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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 13, 2000
REGISTRATION NO. 333-95135
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
TELLABS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
__________________________
DELAWARE 36-3831568
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
4951 INDIANA AVENUE
LISLE, ILLINOIS 60532-1698
(Address of Principal Executive Offices) (Zip Code)
SALIX TECHNOLOGIES, INC. 1998 OMNIBUS STOCK PLAN
AND
OPTION AGREEMENT DATED AS OF DECEMBER 1, 1997
(Full Title of the Plan)
CAROL COGHLAN GAVIN
VICE PRESIDENT AND GENERAL COUNSEL
TELLABS, INC.
4951 INDIANA AVENUE
LISLE, ILLINOIS 60532-1698
(630) 378-8800
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
SIDLEY & AUSTIN
BANK ONE PLAZA
CHICAGO, ILLINOIS 60603
(312) 853-7000
ATTENTION: IMAD I. QASIM
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INTRODUCTORY STATEMENT
TELLABS, INC., a Delaware corporation (the "Registrant"), hereby amends its
Registration Statement on Form S-4 (Registration No. 333-95135) by filing this
Post-Effective Amendment No. 1 on Form S-8.
On February 29, 2000, SALIX Technologies, Inc., a Delaware corporation
("SALIX"), became a wholly-owned subsidiary of the Registrant upon consummation
of the merger (the "Merger") contemplated by the Agreement and Plan of Merger
dated as of December 21, 1999 (the "Merger Agreement") among the Registrant, a
wholly-owned subsidiary of the Registrant, and SALIX. Each option (an
"Outstanding Option") to purchase common stock, $.01 par value per share, of
SALIX ("SALIX Common Stock"), which was outstanding immediately prior to the
effective time of the Merger (the "Effective Time") pursuant to SALIX's 1998
mnibus Stock Plan and pursuant to the Option Agreement dated as of December 1,
1997 between SALIX and Gene Carlock became an option to purchase the number of
shares of common stock, $.01 par value per share, of the Registrant ("Common
Stock") (decreased to the nearest whole share), determined by multiplying (i)
the number of shares of SALIX Common Stock subject to such Outstanding Option
immediately prior to the Effective Time by (ii) 0.381 (the "Exchange Ratio"), at
an exercise price per share of Common Stock (rounded up to the nearest tenth of
a cent) equal to the exercise price per share of SALIX Common Stock immediately
prior to the Effective Time divided by the Exchange Ratio. Each Outstanding
Option will otherwise be exercisable upon the same terms and conditions as were
applicable immediately prior to the Effective Time.
This Post-Effective Amendment relates to the offer and sale after the
Effective Time of Common Stock pursuant to and in accordance with the
Outstanding Options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed (file number 0-9692) by the
Registrant with the Securities and Exchange Commission (the "SEC") pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended January
1, 1999;
2. The Registrant's Report on Form 11-K for the year ended December 31,
1998;
3. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
April 2, 1999, July 2, 1999 and October 1, 1999;
4. The Registrant's Current Reports on Form 8-K filed with the SEC on
April 22, 1999, April 29, 1999, July 7, 1999, August 18, 1999,
November 12, 1999, November 16, 1999 and December 16, 1999; and
5. The description of the Common Stock contained in the Registration
Statement on Form S-4 (Registration No. 333-95135) to which this
Post-Effective Amendment No. 1 relates under the caption "Description
of Tellabs Capital Stock".
All reports and other documents filed by the Registrant pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof from the dates of filing of such reports and
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein, or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock registered hereby has been
passed upon for the Registrant by James M. Sheehan, Assistant General Counsel of
the Registrant. Mr. Sheehan is a stockholder of the Registrant and holds options
to purchase shares of Common Stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated By-Laws of the Registrant (the "Registrant
By-Laws") require the Registrant to indemnify its current and former officers
and directors and those who serve or have served, at Registrant's request, as a
director, officer, employee, fiduciary or agent of another enterprise, from
expenses, liabilities and losses (including attorneys' fees) actually and
reasonably incurred in connection with any action, suit or proceeding in which
they or any of them are or are threatened to be made parties by reason of their
having acted in such capacity. This indemnification inures to the benefit of
such person's heirs, executors and administrators. However, in certain
circumstances, the Registrant is required to indemnify such persons for any
action, suit or proceeding that is initiated by them only if such action, suit
or proceeding was authorized by the Board of Directors of the Registrant. The
right to indemnification under the Registrant By-Laws is a contract right and,
subject to certain conditions, includes the right to be paid by the Registrant
the expenses incurred in defending any such action, suit or proceeding in
advance of its final disposition. The Registrant By-Laws further provide that
the indemnification and payment of expenses incurred provided therein is not
exclusive of any other rights to which those seeking indemnification may be
entitled.
Section 145 of the Delaware corporation statute authorizes
indemnification by the Registrant of directors and officers under the
circumstances provided in the provisions of the Registrant By-Laws described
above, and requires such indemnification for expenses actually and reasonably
incurred to the extent a director or officer is successful in the defense of any
action, or any claim, issue or matter therein.
The Registrant has purchased insurance which purports to insure the
Registrant against certain costs of indemnification which may be incurred by it
pursuant to the Registrant By-Laws and to insure the officers and directors of
the Registrant, and of its subsidiary companies, against certain liabilities
incurred by them in the discharge of their functions as such officers and
directors, except for liabilities resulting from their own malfeasance.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
(a) The following is a list of Exhibits included as part of this
Post-Effective Amendment. Items marked with a single asterisk are filed
herewith. Items marked with a double asterisk were filed by the Registrant with
the SEC on January 21, 2000 with the Registration Statement on Form S-4 to which
this Post-Effective Amendment relates.
4.1 Registrant's Restated Certificate of Incorporation dated June
24, 1992, is hereby incorporated by reference to Exhibit 4.1
to Registrant's Registration Statement on Form S-4 filed on
July 21, 1998.
4.2 Registrant's Amended and Restated By-laws, as amended January
27, 1993, are hereby incorporated by reference to Exhibit 3.2
to Registrant's Annual Report on Form 10-K for the fiscal year
ended January 1, 1993.
*4.3 SALIX Technologies, Inc. 1998 Omnibus Stock Plan.
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*4.4 Option Agreement dated as of December 1, 1997 between SALIX
Technologies, Inc. and Gene Carlock.
**5.1 Opinion of James M. Sheehan regarding the legality of the
securities being registered.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Grant Thornton LLP.
*23.3 Consent of PricewaterhouseCoopers LLP.
*23.4 Consent of KPMG LLP.
23.5 Consent of James M. Sheehan (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
**24.1 Powers of Attorney.
(b) Not applicable.
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, as amended (the "Securities Act");
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
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
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 SEC by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 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 SEC such indemnification
is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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
Post-Effective Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Lisle, State of Illinois, on March 10,
2000.
TELLABS, INC.
