<PAGE> 1
As filed with the Securities and Exchange Commission on March 1, 2000.
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SIPEX Corporation
(Exact name of registrant as specified in its charter)
Massachusetts 04-6135748
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
22 Linnell Circle
Billerica, MA 01821
(978) 667-8700
(Address of Principal Executive Offices) (Zip Code)
-----------------------------
1999 Stock Plan
(Full title of the plan)
-----------------------------
James E. Donegan
Chief Executive Officer
SIPEX Corporation
22 Linnell Circle
Billerica, MA 01821
(978) 667-8700
(Name and address including zip code and telephone number,
including area code, of agent for service)
-----------------------------
Copies to:
Kenneth J. Gordon, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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<PAGE> 2
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CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed
maximum
offering Proposed maximum
Title of securities Amount to be price per aggragate Amount of
to be registered registered(1) share offering price registration fee
---------------- ---------- --------- -------------- ----------------
1999 STOCK PLAN
<S> <C> <C> <C> <C>
Common Stock, par value $.01 270,120 $11.1250(2) $ 3,005,085.00(2) $ 793.34(2)
per share
1,625 $ 9.5625(2) $ 15,539.06(2) $ 4.10
4,000 $10.4380(2) $ 41,752.00(2) $ 11.02(2)
40,950 $12.1250(2) $ 496,518.75(2) $ 131.08(2)
265,000 $15.5625(2) $ 4,124,062.50(2) $1,088.75(2)
225,000 $13.0625(2) $ 2,939,062.50(2) $ 775.91(2)
393,305 $ 27.00(3) $ 10,619,235(3) $2,803.48(3)
NON-PLAN OPTIONS
Common Stock, par value $.01 355,000 $15.5625(2) $ 5,524,687.50(2) $1,458.52(2)
per share
40,000 $ 9.8125(2) $ 392,500.00(2) $ 103.62(2)
500,000 $12.5625(2) $ 6,281,250.00(2) $1,658.25(2)
221,500 $14.8750(2) $ 3,294,812.50(2) $ 869.83(2)
--------- -------------- ---------
TOTAL 2,316,500 $36,734,504.81 $9,697.91
</TABLE>
================================================================================
(1) Plus such additional shares as may be required pursuant to the plan in
the event of a stock dividend, split-up of shares, recapitalization or
other similar change in the Common Stock.
(2) Such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Rule 457(h)(1) of Regulation C, the
aggregate offering price and the fee have been computed upon the basis
of the price at which the options may be exercised. The offering price
per share set forth for such shares is the exercise price per share at
which such options are exercisable.
(3) Pursuant to Rule 457(c) and (h)(1) of Regulation C of the Securities
Act, the price of $27 per share, is the average of the high and low
prices of the Common Stock as reported on The Nasdaq National Market on
February 25, 2000 and is set forth solely for purposes of calculating
the filing fee for those shares without a fixed exercise price.
<PAGE> 3
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This Registration Statement registers additional securities of the same
class as other securities for which (i) Registration Statement No. 333-06123 on
Form S-8 as filed with the Securities and Exchange Commission on June 17, 1996,
(relating to the Registrant's 1988 Non-Statutory Stock Option Plan, 1991
Non-Statutory Stock Option Plan, 1993 Stock Option and Incentive Plan, 1994
Stock Option and Incentive Plan, 1996 Incentive Stock Option Plan, 1996
Non-Employee Director Stock Option Plan and 1996 Employee Stock Purchase Plan),
is effective, and (ii) Registration Statement No. 333-32329 on Form S-8 as filed
with the Securities and Exchange Commission on July 29, 1997 relating to the
Registrant's 1997 Stock Option Plan is effective. Pursuant to General
Instruction E to Form S-8, the contents of the above-listed Registration
Statements are hereby incorporated by reference.
<PAGE> 4
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of the
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by SIPEX Corporation (the "Registrant")
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated in this Registration Statement by
reference as of their respective dates:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, filed with the Commission on
March 31, 1999;
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended October 2, 1999 (filed with the Commission on
November 16, 1999); July 3, 1999 (filed with the Commission on
August 12, 1999); and April 3, 1999 (filed with the Commission
on May 14, 1999) under Section 15(d) of the Exchange Act; and
(c) The section entitled "Description of Registrant's Securities
to be Registered" contained in the Registrant's registration
statement on Form 8-A filed with the Commission pursuant to
Section 12(g) of the Exchange Act and incorporating by
reference the information contained in the Registrant's
Registration Statement on Form S-1 (SEC File No. 333-1328).
