EXHIBIT 4.3
FORM OF NONSTATUTORY STOCK OPTION AGREEMENT
NONSTATUTORY
STOCK OPTION AGREEMENT
PARTIES
This Nonstatutory Stock Option Agreement is made as of OPTION DATE, by and
between VYREX CORPORATION, a Nevada Corporation ("Corporation"), and OPTIONEE
("Optionee").
RECITALS
A. The Corporation has adopted a 1993 Stock Option Plan ("1993 Plan")
that provides for the grant of incentive stock options meeting the requirements
of IRC Section 422 and other forms of non-statutory stock options to purchase
shares of the Corporation's common stock ("Shares").
B. Optionee is an employee, consultant, director and/or officer of the
Corporation, any parent or subsidiary of the Corporation and Corporation desires
to provide an incentive to eligible employees, consultants, directors and
officers whose present and potential contributions are important to the
Corporation, to afford Optionee the opportunity to obtain stock ownership in
Corporation so that Optionee may have a significant proprietary interest in
Corporation's success.
C. The Compensation Committee ("Committee") or by the Board of Directors
of the Corporation ("Board") has granted to Optionee a Nonstatutory Option
("Option") upon and subject to the terms and conditions of the 1993 Plan and
this Agreement.
NOW THEREFORE, specifically incorporating these recitals herein, it is
agreed as follows:
AGREEMENT
SECTION 1
GRANT OF OPTION
1.1 NUMBER OF SHARES. Subject to the terms and conditions of this
Agreement and the 1993 Plan, Corporation grants to Optionee the Option to
purchase from Corporation NUMBER OF SHARES (# SHARES,000) shares of Stock
("Option Shares").
1.2 EXERCISE PRICE. The Option Shares are exercisable at EXERCISE PRICE
dollars ($$$$.00) per share ("Option Price"). The Option Price has been
determined by the Board not to be less than one hundred percent (100%) of the
fair market value (as defined in the 1993 Plan) of the Stock on the date this
Option is granted.
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1.3 TERM. The Expiration Date for all Options shall be ten (10) years
from the date this Option is granted.
1.4 VESTING. The Option granted herein vests at the rate of 1/48th per
month for forty-eight (48) months, starting on the date this Option is granted.
1.5 CONDITIONS OF OPTION. Each Option may only be exercised during the
period commencing on the date it may initially be exercised as set forth in
Section 2 hereinbelow, and otherwise subject to the terms and conditions as set
forth in this Agreement and the 1993 Plan.
SECTION 2
EXERCISE OF OPTION
2.1 DATE EXERCISABLE. The Option shall become exercisable by Optionee in
accordance with Section 1.4 above.
2.2 MANNER OF EXERCISE OF OPTION AND PAYMENT FOR COMMON STOCK. This
Option may be exercised by the Optionee, (or in the case of his death, by his or
her legatee(s) of such Option under his or her last will or by his or her
executors, personal representatives or distributees) by giving written notice to
the Secretary of the Corporation, setting forth the number of Shares with
respect to which the Option is being exercised. The purchase price of the
Option Shares upon exercise of the Option by the Optionee shall be paid in full
in cash, or (ii) by such other medium of payment as the Committee, in its
discretion, shall authorize, or by any combination of (i) and (ii), at the
discretion of the Committee. As soon as reasonably possible following such
exercise, a certificate representing the Shares purchased, registered in the
name of the Optionee, shall be delivered to the Optionee.
2.3 RULE 16b-3. Options granted to individuals subject to Section 16 of
the Securities Exchange Act of 1934 ("34 Act") shall, to the extent practicable,
desirable, or as determined by the Committee, comply with the applicable
provisions of Rule 16b-3 of the 34 Act and may, as determined by the Committee,
contain such additional conditions or restrictions as may be required thereunder
to qualify for the maximum exemption from Section 16 of the 34 Act with respect
to 1993 Plan transactions.
2.4 STOCK CERTIFICATES. Promptly after any exercise in whole or in part
of the Option by Optionee, Corporation shall deliver to Optionee a certificate
or certificates for the number of Shares with respect to which the Option was so
exercised, registered in Optionee's name.