By: /s/ Michael J. Birck
---------------------------------
Michael J. Birck
President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Michael J. Birck President, Chief Executive Officer March 10, 2000
- ------------------------------------ and Director
Michael J. Birck (Principal Executive Officer)
/s/ Joan E. Ryan Chief Financial Officer March 10, 2000
- ------------------------------------ (Principal Financial Officer)
Joan E. Ryan
* Vice President
- ------------------------------------ (Principal Accounting Officer)
Robert E. Swininoga
* Director
- ------------------------------------
John D. Foulkes, Ph.D.
* Director
- ------------------------------------
Peter A. Guglielmi
* Director
- ------------------------------------
Brian J. Jackman
* Director
- ------------------------------------
Frederick A. Krehbiel
* Director
- ------------------------------------
Stephanie Pace Marshall, Ph.D.
* Director
- ------------------------------------
William F. Souders
* Director
- ------------------------------------
Jan H. Suwinski
*By: /s/ Michael J. Birck March 10, 2000
--------------------------------
Michael J. Birck
As Attorney-in-Fact
</TABLE>
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EXHIBIT INDEX
The following is a list of Exhibits included as part of this
Post-Effective Amendment. Items marked with a single asterisk are filed
herewith. Items marked with a double asterisk were filed by the Registrant with
the SEC on January 21, 2000 with the Registration Statement on Form S-4 to which
this Post-Effective Amendment relates.
4.1 Registrant's Restated Certificate of Incorporation, dated June
24, 1992, is hereby incorporated by reference to Exhibit 4.1
to Registrant's Registration Statement on Form S-4 filed on
July 21, 1998.
4.2 Registrant's Amended and Restated By-laws, as amended January
27, 1993, are hereby incorporated by reference to Exhibit 3.2
to Registrant's Annual Report on Form 10-K for the fiscal year
ended January 1, 1993.
*4.3 SALIX Technologies, Inc. 1998 Omnibus Stock Plan.
*4.4 Option Agreement dated as of December 1, 1997 between SALIX
Technologies, Inc. and Gene Carlock.
**5.1 Opinion of James M. Sheehan regarding the legality of the
securities being registered.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Grant Thornton LLP.
*23.3 Consent of PricewaterhouseCoopers LLP.
*23.4 Consent of KPMG LLP.
23.5 Consent of James M. Sheehan (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
**24.1 Powers of Attorney.
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Exhibit 4.3
SALIX TECHNOLOGIES, INC.
OMNIBUS STOCK PLAN
1. PURPOSE AND TYPES OF AWARDS
SALIX Technologies, Inc. (the "Company") hereby establishes the SALIX
Technologies, Inc. Omnibus Stock Plan (the "Plan"). The purpose of the Plan is
to promote the long-term growth and profitability of the Company by (i)
providing people who are providing services to the Company with incentives to
improve stockholder value and to contribute to the growth and financial success
of the Company and (ii) enabling the Company to attract, retain and reward the
best-available persons to provide it services.
The Plan permits the granting of stock options (including incentive
stock options qualifying under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code") and nonqualified stock options), stock appreciation
rights, restricted or unrestricted stock awards, phantom stock, performance
awards, or any combination of the foregoing (the "Awards").
2. DEFINITIONS
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Administrator" shall mean the Board of Directors or such committee
or committees as may be appointed by the Board from time to time to administer
the Plan.
(b) "Affiliate" shall mean any entity, whether now or hereafter
existing, which controls, is controlled by, or is under common control with, the
Company (including, but not limited to, joint ventures, limited liability
companies, and partnerships). For this purpose, "control" shall mean ownership
of 50% or more of the total combined voting power or value of all classes of
stock or interests of the entity.
(c) "Award" shall mean any stock option, stock appreciation right,
stock award, phantom stock award, or performance award.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Cause" shall mean, with respect to Grantees who are employees of
the Company, such Grantee's (i) material breach of his or her employment
agreement with the Company, (ii) dishonesty in performing his or her duties for
the Company, (iii) use of drugs or alcohol to an extent which interferes with
the performance of Grantee's duties to the Company, (iv) repeated failure to
devote proper time and attention to the business of the Company, (v) material
and repeated failure to carry out the directions, instructions, policies, rules,
regulations or decisions of the Board of Directors or Officers of the Company,
or (vi) conviction for a felony or other crime involving moral turpitude or
pursuant to which Grantee is imprisoned. For purposes of this definition, the
words "repeated failure" shall mean such failure as has been documented in
writing by the Company as having occurred more than once in any six month
period.
(f) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
(g) "Common Stock" shall mean shares of common stock of the Company,
par value of $0.01 per share.
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(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(i) "Fair Market Value" of a share of the Company's Common Stock for
any purpose on a particular date shall be determined in a manner such as the
Administrator shall in good faith determine to be appropriate; provided that in
the event the Common Stock shall become registered under Section 12 of the
Exchange Act, then thereafter the Fair Market Value of the Company's Common
Stock for any purpose on a particular date shall mean the last reported sale
price per share of Common Stock, regular way, on such date or, in case no such
sale takes place on such date, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on a national securities exchange or included for quotation on the
Nasdaq National Market, or if the Common Stock is not so listed or admitted to
trading or included for quotation, the last quoted price, or if the Common Stock
is not so quoted, the average of the high bid and low asked prices, regular way,
in the over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System or, if such system is no
longer in use, the principal other automated quotations system that may then be
in use or, if the Common Stock is not quoted by any such organization, the
average of the closing bid and asked prices, regular way, as furnished by a
professional market maker making a market in the Common Stock as selected in
good faith by the Administrator or by such other source or sources as shall be
selected in good faith by the Administrator. If, as the case may be, the
relevant date is not a trading day, the determination shall be made as of the
first trading day immediately preceding such date. As used herein, the term
"trading day" shall mean a day on which public trading of securities occurs and
is reported in the principal consolidated reporting system referred to above, or
if the Common Stock is not listed or admitted to trading on a national
securities exchange or included for quotation on the Nasdaq National Market, any
business day.
(j) "Grant Agreement" shall mean a written document memorializing the
terms and conditions of an Award granted pursuant to the Plan and shall
incorporate the terms of the Plan.
(k) "Grantee" shall mean a person who has been granted an Award
pursuant to this Plan.
(l) "Parent" shall mean a corporation, whether now or hereafter
existing, within the meaning of the definition of "parent corporation" provided
in Code section 424(e), or any successor thereto.
(m) "Subsidiary" and "subsidiaries" shall mean only a corporation or
corporations, whether now or hereafter existing, within the meaning of the
definition of "subsidiary corporation" provided in Section 424(f) of the Code,
or any successor thereto.
3. ADMINISTRATION
(a) Administration of the Plan. The Plan shall be administered by the
Administrator.
(b) Powers of the Administrator. The Administrator shall have all the
powers vested in it by the terms of the Plan, such powers to include authority,
in its sole and absolute discretion, to grant Awards under the Plan, prescribe
Grant Agreements evidencing such Awards and establish programs for granting
Awards.
