SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BIOSOURCE INTERNATIONAL INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0340829
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
820 FLYNN ROAD, SUITE A 93012
CAMARILLO, CALIFORNIA (Zip Code)
(Address of Principal
Executive Offices)
NON-STATUTORY STOCK OPTIONS
1993 STOCK INCENTIVE PLAN
(Full Title of The Plan)
JAMES H. CHAMBERLAIN
CHIEF EXECUTIVE OFFICER AND PRESIDENT
820 FLYNN ROAD, SUITE A
CAMARILLO, CALIFORNIA 93012
(805) 987-0086
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
Copies of communications to:
SCOTT W. ALDERTON, ESQ.
TROOP STEUBER PASICH REDDICK & TOBEY, LLP
2029 CENTURY PARK EAST, 24TH FLOOR
LOS ANGELES, CALIFORNIA 90067
(310) 728-3000
<TABLE>
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
<CAPTION>
Title Of Securities Amount To Be Proposed Maximum Proposed Maximum Amount Of
To Be Registered Registered Offering Price Per Aggregate Offering Registration
Share Price Fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 50,000 shares $ 2.6875 $ 134,375 --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, 50,000 shares $ 2.0000 $ 100,000 --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, 100,000 shares $ 1.5000 $ 150,000 --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, 137,500 shares $ 5.2500 $ 721,875 --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, 30,000 shares $ 1.6875 $ 50,625 --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, 10,000 shares $ 6.4375 $ 64,375 --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, 100,000 shares $ 2.8125 $ 281,250 --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, 25,000 shares $12.8125 $ 320,313 --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, 500,000 shares $19.09375(1) $ 9,546,875(1) --
par value $.001 per share
- ---------------------------------------------------------------------------------------------------------------------------------
TOTALS: 1,002,500 -- $11,369,688 $ 3002
- ---------------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h)(1) under the Securities Act of
1933, as amended, and based upon the exercise price of the option pursuant to which such shares may be acquired.
</FN>
</TABLE>
<PAGE>
PART I*
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended, and the
Note to Part I of Form S-8.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Registrant's Annual Report on Forms 10-K and 10-K/A for the
fiscal year ended December 31, 1998;
(b) The Registrant's Current Report on Form 8-K, filed as of March 1,
1999;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999;
(e) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999;
(f) The description of the Common Stock contained in the Registrant's
Registration Statement on Form SB-2, as amended, filed by the Registrant on
May 30, 1996 pursuant to Section 12 of the Exchange Act.
(g) All documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered 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 part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The securities to be offered are registered under Section 12 of the
Exchange Act of 1934.
Page 2
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides in relevant
part that a corporation may indemnify any person who was or is a party to or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
In addition, Section 145 provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. Delaware law further provides that nothing
in the above-described provisions shall be deemed exclusive of any other rights
to indemnification or advancement of expenses to which any person may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Article VIII of the Registrant's Certificate of Incorporation provides for
the indemnification of directors to the fullest extent permissible under
Delaware law.
Article V of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Registrant if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his or her conduct was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
Page 3
<PAGE>
In addition, the Registrant has purchased insurance pursuant to which its
directors and officers are insured against liability which they may incur in
their capacity as such.
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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Troop Steuber Pasich Reddick & Tobey, LLP.
10.1 Stock Option Agreement, dated as of May 19, 1993, by and between
Registrant and James H. Chamberlain.
10.2 Stock Option Agreement, dated as of May 19, 1993, by and between
Registrant and James H. Chamberlain.
10.3 Stock Option Agreement, dated as of January 23, 1995, by and
between Registrant and James H. Chamberlain.
10.4 Stock Option Agreement, dated as of January 3, 1996, by and
between Registrant and James H. Chamberlain.
10.5 Stock Option Agreement, dated as of June 1, 1995, by and between
Registrant and Gus Davis.
10.6 Stock Option Agreement, dated as of April 5, 1996, by and between
Registrant and Robert Weist.
10.7 Option Certificate, dated as of December 9, 1998, by and between
Registrant and David S. Fishman.
10.8 Option Certificate, dated as of December 9, 1998, by and between
Registrant and Jordan B. Fishman, Ph.D.
10.9 Amendment to 1993 Stock Incentive Plan, dated as of December 17,
1998.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Troop Steuber Pasich Reddick & Tobey, LLP (included in
Exhibit 5.1).
Page 4
<PAGE>
24.1 Power of Attorney (included on signature page).
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 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;
(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 this offering; and
(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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or 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 Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
Page 5
<PAGE>
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 Los Angeles, State of California as of February 14,
2000.
BIOSOURCE INTERNATIONAL INC.
(Registrant)
By: /S/ JAMES H. CHAMBERLAIN
-----------------------------------
James H. Chamberlain
Chief Executive Officer and
President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints James H.
Chamberlain as his true and lawful attorney-in-fact and agent, with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement on Form
S-8, and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
foregoing, as fully to all intents and purposes as he might or could do in
person, and hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by the 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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ JAMES H. CHAMBERLAIN Chairman of the Board, February 14, 2000
---------------------------- President and Chief
James H. Chamberlain Executive Officer
/S/ LEONARD M. HENDRICKSON Director February 14, 2000
----------------------------
Leonard M. Hendrickson
/S/ DAVID J. MOFFA Director February 14, 2000
----------------------------
David J. Moffa, Ph.D
/S/ JOHN R. OVERTURF, JR. Director February 14, 2000
----------------------------
John R. Overturf, Jr.
/S/ ROBERT D. WEIST Director February 14, 2000
----------------------------
Robert D. Weist
</TABLE>
Page 6
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
5.1 Opinion of Troop Steuber Pasich Reddick & Tobey, LLP.
10.1 Stock Option Agreement, dated as of May 19, 1993, by and between
Registrant and James H. Chamberlain.
10.2 Stock Option Agreement, dated as of May 19, 1993, by and between
Registrant and James H. Chamberlain.
10.3 Stock Option Agreement, dated as of January 23, 1995, by and between
Registrant and James H. Chamberlain.
10.4 Stock Option Agreement, dated as of January 3, 1996, by and between
Registrant and James H. Chamberlain.
10.5 Stock Option Agreement, dated as of June 1, 1995, by and between
Registrant and Gus Davis.
10.6 Stock Option Agreement, dated as of April 5, 1996, by and between
Registrant and Robert Weist.
10.7 Option Certificate, dated as of December 9, 1998, by and between
Registrant and David S. Fishman.
10.8 Option Certificate, dated as of December 9, 1998, by and between
Registrant and Jordan B. Fishman, Ph.D.
10.9 Amendment to 1993 Stock Incentive Plan, dated as of December 17, 1998.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Troop Steuber Pasich Reddick & Tobey, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Page 7
Exhibit 5.1
LETTERHEAD OF
TROOP STEUBER PASICH REDDICK & TOBEY, LLP
February 14, 2000
BioSource International Inc.
820 Flynn Road, Suite A
Camarillo, California 93012
Ladies/Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to which this letter is attached as Exhibit 5.1
filed by BioSource International Inc., a Delaware corporation (the "COMPANY"),
in order to register under the Securities Act of 1933, as amended (the "ACT"),
1,002,500 shares of Common Stock, $.001par value per share (the "SHARES"), of
the Company issuable pursuant to the Amendment to the 1993 BioSource
International, Inc. Stock Incentive Plan (the "AMENDMENT") and the following 8
documents (collectively, the "OPTION AGREEMENTS"): (i) an option granted to
James H. Chamberlain pursuant to a Stock Option Agreement, dated as of May 19,
1993, by and between the Company and James H. Chamberlain; (ii) an option
granted to James H. Chamberlain pursuant to a Stock Option Agreement, dated as
of May 19, 1993, by and between the Company and James H. Chamberlain; (iii) an
option granted to James H. Chamberlain pursuant to a Stock Option Agreement,
dated as of January 23, 1995, by and between the Company and James H.
Chamberlain; (iv) an option granted to James H. Chamberlain pursuant to a Stock
Option Agreement, dated as of January 3, 1996, by and between the Company and
James H. Chamberlain; (v) an option granted to Gus Davis pursuant to a Stock
Option Agreement, dated as of June 1, 1995, by and between the Company and Gus
Davis (vi) an option granted to Robert Weist pursuant to a Stock Option
Agreement, dated as of April 5, 1996, by and between the Company and Robert
Weist; (vii) an option granted to David S. Fishman pursuant to an Option
Certificate, dated as of December 9, 1998, by and between the Company and David
S. Fishman; and (viii) an option granted to Jordan B. Fishman pursuant to an
Option Certificate, dated as of December 9, 1998, by and between the Company and
Jordan B. Fishman .
We are of the opinion that the Shares have been duly authorized and upon
issuance and sale in conformity with and pursuant to the Amendment and the
Option Agreements, the Shares will be validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to use of our name in the Prospectus constituting a part thereof.
Respectfully submitted,
/S/ TROOP STEUBER PASICH REDDICK & TOBEY, LLP
---------------------------------------------
TROOP STEUBER PASICH REDDICK & TOBEY, LLP
Exhibit 10.1
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the date set forth on the signature page hereof, by and between
BIOSOURCE INTERNATIONAL, INC. ( the "Company"), and James H. Chamberlain
("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Agreement.
The Company and Optionee agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the "Option"),
upon the terms and subject to the conditions set forth in this Agreement, to
purchase up to 50,000 shares of the Common Stock (the "Shares"), at an Option
Exercise Price (the "Exercise Price") of $2.6875 per share.
2. TERM OF OPTION.
The Option shall terminate and expire on the date (the "Option Expiration
Date") which is ten years from the date of this Option Agreement, unless sooner
terminated as provided herein.
3. VESTING.
The Option shall become immediately exercisable upon execution of this
Agreement.
4. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the Company
of:
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
(b) payment of the Exercise Price of the Purchased Shares, either in
cash, by check, or by transfer to the Company of issued and outstanding
shares of Common Stock, or by any combination of the above methods of
payment. If payment is made, in whole or in part, by transfer to the
Company of issued and outstanding shares of Common Stock, the value of such
shares shall be determined as follows: (i) if, at the time of payment, the
Common Stock is traded on the National Market System or any national or
regional stock exchange, the value of each share shall be the closing sale
price of a share of Common Stock on the business day immediately preceding
the payment or, if no sale was made on that date, on the most recent date
when such a sale was made, as reported on the composite tape for securities
transactions or similar source for reporting sales of the Common Stock;
(ii) if, at the time of payment, quotations with respect to the Common
Stock are made on the NASDAQ System, the value of each share
<PAGE>
shall be the average of the closing bid and asked quotations of a share of
Common Stock on the business day immediately preceding the payment or, if
no quotations were made on that date, on the most recent date when such
quotations were made; or (iii) if, at the time of payment, neither (i) nor
(ii) above is applicable, the value of each share shall be the fair market
value of each share, as determined by the Board or the Administrator.
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the Purchased Shares; PROVIDED, HOWEVER, that the Company shall not
be obligated to issue a fraction or fractions of a share of its Common Stock,
and may pay to Optionee, in cash or by check, the fair market value of any
fraction or fractions of a share exercised by Optionee, which fair market value
shall be determined as set forth in the preceding paragraph.
5. RESTRICTIONS ON PURCHASED SHARES.
Optionee shall not sell, transfer (with or without consideration), assign,
pledge, hypothecate or otherwise dispose of (collectively, "Transfer") any of
the Purchased Shares unless and until ALL of the following have occurred:
(a) The Purchased Shares are disposed of pursuant to and in conformity
with an effective registration statement filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), or the proposed disposition will not result
in a violation of the securities laws of any state of the United States;
and
(b) If requested by the Company, Optionee shall, prior to the transfer
of such Purchased Shares, deliver to the Company a written opinion of
counsel, satisfactory to the Company and its counsel, that the proposed
disposition will comply with the requirements set forth in clause (a)
above, in which case, the Company shall bear all reasonable costs of such
counsel in preparing such opinion.
Any attempted Transfer which is not in full compliance with this Paragraph
5 shall be null and void AB INITIO, and of no force or effect.
EX-10-1 - 2
<PAGE>
6. ADJUSTMENTS UPON RECAPITALIZATION.
Subject to any required action by the stockholders of the Company:
(a) If outstanding shares of the Common Stock shall be subdivided into
a greater number of shares of the Common Stock, or a dividend in Shares of
Common Stock or other securities of the Company convertible into or
exchangeable for shares of the Common Stock (in which latter event the
number of shares of Common Stock issuable upon the conversion or exchange
of such securities shall be deemed to have been distributed) shall be paid
in respect of the shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such
dividend shall, simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend, be proportionately
reduced, and conversely, if the outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Exercise
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately increased.
(b) In the event the Company at any time, or from time to time, shall
make or issue, or fix a record date for the determination of holders of
shares of Common Stock entitled to receive, a dividend or other
distribution payable in securities or the Company other than shares of
Common Stock or securities convertible into or exchangeable for shares of
Common Stock then and in each such event, provision shall be made so that
the holder of the Option shall receive upon exercise thereof, in addition
to the number of shares receivable thereupon, the amount of securities of
the Company which he or she would have received had his or her Option been
exercised on the date of such event and had thereafter, during the period
from the date of such event to and including the date of exercise, retained
such securities receivable by him or her as aforesaid during such period,
giving application to all adjustments called for during such period under
this Paragraph 6 with respect to the rights of the holder of the Option.
(c) When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product
by the Exercise Price in effect immediately after such adjustment.
(d) In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 6(a) or 6(b) of this Agreement), or the
consolidation of the Company with, or a sale of substantially all of the
assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or merger of the Company with, another person
where, in each such case, the Company is the "surviving corporation," as
defined in Paragraph 6(j) below, Optionee shall thereafter be entitled upon
exercise of the Option to purchase the kind and number of shares of stock
or other securities or property of the surviving corporation receivable
upon such event by a holder of the number of shares of the Common Stock
which the Option entitles Optionee to purchase from the Company any
immediately prior to such event; and in any such case, appropriate
adjustment shall be made in the application of the provisions set forth in
this Agreement with respect to Optionee's rights and interests thereafter,
to the end that the provisions set forth in this Agreement (including the
specified changes and other adjustments to the Exercise Price) shall
thereafter be applicable in relation to any shares or other property
thereafter purchasable upon exercise of the Option.
