Exhibit 10.1
INNOVEX, INC.
STOCK OPTION AGREEMENT
This Option is hereby issued pursuant to the terms and conditions set forth
in this Option Agreement (the "Agreement") and is not issued pursuant to any
existing Stock Option Plan of Innovex, Inc. (the "Company").
I. NOTICE OF STOCK OPTION GRANT
Optionee: Xxxxx X. Xxxxxxxxxx
You have been granted an option to purchase Common Stock of the Company,
subject to the terms and conditions of this Option Agreement, as follows:
Date of Grant November 25, 2008
Vesting Commencement Date April 16, 2009
Exercise Price per Share $0.365
Total Number of Shares Granted 250,000
Type of Option Nonstatutory Stock Option
Term/Expiration Date April 16, 2018
1. Exercise and Vesting Schedule. This Option may be exercised in whole or
in part and shall vest in accordance with the following vesting schedule:
a. One-third of the total number of options granted hereunder shall vest on
the Vesting Commencement Date;
b. One-third of the total number of options granted hereunder shall vest on
the first anniversary of the Vesting Commencement Date; and
c. One-third of the total number of options granted hereunder shall vest on
the second anniversary of the Vesting Commencement Date.
2. Termination Period. This Option may be exercised, to the extent it is
then vested, for 30 days after termination of employment; provided, however,
that if the employment is terminated as a result of the Optionee's deliberate,
willful or gross misconduct as determined by the Compensation Committee of the
Board, if any, or such other committee of the Board of Directors as may be
designated, all rights under this Option Agreement shall terminate and expire
upon such termination. Notwithstanding the foregoing:
2.1 If the Optionee dies while in the employ of the Corporation or a
Subsidiary, or within not more than one month after termination of his
or her employment, the Optionee's rights under the option may be
exercised in whole or in part, without regard to any installment
exercise restrictions, at any time within six months following such
death by his or her personal representative or by the person or
persons to whom such rights under the Option shall pass by will or by
the laws of descent and distribution.
2.2 If the employment of the Optionee is terminated because of
permanent disability, the Optionee, or his or her legal
representative, may at any time within not more than six months after
termination of his or her employment, exercise his or her Option
rights in whole or in part, without regard to any installment exercise
restrictions.
II. AGREEMENT
1. Grant of Option. The Company hereby grants to the Optionee named in the
Notice of Grant above (the "Optionee"), an option (the "Option") to purchase a
number of Shares, as set forth above, at the exercise price per share set forth
above (the "Exercise Price"), subject to the terms and conditions set forth in
this Option Agreement.
The Option will be administered by the Compensation Committee of the
Company's Board of Directors (the "Committee"). Any or all functions of the
Committee specified in this Agreement may be exercised by the Board of
Directors, unless this Agreement specifically states otherwise. The Committee
has the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Option as it may, from time-to-time, deem
advisable; to interpret the terms and provisions of this Option Agreement and to
otherwise supervise the administration of the Option. The Committee may not
amend, alter or terminate the Option without the written consent of Optionee.
All decisions made by the Committee pursuant to this Agreement will be final and
binding on all persons, including the Company and Optionee.
2. Exercise of Option.
(a) Right to Exercise. Subject to subsection (i) below, this Option is
exercisable during its term in accordance with the Vesting Schedule set out in
the Notice of Grant and the provisions of this Option Agreement; provided,
however, that the Committee may, in its discretion, accelerate the exercise date
for any unexercisable options when the Committee deems such action to be
appropriate under the circumstances. In the event of Optionee's death,
disability or other termination of Optionee's employment, the exercisability of
the Option is governed by Section 2 of Article I of this Option Agreement.
(i) Extraordinary Corporate Transactions. In the event that one
of the following occur, the Optionee shall have the right within a 30-day period
prior to or concurrently with such dissolution, liquidation, merger,
consolidation, acquisition, separation, reorganization or similar occurrence, to
exercise any unexpired Option granted hereunder without regard to any
installment exercise restrictions:
2
1) upon dissolution or liquidation of the Corporation, or
similar occurrence,
2) upon any merger, consolidation, acquisition, separation,
reorganization, or similar occurrence, where the Corporation
will not be a surviving entity or
3) upon a transfer of substantially all of the assets of the
Corporation or more than 80% of the outstanding Common
Stock.
(b) Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached as Exhibit A (the "Exercise Notice"),
which shall state the election to exercise the Option, the number of Shares in
respect of which the 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 signed by the Optionee and shall be delivered in person
or by certified mail to the principal financial officer of the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise Price
as to all Exercised Shares. 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.
No Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares are then
listed. Assuming such compliance, for income tax purposes the Exercised Shares
shall be considered transferred to the Optionee on the date the Option is
exercised with respect to such Exercised Shares.