The Administrator shall have full power and authority to take all other
actions necessary to carry out the purpose and intent of the Plan, including,
but not limited to, the authority to (i) determine the eligible persons to whom,
and the time or times at which Awards shall be granted, (ii) determine the types
of Awards to be granted, (iii) determine the number of shares to be covered by
or used for reference purposes for each Award, (iv) impose such terms,
limitations, restrictions and conditions upon any such Award as the
Administrator shall deem appropriate, (v) modify, amend, extend or renew
outstanding Awards, or accept the surrender of outstanding Awards and substitute
new Awards (provided, however,
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that any modification that would materially adversely affect any outstanding
Award shall not be made without the consent of the Grantee), (vi) to prescribe
the form or forms of the instruments evidencing Awards granted under this Plan;
(vii) to delegate responsibility for Plan operation, management and
administration on such terms, consistent with the Plan, as the Board may
establish; (viii) to delegate to other persons the responsibility for performing
ministerial acts in furtherance of the Plan's purpose; (ix) to engage the
services of persons or organizations in furtherance of the Plan's purpose,
including but not limited to banks, insurance companies, accounting firms,
brokerage firms and consultants; (x) establish objectives and conditions, if
any, for earning Awards and determining whether Awards will be paid after the
end of a performance period.
The Administrator shall have full power and authority, in its sole and
absolute discretion, to administer and interpret the Plan and to adopt and
interpret such rules, regulations, agreements, guidelines and instruments for
the administration of the Plan and for the conduct of its business as the
Administrator deems necessary or advisable.
(c) Non-Uniform Determinations. The Administrator's determinations
under the Plan (including without limitation, determinations of the persons to
receive Awards, the form, amount and timing of such Awards, the terms and
provisions of such Awards and the Grant Agreements evidencing such Awards) need
not be uniform and may be made by the Administrator selectively among persons
who receive, or are eligible to receive, Awards under the Plan, whether or not
such persons are similarly situated.
(d) Limited Liability. To the maximum extent permitted by law, no
member of the Administrator shall be liable for any action taken or decision
made in good faith relating to the Plan or any Award thereunder.
(e) Indemnification. To the maximum extent permitted by law and by the
Company's charter and by-laws, the members of the Administrator shall be
indemnified by the Company in respect of all their activities under the Plan.
(f) Effect of Administrator's Decision. All actions taken and decisions
and determinations made by the Administrator on all matters relating to the Plan
pursuant to the powers vested in it hereunder shall be in the Administrator's
sole and absolute discretion and shall be conclusive and binding on all parties
concerned, including the Company, its stockholders, any Grantees in the Plan,
and any other employee of the Company, and their respective successors in
interest.
4. SHARES AVAILABLE FOR THE PLAN; MAXIMUM AWARDS
Subject to adjustments as provided in Section 7(a) of the Plan, the
shares of Common Stock that may be issued with respect to Awards granted under
the Plan shall not exceed an aggregate of 3,260,439 shares of Common Stock. The
Company shall reserve such number of shares for Awards under the Plan, subject
to adjustments as provided in Section 7(a) of the Plan. If any Award, or portion
of an Award, under the Plan expires or terminates unexercised, becomes
unexercisable or is forfeited or otherwise terminated, surrendered or canceled
as to any shares, or if any shares of Common Stock are surrendered to the
Company in connection with any Award (whether or not such surrendered shares
were acquired pursuant to any Award), the shares subject to such Award and the
surrendered shares shall thereafter be available for further Awards under the
Plan; provided, however, that any such shares that are surrendered to the
Company in connection with any Award or that are otherwise forfeited after
issuance shall not be available for purchase pursuant to incentive stock options
intended to qualify under Code section 422.
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5. ELIGIBLE GRANTEES; VESTING.
(a) Grantees. Participation in the Plan shall be open to all employees,
officers, directors, and consultants of the Company, or of any Affiliate of the
Company, as may be selected by the Administrator from time to time.
(b) Vesting. A Grantee's rights to the Awards issued under this Plan
shall vest as provided in such Grantee's Grant Agreement.
6. AWARDS
The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. Awards may be granted individually or in tandem
with other types of Awards. All Awards are subject to the terms and conditions
provided in the Grant Agreement.
(a) Stock Options. The Administrator may from time to time grant to
eligible Grantees Awards of incentive stock options as that term is defined in
Code section 422 or nonqualified stock options; provided, however, that Awards
of incentive stock options shall be limited to employees of the Company or of
any Parent or Subsidiary of the Company. Options intended to qualify as
incentive stock options under Code section 422 must have an exercise price at
least equal to Fair Market Value on the date of grant, but nonqualified stock
options may be granted with an exercise price less than Fair Market Value. No
stock option shall be an incentive stock option unless so designated by the
Administrator at the time of grant or in the Grant Agreement evidencing such
stock option.
(b) Stock Appreciation Rights. The Administrator may from time to time
grant to eligible Grantees Awards of Stock Appreciation Rights ("SAR"). An SAR
entitles the Grantee to receive, subject to the provisions of the Plan and the
Grant Agreement, a payment having an aggregate value equal to the product of (i)
the excess of (A) the Fair Market Value on the exercise date of one share of
Common Stock over (B) the base price per share specified in the Grant Agreement,
times (ii) the number of shares specified by the SAR, or portion thereof, which
is exercised. Payment by the Company of the amount receivable upon any exercise
of an SAR may be made by the delivery of Common Stock or cash, or any
combination of Common Stock and cash, as determined in the sole discretion of
the Administrator. If upon settlement of the exercise of an SAR a Grantee is to
receive a portion of such payment in shares of Common Stock, the number of
shares shall be determined by dividing such portion by the Fair Market Value of
a share of Common Stock on the exercise date. No fractional shares shall be used
for such payment and the Administrator shall determine whether cash shall be
given in lieu of such fractional shares or whether such fractional shares shall
be eliminated.
(c) Stock Awards. The Administrator may from time to time grant
restricted or unrestricted stock Awards to eligible Grantees in such amounts, on
such terms and conditions, and for such consideration, including no
consideration or such minimum consideration as may be required by law, as it
shall determine. A stock Award may be paid in Common Stock, in cash, or in a
combination of Common Stock and cash, as determined in the sole discretion of
the Administrator.
(d) Phantom Stock. The Administrator may from time to time grant Awards
to eligible Grantees denominated in stock-equivalent units ("phantom stock") in
such amounts and on such terms and conditions as it shall determine. Phantom
stock units granted to a Grantee shall be credited to a bookkeeping reserve
account solely for accounting purposes and shall not require a segregation of
any of the Company's assets. An Award of phantom stock may be settled in Common
Stock, in cash, or in a combination of Common Stock and cash, as determined in
the sole discretion of the Administrator. Except as otherwise provided in the
applicable Grant Agreement, the Grantee shall not have the rights of
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a stockholder with respect to any shares of Common Stock represented by a
phantom stock unit solely as a result of the grant of a phantom stock unit to
the Grantee.
(e) Performance Awards. The Administrator may, in its discretion, grant
performance awards which become payable on account of attainment of one or more
performance goals established by the Administrator. Performance awards may be
paid by the delivery of Common Stock or cash, or any combination of Common Stock
and cash, as determined in the sole discretion of the Administrator. Performance
goals established by the Administrator may be based on the Company's or an
Affiliate's operating income or one or more other business criteria selected by
the Administrator that apply to an individual or group of individuals, a
business unit, or the Company or an Affiliate as a whole, over such performance
period as the Administrator may designate.