EX-10-1 - 3
<PAGE>
(e) A consolidation of the Company with, or a sale of substantially
all of the assets of the Company to (which sale is followed by a
liquidation or dissolution of the Company), or the Merger of the Company
with, any other person (other than a consolidation, sale or merger in which
the Company is the "Surviving Corporation," as defined in Paragraph 6 (j)
below) shall cause the Option to terminate on the Effective Date of such
consolidation, sale or merger; PROVIDED, HOWEVER, that the Optionee shall
have the right during a ten day period ending on the fifth day prior to
such consolidation, sale or merger to exercise the Option, in whole or in
part, without regard to the installment provision set forth in Paragraph 3
of this Option Agreement; but any exercise of the Option which except for
the provisions of this Paragraph 6(e) would not then be exercisable, shall
be conditioned upon the actual occurrence of such consolidation, sale or
merger, and if such consolidation, sale of merger is abandoned or otherwise
does not occur, for any reason, the Optionee's exercise of the Option
during such ten day period shall be null and void, and of no force and
effect; PROVIDED, FURTHER, that if such consolidation, sale or merger is to
be consummated, in whole or in part, by the tender of Common Stock to the
Surviving Corporation, the Optionee hereby agrees to tender the Shares
issued upon exercise of his or her Option to the Surviving Corporation, if
so directed by the board of directors of the Company, and to vote such
Shares for or against such consolidation, sale or merger, as directed by
the board of directors of the Company. For purposes of this Paragraph 6(e)
and subject to the previous sentence, any exercise of the Option by
optionee pursuant to this Paragraph 6 shall be deemed to occur immediately
prior to the consummation of such consolidation, sale or merger.
(f) If the Company is dissolved or liquidated then the Option shall
terminate on the effective date of such dissolution or liquidation;
PROVIDED, HOWEVER, the Optionee shall have the right during a ten day
period ending on the fifth day prior to such dissolution or liquidation to
exercise his or her Option in whole or in part, without regard to any of
the installment provisions set forth in Paragraph 3 of this Agreement; but
the exercise of the Option which except for the provisions of this
Paragraph 6(f) would not then be exercisable, shall be conditioned upon the
actual occurrence of such dissolution or liquidation, and if such
dissolution or liquidation were not to occur, the Optionee's exercise of
the Option during such ten day period shall be null and void, and of no
force and effect. For purposes of the this Paragraph 6(f) and subject to
the previous sentence, any exercise of the Option by Optionee pursuant to
this Paragraph 6(f) shall be deemed to occur immediately prior the
consummation of such dissolution or liquidation.
(g) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Administrator, and its determination shall be final, binding and
conclusive.
(h) The provisions of this Paragraph 6 are intended to be exclusive,
and Optionee shall have no other rights upon the occurrence of any of the
events described in this Paragraph 6.
(i) The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all or
any part of its business or assets.
(j) The determination as to which party is the "surviving corporation"
in a consolidation, sale or merger shall be made on the basis of the
relative equity interests of the stockholders in the corporation existing
after the consolidation, sale or merger, as follows: If following any
consolidation, sale or merger the holders of outstanding voting securities
of the Company prior to the consolidation, sale or merger own equity
securities possessing more than 50% of the voting power of the
EX-10-1 - 4
<PAGE>
corporation existing after the consolidation, sale or merger, then for
purposes of this Agreement, the Company shall be the surviving corporation.
In all other cases, the Company shall not be the surviving corporation. In
making the determination of ownership by the stockholders of a corporation,
immediately after a consolidation, sale or merger, of securities pursuant
to this Paragraph 6(j), securities which they owned immediately prior to
such consolidation, sale or merger as stockholders of another party to the
transaction shall be disregarded.
7. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Agreement, Optionee acknowledges and agrees that
neither the Company nor any other person or entity is under any oral
obligation to sell or transfer to Optionee any option or equity security of
the Company. By signing this Agreement, Optionee specifically waives all
rights which he or she may have had prior to the date of this Agreement
under any oral agreement or promise by the Company to receive any option or
equity security of the Company.
8. INVESTMENT INTENT.
Optionee represents and agrees that if he or she exercises the Option
in whole or in part, he or she will acquire the Shares upon such exercise
for the purpose of investment and not with a view to the distribution of
such Shares, and that upon each exercise of the Option he or she will
furnish to the Company a written statement to such effect.
9. LEGEND ON STOCK CERTIFICATES.
Optionee agrees that the Company may place on each certificate
representing the Purchased Shares the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"),
HAVE BEEN TAKEN FOR INVESTMENT, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH THE ACT AND THE RULES AND REGULATIONS OF THE
SECURITIES AND EXCHANGE COMMISSION THEREUNDER.
10. NO RIGHTS AS STOCKHOLDER.
Optionee shall have no rights as a stockholder with respect to the
Shares until the date of the issuance to Optionee of a stock certificate or
stock certificates evidencing such Shares. Except as may be provided in
Paragraph 6 of this Agreement, 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.
11. MODIFICATION.
The Board or the Administrator may modify, extend or renew the Option
or accept the surrender of, and authorize the grant of a new option in
substitution for, the Option (to the extent not previously exercised).
EX-10-1 - 5
<PAGE>
12. WITHHOLDING.
(a) The Company shall be entitled to require as a condition of
delivery of any Purchased Shares upon exercise of any Option that the
Optionee agree to remit, at the time of such delivery or at such later date
as the Company may determine, an amount sufficient to satisfy all federal,
state and local withholding tax requirements relating thereto, and Optionee
agrees to take such other action required by the Company to satisfy such
withholding requirements.
(b) With the consent of the Administrator, and in accordance with any
rules and procedures from time to time adopted by the Administrator,
Optionee may elect to satisfy his or her obligations under Paragraph 12(a)
above by (i) directing the Company to withhold a portion of the Shares
otherwise deliverable (or to tender back to the Company a portion of the
Shares issued where the Optionee (a "Section 16(b) Recipient") is required
to report the ownership of the Shares pursuant to Section 16(a) of the
Securities Exchange Act of 1934, as amended, and has not made an election
under Section 83(b) of the Code (a "Withholding Right")); or (ii) tendering
other shares of the Common Stock of the Company which are already owned by
Optionee which in all cases have a fair market value (as determined in
accordance with the provisions of Paragraph 4(b) hereof) on the date as of
which the amount of tax to be withheld is determined (the "Tax Date") equal
to the amount of taxes to be paid by such method.
(c) To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Administrator:
(A) the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 12(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
(B) unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable;
and
(C) no Election is valid unless the Administrator has the right
and power, in its sole discretion, with or without cause or reason
therefor, to consent to the Election, to refuse to consent to the
Election, or to disapprove the Election; and if the Administrator has
not consented to the Election on or prior to the Tax Date, the
Election will be deemed approved.
(D) If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(i) the Election cannot be made during the six calendar
month period commencing with the date of 9rant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior go such date); and
(ii) the Election must be made any day six calendar months
or more prior to the Tax Date.
EX-10-1 - 6
<PAGE>
13. CHARACTER OF OPTION.
The Option is intended to constitute a non-statutory stock option and
does not constitute an "incentive stock option" as that term is defined in
Section 422 of the Code.
14. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
(i) If to the Company, to:
BIOSOURCE INTERNATIONAL, INC.
820 Flynn Road
Camarillo, California 93012
(ii) If to Optionee, to the address set forth in the records of
the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may at
any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
(d) OPTION NON-TRANSFERABLE. Optionee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent
and distribution, and only Optionee may exercise the Option during his or
her lifetime.
(e) SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs and personal representatives.
(f) GOVERNING LAW. This Option Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts made in, and to be performed within, that State.
(g) ATTORNEYS' FEES. In the event that any action, suit or other
proceeding is instituted upon any breach of this Option Agreement, the
prevailing party shall be paid by the other party thereto an amount equal
to all of the prevailing party's costs and expenses, including attorneys'
fees incurred
EX-10-1 - 7
<PAGE>
in each and every such action, suit or proceeding (including any and all
appeals or petitions therefrom). As used in this Option Agreement,
"attorneys' fees" shall mean the full and actual cost of any legal services
actually performed in connection with the matter involved calculated on the
basis of the usual fee charged by the attorney performin9 such services and
shall not be limited to "reasonable attorneys' fees" as defined in any
statute or rule of court.
(h) MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable to any of the
parties hereto without the prior written consent of the other party hereto.
EX-10-1 - 8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Option Agreement as of the date set forth below.
DATED: May 19, 1993
BIOSOURCE INTERNATIONAL, INC.
By: /S/ ANNA ANDERSON
-----------------------------------
Its: CHIEF FINANCIAL OFFICER
OPTIONEE
By: /S/ JAMES CHAMBERLAIN
-----------------------------------
James H. Chamberlain
EX-10-1 - 9
Exhibit 10.2
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the date set forth on the signature page hereof, by and between
BIOSOURCE INTERNATIONAL, INC. ( the "Company"), and James H. Chamberlain
("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Agreement.
The Company and Optionee agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the "Option"),
upon the terms and subject to the conditions set forth in this Agreement, to
purchase up to 50,000 shares of the Common Stock (the "Shares"), at an Option
Exercise Price (the "Exercise Price") of $2.00 per share.
2. TERM OF OPTION.
The Option shall terminate and expire on the date (the "Option Expiration
Date") which is ten years from the date of this Option Agreement, unless sooner
terminated as provided herein.
3. VESTING.
The Option shall become immediately exercisable upon execution of this
Agreement.
4. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the Company
of:
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
(b) payment of the Exercise Price of the Purchased Shares, either in
cash, by check, or by transfer to the Company of issued and outstanding
shares of Common Stock, or by any combination of the above methods of
payment. If payment is made, in whole or in part, by transfer to the
Company of issued and outstanding shares of Common Stock, the value of such
shares shall be determined as follows: (i) if, at the time of payment, the
Common Stock is traded on the National Market System or any national or
regional stock exchange, the value of each share shall be the closing sale
price of a share of Common Stock on the business day immediately preceding
the payment or, if no sale was made on that date, on the most recent date
when such a sale was made, as reported on the composite tape for securities
transactions or similar source for reporting sales of the Common Stock;
(ii) if, at the time of payment, quotations with respect to the Common
Stock are made on the NASDAQ System, the value of each share
<PAGE>
shall be the average of the closing bid and asked quotations of a share of
Common Stock on the business day immediately preceding the payment or, if
no quotations were made on that date, on the most recent date when such
quotations were made; or (iii) if, at the time of payment, neither (i) nor
(ii) above is applicable, the value of each share shall be the fair market
value of each share, as determined by the Board or the Administrator.
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the Purchased Shares; PROVIDED, HOWEVER, that the Company shall not
be obligated to issue a fraction or fractions of a share of its Common Stock,
and may pay to Optionee, in cash or by check, the fair market value of any
fraction or fractions of a share exercised by Optionee, which fair market value
shall be determined as set forth in the preceding paragraph.
5. RESTRICTIONS ON PURCHASED SHARES.
Optionee shall not sell, transfer (with or without consideration), assign,
pledge, hypothecate or otherwise dispose of (collectively, "Transfer") any of
the Purchased Shares unless and until ALL of the following have occurred:
(a) The Purchased Shares are disposed of pursuant to and in conformity
with an effective registration statement filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), or the proposed disposition will not result
in a violation of the securities laws of any state of the United States;
and
(b) If requested by the Company, Optionee shall, prior to the transfer
of such Purchased Shares, deliver to the Company a written opinion of
counsel, satisfactory to the Company and its counsel, that the proposed
disposition will comply with the requirements set forth in clause (a)
above, in which case, the Company shall bear all reasonable costs of such
counsel in preparing such opinion.
Any attempted Transfer which is not in full compliance with this Paragraph
5 shall be null and void AB INITIO, and of no force or effect.
6. ADJUSTMENTS UPON RECAPITALIZATION.
Subject to any required action by the stockholders of the Company:
(a) If outstanding shares of the Common Stock shall be subdivided into
a greater number of shares of the Common Stock, or a dividend in Shares of
Common Stock or other securities of the Company convertible into or
exchangeable for shares of the Common Stock (in which latter event the
number of shares of Common Stock issuable upon the conversion or exchange
of such securities shall be deemed to have been distributed) shall be paid
in respect of the shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such
dividend shall, simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend, be proportionately
reduced, and conversely, if the outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Exercise
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately increased.
EX-10-2 - 2
<PAGE>
(b) In the event the Company at any time, or from time to time, shall
make or issue, or fix a record date for the determination of holders of
shares of Common Stock entitled to receive, a dividend or other
distribution payable in securities or the Company other than shares of
Common Stock or securities convertible into or exchangeable for shares of
Common Stock then and in each such event, provision shall be made so that
the holder of the Option shall receive upon exercise thereof, in addition
to the number of shares receivable thereupon, the amount of securities of
the Company which he or she would have received had his or her Option been
exercised on the date of such event and had thereafter, during the period
from the date of such event to and including the date of exercise, retained
such securities receivable by him or her as aforesaid during such period,
giving application to all adjustments called for during such period under
this Paragraph 6 with respect to the rights of the holder of the Option.
(c) When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product
by the Exercise Price in effect immediately after such adjustment.
(d) In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 6(a) or 6(b) of this Agreement), or the
consolidation of the Company with, or a sale of substantially all of the
assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or merger of the Company with, another person
where, in each such case, the Company is the "surviving corporation," as
defined in Paragraph 6(j) below, Optionee shall thereafter be entitled upon
exercise of the Option to purchase the kind and number of shares of stock
or other securities or property of the surviving corporation receivable
upon such event by a holder of the number of shares of the Common Stock
which the Option entitles Optionee to purchase from the Company any
immediately prior to such event; and in any such case, appropriate
adjustment shall be made in the application of the provisions set forth in
this Agreement with respect to Optionee's rights and interests thereafter,
to the end that the provisions set forth in this Agreement (including the
specified changes and other adjustments to the Exercise Price) shall
thereafter be applicable in relation to any shares or other property
thereafter purchasable upon exercise of the Option.