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
<PAGE> 5
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Massachusetts General Laws Chapter 156B, Section 67 provides that a corporation
may indemnify its directors and officers to the extent specified in or
authorized by (i) the articles of organization, (ii) a by-law adopted by the
shareholders, or (iii) a vote adopted by the holders of a majority of the shares
of stock entitled to vote on the election of directors. In all instances, the
extent to which a corporation provides indemnification to its directors and
officers under Section 67 is optional. Massachusetts General Laws Chapter 156B,
Section 67 forbids the indemnification of any person with respect to any matter
to which he shall have been adjudicated in any proceeding not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the corporation.
The Company's Restated By-Laws indemnifies the directors and officers against
liabilities arising out of legal proceedings brought against them by reason of
their status as directors and officers or by reason of their agreeing to serve,
at the request of the Company, as a director or officer of another organization.
Under the Restated By-Laws, each director and officer shall be indemnified by
the Company for all costs and expenses (including attorneys' fees), judgments,
liabilities and amounts paid in settlement of such proceedings, even if he is
not successful on the merits, if he acted in good faith in the reasonable belief
that his action was in the best interest of the Company. The Board of Directors
may authorize advancing litigation expenses to a director or officer at his
request upon receipt of an undertaking by such director or officer to repay such
expenses if it is ultimately determined that he is not entitled to
indemnification for such expense. The Restated By-Laws provide that the
directors and officers of the Company shall be indemnified by the Company to the
fullest extent authorized by Massachusetts Law, as it now exists or may in the
future be amended. In addition, the Restated Articles provide that the directors
of the Company will not be personally liable for monetary damages to the Company
for breaches of their fiduciary duty as directors, unless they violated their
duty of loyalty to the Company or its shareholders, acted in bad faith,
knowingly or intentionally violated the law, authorized illegal dividends or
redemptions or derived an improper personal benefit from their action as
directors.
The Company has entered into separate indemnification agreements with each of
its directors and executive officers, whereby the Company agreed, among other
things, (i) to indemnify them to the fullest extent permitted by the Business
Corporation Law of the Commonwealth of Massachusetts, subject to specified
limitations, against certain liabilities actually and reasonably incurred by
them in any proceedings in which they are a party that may arise by reason of
their status as directors, officers, employees or agents or may arise by reason
of their serving as such at the request of the Company for another entity and
(ii) to advance their expenses incurred as a result of any proceeding against
them as to which they could be indemnified. The Company intends to enter into
similar separate indemnification agreements with any directors or officers who
may join the Company in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Restated Articles of Organization of the
Registrant (filed as Exhibit 3.2 to the
Registrant's Registration Statement on
Form S-1, File No. 333-1328, and
incorporated herein by reference).
<PAGE> 6
-6-
4.2 Restated By-Laws of the Registrant
(filed as Exhibit 3.3 to the
Registrant's Registration Statement on
Form S-1, File No. 333-1328, and
incorporated herein by reference).
4.3 SIPEX Corporation 1999 Stock Plan.
4.4 Non-Qualified Stock Option Agreement
dated August 12, 1999 by and between the
Registrant and Stephen E. Parks.
4.5 Non-Qualified Stock Option Agreement
dated November 23, 1999 by and between
the Registrant and Manuel DelArroz
4.6 Form of Standard Employee Non-Qualified
Option Agreement
5.1 Opinion of Testa, Hurwitz & Thibeault,
LLP.
23.1 Consent of Testa, Hurwitz & Thibeault,
LLP (contained in its opinion as Exhibit
5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included as part of
the signature page of this Registration
Statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
<PAGE> 7
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(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of
any employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE> 8
\
-8-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Billerica, the Commonwealth of Massachusetts, on this
9th day of February, 2000.