7. ADJUSTMENTS; BUSINESS COMBINATIONS
(a) Corporate Transactions Affecting Common Stock. In the event of
changes in the Common Stock of the Company by reason of any stock dividend,
split-up, recapitalization, merger, consolidation, business combination or
exchange of shares and the like, the Administrator shall, in its discretion,
make appropriate adjustments to the maximum number and kind of shares reserved
for issuance or with respect to which Awards may be granted under the Plan as
provided in Section 4 of the Plan and to the number, kind and price of shares
covered by outstanding Awards, and shall, in its discretion and without the
consent of holders of Awards, make any other adjustments in outstanding Awards,
including but not limited to reducing the number of shares subject to Awards or
providing or mandating alternative settlement methods such as settlement of the
Awards in cash or in shares of Common Stock or other securities of the Company
or of any other entity, or in any other matters which relate to Awards as the
Administrator shall, in its sole discretion, determine to be necessary or
appropriate.
The Administrator, in its sole discretion, may make any modifications
to any Awards, including but not limited to cancellation, forfeiture, surrender
or other termination of the Awards in whole or in part regardless of the vested
status of the Award, in order to facilitate any business combination that is
authorized by the Board to comply with requirements for treatment as a pooling
of interests transaction for accounting purposes under generally accepted
accounting principles.
The Administrator is authorized to make, in its discretion, adjustments
in the terms and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events affecting the Company, or the
financial statements of the Company or any Affiliate, or of changes in
applicable laws, regulations, or accounting principles, whenever the
Administrator determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan.
Notwithstanding anything contained in this Paragraph 7 or elsewhere in
this Plan to the contrary, any modification that would materially adversely
affect any outstanding Award shall not be made without the consent of the
Grantee.
(b) Substitution of Awards in Mergers and Acquisitions. Awards may be
granted under the Plan from time to time in substitution for Awards held by
employees, officers, or directors of entities who become or are about to become
employees, officers, or directors of the Company or an Affiliate as the result
of a merger or consolidation of the employing entity with the Company or an
Affiliate, or the acquisition by the Company or an Affiliate of the assets or
stock of the employing entity. The terms and conditions of any substitute Awards
so granted may vary from the terms and conditions set forth herein to the extent
that the Administrator deems appropriate at the time of grant to conform the
substitute Awards to the provisions of the awards for which they are
substituted.
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<PAGE> 6
(c) Drag Along Rights Pertaining to Option Holders. If at any time any
stockholder of the Company or group of stockholders owning a majority or more of
the voting capital stock of the Company proposes to enter into any transaction
involving (i) the sale of all or substantially all of the assets of the Company;
(ii) the sale of more than fifty percent (50%) of the outstanding common stock
of the Company in a non-public sale; (iii) any merger, share exchange,
consolidation or other reorganization or business combination of the Company, if
immediately after such transaction either (A) persons who were directors of the
Company immediately prior to such transaction do not constitute at least a
majority of the directors of the surviving entity, or (B) persons who hold a
majority of the voting capital stock of the surviving entity are not persons who
held a majority of the voting capital stock of the Company immediately prior to
such transaction; or (iv) the dissolution or liquidation of the Company, the
Company and/or the transferring stockholders may require the Grantee to
participate in such transaction by giving the Grantee written notice thereof at
least ten (10) days in advance of the date of the transaction or the date that
tender is required, as the case may be. Upon receipt of such notice, the Grantee
shall sell, assign, tender or transfer the same percentage of the shares subject
to his options (to which the Grantee has vested) as the percentage of the shares
of Stock proposed to be sold, assigned, tendered or transferred by the
transferring stockholders collectively, upon the same terms and conditions
applicable to the transferring stockholders and at a value equal to the
difference between the exercise price per share under the options granted
hereunder and the value per share of Stock the transferring stockholders will
receive pursuant to the terms of the transaction (whether such value is paid in
cash or securities). The provisions of this Paragraph 7(c) shall not impair a
Grantee's right to accelerated vesting, if any, if such provisions are
applicable to the transaction covered by this Paragraph. If the Grantee has
options to purchase Stock of the Company other than options granted hereunder,
and such options are subject to terms similar those set forth in this Paragraph
7(c), then the Grantee's options shall be transferred in the order in which they
were granted. The provisions of this Paragraph 7(c) shall apply in the event of
the Grantee's death, to the Grantee's executor, personal representative or the
person(s) to whom the options shall have been transferred by will or the laws of
descent and distribution, as though such person is the Grantee.
8. CERTAIN EVENTS AFFECTING RIGHTS.
(a) Death of Grantee. If the Grantee shall die and shall not have
exercised his rights with respect to Awards which are exercisable at such time,
the Awards may be distributed to the Grantee's estate and exercised by the
Grantee's executors or administrators or by any person or persons who shall have
acquired the Awards directly from the Grantee by bequest or inheritance, subject
to the terms of Paragraphs 5(b) and (c). In no event, however, shall the Award
be exercisable more than one hundred eighty (180) days after the date of the
Grantee's death. In the event an Award is transferred to an Grantee's executor
or administrator, to the distributees of the estate, or to a person upon whom
such right devolves by reason of the Grantee's death, then the Award shall be
nontransferable by the Grantee's executor or administrator or by such person.
(b) Termination of Employment. In the event that a Grantee who is an
employee as of the date of grant of Awards hereunder shall cease to be employed
by the Company or its subsidiaries for any reason (including without limitation
disability or retirement) other than his death and other than a termination for
"Cause," as such term is defined herein, all vested Awards held by him pursuant
to the Plan and not previously exercised at the date of such termination may be
exercised for a period of ninety (90) days after the date of termination of the
Grantee's employment, subject to the terms of Paragraph 5(b) and the condition
that no Award shall be exercisable after the expiration of ten (10) years from
the date it is granted. If the termination of employment is a termination by the
Company for "Cause," then all Awards held by him pursuant to the Plan and not
previously exercised at the date of such termination shall terminate immediately
and become void and of no effect. Authorized leaves of absence or absence for
military service shall not constitute termination of employment for the purpose
of the Plan.
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<PAGE> 7
9. RIGHTS AS A STOCKHOLDER.
A Grantee or a transferee of an Award shall have no rights as a
stockholder with respect to any shares covered by his Award until the date of
issuance of a stock certificate to him for such shares. No adjustment shall be
made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as provided in
Paragraph 7 hereof.
10. RESTRICTIONS ON STOCK IN THE COMPANY.
Once a Grantee has been issued a stock certificate for shares of Common
Stock of the Company acquired pursuant to an Award granted in accordance with
this Plan, the following restrictions shall apply:
(a) Restrictive Legends. The certificates evidencing the shares
purchased will bear the following legends:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RIGHTS OF FIRST OFFER AND FIRST REFUSAL IN FAVOR OF SALIX TECHNOLOGIES,
INC., AS SET FORTH IN THE SALIX TECHNOLOGIES, INC. OMNIBUS STOCK PLAN,
AS AMENDED FROM TIME TO TIME.