(e) A consolidation of the Company with, or a sale of substantially
all of the assets of the Company to (which sale is followed by a
liquidation or dissolution of the Company), or the Merger of the Company
with, any other person (other than a consolidation, sale or merger in which
the Company is the "Surviving Corporation," as defined in Paragraph 6 (j)
below) shall cause the Option to terminate on the Effective Date of such
consolidation, sale or merger; PROVIDED, HOWEVER, that the Optionee shall
have the right during a ten day period ending on the fifth day prior to
such consolidation, sale or merger to exercise the Option, in whole or in
part, without regard to the installment provision set forth in Paragraph 3
of this Option Agreement; but any exercise of the Option which except for
the provisions of this Paragraph 6(e) would not then be exercisable, shall
be conditioned upon the actual occurrence of such consolidation, sale or
merger, and if such consolidation, sale of merger is abandoned or otherwise
does not occur, for any reason, the Optionee's exercise of the Option
during such ten day period shall be null and void, and of no force and
effect; PROVIDED, FURTHER, that if such consolidation, sale or merger is to
be consummated, in whole or in part, by the tender of Common Stock to the
Surviving Corporation, the Optionee hereby agrees to tender the Shares
issued upon exercise of his or her Option to the Surviving Corporation, if
so directed by the board of directors of the Company, and to vote such
Shares for or against such consolidation, sale or merger, as directed by
the board of directors of the
EX-10-2 - 3
<PAGE>
Company. For purposes of this Paragraph 6(e) and subject to the previous
sentence, any exercise of the Option by optionee pursuant to this Paragraph
6 shall be deemed to occur immediately prior to the consummation of such
consolidation, sale or merger.
(f) If the Company is dissolved or liquidated then the Option shall
terminate on the effective date of such dissolution or liquidation;
PROVIDED, HOWEVER, the Optionee shall have the right during a ten day
period ending on the fifth day prior to such dissolution or liquidation to
exercise his or her Option in whole or in part, without regard to any of
the installment provisions set forth in Paragraph 3 of this Agreement; but
the exercise of the Option which except for the provisions of this
Paragraph 6(f) would not then be exercisable, shall be conditioned upon the
actual occurrence of such dissolution or liquidation, and if such
dissolution or liquidation were not to occur, the Optionee's exercise of
the Option during such ten day period shall be null and void, and of no
force and effect. For purposes of the this Paragraph 6(f) and subject to
the previous sentence, any exercise of the Option by Optionee pursuant to
this Paragraph 6(f) shall be deemed to occur immediately prior the
consummation of such dissolution or liquidation.
(g) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Administrator, and its determination shall be final, binding and
conclusive.
(h) The provisions of this Paragraph 6 are intended to be exclusive,
and Optionee shall have no other rights upon the occurrence of any of the
events described in this Paragraph 6.
(i) The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all or
any part of its business or assets.
(j) The determination as to which party is the "surviving corporation"
in a consolidation, sale or merger shall be made on the basis of the
relative equity interests of the stockholders in the corporation existing
after the consolidation, sale or merger, as follows: If following any
consolidation, sale or merger the holders of outstanding voting securities
of the Company prior to the consolidation, sale or merger own equity
securities possessing more than 50% of the voting power of the corporation
existing after the consolidation, sale or merger, then for purposes of this
Agreement, the Company shall be the surviving corporation. In all other
cases, the Company shall not be the surviving corporation. In making the
determination of ownership by the stockholders of a corporation,
immediately after a consolidation, sale or merger, of securities pursuant
to this Paragraph 6(j), securities which they owned immediately prior to
such consolidation, sale or merger as stockholders of another party to the
transaction shall be disregarded.
7. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Agreement, Optionee acknowledges and agrees that neither
the Company nor any other person or entity is under any oral obligation to sell
or transfer to Optionee any option or equity security of the Company. By signing
this Agreement, Optionee specifically waives all rights which he or she may have
had prior to the date of this Agreement under any oral agreement or promise by
the Company to receive any option or equity security of the Company.
EX-10-2 - 4
<PAGE>
8. INVESTMENT INTENT.
Optionee represents and agrees that if he or she exercises the Option in
whole or in part, he or she will acquire the Shares upon such exercise for the
purpose of investment and not with a view to the distribution of such Shares,
and that upon each exercise of the Option he or she will furnish to the Company
a written statement to such effect.
9. LEGEND ON STOCK CERTIFICATES.
Optionee agrees that the Company may place on each certificate representing
the Purchased Shares the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), HAVE BEEN TAKEN
FOR INVESTMENT, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE ACT AND
THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION
THEREUNDER.
10. NO RIGHTS AS STOCKHOLDER.
Optionee shall have no rights as a stockholder with respect to the Shares
until the date of the issuance to Optionee of a stock certificate or stock
certificates evidencing such Shares. Except as may be provided in Paragraph 6 of
this Agreement, 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.
11. MODIFICATION.
The Board or the Administrator may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised).
12. WITHHOLDING.
(a) The Company shall be entitled to require as a condition of
delivery of any Purchased Shares upon exercise of any Option that the
Optionee agree to remit, at the time of such delivery or at such later date
as the Company may determine, an amount sufficient to satisfy all federal,
state and local withholding tax requirements relating thereto, and Optionee
agrees to take such other action required by the Company to satisfy such
withholding requirements.
(b) With the consent of the Administrator, and in accordance with any
rules and procedures from time to time adopted by the Administrator,
Optionee may elect to satisfy his or her obligations under Paragraph 12(a)
above by (i) directing the Company to withhold a portion of the Shares
otherwise deliverable (or to tender back to the Company a portion of the
Shares issued where the Optionee (a "Section 16(b) Recipient") is required
to report the ownership of the Shares pursuant to Section 16(a) of the
Securities Exchange Act of 1934, as amended, and has not made an election
under Section 83(b) of the Code (a "Withholding Right")); or (ii) tendering
other shares of the Common Stock of the Company
EX-10-2 - 5
<PAGE>
which are already owned by Optionee which in all cases have a fair market
value (as determined in accordance with the provisions of Paragraph 4(b)
hereof) on the date as of which the amount of tax to be withheld is
determined (the "Tax Date") equal to the amount of taxes to be paid by such
method.
(c) To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Administrator:
(A) the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 12(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
(B) unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable;
and
(C) no Election is valid unless the Administrator has the right
and power, in its sole discretion, with or without cause or reason
therefor, to consent to the Election, to refuse to consent to the
Election, or to disapprove the Election; and if the Administrator has
not consented to the Election on or prior to the Tax Date, the
Election will be deemed approved.
(D) If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(i) the Election cannot be made during the six calendar
month period commencing with the date of 9rant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior go such date); and
(ii) the Election must be made any day six calendar months
or more prior to the Tax Date.
13. CHARACTER OF OPTION.
The Option is intended to constitute a non-statutory stock option and
does not constitute an "incentive stock option" as that term is defined in
Section 422 of the Code.
14. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Optionee shall promptly take all actions
and execute all documents requested by the Company which the Company
deems to be reasonably necessary to effectuate the terms and intent of
this Option Agreement.
(b) NOTICES. All notices, requests, demands and other
communications under this Option Agreement shall be in writing and
shall be given to the parties hereto as follows:
(i) If to the Company, to:
BIOSOURCE INTERNATIONAL, INC.
820 Flynn Road
Camarillo, California 93012
EX-10-2 - 6
<PAGE>
(ii) If to Optionee, to the address set forth in the records
of the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company
may at any time transfer and assign its rights and delegate its
obligations under this Option Agreement to any other person,
corporation, firm or entity, including its officers, directors and
stockholders, with or without consideration.
(d) OPTION NON-TRANSFERABLE. Optionee may not sell, transfer,
assign or otherwise dispose of the Option except by will or the laws
of descent and distribution, and only Optionee may exercise the Option
during his or her lifetime.
(e) SUCCESSORS AND ASSIGNS. Except to the extent specifically
limited by the terms and provisions of this Option Agreement, this
Option Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns, heirs and
personal representatives.
(f) GOVERNING LAW. This Option Agreement shall be governed by and
construed in accordance with the laws of the State of California
applicable to contracts made in, and to be performed within, that
State.
(g) ATTORNEYS' FEES. In the event that any action, suit or other
proceeding is instituted upon any breach of this Option Agreement, the
prevailing party shall be paid by the other party thereto an amount
equal to all of the prevailing party's costs and expenses, including
attorneys' fees incurred in each and every such action, suit or
proceeding (including any and all appeals or petitions therefrom). As
used in this Option Agreement, "attorneys' fees" shall mean the full
and actual cost of any legal services actually performed in connection
with the matter involved calculated on the basis of the usual fee
charged by the attorney performin9 such services and shall not be
limited to "reasonable attorneys' fees" as defined in any statute or
rule of court.
(h) MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose.
Except as specifically provided herein, neither this Option Agreement
nor any right pursuant hereto or interest herein shall be assignable
to any of the parties hereto without the prior written consent of the
other party hereto.
EX-10-2 - 7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Option Agreement as of the date set forth below.
DATED: May 19, 1993
BIOSOURCE INTERNATIONAL, INC.
By: /S/ ANNA ANDERSON
-----------------------------------
Its: CHIEF FINANCIAL OFFICER
OPTIONEE
By: /S/ JAMES CHAMBERLAIN
-----------------------------------
James H. Chamberlain
EX-10-2 - 8
Exhibit 10.3
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the date set forth on the signature page hereof, by and between
BIOSOURCE INTERNATIONAL, INC. (the "Company"), and James H. Chamberlain
("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions sec forth in this Agreement.
The Company and Optionee agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the "Option"),
upon the terms and subject to the conditions set forth in this Agreement, to
purchase up to 100,000 shares of the Common Stock (the "Shares"), at an Option
Exercise Price (the "Exercise Price") of $1.50 per share.
2. TERM OF OPTION.
The Option shall terminate and expire on the date (the "Option Expiration
Date") which is ten years from the date of this Option Agreement, unless sooner
terminated as provided herein.
3. VESTING.
The Option shall become immediately exercisable upon execution of this
Agreement.
4. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the Company
of:
a. written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
b. payment of the Exercise Price of the Purchased Shares, either in
cash, by check, or by transfer to the Company of issued and outstanding
shares of Common Stock, or by any combination of the above methods of
payment. If payment is made, in whole or in part, by transfer to the
Company of issued and outstanding shares of Common Stock, the value of such
shares shall be determined as follows: (i) if, at the time of payment, the
Common Stock is traded on the National Market System or
<PAGE>
any national or regional stock exchange, the value of each share shall be
the closing sale price of a share of Common Stock on the business day
immediately preceding the payment or, if no sale was made on that date, on
the most recent date when such a sale was made, as reported on the
composite tape for securities transactions or similar source for reporting
sales of the Common Stock; (ii) if, at the time of payment, quotations with
respect to the Common Stock are made on the NASDAQ System, the value of
each share shall be the average of the closing bid and asked quotations of
a share of Common Stock on the business day immediately preceding the
payment or, if no quotations were made on that date, on the most recent
date when such quotations were made; or (iii) if, at the time of payment,
neither (i) nor (ii) above is applicable, the value of each share shall be
the fair market value of each share, as determined by the Board or the
Administrator.
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the Purchased Shares; PROVIDED, HOWEVER, that the Company shall not
be obligated to issue a fraction or fractions of a share of its Common Stock,
and may pay to Optionee, in cash or by check, the fair market value of any
fraction or fractions of a share exercised by Optionee, which fair market value
shall be determined as set forth in the preceding paragraph.
5. RESTRICTIONS ON PURCHASED SHARES.
Optionee shall not sell, transfer (with or without consideration), assign,
pledge, hypothecate or otherwise dispose of (collectively, "Transfer") any of
the Purchased Shares unless and until all of the following have occurred:
a. The Purchased Shares are disposed of pursuant to and in conformity
with an effective registration statement filed with the Securities and
Exchange Commission {the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), or the proposed disposition will not result
in a violation of the securities laws of any state of the United States;
and
b. If requested by the Company, Optionee shall, prior to the transfer
of such Purchased Shares, deliver to the Company a written opinion of
counsel, satisfactory to the Company and its counsel, that the proposed
disposition will comply with the requirements set forth in clause (a)
above, in which case, the Company shall bear all reasonable costs of such
counsel in preparing such opinion.
Any attempted Transfer which is not in full compliance with this Paragraph
5 shall be null and void AB INITIO, and of no force or effect.