2.5 BUY-OUT PROVISIONS. The Committee may at any time offer on behalf of
the Corporation to buy out, for a payment in cash or Stock, an Option previously
granted, based on such terms and conditions as the Committee shall establish and
communicate to the Optionee at the time that such offer is made; provided,
however, that buy-out offers made to
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officers, directors and ten percent (10%) shareholders may only be payable in
cash. Any such cash offer made to an Officer or Director shall, to the extent
practicable, desirable, or as determined by the Committee, comply with the
applicable provisions of Rule 16b-3, if any.
SECTION 3
DURATION OF OPTIONS
The Option, to the extent not previously exercised, shall terminate as
follows:
3.1 DEATH OF OPTIONEE. In the event of an Optionee's death, the
Optionee's estate or a person who acquired the right to exercise the deceased
Optionee's Option by bequest or inheritance may exercise the Option, but only
within twelve (12) months following the date of death, and only to the extent
that the Optionee was entitled to exercise it at the date of death (but in no
event later than the expiration of the term of such option as determined
herein). To the extent that Optionee was not entitled to exercise an Option at
the date of death, and to the extent the Optionee's estate or a person who
acquired the right to exercise such Option does not exercise such Option (to the
extent otherwise so entitled) within the time specified herein, the Option shall
terminate.
SECTION 4
NONTRANSFERABILITY
4.1 RESTRICTION. The Option is not transferable by Optionee otherwise
than by testamentary will or the laws of descent and distribution and, during
Optionee's lifetime, may be exercised only by Optionee or Optionee's guardian or
legal representative. No assignment, sale, pledge, hypothecation, disposition
or transfer of the Option, whether voluntary, involuntary, or by operation of
law or otherwise, except by testamentary will or the laws of descent and
distribution, shall vest in the assignee or transferee any interest or right,
but immediately upon any attempt to assign or transfer the Option, the Option
shall terminate and be of no force or effect. No Option shall be made subject
to execution, attachment, or similar process.
4.2 EXERCISE IN EVENT OF DEATH OR DISABILITY. Whenever the word
"Optionee" is used in any provision of this Agreement under circumstances when
the provision should logically be construed to apply to the Optionee's guardian,
legal representative, executor, administrator, or the person or persons to whom
the Option may be transferred by testamentary will or by the laws of descent and
distribution, the word "Optionee" shall be deemed to include such person or
persons.
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SECTION 5
NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE
Optionee shall not be deemed for any purpose to be a shareholder of
Corporation with respect to any shares subject to the Option under this
Agreement to which the Option shall not have been exercised.
SECTION 6
ADJUSTMENTS
6.1 NO EFFECT ON CHANGES IN CORPORATION'S CAPITAL STRUCTURE. The
existence of the Option shall not affect in any way the right or power of
Corporation or its shareholders to make or authorize any adjustments,
recapitalization, reorganization, or other changes in Corporation's capital
structure or its business, or any merger or consolidation of Corporation, or any
issue of bonds, debentures, preferred or preference stocks ahead of or affecting
the Option Shares, or the dissolution or liquidation of Corporation, or any sale
or transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
6.2 ADJUSTMENT TO OPTION SHARES. The Option Shares are subject to
adjustment upon changes in capitalization, dissolution, merger, asset sale or a
change in control as follows:
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Corporation, the number of Shares covered by each
outstanding Option, and the number of Shares which have been authorized for
issuance under the 1993 Plan but as to which no Options have yet been granted or
which have been returned to the 1993 Plan upon cancellation or expiration of an
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Shares, or any other increase or decrease
in the number of issued Shares effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board of Directors, whose
determination in that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Corporation 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 Option Shares.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Corporation, to the extent that an Option has
not been previously exercised, it will terminate immediately prior to the
consummation of such proposed action. The Board of Directors may, in the
exercise of its sole discretion in such instances, declare that any
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Option shall terminate as of a date fixed by the Board of Directors and give
each Optionee the right to exercise his or her Option as to all or any part of
the Option Shares, including Stock as to which the Option would not otherwise be
exercisable.