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE BEEN
(I) ACQUIRED FOR INVESTMENT; AND (II) ISSUED AND SOLD IN RELIANCE UPON
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "1933
ACT"). THE SECURITIES CANNOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED
OTHER THAN PURSUANT TO (A) AN EFFECTIVE REGISTRATION UNDER THE 1933 ACT
OR IN A TRANSACTION WHICH IS OTHERWISE IN COMPLIANCE WITH THE 1933 ACT;
AND (B) EVIDENCE SATISFACTORY TO THE ISSUER OF COMPLIANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION. THE ISSUER SHALL
BE ENTITLED TO RELY UPON AN OPINION OF COUNSEL TO THE ISSUER WITH
RESPECT TO COMPLIANCE WITH THE ABOVE LAWS.
(b) Rights of First Offer and First Refusal. A Grantee may not sell,
exchange, or otherwise transfer the Common Stock acquired hereunder without
first offering the Common Stock to the Company. The Company shall have sixty
(60) days after receipt of written notification from the Grantee of his
intention to transfer the Common Stock to elect to purchase all, but not less
than all, of the Common Stock from the Grantee for the price and on the terms
set forth in the Grantee's notice. In the event that the offer is not accepted
by the Company, the Grantee shall thereafter have the right to negotiate a sale
of such Common Stock to any other person; provided, however, that the Grantee
shall not have the right to complete such sale without first presenting the
Company with a bona fide written offer for such Common Stock from a third party,
upon which the Company shall have the right, for a period of sixty (60) days
thereafter, to purchase such Common Stock for the price and upon equivalent
terms as set forth in the bona fide written offer. For purposes of this
Paragraph 10(b), an offer from a third party to purchase all of the Grantee's
Common Stock shall not be deemed to be a "bona fide written offer" until a
deposit equal to ten percent (10%) of the purchase price stated in such offer is
placed in escrow with the Grantee's counsel of choice. If the Company does not
elect to exercise its right of first refusal within such 60-day period, then the
Grantee shall be free to complete the proposed transfer or sale on the terms and
conditions set forth in the bona fide written offer within ninety (90) days
thereafter. If such transfer or sale is not completed within 90 days, the
Grantee shall again be required to give notice of a bona fide written offer
pursuant to this Paragraph 10(b), which notice will again give rise to the
rights of first refusal provided above (for an additional 60 days), prior to
completing
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<PAGE> 8
such transfer. As a condition to the effectiveness of any such transfer, the
transferee shall agree to take such Common Stock subject to all of the terms and
conditions of this Paragraph 10, and shall execute and deliver to the Company an
instrument acknowledging such acceptance, in form and substance acceptable to
the Company.
(c) Company's Right to Repurchase Common Stock. Upon termination of
employment with the Company for any reason other than a termination by the
Company for "Cause," as such term is defined herein, the Company may, at its
election at any time during the ninety (90) day period commencing on and
following the termination date, reacquire the Grantee's shares at a price equal
to the then current Fair Market Value of such shares. Upon termination of
employment with the Company for "Cause," as such term is defined herein, the
Company may, at its election at any time during the ninety (90) day period
commencing on and following the termination date, reacquire the Grantee's shares
at a price equal to the lesser of (i) the then current Fair Market Value or (ii)
the price the Grantee paid for such shares. The Company shall provide Grantee
written notice of its intent to reacquire the Grantee's shares, and such notice
shall specify the date upon which such purchase and sale shall take place.
(d) Drag Along Rights Pertaining to Stockholders. If at any time any
stockholder of the Company or group of stockholders owning a majority or more of
the voting capital stock of the Company proposes to enter into any transaction
involving (i) the sale of all or substantially all of the assets of the Company;
(ii) the sale of more than fifty percent (50%) of the outstanding common stock
of the Company in a non-public sale; (iii) any merger, share exchange,
consolidation or other reorganization or business combination of the Company, if
immediately after such transaction either (A) persons who were directors of the
Company immediately prior to such transaction do not constitute at least a
majority of the directors of the surviving entity, or (B) persons who hold a
majority of the voting capital stock of the surviving entity are not persons who
held a majority of the voting capital stock of the Company immediately prior to
such transaction; or (iv) the dissolution or liquidation of the Company, the
Company and/or the transferring stockholders may require the Grantee to
participate in such transaction by giving the Grantee written notice thereof at
least ten (10) days in advance of the date of the transaction or the date that
tender is required, as the case may be. Upon receipt of such notice, the Grantee
shall sell, assign, tender or transfer the same percentage of his shares Stock
as the percentage of the shares of Stock proposed to be sold, assigned, tendered
or transferred by the transferring stockholders collectively, upon the same
terms and conditions applicable to the transferring stockholders and at a value
equal to the value per share the transferring stockholders will receive pursuant
to the terms of the transaction (whether such value is paid in cash or
securities). The provisions of this Paragraph 10(d) shall apply in the event of
the Grantee's death, to the Grantee's executor, personal representative or the
person(s) to whom the Stock shall have been transferred by will or the laws of
descent and distribution, as though such person is the Grantee.
(e) Stock May be Pledged. Notwithstanding the foregoing, the Common
Stock acquired through the exercise of an Award may be pledged by the Grantee as
security for a loan.
(f) Stock Not Registered. The shares of Common Stock acquired pursuant
to this Plan, if not then registered under applicable securities laws, shall not
be transferred unless registered under the applicable securities laws or unless
an exemption from the registration requirements is available.
(g) Restrictions Inoperative. The provisions of this Paragraph 10 shall
become inoperative upon the effective date of the registration with the
Securities and Exchange Commission of the stock subject to the Awards granted
hereunder or acquired through the exercise of options granted hereunder.
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<PAGE> 9
11. LOCK-UP AGREEMENT MAY BE REQUIRED.
Each Award granted hereunder shall be subject to the requirement that,
if in connection with an initial public offering of the Common Stock of the
Company subject to the Awards granted hereunder or acquired through the exercise
of Awards granted hereunder, the underwriter or marketing agent for such
offering deems it advisable, he or she shall execute a "lock-up" agreement,
pursuant to which each Grantee shall agree to refrain from selling or
transferring any of the Common Stock acquired pursuant to this Plan for a given
period of time not to exceed six (6) months after the date of the initial public
offering.
12. MISCELLANEOUS
(a) Withholding of Taxes. Grantees and holders of Awards shall pay to
the Company or its Affiliate, or make provision satisfactory to the
Administrator for payment of, any taxes required to be withheld in respect of
Awards under the Plan no later than the date of the event creating the tax
liability. The Company or its Affiliate may, to the extent permitted by law,
deduct any such tax obligations from any payment of any kind otherwise due to
the Grantee or holder of an Award. In the event that payment to the Company or
its Affiliate of such tax obligations is made in shares of Common Stock, such
shares shall be valued at Fair Market Value on the applicable date for such
purposes.