6. ADJUSTMENTS UPON RECAPITALIZATION.
Subject to any required action by the stockholders of the Company:
a. If outstanding shares of the Common Stock shall be subdivided into
a greater number of shares of the Common Stock, or a dividend in Shares of
Common Stock or other securities of the Company convertible into or
exchangeable for shares of the Common Stock (in which latter event the
number of shares of Common Stock issuable upon the conversion or exchange
of such securities shall be deemed to have been distributed) shall be paid
in respect of the shares of Common Stock, the Exercise
EX-10-3 - 2
<PAGE>
Price in effect immediately prior to such subdivision or at the record date
of such dividend shall, simultaneously with the effectiveness of such
subdivision or immediately after the record date of such dividend, be
proportionately reduced, and conversely, if the outstanding shares of
Common Stock shall be combined into a smaller number of shares of Common
Stock, the Exercise Price in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased.
b. In the event the Company at any time. or from time to time, shall
make or issue, or fix a record date for the determination of holders of
shares of Common Stock entitled to receive, a dividend or other
distribution payable in securities of the Company other than shares of
Common Stock or securities convertible into or exchangeable for shares of
Common Stock then and in each such event, provision shall be made so that
the holder of the Option shall receive upon exercise thereof, in addition
to the number of shares receivable thereupon, the amount of securities of
the Company which he or she would have received had his or her Option been
exercised on the date of such event and had thereafter, during the period
from the date of such event to and including the date of exercise, retained
such securities receivable by him or her as aforesaid during such period,
giving application to all adjustments called for during such period under
this Paragraph 6 with respect to the rights of the holder of the Option.
c. When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product
by the Exercise Price in effect immediately after such adjustment.
d. In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 6(a) or 6(b) of this Agreement), or the
consolidation of the Company with, or a sale of substantially all of the
assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or merger of the Company with, another person
where, in each such case, the Company is the "surviving corporation," as
defined in Paragraph 6(j) below, Optionee shall thereafter be entitled upon
exercise of the Option to purchase the kind and number of shares of stock
or other securities or property of the surviving corporation receivable
upon such event by a holder of the number of shares of the Common Stock
which the Option entitles Optionee to purchase from the Company immediately
prior to such event; and in any such case, appropriate adjustment shall be
made in the application of the provisions set forth in this Agreement with
respect to Optionee's rights and interests thereafter, to the end that the
provisions set forth in this Agreement (including the specified changes and
other adjustments to the Exercise Price) shall thereafter be applicable in
relation to any shares or other property thereafter purchasable upon
exercise of the Option.
e. A consolidation of the Company with, or a sale of substantially all
of the assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or the Merger of the Company with, any other
person (other than a consolidation, sale or merger in which the Company is
the "Surviving Corporation," as defined in Paragraph 6(j) below) shall
cause the Option to terminate on the Effective Date of such consolidation,
sale or merger; PROVIDED, FURTHER, that the Optionee shall have the right
during a ten day period ending on the fifth day prior to such
consolidation, sale or merger to exercise the Option, in whole or in part,
without regard to the installment provision set forth in
EX-10-3 - 3
<PAGE>
Paragraph 3 of this Option Agreement; but any exercise of the Option which
except for the provisions of this Paragraph 6(e) would not then be
exercisable, shall be conditioned upon the actual occurrence of such
consolidation, sale or merger, and if such consolidation, sale of merger is
abandoned or otherwise does not occur, for any reason, the Optionee's
exercise of the Option during such ten day period shall be null and void,
and of no force and effect; PROVIDED, FURTHER, that if such consolidation,
sale or merger is to be consummated, in whole or in part, by the tender of
Common Stock to the Surviving Corporation, the Optionee hereby agrees to
tender the Shares issued upon exercise of his or her Option to the
Surviving Corporation, if so directed by the board of directors of the
Company, and to vote such Shares for or against such consolidation, sale or
merger, as directed by the board of directors of the Company. For purposes
of this Paragraph 6(e) and subject to the previous sentence, any exercise
of the Option by Optionee pursuant to this Paragraph 6 shall be deemed to
occur immediately prior to the consummation of such consolidation, sale or
merger.
f. If the Company is dissolved or liquidated then the Option shall
terminate on the effective date of such dissolution or liquidation;
PROVIDED, HOWEVER, the Optionee shall have the right during a ten day
period ending on the fifth day prior to such dissolution or liquidation to
exercise his or her Option in whole or in part, without regard to any of
the installment provisions set forth in Paragraph 3 of this Agreement; but
the exercise of the Option which except for the provisions of this
Paragraph 6(f) would not then be exercisable, shall be conditioned upon the
actual occurrence of such dissolution or liquidation, and if such
dissolution or liquidation were not to occur, the Optionee's exercise of
the Option during such ten day period shall be null and void, and of no
force and effect. For purposes of the this Paragraph 6(f) and subject to
the previous sentence, any exercise of the Option by Optionee pursuant to
this Paragraph 6(f) shall be deemed to occur immediately prior the
consummation of such dissolution or liquidation.
g. To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Administrator, and its determination shall be final, binding and
conclusive.
h. The provisions of this Paragraph 6 are intended to be exclusive,
and Optionee shall have no other rights upon the occurrence of any of the
events described in this Paragraph 6.
i. The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all or
any part of its business or assets.
j. The determination as to which party is the "surviving corporation"
in a consolidation, sale or merger shall be made on the basis of the
relative equity interests of the stockholders in the corporation existing
after the consolidation, sale or merger, as follows: If following any
consolidation, sale or merger the holders of outstanding voting securities
of the Company prior to the consolidation, sale or merger own equity
securities possessing more than 50% of the voting power of the corporation
existing after the consolidation, sale or merger, then for purposes of this
Agreement, the Company shall be the surviving corporation. In all other
cases, the Company shall not be the surviving corporation. In making the
determination of ownership by the stockholders of a corporation,
immediately after a consolidation, sale or merger, of securities pursuant
to this Paragraph 6(j), securities which they
EX-10-3 - 4
<PAGE>
owned immediately prior to such consolidation, sale or merger as
stockholders of another party to the transaction shall be disregarded.
7. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Agreement, Optionee acknowledges and agrees that neither
the Company nor any other person or entity is under any oral obligation to sell
or transfer to Optionee any option or equity security of the Company. By signing
this Agreement, optionee specifically waives all rights which he or she may have
had prior to the date of this Agreement under any oral agreement or promise by
the Company to receive any option or equity security of the Company.
8. INVESTMENT INTENT.
Optionee represents and agrees that if he or she exercises the Option in
whole or in part, he or she will acquire the Shares upon such exercise for the
purpose of investment and not with a view to the distribution of such Shares,
and that upon each exercise of the Option he or she will furnish to the Company
a written statement to such effect.
9. LEGEND ON STOCK CERTIFICATES.
Optionee agrees that the Company may place on each certificate representing
the Purchased Shares the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), HAVE BEEN TAKEN
FOR INVESTMENT, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE ACT AND
THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION
THEREUNDER.
10. NO RIGHTS AS SHAREHOLDERS.
Optionee shall have no rights as a stockholder with respect to the Shares
until the date of the issuance to Optionee of a stock certificate or stock
certificates evidencing such Shares. Except as may be provided in Paragraph 6 of
this Agreement, 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.
11. MODIFICATION.
The Board or the Administrator may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised).
EX-10-3 - 5
<PAGE>
12. WITHHOLDING.
a. The Company shall be entitled to require as a condition of delivery
of any Purchased Shares upon exercise of any Option that the optionee agree
to remit, at the time of such delivery or at such later date as the Company
may determine, an amount sufficient to satisfy all federal, state and local
withholding tax requirements relating thereto, and Optionee agrees to take
such other action required by the Company to satisfy such withholding
requirements.
b. With the consent of the Administrator, and in accordance with any
rules and procedures from time to time adopted by the Administrator,
Optionee may elect to satisfy his or her obligations under Paragraph 12(a)
above by (i) directing the Company to withhold a portion of the Shares
otherwise deliverable (or to tender back to the Company a portion of the
Shares issued where the Optionee (a "Section 16(b) Recipient") is required
to report the ownership of the Shares pursuant to Section 16(a) of the
Securities Exchange Act of 1934, as amended, and has not made an election
under Section 83(b) of the Code (a "Withholding Right")); or (ii) tendering
other shares of the Common Stock of the Company which are already owned by
Optionee which in all cases have a fair market value (as determined in
accordance with the provisions of Paragraph 4(b) hereof) on the date as of
which the amount of tax to be withheld is determined (the "Tax Date") equal
to the amount of taxes to be paid by such method.
c. To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Administrator:
i. the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 12(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
ii. unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable;
and
iii. no Election is valid unless the Administrator has the right
and power, in its sole discretion, with or without cause or reason
therefor, to consent to the Election, to refuse to consent to the
Election, or to disapprove the Election; and if the Administrator has
not consented to the Election on or prior to the Tax Date, the
Election will be deemed approved.
iv. If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(1) the Election cannot be made during the six calendar
month period commencing with the date of grant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior to such date); and
EX-10-3 - 6
<PAGE>
(2) the Election must be made any day six calendar months or
more prior to the Tax Date.
13.CHARACTER OF OPTION.
The Option is intended to constitute a non-statutory stock option and DOES
NOT constitute an "incentive stock option" as that term is defined in Section
422 of the Code.
14.GENERAL PROVISIONS.
a. FURTHER ASSURANCES. Optionee shall promptly take ail actions and
execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
b. NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
(1) If to the Company, to:
BIOSOURCE INTERNATIONAL, INC.
820 Flynn Road
Camarillo, California 93012
(2) If to Optionee, to the address set forth in the records of
the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
c. TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may at
any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
d. OPTION NON-TRANSFERABLE. Optionee may not sell, transfer, assign or
otherwise dispose of the Option except by will or the laws of descent and
distribution, and only optionee may exercise the Option during his or her
lifetime.
e. SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs and personal representatives.
EX-10-3 - 7
<PAGE>
f. GOVERNING LAW. This Option Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts made in, and to be performed within, that State.
g. ATTORNEYS' FEES. In the event that any action, suit or other
proceeding is instituted upon any breach of this Option Agreement, the
prevailing party shall be paid by the other party thereto an amount equal
to all of the prevailing party's costs and expenses, including attorneys'
fees incurred in each and every such action, suit or proceeding (including
any and all appeals or petitions therefrom). As used in this Option
Agreement, "attorneys' fees" shall mean the full and actual cost of any
legal services actually performed in connection with the matter involved
calculated on the basis of the usual fee charged by the attorney performing
such services and shall not be limited to "reasonable attorneys' fees" as
defined in any statute or rule of court.
h. MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable by any of the
parties hereto without the prior written consent of the other party hereto.
DATED: January 23, 1995
BIOSOURCE INTERNATIONAL, INC.
By: /S/ ANNA ANDERSON
-----------------------------------
Its: CHIEF FINANCIAL OFFICER
OPTIONEE
By: /S/ JAMES CHAMBERLAIN
-----------------------------------
James H. Chamberlain
EX-10-3 - 8
Exhibit 10.4
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the date set forth on the signature page hereof, by and between
BIOSOURCE INTERNATIONAL, INC. ( the "Company"), and James H. Chamberlain
("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Agreement.
The Company and Optionee agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the "Option"),
upon the terms and subject to the conditions set forth in this Agreement, to
purchase up to 137,500 shares of the Common Stock (the "Shares"), at an Option
Exercise Price (the "Exercise Price") of $5.25 per share.
2. TERM OF OPTION.
The Option shall terminate and expire on the date (the "Option Expiration
Date") which is ten years from the date of this Option Agreement, unless sooner
terminated as provided herein.
3. VESTING.
The Option shall become immediately exercisable upon execution of this
Agreement.
4. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the Company
of:
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
(b) payment of the Exercise Price of the Purchased Shares, either in
cash, by check, or by transfer to the Company of issued and outstanding
shares of Common Stock, or by any combination of the above methods of
payment. If payment is made, in whole or in part, by transfer to the
Company of issued and outstanding shares of Common Stock, the value of such
shares shall be determined as follows: (i) if, at the time of payment, the
Common Stock is traded on the National Market System or any national or
regional stock exchange, the value of each share shall be the closing sale
price of a share of Common Stock on the business day immediately preceding
the payment or, if no sale was made on that date, on the most recent date
when such a sale was made, as reported on the composite tape for securities
transactions or similar source for reporting sales of the Common Stock;
(ii) if, at the time of payment, quotations with respect to the Common
Stock are made on the NASDAQ System, the value of each share
<PAGE>
shall be the average of the closing bid and asked quotations of a share of
Common Stock on the business day immediately preceding the payment or, if
no quotations were made on that date, on the most recent date when such
quotations were made; or (iii) if, at the time of payment, neither (i) nor
(ii) above is applicable, the value of each share shall be the fair market
value of each share, as determined by the Board or the Administrator.
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the Purchased Shares; PROVIDED, HOWEVER, that the Company shall not
be obligated to issue a fraction or fractions of a share of its Common Stock,
and may pay to Optionee, in cash or by check, the fair market value of any
fraction or fractions of a share exercised by Optionee, which fair market value
shall be determined as set forth in the preceding paragraph.
5. RESTRICTIONS ON PURCHASED SHARES.
Optionee shall not sell, transfer (with or without consideration), assign,
pledge, hypothecate or otherwise dispose of (collectively, "Transfer") any of
the Purchased Shares unless and until ALL of the following have occurred:
(a) The Purchased Shares are disposed of pursuant to and in conformity
with an effective registration statement filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), or the proposed disposition will not result
in a violation of the securities laws of any state of the United States;
and
(b) If requested by the Company, Optionee shall, prior to the transfer
of such Purchased Shares, deliver to the Company a written opinion of
counsel, satisfactory to the Company and its counsel, that the proposed
disposition will comply with the requirements set forth in clause (a)
above, in which case, the Company shall bear all reasonable costs of such
counsel in preparing such opinion.
Any attempted Transfer which is not in full compliance with this Paragraph
5 shall be null and void AB INITIO, and of no force or effect.
6. ADJUSTMENTS UPON RECAPITALIZATION.
Subject to any required action by the stockholders of the Company:
(a) If outstanding shares of the Common Stock shall be subdivided into
a greater number of shares of the Common Stock, or a dividend in Shares of
Common Stock or other securities of the Company convertible into or
exchangeable for shares of the Common Stock (in which latter event the
number of shares of Common Stock issuable upon the conversion or exchange
of such securities shall be deemed to have been distributed) shall be paid
in respect of the shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such
dividend shall, simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend, be proportionately
reduced, and conversely, if the outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Exercise
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately increased.
EX-10-4 - 2
<PAGE>
(b) In the event the Company at any time, or from time to time, shall
make or issue, or fix a record date for the determination of holders of
shares of Common Stock entitled to receive, a dividend or other
distribution payable in securities or the Company other than shares of
Common Stock or securities convertible into or exchangeable for shares of
Common Stock then and in each such event, provision shall be made so that
the holder of the Option shall receive upon exercise thereof, in addition
to the number of shares receivable thereupon, the amount of securities of
the Company which he or she would have received had his or her Option been
exercised on the date of such event and had thereafter, during the period
from the date of such event to and including the date of exercise, retained
such securities receivable by him or her as aforesaid during such period,
giving application to all adjustments called for during such period under
this Paragraph 6 with respect to the rights of the holder of the Option.
(c) When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product
by the Exercise Price in effect immediately after such adjustment.