SIPEX CORPORATION
By: /s/ James E. Donegan
------------------------------------
James E. Donegan
Chairman of the Board of Directors and Chief
Executive Officer
POWER OF ATTORNEY
EACH SUCH PERSON WHOSE SIGNATURE appears below constitutes and
appoints, jointly and severally, James E. Donegan and Frank R. DiPietro and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with the power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 (including post-effective
amendments) and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his or her
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/s/ James E. Donegan
- ------------------------------- Chairman of the Board of
James E. Donegan Directors, Chief Executive
Officer and Director
/s/ Frank R. DiPietro
- ------------------------------- Executive Vice President,
Frank R. DiPietro Finance, Chief Financial
Officer, Treasurer
(principal financial officer
and accounting officer) and
Clerk
/s/ Manfred Loeb
- ------------------------------- Director
Manfred Loeb
/s/ Lionel H. Olmer
- ------------------------------- Director
Lionel H. Olmer
/s/ John L. Sprague
- ------------------------------- Director
John L. Sprague
/s/ Steward Flaschen
- ------------------------------- Director
Dr. Steward S. Flaschen
/s/ Willy Sansen
- ------------------------------- Director
Willy Sansen
<PAGE> 9
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION OF EXHIBIT
4.1* Restated Articles of Organization of the
Registrant.
4.2* Restated By-Laws of the Registrant.
4.3** SIPEX Corporation 1999 Stock Plan.
4.4 Non-Qualified Option Agreement dated August 12, 1999
between the Registrant and Stephen E.
Parks.
4.5 Non-Qualified Stock Option Agreement dated
November 23, 1999 by and between the
Registrant and Manuel DelArroz
4.6 Form of Standard Employee Non-Qualified Option
Agreement
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained in
its opinion as Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (contained on page 8 of this
Registration Statement on Form S-8).
* Incorporated by reference to Exhibits to the Registrant's Registration
Statement on Form S-1, No. 333-1328
** Incorporated by reference to the Registrant's 1998 Proxy Statement on
Schedule 14A, No. 1000-27892
<PAGE> 1
EXHIBIT 4.4
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 August 12, 1999. The terms and conditions attached hereto are also a
part hereof.
Name of employee (the "Employee" or "Optionee"): Stephen E. Parks
Date of this option grant: August 12, 1999
Number of shares of the Company's Common Stock
subject to this option ("OPTION SHARES"): 325,000
Option exercise price per share: $15.5625
Number of Option Shares subject to vesting schedule: 325,000
Vesting Start Date: June 22, 2000
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 June 22, 2000 0 shares
As of June 22, 2000 but prior to June 22, 2001 30,000 shares
As of June 22, 2001 but prior to June 22, 2002 an additional 65,000 shares
As of June 22, 2002 but prior to June 22, 2003 an additional 65,000 shares
As of June 22, 2003 but prior to June 22, 2004 an additional 65,000 shares
As of June 22, 2004 but prior to June 22, 2005 an additional 65,000 shares
As of June 22, 2005 but prior to June 22, 2006 an additional 35,000 shares
Payment alternatives: Section 6(a) (i) through (iv)
================================================================================
SIPEX CORPORATION
- -----------------------------
Signature of Optionee
- -----------------------------
Street Address
- ----------------------------- By:
City/State/Zip Code -------------------------------
James E. Donegan
Chairman and Chief Executive Officer
<PAGE> 2
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 the Employment Agreement between the
Employee and the Company dated June __, 1999 (the "Employment Agreement")), 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.
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 shall have the meaning ascribed in Section 3(D) of the Employment
Agreement.
<PAGE> 3
(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.
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
<PAGE> 4
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 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 August ____, 1999, 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. If Section 13 hereof applies for any event, this
Section 11 shall not be applicable. Except as is expressly
<PAGE> 5
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. ACQUISITION OF THE COMPANY.
(a) CONSEQUENCES OF AN ACQUISITION. In the event of an
Acquisition, AND (i) the successor (a "Successor To The Business") fails to
assume the obligations of the Company under this Agreement or (ii) Employee's
employment is (x) at the time of the Acquisition terminated by the Company
without cause or (y) terminated by any Successor To The Business without Cause
or the Employee terminates his employment for Good Reason (as defined in the
Employment Agreement) and, in any such event, the Employee signs a comprehensive
release in the form and of a scope acceptable to the Company, then the options
granted hereby will become exercisable in full on the date of the Acquisition
(in the case of (i)) or such termination (in the case of (ii)) PROVIDED,
HOWEVER, that if an event described in this Section 13(a) occurs before August
9, 2000, then only the first 150,000 options granted hereby will vest on the
date of such termination and the remaining 175,000 options will be canceled, and
any other option to purchase stock of the Company will be canceled.