(b) Loans. The Company or its Affiliate may make or guarantee loans to
Grantees to assist Grantees in exercising Awards and satisfying any withholding
tax obligations.
(c) Transferability. Except as otherwise determined by the
Administrator, and in any event in the case of an incentive stock option or a
stock appreciation right granted with respect to an incentive stock option, no
Award granted under the Plan shall be transferable by a Grantee otherwise than
by will or the laws of descent and distribution. Unless otherwise determined by
the Administrator in accord with the provisions of the immediately preceding
sentence, an Award may be exercised during the lifetime of the Grantee, only by
the Grantee or, during the period the Grantee is under a legal disability, by
the Grantee's guardian or legal representative. Upon any attempt so to transfer,
assign, pledge, hypothecate, or otherwise dispose of the Award, or of any right
or privilege conferred thereby, contrary to the provisions hereof, or upon the
levy of any attachment or similar process upon such Award, right or privilege,
the Award and such rights and privileges shall immediately become null and void.
(d) Termination, Amendment and Modification of the Plan. The Board of
Directors may at any time terminate or amend the Plan without stockholder
approval; provided, however, that the Board of Directors may condition any
amendment on the approval of stockholders of the Company if such approval is
necessary or advisable with respect to tax, securities or other applicable laws.
The termination or any modification or amendment of the Plan shall not, without
the consent of a Grantee, materially adversely affect his rights under an Award
previously granted to him.
(e) Non-Guarantee of Employment or Service. Nothing in the Plan or in
any Grant Agreement thereunder shall confer any right on an individual to
continue in the service of the Company or shall interfere in any way with the
right of the Company to terminate such service at any time.
(f) Compliance with Securities Laws; Listing and Registration. Common
Stock shall not be issued with respect to an Award granted under the Plan unless
the exercise of such Award and the issuance and delivery of stock certificates
for such Common Stock pursuant thereto shall comply with all relevant provisions
of law, including, without limitation, the Securities Act of 1933 and the
Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of any national securities exchange or any listing or quotation
system established by the National Association of Securities Dealers, Inc.
("Nasdaq System") upon which the Common Stock may then be listed or quoted, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance to the extent such approval is sought by the Committee. The
Company may require that a Grantee, as a condition to exercise of an Award, and
as a condition to the delivery of any share certificate, provide to the Company,
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<PAGE> 10
at the time of each such exercise and each such delivery, a written
representation that the shares of Common Stock being acquired shall be acquired
by the Grantee solely for investment and will not be sold or transferred without
registration or the availability of an exemption from registration under the
Securities Act and applicable state securities laws. The stock certificates for
any shares of Common Stock issued pursuant to this Plan may bear a legend
restricting transferability of the shares of Common Stock unless such shares are
registered or an exemption from registration is available under the Securities
Act and applicable state securities laws.
(g) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company and a Grantee or any other person. To
the extent that any Grantee or other person acquires a right to receive payments
from the Company pursuant to an Award, such right shall be no greater than the
right of any unsecured general creditor of the Company.
(h) Governing Law. The validity, construction and effect of the Plan,
of Grant Agreements entered into pursuant to the Plan, and of any rules,
regulations, determinations or decisions made by the Administrator relating to
the Plan or such Grant Agreements, and the rights of any and all persons having
or claiming to have any interest therein or thereunder, shall be determined
exclusively in accordance with applicable federal laws and the laws of the State
of Delaware, without regard to its conflict of laws principles.
(i) Applications of Funds. The proceeds received by the Company from
the sale of Common Stock pursuant to Awards will be used for general corporate
purposes.
(j) No Obligation to Exercise Award. The granting of an Award shall
impose no obligation upon the Grantee to exercise such Award.
(k) Effective Date; Termination Date. The Plan is effective as of the
date on which the Plan was adopted by the Board, subject to approval of the
stockholders within twelve months before or after such date. No Award shall be
granted under the Plan after the close of business on the day immediately
preceding the tenth anniversary of the effective date of the Plan. Subject to
other applicable provisions of the Plan, all Awards made under the Plan prior to
such termination of the Plan shall remain in effect until such Awards have been
satisfied or terminated in accordance with the Plan and the terms of such
Awards.
Date Approved by the Board: January 1, 1998
Date Approved by the Stockholders: January 1, 1998
Date of Amendment reflected herein approved by Board and Stockholders on April
30, 1999
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<PAGE> 1
Exhibit 4.4
EFFECTIVE DATE: _____________________
STOCK OPTION
GRANTED BY
SALIX TECHNOLOGIES, INC.
TO
EUGENE CARLOCK
(HEREINAFTER CALLED THE "HOLDER")
For valuable consideration, the receipt of which is hereby
acknowledged, SALIX Technologies, Inc., a Delaware corporation (the "Company"),
hereby grants to the Holder the following option:
SECTION 1. GRANT OF OPTION; VESTING. Subject to the terms and
conditions hereinafter set forth, the Holder is hereby given the right and
option to purchase from the Company at the option price of One Dollar ($1.00)
per share an aggregate of Seven Thousand Five Hundred (7,500) shares of the
Company's Common Stock, par value $0.01 ("Common Stock"), during the period and
in the manner hereinafter set forth. The Holder's rights to the option issued
hereunder shall vest at a rate of twenty-five percent (25%) per Phase completed
under that certain Agreement between Holder and the Company dated __________,
1997, such that, at the end of Phase 4, the Holder shall be 25% vested in his
options; at the end of Phase 5, the Holder shall be 50% vested in his options,
and so on until the end of Phase 7 when the Holder will be 100% vested in the
options granted hereunder.
SECTION 2. EXERCISE OF OPTION. The options granted hereunder, which
have become vested, shall be exercisable only upon either of the following two
events: (a) the Company receives funding of at least Two Million Dollars
($2,000,000) from a venture capital source; or (b) the Company participates in
an initial public offering of its Common Stock (each of the foregoing, a
"Triggering Event"). In order to exercise the options granted hereunder, Holder
shall notify the Company in writing, which notice shall specify the number of
shares of Common Stock the Holder then desires to purchase. Payment for the
shares of Common Stock purchased pursuant to the exercise of options shall be
made by either cash, certified or bank check or postal money order payable to
the order of the Company for an amount equal to the option price of such shares.
As promptly as practicable after receipt of the option notice from the
Holder, the Company and the Holder shall agree upon a mutually convenient time
to exchange payment and the investment letter referred to in Section 3, and the
certificate(s) for the number of shares with respect to which the option has
been exercised, registered in the name of the Holder. Such exchange shall take
place at the principal offices of the Company.