(d) In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 6(a) or 6(b) of this Agreement), or the
consolidation of the Company with, or a sale of substantially all of the
assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or merger of the Company with, another person
where, in each such case, the Company is the "surviving corporation," as
defined in Paragraph 6(j) below, Optionee shall thereafter be entitled upon
exercise of the Option to purchase the kind and number of shares of stock
or other securities or property of the surviving corporation receivable
upon such event by a holder of the number of shares of the Common Stock
which the Option entitles Optionee to purchase from the Company any
immediately prior to such event; and in any such case, appropriate
adjustment shall be made in the application of the provisions set forth in
this Agreement with respect to Optionee's rights and interests thereafter,
to the end that the provisions set forth in this Agreement (including the
specified changes and other adjustments to the Exercise Price) shall
thereafter be applicable in relation to any shares or other property
thereafter purchasable upon exercise of the Option.
(e) A consolidation of the Company with, or a sale of substantially
all of the assets of the Company to (which sale is followed by a
liquidation or dissolution of the Company), or the Merger of the Company
with, any other person (other than a consolidation, sale or merger in which
the Company is the "Surviving Corporation," as defined in Paragraph 6 (j)
below) shall cause the Option to terminate on the Effective Date of such
consolidation, sale or merger; PROVIDED, HOWEVER, that the Optionee shall
have the right during a ten day period ending on the fifth day prior to
such consolidation, sale or merger to exercise the Option, in whole or in
part, without regard to the installment provision set forth in Paragraph 3
of this Option Agreement; but any exercise of the Option which except for
the provisions of this Paragraph 6(e) would not then be exercisable, shall
be conditioned upon the actual occurrence of such consolidation, sale or
merger, and if such consolidation, sale of merger is abandoned or otherwise
does not occur, for any reason, the Optionee's exercise of the Option
during such ten day period shall be null and void, and of no force and
effect; PROVIDED, FURTHER, that if such consolidation, sale or merger is to
be consummated, in whole or in part, by the tender of Common Stock to the
Surviving Corporation, the Optionee hereby agrees to tender the Shares
issued upon exercise of his or her Option to the Surviving Corporation, if
so directed by the board of directors of the Company, and to vote such
Shares for or against such consolidation, sale or merger, as directed by
the board of directors of the
EX-10-4 - 3
<PAGE>
Company. For purposes of this Paragraph 6(e) and subject to the previous
sentence, any exercise of the Option by optionee pursuant to this Paragraph
6 shall be deemed to occur immediately prior to the consummation of such
consolidation, sale or merger.
(f) If the Company is dissolved or liquidated then the Option shall
terminate on the effective date of such dissolution or liquidation;
PROVIDED, HOWEVER, the Optionee shall have the right during a ten day
period ending on the fifth day prior to such dissolution or liquidation to
exercise his or her Option in whole or in part, without regard to any of
the installment provisions set forth in Paragraph 3 of this Agreement; but
the exercise of the Option which except for the provisions of this
Paragraph 6(f) would not then be exercisable, shall be conditioned upon the
actual occurrence of such dissolution or liquidation, and if such
dissolution or liquidation were not to occur, the Optionee's exercise of
the Option during such ten day period shall be null and void, and of no
force and effect. For purposes of the this Paragraph 6(f) and subject to
the previous sentence, any exercise of the Option by Optionee pursuant to
this Paragraph 6(f) shall be deemed to occur immediately prior the
consummation of such dissolution or liquidation.
(g) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Administrator, and its determination shall be final, binding and
conclusive.
(h) The provisions of this Paragraph 6 are intended to be exclusive,
and Optionee shall have no other rights upon the occurrence of any of the
events described in this Paragraph 6.
(i) The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all or
any part of its business or assets.
(j) The determination as to which party is the "surviving corporation"
in a consolidation, sale or merger shall be made on the basis of the
relative equity interests of the stockholders in the corporation existing
after the consolidation, sale or merger, as follows: If following any
consolidation, sale or merger the holders of outstanding voting securities
of the Company prior to the consolidation, sale or merger own equity
securities possessing more than 50% of the voting power of the corporation
existing after the consolidation, sale or merger, then for purposes of this
Agreement, the Company shall be the surviving corporation. In all other
cases, the Company shall not be the surviving corporation. In making the
determination of ownership by the stockholders of a corporation,
immediately after a consolidation, sale or merger, of securities pursuant
to this Paragraph 6(j), securities which they owned immediately prior to
such consolidation, sale or merger as stockholders of another party to the
transaction shall be disregarded.
7. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Agreement, Optionee acknowledges and agrees that neither
the Company nor any other person or entity is under any oral obligation to sell
or transfer to Optionee any option or equity security of the Company. By signing
this Agreement, Optionee specifically waives all rights which he or she may have
had prior to the date of this Agreement under any oral agreement or promise by
the Company to receive any option or equity security of the Company.
EX-10-4 - 4
<PAGE>
8. INVESTMENT INTENT.
Optionee represents and agrees that if he or she exercises the Option in
whole or in part, he or she will acquire the Shares upon such exercise for the
purpose of investment and not with a view to the distribution of such Shares,
and that upon each exercise of the Option he or she will furnish to the Company
a written statement to such effect.
9. LEGEND ON STOCK CERTIFICATES.
Optionee agrees that the Company may place on each certificate representing
the Purchased Shares the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), HAVE BEEN TAKEN
FOR INVESTMENT, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE ACT AND
THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION
THEREUNDER.
10. NO RIGHTS AS STOCKHOLDER.
Optionee shall have no rights as a stockholder with respect to the Shares
until the date of the issuance to Optionee of a stock certificate or stock
certificates evidencing such Shares. Except as may be provided in Paragraph 6 of
this Agreement, 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.
11. MODIFICATION.
The Board or the Administrator may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised).
12. WITHHOLDING.
(a) The Company shall be entitled to require as a condition of
delivery of any Purchased Shares upon exercise of any Option that the
Optionee agree to remit, at the time of such delivery or at such later date
as the Company may determine, an amount sufficient to satisfy all federal,
state and local withholding tax requirements relating thereto, and Optionee
agrees to take such other action required by the Company to satisfy such
withholding requirements.
(b) With the consent of the Administrator, and in accordance with any
rules and procedures from time to time adopted by the Administrator,
Optionee may elect to satisfy his or her obligations under Paragraph 12(a)
above by (i) directing the Company to withhold a portion of the Shares
otherwise deliverable (or to tender back to the Company a portion of the
Shares issued where the Optionee (a "Section 16(b) Recipient") is required
to report the ownership of the Shares pursuant to Section 16(a) of the
Securities Exchange Act of 1934, as amended, and has not made an election
under Section 83(b) of the Code (a "Withholding Right")); or (ii) tendering
other shares of the Common Stock of the Company
EX-10-4 - 5
<PAGE>
which are already owned by Optionee which in all cases have a fair market
value (as determined in accordance with the provisions of Paragraph 4(b)
hereof) on the date as of which the amount of tax to be withheld is
determined (the "Tax Date") equal to the amount of taxes to be paid by such
method.
(c) To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Administrator:
(A) the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 12(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
(B) unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable;
and
(C) no Election is valid unless the Administrator has the right
and power, in its sole discretion, with or without cause or reason
therefor, to consent to the Election, to refuse to consent to the
Election, or to disapprove the Election; and if the Administrator has
not consented to the Election on or prior to the Tax Date, the
Election will be deemed approved.
(D) If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(i) the Election cannot be made during the six calendar
month period commencing with the date of 9rant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior go such date); and
(ii) the Election must be made any day six calendar months
or more prior to the Tax Date.
13. CHARACTER OF OPTION.
The Option is intended to constitute a non-statutory stock option and does
not constitute an "incentive stock option" as that term is defined in Section
422 of the Code.
14. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
(i) If to the Company, to:
BIOSOURCE INTERNATIONAL, INC.
820 Flynn Road
Camarillo, California 93012
EX-10-4 - 6
<PAGE>
(ii) If to Optionee, to the address set forth in the records of
the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may at
any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
(d) OPTION NON-TRANSFERABLE. Optionee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent
and distribution, and only Optionee may exercise the Option during his or
her lifetime.
(e) SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs and personal representatives.
(f) GOVERNING LAW. This Option Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts made in, and to be performed within, that State.
(g) ATTORNEYS' FEES. In the event that any action, suit or other
proceeding is instituted upon any breach of this Option Agreement, the
prevailing party shall be paid by the other party thereto an amount equal
to all of the prevailing party's costs and expenses, including attorneys'
fees incurred in each and every such action, suit or proceeding (including
any and all appeals or petitions therefrom). As used in this Option
Agreement, "attorneys' fees" shall mean the full and actual cost of any
legal services actually performed in connection with the matter involved
calculated on the basis of the usual fee charged by the attorney performin9
such services and shall not be limited to "reasonable attorneys' fees" as
defined in any statute or rule of court.
(h) MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable to any of the
parties hereto without the prior written consent of the other party hereto.
EX-10-4 - 7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Option Agreement as of the date set forth below.
DATED: January 3, 1996
BIOSOURCE INTERNATIONAL, INC.
By: /S/ ANNA ANDERSON
-----------------------------------
Its: CHIEF FINANCIAL OFFICER
OPTIONEE
By: /S/ JAMES CHAMBERLAIN
-----------------------------------
James H. Chamberlain
EX-10-4 - 8
Exhibit 10.5
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the execution date of the Option Certificate to which it is attached
(the "Certificate"), by and between BioSource International, Inc., a California
corporation (the "Company"), and GUS DAVIS ("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Agreement.
The Company and Optionee agree as follows:
15. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the "Option"),
upon the terms and subject to the conditions set forth in this Option Agreement,
to purchase up to 30,000 SHARES of the Common Stock (the "Shares"), at the
Option Exercise Price (the "Exercise Price") of $1.688 per share.
16. TERM OF OPTION.
The Option shall terminate and expire on the date (the "Option Expiration
Date") which is ten years from the date of this Option Agreement, unless sooner
terminated as provided herein.
17. VESTING.
The Option shall become immediately exercisable upon execution of this
Agreement.
18. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the Company
of:
a. written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
b. payment of the Exercise Price of the Purchased Shares, either in
cash, by check, or by transfer to the Company of issued and outstanding
shares of Common Stock, or by any combination of the above methods of
payment. If payment is made, in whole or in part, by transfer to the
Company of issued and outstanding shares of Common Stock, the value of such
shares shall be determined as follows: (i) if, at the time of payment, the
Common Stock is traded on the National Market System or any national or
regional stock exchange, the value of each share shall be the closing sale
price of a share of Common Stock on the business day immediately preceding
the payment or, if no sale was made on that date, on the most recent date
when such a sale was made, as reported on the composite tape for securities
transactions or similar source for reporting sales of the Common Stock; or
(ii) if, at the time of payment, quotations with respect to the Common
Stock are made on the NASDAQ System, the value of each share shall be
<PAGE>
the average of the closing bid and asked quotations of a share of Common
Stock on the business day immediately preceding the payment or, if no
quotations were made on that date, on the most recent date when such
quotations were made; or (iii) if, at the time of payment, neither (i) nor
(ii) above is applicable, the value of each share shall be the fair market
value of each share, as determined by the Board or the Administrator.
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the Purchased Shares; PROVIDED, HOWEVER, that the Company shall not
be obligated to issue a fraction or fractions of a share of its Common Stock,
and may pay to Optionee, in cash or by check, the fair market value of any
fraction or fractions of a share exercised by Optionee, which fair market value
shall be determined as set forth in the preceding paragraph.
19. RESTRICTIONS ON PURCHASED SHARES.
Optionee shall not sell, transfer (with or without consideration), assign,
pledge, hypothecate or otherwise dispose of (collectively, "Transfer" any of the
Purchased Shares unless and until ALL of the following events shall have
occurred:
a. the Purchased Shares are disposed of pursuant to and in conformity
with an effective registration statement filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), or the proposed disposition will not result
in a violation of the securities laws of any state of the United States;
and
b. If requested by the Company, Optionee shall, prior to the transfer
of such Purchased Shares, deliver to the Company a written opinion of
counsel, satisfactory to the Company and its counsel, that the proposed
disposition will comply with the requirements set forth in clause (a)
above, in which case, the Company shall bear all reasonable costs of such
counsel in preparing such opinion.
Any attempted Transfer which is not in full compliance with this Paragraph
5 shall be null and void AB INITIO, and of no force or effect.