(b) ACQUISITION DEFINED. An "ACQUISITION" shall mean: (x) any
merger or consolidation after which the voting securities of the Company
outstanding immediately prior thereto represent (either by remaining outstanding
or by being converted into voting securities of the surviving or acquiring
entity) less than 50% of the combined voting power of the voting securities of
the Company or such surviving or acquiring entity outstanding immediately after
such event; or (y) any sale of all or substantially all of the assets or capital
stock of the Company (other than in a spin-off or similar transaction); or (z)
any other acquisition of the business of the Company, as determined by the
Board.
(c) POOLING-OF-INTERESTS-ACCOUNTING. If the Company proposes
to engage in an Acquisition intended to be accounted for as a
pooling-of-interests, and in the event that the provisions of this option, or
any actions of the Board taken in connection with such Acquisition, are
determined by the Company's or the acquiring company's independent public
accountants to cause such Acquisition to fail to be accounted for as a
pooling-of-interests, then such provisions or actions shall be amended or
rescinded by the Board, without the consent of the Optionee, to be
<PAGE> 6
consistent with pooling-of-interests accounting treatment for such Acquisition
if, and to the extent that, such recision would result in such Acquisition being
accounted for on a pooling-of-interests basis.
14. 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.
15. PROVISION OF DOCUMENTATION TO OPTIONEE. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement.
16. 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 and the
Employment Agreement constitute 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.
(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,
<PAGE> 7
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.
<PAGE> 1
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 November 23, 1999. The terms and conditions attached hereto are also
a part hereof.
Name of employee (the "Employee" or "Optionee"): Manuel Del Arroz
Date of this option grant: November 23, 1999
Number of shares of the Company's Common Stock
subject to this option ("OPTION SHARES"): 500,000
Option exercise price per share: $12.5625
Number of Option Shares subject to vesting schedule: 500,000
Vesting Start Date: November 23, 2000
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 November 23, 2000 0 shares
As of November 23, 2000 but prior to 30,000 shares
November 23, 2001
As of November 23, 2001 but prior to an additional 65,000 shares
November 23, 2002
As of November 23, 2002 but prior to an additional 100,000 shares
November 23, 2003
As of November 23, 2003 but prior to an additional 100,000 shares
November 23, 2004
As of November 23, 2004 but prior to an additional 100,000 shares
November 23, 2005
As of November 23, 2005 but prior to an additional 70,000 shares
November 23, 2006
As of November 23, 2006 an additional 35,000 shares
Payment alternatives: Section 6(a) (i) through (iv)
================================================================================
SIPEX CORPORATION
- ---------------------------
Signature of Optionee
2366 Alameda Diablo Rd.
- ---------------------------
Street Address
Diablo, CA 94528
- --------------------------- By: /s/ James E. Donegan
City/State/Zip Code -----------------------------------
James E. Donegan
Chairman and Chief Executive Officer
<PAGE> 2
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 the Employment Agreement between the Employee and the Company dated November
23, 1999 (the "Employment Agreement")), 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, 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.
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
<PAGE> 3
-2-
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 shall have the meaning ascribed in Section
3(D) of the Employment Agreement.
(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.
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
(v) 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.
<PAGE> 4
-3-
(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 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 November 23, 1999, 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.
<PAGE> 5
-4-
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. If Section 13 hereof applies for any event, this
Section 11 shall not be applicable. 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. ACQUISITION OF THE COMPANY.
(a) CONSEQUENCES OF AN ACQUISITION. In the event of an
Acquisition, AND (i) the successor (a "Successor To The Business") fails to
assume the obligations of the Company under this Agreement or (ii) Employee's
employment is (x) at the time of the Acquisition terminated by the Company
without cause or (y) terminated by any Successor To The Business without Cause
or the Employee terminates his employment for Good Reason (as defined in the
Employment Agreement) and, in any such event, the Employee signs a comprehensive
release in the form and of a scope acceptable to the Company, then the options
granted hereby will become exercisable in full on the date of the Acquisition
(in the case of (i)) or such termination (in the case of (ii)) PROVIDED,
HOWEVER, that if an event described in this Section 13(a) occurs (x) before
November 23, 2000, then only the first 150,000 options granted hereby will vest
on the date of such termination and the remaining 350,000 options will be
canceled, and any other option to purchase stock of the Company will be canceled
or (y) after November 23, 2000 but before November 23, 2001, then only the first
325,000 options granted hereby will vest on the date of such termination and the
remaining 175,000 options will be canceled, and any other option to purchase
stock of the Company will be canceled.