3. Method of Payment. Payment of the aggregate Exercise Price shall be by
either by certified or bank check, or by any other form of legal consideration
deemed sufficient by the Committee, including a properly executed exercise
notice together with irrevocable instructions to a broker acceptable to the
Company to promptly deliver to the Company the amount of sale proceeds to pay
the exercise price. As determined by the Committee, in its sole discretion,
payment in full or in part may also be made in the form of unrestricted Stock
already owned by the Optionee. No shares of Stock shall be issued until full
payment therefore has been made. An Optionee shall have the rights to dividends
and other rights of a shareholder with respect to shares subject to the option
when the Optionee has given written notice of exercise and has paid in full for
such shares.
4. 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 the Optionee. The terms of
this Option Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the terms of this Option Agreement.
3
6. Registration. If any law or regulation of the Securities and Exchange
Commission or of any other body having jurisdiction shall require the
Corporation or the Optionee to take any action in connection with the exercise
of an option, then notwithstanding any contrary provision of this Option
agreement, the date for exercise of such Option and the delivery of the shares
purchased thereunder shall be deferred until the completion of the necessary
action. In the event that the Corporation shall deem it necessary, the
Corporation may condition the grant or exercise of an Option granted under this
Agreement upon the receipt of a satisfactory certificate that the Optionee is
acquiring the option or the shares obtained by exercise of the Option for
investment purposes and not with the view or intent to resell or otherwise
distribute such Option or shares. In such event, the stock certificate
evidencing such shares shall bear a legend referring to applicable laws
restricting transfer of such shares. In the event that the Corporation shall
deem it necessary to register under the Securities Act of 1933, as amended, or
any other applicable statute, any Options or any shares with respect to which an
option shall have been granted or exercised, then the Optionee shall cooperate
with the Corporation and take such action as is necessary to permit registration
or qualification of such Options or shares.
7. Tax Withholding. Upon notification of the amount due and prior to, or
concurrently with, the delivery to the Optionee of a certificate representing
any shares purchased pursuant to the exercise of an option, the Optionee shall
promptly pay to the Corporation any amount necessary to satisfy applicable
federal, state or local withholding tax requirements.
8. Notices. Notices required hereunder shall be given in person or by first
class mail to the address of Optionee shown on the records of the Company, and
to the Company at its principal executive office.
9. Survival of Terms. This Agreement shall apply to and bind Optionee and
the Company and their respective permitted assignees and transferees, heirs,
legatees, executors, administrators and legal successors.
10. Entire Agreement; Governing Law; Notice. This Option Agreement,
together with Exhibit A, constitute the entire agreement of the parties with
respect to the subject matter of this Option Agreement and supersedes in its
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 Option Agreement is governed by the internal substantive laws but
not the choice of law rules of Minnesota.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE
OPTION IS EARNED ONLY BY CONTINUING EMPLOYMENT (NOT THROUGH THE ACT OF BEING
HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE
FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT SHALL CONFER UPON
OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT, NOR SHALL IT
INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE
OPTIONEE'S EMPLOYMENT WITH OR WITHOUT CAUSE.
4
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 and conditions of this Option Agreement. Optionee has reviewed Option
Agreement in their entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Option Agreement and fully understands all
provisions of this Option Agreement.
OPTIONEE INNOVEX, INC.
/s/Xxxxx X. Xxxxxxxxxx By: /s/Xxxxx Acres
------------------------------------- -----------------------------
Xxxxx X. Xxxxxxxxxx Xxxxx Acres
Its: Senior Vice President and CFO
5
EXHIBIT A
---------
INNOVEX, INC.
EXERCISE NOTICE
Innovex, Inc.
00000 0xx Xxxxxx XX
Xxxxxx XX 00000
Attention: Principal Financial Officer
1. Exercise of Option. Effective as of today, _____________________,
_____________________, the undersigned ("Purchaser") hereby elects to purchase
_________ shares (the "Shares") of the Common Stock of Innovex, Inc. (the
"Company") under and pursuant to the Stock Option Agreement dated November ___,
2009 (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.
3. Representation of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Option Agreement and agrees to abide by and be
bound by their terms and conditions.
4. Rights as Shareholder. Subject to the terms and conditions of this
Agreement, Optionee shall have all of the rights of a shareholder of the Company
with respect to the Shares from and after the date that Optionee delivers full
payment of the Exercise Price until such time as Optionee disposes of the
Shares.
5. Tax Consultation. Optionee understands that Optionee may suffer adverse
tax consequences as a result of Optionee's purchase or disposition of the
Shares. Optionee represents that Optionee has consulted with any tax consultants
Optionee deems advisable in connection with the purchase or disposition of the
Shares and that Optionee is not relying on the Company for any tax advice.
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 and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof, and such agreement is governed by Minnesota law except
for that body of law pertaining to conflict of laws.
1
Submitted by: Accepted by:
OPTIONEE: INNOVEX, INC.
____________________________________ By:______________________________
Signature
____________________________________ Its:_____________________________
Print Name
____________________________________
Social Security Number
Address:
____________________________________
____________________________________
____________________________________
2