20. ADJUSTMENTS UPON RECAPITALIZATION.
Subject to any required action by the stockholders of the Company:
a. If outstanding shares of the Common Stock shall be subdivided into
a greater number of shares of the Common Stock, or a dividend in Shares of
Common Stock or other securities of the Company convertible into or
exchangeable for shares of the Common Stock (in which latter event the
number of shares of Common Stock issuable upon the conversion or exchange
of such securities shall be deemed to have been distributed) shall be paid
in respect of the shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such
dividend shall, simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend, be proportionately
reduced, and conversely, if the outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Exercise
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately increased.
b. In the event the Company at any time, or from time to time, shall
make or issue, or fix a record date for the determination of holders of
shares of Common Stock entitled to receive, a dividend
EX-10-5 - 2
<PAGE>
or other distribution payable in securities of the Company other than
shares of Common Stock or securities convertible into or exchangeable for
shares of Common Stock then and in each such event, provision shall be made
so that the holder of the Option shall receive upon exercise thereof, in
addition to the number of shares receivable thereupon, the amount of
securities of the Company which he or she would have received had his or
her Option been exercised on the date of such event and had thereafter,
during the period from the date of such event to and including the date of
exercise, retained such securities receivable by him or her as aforesaid
during such period, giving application to all adjustments called for during
such period under this Paragraph 6 with respect to the rights of the holder
of the Option.
c. When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product
by the Exercise Price in effect immediately after such adjustment.
d. In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 6(a) or 6(b) of this Agreement), or the
consolidation of the Company with, or a sale of substantially all of the
assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or merger of the Company with, another person
where, in each such case, the Company is the "surviving corporation," as
defined in Paragraph 6(j) below, Optionee shall thereafter be entitled upon
exercise of the Option to purchase the kind and number of shares of stock
or other securities or property of the surviving corporation receivable
upon such event by a holder of the number of shares of the Common Stock
which the Option entitles Optionee to purchase from the Company immediately
prior to such event; and in any such case, appropriate adjustment shall be
made in the application of the provisions set forth in this Agreement with
respect to Optionee's rights and interests thereafter, to the end that the
provisions set forth in this Agreement (including the specified changes and
other adjustments to the Exercise Price) shall thereafter be applicable in
relation to any shares or other property thereafter purchasable upon
exercise of the Option.
e. A consolidation of the Company with, or a sale of substantially all
of the assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or the Merger of the Company with, any other
person (other than a consolidation, sale or merger in which the Company is
the "Surviving Corporation," as defined in Paragraph 6(j) below) shall
cause the Option to terminate on the Effective Date of such consolidation,
sale or merger; PROVIDED, HOWEVER, that the Optionee shall have the right
during a ten day period ending on the fifth day prior to such
consolidation, sale or merger to exercise the Option, in whole or in part,
without regard to the installment provision set forth in Paragraph 3 of
this Option Agreement; but any exercise of the Option which except for the
provisions of this Paragraph 6(e) would not then be exercisable, shall be
conditioned upon the actual occurrence of such consolidation, sale or
merger, and if such consolidation, sale of merger is abandoned or otherwise
does not occur, for any reason, the Optionee's exercise of the Option
during such ten day period shall be null and void, and of no force and
effect; PROVIDED, FURTHER, that if such consolidation, sale or merger is to
be consummated, in whole or in part, by the tender of Common Stock to the
Surviving Corporation, the Optionee hereby agrees to tender the Shares
issued upon exercise of his or her Option to the Surviving Corporation, if
so directed by the board of directors of the Company, and to vote such
Shares for or against such consolidation, sale or merger, as directed by
the board of directors of the Company. For purposes of this Paragraph 6(e)
and subject to the previous sentence, any exercise of the Option by
Optionee pursuant to this Paragraph 6 shall be deemed no occur immediately
prior to the consummation of such consolidation, sale or merger.
EX-10-5 - 3
<PAGE>
f. If the Company is dissolved or liquidated then the Option shall
terminate on the effective date of such dissolution or liquidation;
PROVIDED, HOWEVER, the Optionee shall have the right during a ten day
period ending on the fifth day prior to such dissolution or liquidation to
exercise his or her Option in whole or in part, without regard to any of
the installment provisions set forth in Paragraph 3 of this Agreement; but
the exercise of the Option which except for the provisions of this
Paragraph 6(f) would not then be exercisable, shall be conditioned upon the
actual occurrence of such dissolution or liquidation, and if such
dissolution or liquidation were not to occur, the Optionee's exercise of
the Option during such ten day period shall be null and void, and of no
force and effect. For purposes of the this Paragraph 6(f) and subject to
the previous sentence, any exercise of the Option by Optionee pursuant to
this Paragraph 6(f) shall be deemed to occur immediately prior to the
consummation of such dissolution or liquidation.
g. To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Administrator, and its determination shall be final, binding and
conclusive.
h. The provisions of this Paragraph 6 are intended to be exclusive,
and Optionee shall have no other rights upon the occurrence of any of the
events described in this Paragraph 6.
i. The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all or
any part of its business or assets.
j. The determination as to which party is the "surviving corporation"
in a consolidation, sale or merger shall be made on the basis of the
relative equity interests of the stockholders in the corporation existing
after the consolidation, sale or merger, as follows: If following any
consolidation, sale or merger the holders of outstanding voting securities
of the Company prior to the consolidation, sale or merger own equity
securities possessing more than 50% of the voting power of the corporation
existing after the consolidation, sale or merger, then for purposes of this
Agreement, the Company shall be the surviving corporation. In all other
cases, the Company shall not be the surviving corporation. In making the
determination of ownership by the stockholders of a corporation,
immediately after a consolidation, sale or merger, of securities pursuant
to this Paragraph 6(j), securities which they owned immediately prior to
such consolidation, sale or merger as stockholders of another party to the
transaction shall be disregarded.
21. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Agreement, Optionee acknowledges and agrees that neither
the Company nor any other person or entity is under any oral obligation to sell
or transfer to Optionee any option or equity security of the Company. By signing
this Agreement, Optionee specifically waives all rights which he or she may have
had prior to the date of this Agreement under any oral agreement or promise by
the Company to receive any option or equity security of the Company.
22. INVESTMENT INTENT.
Optionee represents and agrees that if he or she exercises the Option in
whole or in part, he or she will acquire the Shares upon such exercise for the
purpose of investment and not with a view to the distribution of such Shares,
and that upon each exercise of the Option he or she will furnish to the Company
a written statement to such effect.
EX-10-5 - 4
<PAGE>
23. LEGEND ON STOCK CERTIFICATES. Optionee agrees that the Company may
place on each certificate representing the Purchased Shares the following
legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), HAVE BEEN TAKEN
FOR INVESTMENT, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE ACT AND
THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION
THEREUNDER.
24. NO RIGHTS AS STOCKHOLDER.
Optionee shall have no rights as a stockholder with respect to the Shares
until the date of the issuance to Optionee of a stock certificate or stock
certificates evidencing such Shares. Except as may be provided in Paragraph 6 of
this Agreement, 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.
25. MODIFICATION.
The Board or the Administrator may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised).
26. WITHHOLDING.
a. The Company shall be entitled to require as a condition of delivery
of any Purchased Shares upon exercise of any Option that the Optionee agree
to remit, at the time of such delivery or at such later date as the Company
may determine, an amount sufficient to satisfy all federal, state and local
withholding tax requirements relating thereto, and Optionee agrees to take
such other action required by the Company to satisfy such withholding
requirements.
b. With the consent of the Administrator, and in accordance with any
rules and procedures from time to time adopted by the Administrator,
Optionee may elect to satisfy his or her obligations under Paragraph 12(a)
above by (i) directing the Company to withhold a portion of the Shares
otherwise deliverable (or to tender back to the Company a portion of the
Shares issued where the Optionee (a "Section 16(b) Recipient") is required
to report the ownership of the Shares pursuant to Section 16(a) of the
Securities Exchange Act of 1934, as amended, and has not made an election
under Section 83(b) of the Code (a "Withholding Right")); or (ii) tendering
other shares of the Common Stock of the Company which are already owned by
Optionee which in all cases have a fair market value (as determined in
accordance with the provisions of Paragraph 4(b) hereof) on the date as of
which the amount of tax to be withheld is determined (the "Tax Date") equal
to the amount of taxes to be paid by such method.
c. To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Administrator:
EX-10-5 - 5
<PAGE>
i. the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 12(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
ii. unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable;
and
iii. no Election is valid unless the Administrator has the right
and power, in its sole discretion, with or without cause or reason
therefor, to consent to the Election, to refuse to consent to the
Election, or to disapprove the Election; and if the Administrator has
not consented to the Election on or prior to the Tax Date, the
Election will be deemed approved.
iv. If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(1) the Election cannot be made during the six calendar
month period commencing with the date of grant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior to such date); and
(2) the Election must be made any day six calendar months or
more prior to the Tax Date.
27. CHARACTER OF OPTION
The Option is intended to constitute a non-statutory stock option and DOES
NOT constitute an "incentive stock option" as that term is defined in Section
422 of the Code.
28. GENERAL PROVISIONS.
a. FURTHER ASSURANCES. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
b. NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
(1) If to the Company, to:
BIOSOURCE INTERNATIONAL, INC.
820 Flynn Road
Camarillo, California 93012
(2) If to Optionee, to the address set forth in the records of
the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given
EX-10-5 - 6
<PAGE>
by mail, 72 hours after such communication is deposited in the mail by
first-class certified mail, return receipt requested, postage prepaid, addressed
as aforesaid, or (ii) if given by any other means, when delivered at the address
specified in this subparagraph (b).
c. TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may at
any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
d. OPTION NON-TRANSFERABLE. Optionee may not sell, transfer, assign or
otherwise dispose of the Option except by will or the laws of descent and
distribution, and only Optionee may exercise the Option during his or her
lifetime.
e. SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs and personal representatives.
f. GOVERNING LAW. This option agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts made in, and to be performed within, that state.
g. ATTORNEYS' FEES. In the event that any action, suit or other
proceeding is instituted upon any breach of this Option Agreement, the
prevailing party shall be paid by the other party thereto an amount equal
to all of the prevailing party's costs and expenses, including attorneys'
fees incurred in each and every such action, suit or proceeding (including
any and all appeals or petitions therefrom). As used in this Option
Agreement, "attorneys' fees" shall mean the full and actual cost of any
legal services actually performed in connection with the matter involved
calculated on the basis of the usual fee charged by the attorney performing
such services and shall not be limited to "reasonable attorneys' fees" as
defined in any statute or rule of court.
h. MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted, for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable by any of the
parties hereto without the prior written consent of the other party hereto.
IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Option Agreement as of the date set forth below.
DATED: June 1, 1995
BIOSOURCE INTERNATIONAL, INC.
By: /S/ JAMES CHAMBERLAIN
-----------------------------------
Its: Chief Executive Officer
OPTIONEE
By: /S/ GUS DAVIS
-----------------------------------
Gus Davis
EX-10-5 - 7
Exhibit 10.6
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the date set forth on the signature page hereof, by and between
BIOSOURCE INTERNATIONAL, INC. ( the "Company"), and Robert Weist ("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Agreement.
The Company and Optionee agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the "Option"),
upon the terms and subject to the conditions set forth in this Agreement, to
purchase up to 10,000 shares of the Common Stock (the "Shares"), at an Option
Exercise Price (the "Exercise Price") of $6.4375 per share.
2. TERM OF OPTION.
The Option shall terminate and expire on the date (the "Option Expiration
Date") which is ten years from the date of this Option Agreement, unless sooner
terminated as provided herein.
3. VESTING.
The Option shall become immediately exercisable upon execution of this
Agreement.
4. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the Company
of:
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
(b) payment of the Exercise Price of the Purchased Shares, either in
cash, by check, or by transfer to the Company of issued and outstanding
shares of Common Stock, or by any combination of the above methods of
payment. If payment is made, in whole or in part, by transfer to the
Company of issued and outstanding shares of Common Stock, the value of such
shares shall be determined as follows: (i) if, at the time of payment, the
Common Stock is traded on the National Market System or any national or
regional stock exchange, the value of each share shall be the closing sale
price of a share of Common Stock on the business day immediately preceding
the payment or, if no sale was made on that date, on the most recent date
when such a sale was made, as reported on the composite tape for securities
transactions or similar source for reporting sales of the Common Stock;
(ii) if, at the time of payment, quotations with respect to the Common
Stock are made on the NASDAQ System, the value of each share
EX-10-6 - 1
<PAGE>
shall be the average of the closing bid and asked quotations of a share of
Common Stock on the business day immediately preceding the payment or, if
no quotations were made on that date, on the most recent date when such
quotations were made; or (iii) if, at the time of payment, neither (i) nor
(ii) above is applicable, the value of each share shall be the fair market
value of each share, as determined by the Board or the Administrator.
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the Purchased Shares; PROVIDED, HOWEVER, that the Company shall not
be obligated to issue a fraction or fractions of a share of its Common Stock,
and may pay to Optionee, in cash or by check, the fair market value of any
fraction or fractions of a share exercised by Optionee, which fair market value
shall be determined as set forth in the preceding paragraph.
5. RESTRICTIONS ON PURCHASED SHARES.
Optionee shall not sell, transfer (with or without consideration), assign,
pledge, hypothecate or otherwise dispose of (collectively, "Transfer") any of
the Purchased Shares unless and until ALL of the following have occurred:
(a) The Purchased Shares are disposed of pursuant to and in conformity
with an effective registration statement filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), or the proposed disposition will not result
in a violation of the securities laws of any state of the United States;
and
(b) If requested by the Company, Optionee shall, prior to the transfer
of such Purchased Shares, deliver to the Company a written opinion of
counsel, satisfactory to the Company and its counsel, that the proposed
disposition will comply with the requirements set forth in clause (a)
above, in which case, the Company shall bear all reasonable costs of such
counsel in preparing such opinion.
Any attempted Transfer which is not in full compliance with this Paragraph
5 shall be null and void AB INITIO, and of no force or effect.
6. ADJUSTMENTS UPON RECAPITALIZATION.
Subject to any required action by the stockholders of the Company:
(a) If outstanding shares of the Common Stock shall be subdivided into
a greater number of shares of the Common Stock, or a dividend in Shares of
Common Stock or other securities of the Company convertible into or
exchangeable for shares of the Common Stock (in which latter event the
number of shares of Common Stock issuable upon the conversion or exchange
of such securities shall be deemed to have been distributed) shall be paid
in respect of the shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such
dividend shall, simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend, be proportionately
reduced, and conversely, if the outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Exercise
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately increased.
EX-10-6 - 2
<PAGE>
(b) In the event the Company at any time, or from time to time, shall
make or issue, or fix a record date for the determination of holders of
shares of Common Stock entitled to receive, a dividend or other
distribution payable in securities or the Company other than shares of
Common Stock or securities convertible into or exchangeable for shares of
Common Stock then and in each such event, provision shall be made so that
the holder of the Option shall receive upon exercise thereof, in addition
to the number of shares receivable thereupon, the amount of securities of
the Company which he or she would have received had his or her Option been
exercised on the date of such event and had thereafter, during the period
from the date of such event to and including the date of exercise, retained
such securities receivable by him or her as aforesaid during such period,
giving application to all adjustments called for during such period under
this Paragraph 6 with respect to the rights of the holder of the Option.
(c) When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product
by the Exercise Price in effect immediately after such adjustment.