<PAGE> 2
SECTION 3. CONDITIONS AND LIMITATIONS. As a condition precedent to any
exercise of this option, the Holder shall deliver to the Company an investment
letter in form and substance satisfactory to the Company and its counsel which
shall contain among other things a statement in writing to the following effects
(to the extent then applicable): (a) that the option is then being exercised for
the account of the Holder and only with a view to investment in, and not for, in
connection with or with a view to the disposition of, the shares with respect to
which the option is then being exercised; (b) that the Holder acknowledges that
the restrictions on transfer of the Common Stock of the Company set forth in
this Option Agreement shall apply to such shares; (c) if applicable, that the
Holder understands that there is no assurance that the Company will ever become
a reporting company under the Securities Exchange Act of 1934 and that the
Company has no obligation to the Holder to do so; (d) that the Holder and
Holder's representatives have fully investigated the Company and the business
and financial conditions concerning it and have knowledge of the Company's then
current corporate activities and financial condition; and (e) that the Holder
believes that the nature and amount of the shares being purchased are consistent
with Holder's investment objectives, abilities and resources. The restrictions
imposed by this Section and any investment representation made pursuant to this
Section shall be inoperative upon the registration with the Securities and
Exchange Commission of the stock subject to the options granted hereunder or
acquired through the exercise of options granted hereunder.
SECTION 4. DILUTION OR OTHER AGREEMENT. The number of shares of Common
Stock reserved for issuance upon the exercise of these options and the option
price for these options shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
subdivision or combination of shares or the payment of a stock dividend in
shares of Common Stock to holders of outstanding shares of Common Stock or any
other increase or decrease in the number of shares of Common Stock outstanding
effected without the receipt of consideration by the Company. Any adjustment
pursuant to this Section 4, may provide, in the Board's discretion, for the
elimination without payment therefor of any fractional shares that might
otherwise become subject to this option, but shall not otherwise diminish the
then value of the options granted hereunder.
Subject to any required action by the stockholders, if the Company
shall be the surviving corporation in any merger or consolidation in which the
stockholders of the Company retain their Common Stock, this option shall pertain
to and apply to the securities to which the Holder of the number of shares of
Common Stock subject to options would have been entitled. A dissolution or
liquidation of the Company or a merger or consolidation in which the Company is
not the surviving Company or a merger or consolidation of the Company in which
the stockholders of the Company surrender their Common Stock shall cause these
options to terminate upon payment of the difference, if any, between the option
price per share of each share covered by this option and the Fair Market Value
of such stock on the date of dissolution, liquidation, merger or consolidation,
as if the options had been exercised on the date of such dissolution,
liquidation, merger or consolidation.
To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Board of
Directors whose determination in that respect shall be final.
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<PAGE> 3
Notwithstanding anything contained herein to the contrary, the
existence of this Option Agreement and the options granted pursuant hereto shall
not affect in any way the right or power of the Company to make or authorize any
adjustment, reclassification, reorganization or other change in its capital or
business structure, any merger or consolidation of the Company, any issue of
debt or equity securities having preferences or priorities as to the Common
Stock or the rights thereof, the dissolution or liquidation of the Company, any
sale or transfer of all or any part of its business or assets or any other
corporate act or proceeding.
Except as hereinbefore expressly provided in this Section 4, the Holder
shall have no rights by reason of any subdivision or consolidation of shares of
stock of any class or the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger, or consolidation or spin-off of assets or
stock of another corporation.
SECTION 5. RIGHTS OF HOLDER. Holder shall have no rights as a
stockholder with respect to any shares covered by these options until the date
of issuance of a stock certificate to him for such shares. No adjustment shall
be made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as provided in
Section 4 hereof.
Nothing herein contained shall impose any obligation upon the Holder to
exercise the options.
The Company makes no representation as to the tax treatment to the
Holder upon receipt or exercise of the options or sale or other disposition of
the shares covered by the options. The Company recommends that the Holder
consult his personal tax advisor with regard to such tax matters.
At all times while any portion of the options is outstanding, the
Company shall: reserve and keep available, out of shares of its authorized and
unissued stock or reacquired shares, a sufficient number of shares of its Common
Stock to satisfy the requirements of the options granted hereunder; comply with
the terms of these options promptly upon exercise of option rights; and pay all
fees or expenses necessarily incurred by the Company in connection with the
issuance and delivery of shares pursuant to the exercise of options hereunder.
SECTION 6. TRANSFER, CERTAIN LIMITATIONS AND TERMINATION. During the
lifetime of the Holder, this option is exercisable only by the Holder and shall
not be assignable or transferable other than by will or the laws of descent and
distribution; provided, however, that only vested options may pass by will or
the laws of descent, and, provided, further, that the Holder agrees that in the
event of Holder's death, the vested options shall be devised, in the aggregate,
to only one heir or successor entity. Upon any attempt so to transfer, assign,
pledge, hypothecate, or otherwise dispose of the option, or of any right or
privilege conferred thereby, contrary to the provisions hereof, or upon the levy
of any attachment or similar process upon such option, right or privilege, the
option and such rights and privileges shall immediately become null and void.
If the Holder shall die and shall not have exercised this option, the
Company shall have the right, exercisable within ninety (90) days after Holder's
death by written notice to the
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<PAGE> 4
Holder's personal representative, to cancel this Option Agreement and terminate
the options granted hereunder, whether or not vested, provided the Company pays
to the Holder's estate an amount equal to One Dollar ($1.00) per share for each
share for which this option has vested. The portion of this option that has not
vested upon the death of the Holder shall automatically terminate without any
compensation to the Holder's estate. If the Company does not elect to exercise
its right hereunder to cancel the options within said 90-day period, then the
vested options may be distributed to the Holder's estate and may be exercised,
upon a Triggering Event, by the Holder's executors or administrators or by any
person or persons who shall have acquired the options directly from the Holder
by bequest or inheritance (provided such options have not otherwise expired).
Notwithstanding anything contained in this Option Agreement to the contrary, if
the Holder should die prior to the exercise of the options granted hereunder,
this Option Agreement and the options granted hereunder shall expire one (1)
year after the date of Holder's death. In the event vested options are
transferred to the Holder's executor or administrator, to a distributee of the
estate, or to a person upon whom such right devolves by reason of the Holder's
death, then the options shall be nontransferable by the Holder's executor or
administrator or by such person or entity.
This Option Agreement, unless earlier terminated in the event of
Holder's death as provided above, shall terminate in all respects, and all
rights to purchase shares hereunder shall terminate, five (5) years after the
Effective Date set forth above.
SECTION 7. RESTRICTIONS ON STOCK IN THE COMPANY. Once the Holder has
exercised the Option(s) granted hereunder, and has been issued a stock
certificate for such shares, the following restrictions shall apply:
(a) RESTRICTIVE LEGENDS. The certificates evidencing the
shares purchased will bear the following legends:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RIGHTS OF FIRST OFFER AND FIRST REFUSAL IN FAVOR OF SALIX TECHNOLOGIES,
INC., AS SET FORTH IN AN OPTION AGREEMENT BETWEEN SALIX TECHNOLOGIES,
INC. AND THE HOLDER OF THE SHARES.