(c) MERGER OR CONSOLIDATION. In the event of a merger of the
Corporation with or into another corporation, or the sale of substantially all
of the assets of the Corporation, outstanding Options shall be subject to the
agreement of merger or consolidation. Such agreement may provide for the
assumption of outstanding Options by the surviving corporation or its parent or
for their continuation by the Corporation (if the Corporation is the surviving
corporation). In the event the Corporation is not the surviving corporation and
the surviving corporation will not assume the outstanding Options, the agreement
of merger or consolidation may provide for payment of a cash settlement for
exercisable Options equal to the difference between the amount to be paid for
one share under such agreement and the Exercise Price and for the cancellation
of Options not exercised or settled, in either case without the Optionee's
consent.
In connection with any adjustment under this Section 6 resulting in a
fractional share interest, such interest may be rounded down to the nearest
whole share if such interest is less than 0.5 share; otherwise such fractional
share interest may be rounded up to the nearest whole share.
SECTION 7
COMPLIANCE WITH SECURITIES LAWS
7.1 NO EXERCISE UNTIL COMPLIANCE. If the Board or the Committee at any
time determines that registration or qualification of the Option Shares or the
Option under state or federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable, then the Option may not
be exercised, in whole or in part, until such registration, qualification,
consent, or approval shall have been effected or obtained free of any conditions
not acceptable to the Committee.
7.2 INVESTMENT REPRESENTATIONS RE: FEDERAL SECURITIES LAWS. The Option
Shares, as of the date hereof, have not been registered under the 34 Act and the
Corporation has no plans to register them. The Optionee represents that if this
Option is exercised in whole or in part at a time when there is NOT in effect,
under the 34 Act, a registration statement applicable to the Option Shares
issuable upon exercise, then the purchase of such Option Shares is expressly
conditioned upon the following representations, warranties and covenants:
(a) Any Option Shares purchased upon exercise of this Option shall be
acquired for the Optionee's account for investment only, and not with a view to,
or for sale in connection with, any distribution of the Option Shares in
violation of the 34 Act, or any rule or regulation under the 34 Act. Further,
the Optionee either has a pre-existing personal or business relationship with
the Corporation or any of its officers, directors or controlling
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persons, or by reason of Optionee's business or financial experience, or the
business or financial experience of their professional advisors who are
unaffiliated with and not compensated by the Corporation, they could reasonably
be assumed to have the capacity to protect their own interests in connection
with the grant, exercise and sale of the Option and the Option Shares.
(b) The Optionee has had such opportunity as he or she has deemed
adequate to obtain from representatives of the Corporation such information as
is necessary to permit the Optionee to evaluate the merits and risks of his or
her investment in the Corporation.
(c) The Optionee is able to bear the economic risk of holding shares
acquired pursuant to the exercise of the Option for an indefinite period.
(d) The Optionee understands that:
(i) the Shares acquired pursuant to the exercise of the
Option will not be registered under the 34 Act or under any state securities
laws and are "restricted securities" within the meaning of Rule 144 under the
34 Act;
(ii) such Shares cannot be sold, transferred or otherwise
disposed of unless they are subsequently registered under the 34 Act;
(iii) in any event, the exemption from registrations
under Rule 144 will not be available for at least two (2) years, and even then
will not be available unless a public market then exists for the Shares,
adequate information concerning the Corporation is then available to the public,
and other terms and conditions of Rule 144 are complied with; and
(iv) there is now no registration statement on file with
the Securities and Exchange Commission with respect to the 1993 Plan of the
Corporation and the Corporation has no obligation or current intention to
register any shares acquired pursuant to the exercise of this Option under the
34 Act.
By making payment upon exercise of this Option, the Optionee shall be
deemed to have reaffirmed, as of the date of such payment, the representations
made in this Section 7.2.
SECTION 8
LEGEND ON STOCK CERTIFICATES
All stock certificates representing Shares issued to the Optionee upon
exercise of this Option shall have affixed thereto a legend substantially in the
following form, in addition to any other legends required by applicable state
law:
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The shares of stock represented by this
certificate have not been registered under the
Securities Act of 1933, or under the securities
laws of any state, and may not be transferred,
sold or otherwise disposed of in the absence of an
effective registration statement with respect to
the shares evidenced by this certificate, filed
and made effective under the Securities Act of
1933, and registration or exemption under state
securities laws, or an opinion of counsel
satisfactory to the Corporation to the effect that
registration under such Act and state securities
laws is not required.