(d) In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 6(a) or 6(b) of this Agreement), or the
consolidation of the Company with, or a sale of substantially all of the
assets of the Company to (which sale is followed by a liquidation or
dissolution of the Company), or merger of the Company with, another person
where, in each such case, the Company is the "surviving corporation," as
defined in Paragraph 6(j) below, Optionee shall thereafter be entitled upon
exercise of the Option to purchase the kind and number of shares of stock
or other securities or property of the surviving corporation receivable
upon such event by a holder of the number of shares of the Common Stock
which the Option entitles Optionee to purchase from the Company any
immediately prior to such event; and in any such case, appropriate
adjustment shall be made in the application of the provisions set forth in
this Agreement with respect to Optionee's rights and interests thereafter,
to the end that the provisions set forth in this Agreement (including the
specified changes and other adjustments to the Exercise Price) shall
thereafter be applicable in relation to any shares or other property
thereafter purchasable upon exercise of the Option.
(e) A consolidation of the Company with, or a sale of substantially
all of the assets of the Company to (which sale is followed by a
liquidation or dissolution of the Company), or the Merger of the Company
with, any other person (other than a consolidation, sale or merger in which
the Company is the "Surviving Corporation," as defined in Paragraph 6 (j)
below) shall cause the Option to terminate on the Effective Date of such
consolidation, sale or merger; PROVIDED, HOWEVER, that the Optionee shall
have the right during a ten day period ending on the fifth day prior to
such consolidation, sale or merger to exercise the Option, in whole or in
part, without regard to the installment provision set forth in Paragraph 3
of this Option Agreement; but any exercise of the Option which except for
the provisions of this Paragraph 6(e) would not then be exercisable, shall
be conditioned upon the actual occurrence of such consolidation, sale or
merger, and if such consolidation, sale of merger is abandoned or otherwise
does not occur, for any reason, the Optionee's exercise of the Option
during such ten day period shall be null and void, and of no force and
effect; PROVIDED, FURTHER, that if such consolidation, sale or merger is to
be consummated, in whole or in part, by the tender of Common Stock to the
Surviving Corporation, the Optionee hereby agrees to tender the Shares
issued upon exercise of his or her Option to the Surviving Corporation, if
so directed by the board of directors of the Company, and to vote such
Shares for or against such consolidation, sale or merger, as directed by
the board of directors of the
EX-10-6 - 3
<PAGE>
Company. For purposes of this Paragraph 6(e) and subject to the previous
sentence, any exercise of the Option by optionee pursuant to this Paragraph
6 shall be deemed to occur immediately prior to the consummation of such
consolidation, sale or merger.
(f) If the Company is dissolved or liquidated then the Option shall
terminate on the effective date of such dissolution or liquidation;
PROVIDED, HOWEVER, the Optionee shall have the right during a ten day
period ending on the fifth day prior to such dissolution or liquidation to
exercise his or her Option in whole or in part, without regard to any of
the installment provisions set forth in Paragraph 3 of this Agreement; but
the exercise of the Option which except for the provisions of this
Paragraph 6(f) would not then be exercisable, shall be conditioned upon the
actual occurrence of such dissolution or liquidation, and if such
dissolution or liquidation were not to occur, the Optionee's exercise of
the Option during such ten day period shall be null and void, and of no
force and effect. For purposes of the this Paragraph 6(f) and subject to
the previous sentence, any exercise of the Option by Optionee pursuant to
this Paragraph 6(f) shall be deemed to occur immediately prior the
consummation of such dissolution or liquidation.
(g) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the
Administrator, and its determination shall be final, binding and
conclusive.
(h) The provisions of this Paragraph 6 are intended to be exclusive,
and Optionee shall have no other rights upon the occurrence of any of the
events described in this Paragraph 6.
(i) The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all or
any part of its business or assets.
(j) The determination as to which party is the "surviving corporation"
in a consolidation, sale or merger shall be made on the basis of the
relative equity interests of the stockholders in the corporation existing
after the consolidation, sale or merger, as follows: If following any
consolidation, sale or merger the holders of outstanding voting securities
of the Company prior to the consolidation, sale or merger own equity
securities possessing more than 50% of the voting power of the corporation
existing after the consolidation, sale or merger, then for purposes of this
Agreement, the Company shall be the surviving corporation. In all other
cases, the Company shall not be the surviving corporation. In making the
determination of ownership by the stockholders of a corporation,
immediately after a consolidation, sale or merger, of securities pursuant
to this Paragraph 6(j), securities which they owned immediately prior to
such consolidation, sale or merger as stockholders of another party to the
transaction shall be disregarded.
7. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Agreement, Optionee acknowledges and agrees that neither
the Company nor any other person or entity is under any oral obligation to sell
or transfer to Optionee any option or equity security of the Company. By signing
this Agreement, Optionee specifically waives all rights which he or she may have
had prior to the date of this Agreement under any oral agreement or promise by
the Company to receive any option or equity security of the Company.
EX-10-6 - 4
<PAGE>
8. INVESTMENT INTENT.
Optionee represents and agrees that if he or she exercises the Option in
whole or in part, he or she will acquire the Shares upon such exercise for the
purpose of investment and not with a view to the distribution of such Shares,
and that upon each exercise of the Option he or she will furnish to the Company
a written statement to such effect.
9. LEGEND ON STOCK CERTIFICATES.
Optionee agrees that the Company may place on each certificate representing
the Purchased Shares the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), HAVE BEEN TAKEN
FOR INVESTMENT, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE ACT AND
THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION
THEREUNDER.
10. NO RIGHTS AS STOCKHOLDER.
Optionee shall have no rights as a stockholder with respect to the Shares
until the date of the issuance to Optionee of a stock certificate or stock
certificates evidencing such Shares. Except as may be provided in Paragraph 6 of
this Agreement, 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.
11. MODIFICATION.
The Board or the Administrator may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised).
12. WITHHOLDING.
(a) The Company shall be entitled to require as a condition of
delivery of any Purchased Shares upon exercise of any Option that the
Optionee agree to remit, at the time of such delivery or at such later date
as the Company may determine, an amount sufficient to satisfy all federal,
state and local withholding tax requirements relating thereto, and Optionee
agrees to take such other action required by the Company to satisfy such
withholding requirements.
(b) With the consent of the Administrator, and in accordance with any
rules and procedures from time to time adopted by the Administrator,
Optionee may elect to satisfy his or her obligations under Paragraph 12(a)
above by (i) directing the Company to withhold a portion of the Shares
otherwise deliverable (or to tender back to the Company a portion of the
Shares issued where the Optionee (a "Section 16(b) Recipient") is required
to report the ownership of the Shares pursuant to Section 16(a) of the
Securities Exchange Act of 1934, as amended, and has not made an election
under Section 83(b) of the Code (a "Withholding Right")); or (ii) tendering
other shares of the Common Stock of the Company
EX-10-6 - 5
<PAGE>
which are already owned by Optionee which in all cases have a fair market
value (as determined in accordance with the provisions of Paragraph 4(b)
hereof) on the date as of which the amount of tax to be withheld is
determined (the "Tax Date") equal to the amount of taxes to be paid by such
method.
(c) To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Administrator:
(A) the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 12(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
(B) unless disapproved by the Administrator as provided in
Subsection (iii) below, the Election once made will be irrevocable;
and
(C) no Election is valid unless the Administrator has the right
and power, in its sole discretion, with or without cause or reason
therefor, to consent to the Election, to refuse to consent to the
Election, or to disapprove the Election; and if the Administrator has
not consented to the Election on or prior to the Tax Date, the
Election will be deemed approved.
(D) If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(i) the Election cannot be made during the six calendar
month period commencing with the date of 9rant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior go such date); and
(ii) the Election must be made any day six calendar months
or more prior to the Tax Date.
13. CHARACTER OF OPTION.
The Option is intended to constitute a non-statutory stock option and does
not constitute an "incentive stock option" as that term is defined in Section
422 of the Code.
14. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
(i) If to the Company, to:
BIOSOURCE INTERNATIONAL, INC.
820 Flynn Road
Camarillo, California 93012
EX-10-6 - 6
<PAGE>
(ii) If to Optionee, to the address set forth in the records of
the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may at
any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
(d) OPTION NON-TRANSFERABLE. Optionee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent
and distribution, and only Optionee may exercise the Option during his or
her lifetime.
(e) SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs and personal representatives.
(f) GOVERNING LAW. This Option Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts made in, and to be performed within, that State.
(g) ATTORNEYS' FEES. In the event that any action, suit or other
proceeding is instituted upon any breach of this Option Agreement, the
prevailing party shall be paid by the other party thereto an amount equal
to all of the prevailing party's costs and expenses, including attorneys'
fees incurred in each and every such action, suit or proceeding (including
any and all appeals or petitions therefrom). As used in this Option
Agreement, "attorneys' fees" shall mean the full and actual cost of any
legal services actually performed in connection with the matter involved
calculated on the basis of the usual fee charged by the attorney performin9
such services and shall not be limited to "reasonable attorneys' fees" as
defined in any statute or rule of court.
(h) MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable to any of the
parties hereto without the prior written consent of the other party hereto.
EX-10-6 - 7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Option Agreement as of the date set forth below.
DATED: April 5, 1996
BIOSOURCE INTERNATIONAL, INC.
By: /S/ JAMES CHAMBERLAIN
-----------------------------------
Its: Chief Executive Officer
OPTIONEE
By: /S/ ROBERT WEIST
-----------------------------------
Robert Weist
EX-10-6 - 8
Exhibit 10.7
OPTION CERTIFICATE
(NON-STATUTORY STOCK OPTION)
THIS IS TO CERTIFY that BioSource International, Inc., a Delaware
corporation (the "Company"), has granted to the person named below a
non-statutory stock option (the "Option") to purchase shares of the Company's
Common Stock, par value $0.001 per share (the. "Shares"), as follows:
Name of Optionee: David S. Fishman
Address of Optionee: 36 Angelica Drive
Framingham, Massachusetts 01701
Number of Shares: 25,000
Option Exercise Price: 12 13/16
Option Expiration Date: December 8, 2008
EXERCISE SCHEDULE: The Option shall become exercisable as follows: the
option to purchase 12,500 shares vests on December 9, 1999 and the option to
purchase an additional 12,500 shares vests on December 9, 2000 (the "Vesting
Date").
SUMMARY OF OTHER TERMS: This Option is defined in the Stock Option
Agreement (Non-Statutory Stock Option) (the "Option Agreement") which is
attached to this Option Certificate (the "Certificate") as Annex I. This
Certificate summarizes certain of the provisions of the Option Agreement for
your information, but is not complete. Your rights are governed by the Option
Agreement, not by this Summary. The Company strongly suggests that you carefully
review the full Option Agreement prior to signing this Certificate or exercising
the Option.
Among the terms of the Option Agreement are the following:
EMPLOYMENT: Unless otherwise provided in your Consulting Agreement with the
Company, dated as of December 9, 1998 ("Consulting Agreement"), the Option
Agreement obligates you to work for the Company (or hold office if you are a
director) for one (1) year from the Date of Grant of the Option. Note, however,
that should you fail to do so, the Company's sole remedy is to cancel the
portion of your Option which is not then exercisable
<PAGE>
(unless otherwise provided in your Consulting Agreement). The Option Agreement
does not obligate the Company to retain you for one (1) year. See Paragraph 3
and the Exercise Schedule, above. Unless otherwise agreed in writing, the
Company reserves the right to terminate any employee or consultant at any time,
with or without cause.
TERMINATION OF EMPLOYMENT: Unless otherwise provided in your Consulting
Agreement, while the Option terminates on the Option Expiration Date, it will
terminate earlier if you cease to be employed by the Company (or hold office if
you are a director).
TRANSFER: The Option is personal to you, and cannot be sold, transferred,
assigned or otherwise disposed of to any other person, except on your death. See
Paragraph 15(d).
EXERCISE: You can exercise the Option (once it is exercisable), in whole or
in part, by delivering to the Company a Notice of Exercise identical to Exhibit
"A" attached to the Option Agreement, accompanied by payment of the Exercise
Price for the Shares to be purchased. The Company will then issue a certificate
to you for the Shares you have purchased. You are under no obligation to
exercise the Option. See Paragraph 4.
ANTI-DILUTION PROVISIONS: The Option contains provisions which adjust your
Option to reflect stock splits, stock dividends, mergers and other major
corporate reorganizations which would change the nature of the Shares underlying
your Option. See Paragraph 7.
WAIVER: By signing this Certificate, you will be agreeing to all of the
terms of the Option Agreement, including those not summarized in this
Certificate. You will waive your rights to options or stock which may have been
promised to you. See Paragraph 8.
WITHHOLDING: The Company may require you to make any arrangements necessary
to insure the proper withholding of any amount of tax, if any, required to be
withheld by the Company as a result of the exercise of the Option. See Paragraph
13.
EX-10-7 - 2
<PAGE>
AGREEMENT
BioSource International, Inc., a Delaware corporation (the "COMPANY"), and
the above-named person (the "OPTIONEE") each hereby agrees to be bound by all of
the terms and conditions of the Stock Option Agreement (Incentive Stock Option)
which is attached hereto as Annex I and incorporated herein by this reference as
if set forth in full is this document.
DATED: December 9, 1998
BIOSOURCE INTERNATIONAL, INC.
By: /S/ JAMES CHAMBERLAIN
-----------------------------------
Its: President & Chief Executive
Officer
By: /S/ DAVID S. FISHMAN
-----------------------------------
Employee Signature
-------------------------------
(Please print your name exactly
as you wish it to appear on any
stock certificates issued to you
upon exercise of the Option)
EX-10-7 - 3
<PAGE>
ANNEX I
STOCK OPTION AGREEMENT
(Non-Statutory Stock Option)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the execution date of the Option Certificate to which it is attached
(the "Certificate"), by and between BioSource International, Inc., a Delaware
corporation (the "Company"), and the person named in the Certificate
("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Option Agreement.
The Company and Optionee agree as follows:
1. Grant of Option.
The Company hereby grants to Optionee the right and option (the "Option"),
upon the terms and subject to the conditions set forth in this Option Agreement,
to purchase all or any portion of that number of shares of the Common Stock (the
"Shares") set forth in the Certificate, at the Option exercise price set forth
in the Certificate (the "Exercise Price").
2. Term of Option.
The Option shall terminate and expire on the Option Expiration Date set
forth in the Certificate, unless sooner terminated as provided herein.
