, subject to the limitations set
forth in Section 9 hereof.
(j) GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to the principles of the
conflicts of laws thereof.