SECTION 9
MISCELLANEOUS PROVISIONS
9.1 VIOLATION. Any provision of this Agreement to the contrary
notwithstanding, the Option shall not be exercisable at any time, in whole or in
part, if issuance and delivery of the Option Shares would violate any law or
regulation.
9.2 DISPUTES. Any dispute or disagreement that may arise under or as a
result of this Agreement, or any question as to the interpretation of this
Agreement, may be determined by the Committee in its absolute and uncontrolled
discretion, and any such determination shall be final, binding, and conclusive
on all affected persons.
9.3 NOTICES. Any notice that a party may be required or permitted to give
to the other shall be in writing, and may be delivered personally or by
certified or registered mail, postage prepaid, addressed c/o ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address as either party, by
notice to the other, may designate in writing from time to time;
9.4 TAX ELECTIONS. Optionee acknowledges that he has considered the
advisability of all tax elections in connection with the exercise of the Option
and purchase of the Option Shares hereunder, and the execution and delivery of
this Agreement, including the making of an election under Section 83(b) of the
Internal Revenue Code of 1986, as amended, and any similar elections under
Nevada or applicable state law, and that the Corporation has no responsibility
for the making of any such election. Optionee further acknowledges he shall
consult with his tax advisor, at his own expense, regarding the tax consequences
of the grant of the Option, the exercise of the Option and the sale of the
Option Shares prior to the signing of this Agreement.
9.5 VIOLATION. Any provision of this Agreement to the contrary
notwithstanding, the Option shall not be exercisable at any time, in whole or in
part, if issuance and delivery of the Option Shares would violate any law or
regulation.
9.6 LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
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9.7 TITLES AND CAPTIONS. All section titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the context
nor effect the interpretation of this Agreement.
9.8 ENTIRE AGREEMENT. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
9.9 AGREEMENT BINDING. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
9.10 COMPUTATION OF TIME. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall be included, unless it is a Saturday, Sunday, or a
legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday, or legal holiday.
9.11 PRONOUNS AND PLURALS. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular, or plural as
the identity of the person or persons may require.
9.12 PRESUMPTION. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
9.13 FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
9.14 PARTIES IN INTEREST. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
9.15 SAVINGS CLAUSE. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
9.16 UNREGISTERED SHARES. Optionee represents that he/she understands that
the Stock is not now registered under the Securities Act of 1933 or under any
state securities law and that the Stock will not be so registered in the
foreseeable future.
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9.17 REPRESENTATION BY COUNSEL. Optionee represents that he has been
advised that he is not being represented in this transaction by the
corporation's attorneys and that Optionee has been advised to seek separate
legal counsel for advice in this matter, he has access to independent legal
counsel, and he has done so to the extent desired.
EXECUTED at La Jolla, California by:
VYREX CORPORATION
a Nevada corporation
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
The undersigned Optionee hereby acknowledges receipt of an executed
original of this Nonstatutory Stock Option Agreement, accepts the option granted
thereunder, agrees to the terms and conditions thereof, and acknowledges receipt
of a copy of the Corporation's 1993 Stock Option Plan.
Dated:
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OPTIONEE, Optionee
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VYREX CORPORATION
NOTICE OF EXERCISE OF STOCK OPTION
I hereby exercise my Nonstatutory Stock Option granted by Vyrex Corporation
and seek to purchase ____________________ of common shares of the Corporation
pursuant to said Option. I understand that this exercise is subject to all the
terms and provisions of the Nonstatutory Stock Option Agreement dated OPTION
DATE and of the 1993 Stock Option Plan referred to therein.
Enclosed is my check in the sum of $_____________________ in payment for
such shares.
I hereby represent that the shares of common shares to be delivered to me
pursuant to the above-mentioned exercise of said Option are being acquired by me
as an investment and not with a view to, or for sale in connection with, the
distribution of any thereof.
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Signature of Optionee Date
Receipt is hereby acknowledged of the delivery to me by Vyrex Corporation of
certificates for _______________ common shares of the Corporation purchased
by me pursuant to the terms and conditions of the Nonstatutory Stock Option
Agreement dated OPTION DATE and the 1993 Stock Option Plan referred to above.
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Signature of Optionee Date
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