<PAGE> 6
-5-
(b) ACQUISITION DEFINED. An "ACQUISITION" shall mean: (x) any
merger or consolidation after which the voting securities of the Company
outstanding immediately prior thereto represent (either by remaining outstanding
or by being converted into voting securities of the surviving or acquiring
entity) less than 50% of the combined voting power of the voting securities of
the Company or such surviving or acquiring entity outstanding immediately after
such event; or (y) any sale of all or substantially all of the assets or capital
stock of the Company (other than in a spin-off or similar transaction); or (z)
any other acquisition of the business of the Company, as determined by the
Board.
(c) POOLING-OF-INTERESTS-ACCOUNTING. If the Company proposes
to engage in an Acquisition intended to be accounted for as a
pooling-of-interests, and in the event that the provisions of this option, or
any actions of the Board taken in connection with such Acquisition, are
determined by the Company's or the acquiring company's independent public
accountants to cause such Acquisition to fail to be accounted for as a
pooling-of-interests, then such provisions or actions shall be amended or
rescinded by the Board, without the consent of the Optionee, to be consistent
with pooling-of-interests accounting treatment for such Acquisition if, and to
the extent that, such recision would result in such Acquisition being accounted
for on a pooling-of-interests basis.
14. 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.
15. PROVISION OF DOCUMENTATION TO OPTIONEE. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement.
16. 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 and the
Employment Agreement constitute 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.
(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.
<PAGE> 7
-6-
(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.
<PAGE> 1
-7-
EXHIBIT 4.6
SIPEX CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
SIPEX Corporation, a Massachusetts corporation (the "Company"), hereby
grants as of the ___ day of __________ 1999, {{FIRSTNAME}} {{LASTNAME}} (the
"Employee"), an option to purchase a maximum OF {{SHARESGRANTED}} shares (the
"Option Shares") of its Common Stock, $.01 par value ("Common Stock"), at the
price of {{OPTIONPRICE}} per share, on the following terms and conditions:
1. GRANT AS A 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 set forth below 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.
Less than one year from - 0 shares
the date hereof
One year but less than - an additional
two years from the date hereof {{SHARES1}}shares
Two years but less than - an additional
three years from the date hereof {{SHARES2}}shares
Three years but less than - an additional
four years from the date hereof {{SHARES3}}shares
Four years or more - an additional
from the date hereof {{SHARES4}}shares
Five years or more - an additional
from the date hereof {{SHARES5}}SHARES
----------------
TOTAL SHARES {{SHARESGRANTED}} SHARES
<PAGE> 2
-8-
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 3(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 Related
Corporation in accordance with the terms or requirements of his or her
employment; (ii) disloyalty, gross negligence, willful misconduct, dishonesty or
breach of fiduciary duty to the Company or Related Corporation; (iii) the
commission of an act of embezzlement or fraud; (iv) deliberate disregard of the
rules or policies of the Company or Related Corporation which results in direct
or indirect loss, damage or injury to the Company or Related Corporation; (v)
the unauthorized disclosure of any trade secret or confidential information of
the Company or Related Corporation; or (vi) the commission of an act which
constitutes unfair competition with the Company or Related Corporation or which
induces any customer or supplier to breach a contract with the Company or
Related Corporation.
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 or her disability, this
option may be exercised, to the extent otherwise exercisable on the date of the
termination of his or her employment, at any time within 180 days after such
termination, but not later than the scheduled expiration date.
(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.
<PAGE> 3
-9-
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 PRICE. (a) The option 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 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.
<PAGE> 4
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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 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 Employee's
lifetime only the Employee can exercise this option.
10. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
option imposes no obligation on the Employee 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.