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE BEEN
(I) ACQUIRED FOR INVESTMENT; AND (II) ISSUED AND SOLD IN RELIANCE UPON
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "1933
ACT"). THE SECURITIES CANNOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED
OTHER THAN PURSUANT TO (I) AN EFFECTIVE REGISTRATION UNDER THE 1933 ACT
OR IN A TRANSACTION WHICH IS OTHERWISE IN COMPLIANCE WITH THE 1933 ACT;
AND (II) EVIDENCE SATISFACTORY TO THE ISSUER OF COMPLIANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION. THE ISSUER SHALL
BE ENTITLED TO RELY UPON AN OPINION OF COUNSEL TO THE ISSUER WITH
RESPECT TO COMPLIANCE WITH THE ABOVE LAWS.
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<PAGE> 5
(b) RIGHTS OF FIRST OFFER AND FIRST REFUSAL. The Holder may
not sell, exchange, or otherwise transfer the Common Stock acquired through the
exercise of such Option without first offering the Common Stock to the Company.
The Company shall have sixty (60) days, after receipt of written notification
from the Holder of his intention to transfer all, but not less than all, of the
Common Stock, to elect to purchase the Common Stock from the Holder for the
price and on the terms set forth in the Holder's notice. In the event that the
offer is not accepted by the Company, the Holder shall thereafter have the right
to negotiate a sale of all, but not less than all, of the Common Stock to any
other person; provided, however, that the Holder shall not have the right to
complete such sale without first presenting the Company with a bona fide written
offer for such Common Stock from a third party, upon which the Company shall
have the right, for a period of sixty (60) days thereafter, to purchase such
Common Stock for the price and upon equivalent terms as set forth in the bona
fide written offer. For purposes of this Section 7(b), an offer from a third
party to purchase all of the Holder's Common Stock shall not be deemed to be a
"bona fide written offer" until a deposit equal to ten percent (10%) of the
purchase price stated in such offer is placed in escrow with the Holder's
counsel of choice. If the Company does not elect to exercise its right of first
refusal within such 60-day period, then the Holder shall be free to complete the
proposed transfer or sale on the terms and conditions set forth in the bona fide
written offer within ninety (90) days thereafter. If such transfer or sale is
not completed within 90 days, the Holder shall again be required to give notice
of a bona fide written offer pursuant to this Section 7(b), which notice will
again give rise to the rights of first refusal provided above (for an additional
60 days), prior to completing such transfer. As a condition to the effectiveness
of any such transfer, the transferee shall agree to take such Common Stock
subject to all of the terms and conditions of this Section 7, and shall execute
and deliver to the Company an instrument acknowledging such acceptance, in form
and substance acceptable to the Company.
(c) STOCK MAY BE PLEDGED WITH COMPANY'S CONSENT.
Notwithstanding the foregoing, upon the Company's prior written consent, the
Common Stock acquired through the exercise of such Option may be pledged by the
Holder as security for a loan.
(d) STOCK NOT REGISTERED. The shares of Common Stock acquired
upon exercise of Options granted hereunder may not be registered under
applicable securities laws, and may not be transferred unless registered under
the applicable securities laws or unless an exemption from the registration
requirements is available.
SECTION 8. LISTING AND REGISTRATION OF SHARES. Each Option shall be
subject to the requirement that if at any time the Board of Directors shall
determine, in its discretion, that the listing, registration, or qualification
of the shares covered thereby upon any securities exchange or under any state or
federal law or the consent or approval of any governmental regulatory body, is
necessary, or desirable as a condition of, or in connection with, the granting
of such Option or the issue or purpose of shares thereunder, such Option may not
be exercised in whole or in part unless and until such listing, registration,
qualification, consent, or approval shall have been effected or obtained free of
any conditions not acceptable to the Board of Directors of the Company.
SECTION 9. NOTICE. Any notice to be given to the Company hereunder
shall be deemed sufficient if addressed to the Company and delivered to the
principal office of the Company, attention of the president, or such other
address as the Company may hereafter designate.
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<PAGE> 6
Any notice to be given to the Holder hereunder shall be deemed
sufficient if delivered in person to the Holder or when deposited in the mail,
postage prepaid, addressed to the Holder at the address furnished to the
Company.
SECTION 10. GOVERNING LAW. THIS OPTION AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
SECTION 11. EFFECTIVE DATE. This Option Agreement shall be effective on
the Effective Date set forth on page 1 hereof.
SECTION 12. BINDING UPON ESTATE AND HEIRS. This Option Agreement and
all restrictions contained herein shall be binding upon the Holder's estate,
personal representatives and heirs.
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<PAGE> 7
IN WITNESS WHEREOF, the parties have executed this Option Agreement, or
caused this option agreement to be executed, as of the Effective Date.
SALIX TECHNOLOGIES, INC.
By:
--------------------------
Name: Daniel S. Simpkins
Title: President
HOLDER:
-----------------------------
EUGENE CARLOCK
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<PAGE> 8
OPTION AGREEMENT AMENDMENT 1
The Stock Option Agreement by and between SALIX Technologies, Inc. and Allen
Eugene Carlock for 7,500 shares at one dollar per share is hereby amended as
follows:
Effective Date
The effective date of the Stock Option Agreement is December 1, 1997.
The effective date of this amendment shall be December 1, 1997.
SALIX TECHNOLOGIES, INC. CONTRACTORS:
By:
/s/ Daniel S. Simpkins /s/ A. Eugene Carlock
- ------------------------------------ ---------------------------------------
Daniel S. Simpkins A. Eugene Carlock
2/17/98 2/17/98
- ------------------------------------ ---------------------------------------
Date Date
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Post-Effective Amendment No.
1 on Form S-8 to the Registration Statement (Form S-4 No. 333-95135) of Tellabs,
Inc. of our report dated November 8, 1999, with respect to the consolidated
financial statements of Tellabs, Inc. included in its Current Report (Form 8-K)
for the year ended January 1, 1999, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
March 10, 2000
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated November 5, 1999, accompanying the consolidated
financial statements of Tellabs, Inc. and Subsidiaries as of December 27, 1996
and for the year then ended incorporated by reference in this Post-Effective
Amendment on Form S-8 to the Registration Statement on Form S-4. We consent to
the use of the aforementioned report in such filing.
/s/ Grant Thornton LLP
GRANT THORNTON LLP
Chicago, Illinois
March 9, 2000
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Post-Effective
Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 (File No.
333-95135) of Tellabs, Inc. of our report dated April 29, 1999 relating to the
financial statements of NetCore Systems, Inc., (which financial statements are
not separately presented), which report appears in the Form 8-K of Tellabs, Inc.
dated November 10, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
March 13, 2000
<PAGE> 1
Exhibit 23.4
The Board of Directors
Tellabs, Inc.
We consent to the incorporation by reference in the Post-Effective Amendment on
Form S-8 to the Registration Statement (333-95135) on Form S-4 of Tellabs, Inc.
of our report dated January 23, 1998 with respect to the consolidated balance
sheet of Coherent Communications Systems Corporation as of December 31, 1997,
and the related consolidated statements of operations, stockholder's equity, and
cash flows for each of the years in the two-year period ended December 31, 1997,
which report appears in the Form 8-K of Tellabs, Inc. dated November 10, 1999.
/s/ KPMG LLP
McLean, Virginia
March 10, 2000