<PAGE> 5
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12. POOLING-OF-INTERESTS-ACCOUNTING. If the Company proposes to engage in
an acquisition intended to be accounted for as a pooling-of-interests, and in
the event that the provisions of this option, or any actions of the Board taken
in connection with such acquisition, are determined by the Company's or the
acquiring company's independent public accountants to cause such acquisition to
fail to be accounted for as a pooling-of-interests, then such provisions or
actions shall be amended or rescinded by the Board, without the consent of the
Employee, to be consistent with pooling-of-interests accounting treatment for
such acquisition if, and to the extent that, such recision would result in such
acquisition being accounted for on a pooling-of-interests basis.
13. NO OBLIGATION TO CONTINUE EMPLOYMENT. Neither this Agreement nor the
grant of this option imposes any obligation on the Company or any Related
Corporation to continue the Employee in employment.
14. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Employee shall have no
rights as a stockholder with respect to the Option Shares until such time as the
Employee has exercised this option by delivering a notice of exercise and has
paid in full the purchase price for the shares so exercised in accordance with
Section 7. Except as is expressly provided herein with respect to certain
changes in the capitalization of the Company, no adjustment shall be made for
dividends or similar rights for which the record date is prior to such date of
exercise.
15. 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 Employee hereby agrees that the Company or any Related
Corporation may withhold from the Employee's wages or 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 Employee on exercise of this option. The
Employee further agrees that, if the Company or any Related Corporation does not
withhold an amount from the Employee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Employee will make reimbursement on demand, in cash, for the amount
underwithheld.
16. 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.
17. PROVISION OF DOCUMENTATION TO EMPLOYEE. By signing this Agreement the
Employee acknowledges receipt of a copy of this Agreement.
18. MISCELLANEOUS.
<PAGE> 6
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(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, to the address set forth below. The addresses for such
notices may be changed from time to time by written notice given in the manner
provided for herein.
(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.
(c) 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.
(d) 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.
(e) 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.
(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) 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.
(h) 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.
<PAGE> 7
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<PAGE> 8
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IN WITNESS WHEREOF, the Company and the Employee have caused this
instrument to be executed as of the date first above written.
SIPEX Corporation
____________________________ 22 Linnell Circle
Employee Billerica, Massachusetts 01821
{{FIRSTNAME}} {{LASTNAME}} By: _______________________________
{{ADDR1}} James E. Donegan, Chairman, CEO
{{CITY}}, {{STATE}} {{ZIPCODE}}
<PAGE> 1
Exhibit 5.1
---------------------
TESTA, HURWITZ & THIBEAULT, LLP
---------------------
ATTORNEYS AT LAW
HIGH STREET TOWER, 125 HIGH STREET
OFFICE (617) 248-7000 BOSTON, MASSACHUSETTS 02110 FAX (617) 248-7100
February 29, 2000
SIPEX Corporation
22 Linnell Circle
Billerica, Massachusetts 01821
Re: Registration Statement on Form S-8 Relating to the
1999 Stock Plan and Certain Non-plan Option Agreements
------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by SIPEX Corporation (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to an aggregate of 2,316,500 shares of Common Stock, par value
$.01 per share, of the Company (the "Shares").
We are counsel to the Company and are familiar with the proceedings of its
shareholders and Board of Directors. We have examined original or certified
copies of the Company's Restated Articles of Organization, the Company's
Restated By-Laws, the corporate records of the Company to the date hereof, and
such other certificates, documents, records and materials as we have deemed
necessary in connection with this opinion.
We are members only of the Bar of the Commonwealth of Massachusetts and
are not experts in, and express no opinion regarding, the laws of any
jurisdiction other than the Commonwealth of Massachusetts and the United States
of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares issued or proposed to be issued by the Company pursuant to the 1999 Stock
Plan (the "Plan") and the Non-Plan Option Agreements referred to in the
Registration Statement (the "Agreements") will be, upon receipt of the
appropriate consideration, validly issued, fully paid and nonassessable after
the issuance of such Shares in accordance with the terms of the Plan or the
Agreements, as applicable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 12, 1999
relating to the financial statements of SIPEX Corporation, which report appears
in SIPEX Corporation's Annual Report on Form 10-K for the year ended December
31, 1998.
/s/ KPMG LLP
Boston, Massachusetts
February 25, 2000