3. Exercise Period.
(a) Subject to the provisions of Paragraphs 3(b), 5, 7(c) and 7(d) of
this Option Agreement and except as otherwise provided in your Consulting
Agreement with the Company (the "Consulting Agreement"), the Option shall
become exercisable (in whole or in part) upon and after the dates set forth
under the caption "Exercise Schedule" in the Certificate. The installments
shall be cumulative; i.e., the Option may be exercised, as to any or all
Shares covered by an installment, at any time or times after the
installment first becomes exercisable and until expiration or termination
of the Option.
(b) Notwithstanding anything to the contrary, contained in this Option
Agreement, the Option may not be exercised, in whole or in part, unless and
until any then-
EX-10-7 - 4
<PAGE>
applicable requirements of all federal, state and local laws and regulatory
agencies shall have been fully complied with to the satisfaction of the Company
and its counsel.
4. Exercise of Option.
There is no obligation to exercise the Option, in whole or in part. The
Option may be exercised, in whole or in part, only by delivery to the Company
of:
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
(b) payment of the Exercise Price of the Purchased Shares, either in
cash, by check, by cancellation of any indebtedness of the Company to
Optionee for accrued and unpaid salary or, with the consent of the Board
(or a committee thereof), by transfer to the Company of issued and
outstanding shares of Common Stock which have been held by Optionee for a
period of at least six calendar months preceding the date of surrender and
which have a fair market value equal to the exercise price, or by any
combination of the above methods of payment. If payment is made, in whole
or in part, by transfer to the Company of issued and outstanding shares of
Common Stock, the value of such shares shall be determined as follows: (i)
if the Stock is listed on an exchange or exchanges, or admitted for trading
in a market system which provides last sale data under Rule 11Aa3-1 of the
General Rules and Regulations of the Securities and Exchange Commission
under the Securities and Exchange Act of 1934, as amended (a "Market
System"), the last reported sales price per share on the last business day
prior to such date on the principal exchange on which it is traded, or in
such a Market System, as applicable, or if no sale was made on such day on
such principal exchange or in such a Market System, as applicable, the last
reported sales price per share on the most recent day prior to such date on
which a sale was reported on such exchange or such Market System, as
applicable; or (ii) if the Common Stock is not then traded on an exchange
or in such a Market System, the average of the closing bid and asked prices
per share for the Common Stock in the over-the-counter market as quoted on
NASDAQ on the day prior to such date; or (iii) if the Common Stock is not
listed on an exchange or quoted on NASDAQ, an amount determined in good
faith by the Board (or a committee thereof).
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the Purchased Shares; provided, however, that the Company shall not
be obligated to issue a fraction or o fractions of a share of its Common Stock,
and may pay to Optionee, in cash or by check, the fair market value of any
fraction or fractions of a share exercised by Optionee, which fair market value
shall be determined as set forth in the preceding paragraph.
EX-10-7 - 5
<PAGE>
5. Termination of Employment/Consultancy.
Unless otherwise provided in your Consulting Agreement, if Optionee shall
cease to be a Director of the Company, or to be in the employ of, or a
consultant to the Company, any Subsidiary or any Parent by reason of Optionee's
death, permanent disability, or retirement (a "Special Terminating Event"), then
Optionee, Optionee's executors or administrators or any person or persons
acquiring the Option directly from Optionee by bequest or inheritance, shall
have the right to exercise the Option with respect to all Shares granted under
the Option at any time after such Special Terminating Event.
6. Restrictions on Purchased Shares.
None of the Purchased Shares shall be transferred (with or without
consideration), sold, offered for sale, assigned, pledged, hypothecated or
otherwise disposed of (each a "Transfer") and the Company shall not be required
to register any such Transfer and the Company may instruct its transfer agent
not to register any such Transfer, unless and until all of the following events
shall have occurred:
(a) the Purchased Shares are Transferred pursuant to and in conformity
with (i) (x) an effective registration statement filed with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Act
of 1933, as amended (the "Act"), or (y) an exemption from registration
under the Act; and (ii) the securities laws of any state of the United
States; and
(b) Optionee has, prior to the Transfer of such Purchased Shares,
provided all relevant information to Company's counsel so that upon
Company's request, Company's counsel is able to, and actually prepares and
delivers to the Company a written opinion that the proposed Transfer (i)
(x) is pursuant to a registration statement which has been filed with the
Commission and is then effective, or (y) is exempt from registration under
the Act as then in effect, and the Rules and Regulations of the Commission
thereunder; and (ii) is either qualified or registered under any applicable
state securities laws, or exempt from such qualification or registration.
The Company shall bear all reasonable costs of preparing such opinion.
Any attempted Transfer which is not in full compliance with this Paragraph
6 shall be null and void ab initio, and of no force or effect.
7. Adjustments upon Recapitalization.
Subject to any required action by the shareholders of the Company:
(a) If the outstanding shares of the Common Stock shall be subdivided
into a greater number of shares of the Common Stock, or a dividend in
shares of Common Stock
EX-10-7 - 6
<PAGE>
or other securities of the Company convertible into or exchangeable for
shares of the Common Stock (in which latter event the number of shares of
Common Stock issuable upon the conversion or exchange of such securities
shall be deemed to have been distributed) shall be paid in respect of the
shares of Common Stock, the Exercise Price in effect immediately prior to
such subdivision or at the record date of such dividend shall,
simultaneously with the effectiveness of such subdivision or immediately
after the record date of such dividend, be proportionately reduced, and
conversely, if the outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the Exercise Price in
effect immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased.
(b) When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment, and then (ii) dividing that product
by the Exercise Price in effect immediately after such adjustment.
(c) In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 7(a) of this Option Agreement), or the consolidation
of the Company with, or a sale of substantially all of the assets of the
Company to (which sale is followed by a liquidation or dissolution of the
Company), or merger of the Company with another person (a "Reorganization
Event"), the Board (or a committee thereof) shall be obligated to determine
whether the Reorganization Event shall constitute a "Liquidity Event," and
to deliver to Optionee at least 15 days prior to such Reorganization Event
a notice which shall (i) indicate whether the Reorganization Event is a
Liquidity Event; (ii) indicate whether the Liquidity Event shall result in
the acceleration of the vesting provisions of this Option; and (iii) advise
Optionee of his or her rights pursuant to this Option Agreement. If the
Reorganization Event is determined to be a Liquidity Event, in its sole and
absolute discretion, the surviving corporation may, but shall not be
obligated .to, (i) tender to Optionee Stock Options with respect to the
surviving corporation which shall contain terms and provisions that
substantially preserve the rights and benefits of this Option, and (ii) in
the event that no Stock Options have been tendered by the surviving
corporation pursuant to the terms of item (i) immediately above, Optionee
shall have the right exercisable during a ten-day period ending on the
fifth day prior to the Reorganization Event (or ending on the fifth day
prior to the date of record for shareholders entitled to share in the
securities or property distributed in the Reorganization Event, if a record
date is set) to exercise his or her Stock Options in whole or in part, and
if so determined by the Board (or a committee thereof), without regard to
any installment provisions under his or her Stock Option Agreement, on the
condition, however, that the Reorganization Event is actually
EX-10-7 - 7
<PAGE>
effected; and if the Reorganization Event is actually effected, such
exercise shall be deemed effective (and, if applicable, the Optionee shall
be deemed a shareholder with respect to the Stock Options exercised)
immediately preceding the effective time of the Reorganization Event (or on
the date of record for shareholders entitled to share in the securities or
property distributed in the Reorganization Event, if a record date is set).
If the Reorganization Event is not determined to be a Liquidity Event,
Optionee shall thereafter be entitled upon exercise of the Option to
purchase the kind and number of shares of stock or other securities or
property of the surviving corporation receivable upon such event by a
holder of the number of shares of the Common Stock which the Option
entitles Optionee to purchase from the Company immediately prior to such
event, and in any such case, appropriate adjustment shall be made in the
application of the provisions set forth in this Option Agreement with
respect to Optionee's rights and interests thereafter, to the end that the
provisions set forth in this Option Agreement (including the specified
changes and other adjustments to the Exercise Price) shall thereafter be
applicable in relation to any shares or other property thereafter
purchasable upon exercise of the Option.
(d) In the event of the proposed dissolution or liquidation of the
Company, or in the event of any corporate separation or division,
including, but not limited to, a split-up, split-off or spin-off (each, a
"Liquidating Event"), the holder of any Stock Option then exercisable shall
have the right to exercise such Stock Option (at the price provided in the
Stock Option Agreement) subsequent to the Liquidating Event, and for the
balance of its term, solely for the kind and amount of shares of Stock and
other securities, property, cash or any combination thereof receivable upon
such Liquidating Event by a holder of the number of shares of Stock for or
with respect to which such Stock Option might have been exercised
immediately prior to such Liquidating Event; or, in the alternative, that
each Stock Option granted shall terminate as of a date to be fixed by the
Board (or a committee thereof); provided, however, that not less than 30
days written notice of the date so fixed shall be given to each Option
Holder and if such notice is given, each Option Holder shall have the
right, during the period of 30 days preceding such termination, to exercise
the Stock Option as to all or any part of the shares of Stock covered
thereby, without regard to installment or vesting provisions in Section 3
of this Option Agreement, on the condition, however, that the Liquidating
Event actually occurs; and if the Liquidating Event actually occurs, such
exercise shall be deemed effective (and, if applicable, the Option Holder
shall be deemed a shareholder with respect to the Stock Options exercised)
immediately preceding the occurrence of the Liquidating Event, or the date
of record for shareholders entitled to share in such Liquidating Event, if
a record date is set.
(e) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Board (or
a committee thereof), and their determination shall be final, binding and
conclusive.
EX-10-7 - 8
<PAGE>
(f) The provisions of this Paragraph 7 are intended to be exclusive,
and Optionee shall have no other rights upon the occurrence of any of the
events described in this Paragraph 7.
(g) The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes
8. Waiver of Rights to Purchase Stock.
By signing this Option Agreement, Optionee acknowledges and agrees that
neither the Company nor any other person or entity is' under any obligation to
sell or transfer to Optionee any option or equity security of the Company, other
than the shares of Common Stock subject to the Option and any other fight or
option to purchase Common Stock which was previously granted to Optionee by the
Board (or a committee thereof). By signing this Option Agreement, Optionee
specifically waives all rights which he may have had prior to the date of this
Option Agreement to receive any option or equity security of the Company.
9. Investment Intent.
Optionee represents and agrees that if he exercises the Option in whole or
in part and if at the time of such exercise the Purchased Shares have not been
registered under the Act, he will acquire the Shares upon such exercise for the
purpose of investment and not with a view to the distribution of such Shares,
and that upon each exercise of the Option he will furnish to the Company a
written statement to such effect, if so requested by the Company.
10. Legend on Stock Certificates.
Optionee agrees that all certificates representing the Purchased Shares
will be subject to such stock transfer orders and other restrictions (if any) as
the Company may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Common Stock is then listed and any applicable federal or state
securities laws, and the Company may cause a legend or legends to be put on such
certificates to make appropriate reference to such restrictions.
11. No Rights as Shareholder.
Optionee shall have no rights as a shareholder with respect to the Shares
until the date of the issuance to Optionee of a stock certificate or stock
certificates evidencing such Shares. Except as may be provided in Paragraph 7 of
this Option Agreement, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other fights for which the record date is prior to the date such stock
certificate is issued.
EX-10-7 - 9
<PAGE>
12. Modification.
The Board (or a committee thereof) may modify, extend or renew the Option
or accept the surrender of, and authorize the grant of a new option in
substitution for, the Option (to the extent not previously exercised).
13. Withholding.
(a) The Company shall be entitled to require as a condition of
delivery of any Purchased Shares upon exercise of any Option that the
Optionee agree to remit, at the time of such delivery or at such later date
as the Company may determine, an amount sufficient to satisfy all federal,
state and local withholding tax requirements relating thereto, and Optionee
agrees to take such other action required by the Company to satisfy such
withholding requirements.
(b) With the consent of the Board (or a committee thereof), and in
accordance with any rules and procedures from time to time adopted by the
Board (or a committee thereof), Optionee may elect to satisfy his or her
obligations under Paragraph 13(a) above by (i) directing the Company to
withhold a portion of the Shares otherwise deliverable (or to tender back
to the Company a portion of the Shares issued where the Optionee (a
"Section 16(b) Recipient") is required to report the ownership of the
Shares pursuant to Section 16(a) of the Securities Exchange Act of 1934, as
amended, and has not made an election under Section 83(b) of the Code (a
"Withholding Right")); or (ii) tendering other shares of the Common Stock
of the Company which are already owned by Optionee which in all cases have
a fair market value (as determined in accordance with the provisions of
Paragraph 4(b) hereof) on the date as of which the amount of tax to be
withheld is determined (the "Tax Date") equal to the amount of taxes to be
paid by such method.
(c) To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Board (or a committee thereof):
(i) the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 13(b) above and whether the amount so paid shall be
made in accordance with the "fiat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
(ii) unless disapproved by the Board (or a committee thereof) or
as provided in Subsection (iii) below, the Election once made will be
irrevocable; and
EX-10-7 - 10
<PAGE>
(iii) no Election is valid unless the Board (or a committee
thereof) consents to the Election; the Board (or a committee thereof)
has the right and power, in its sole discretion, with or without cause
or reason therefor, to consent to the Election, to refuse to consent
to the Election, or to disapprove the Election; and if the Board (or a
committee thereof) has not consented to the Election on or prior to
the Tax Date, the Election will be deemed approved.
(iv) If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(a) the Election cannot be made during the six calendar
month period commencing with the date of grant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior to such date); and
(b) the Election must be made on a date which is six
calendar months or more prior to the Tax Date.
14. Character of Option.
The Option is not intended to qualify as an "incentive stock option" as
that term is defined in Section 422 of the Code.
15. General Provisions.
(a) Further Assurances. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) Notices. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
If to the Company, to:
BIOSOURCE INTERNATIONAL, INC.
820 Flynn Road
Camarillo, California 93012
If to Optionee, to the address set forth in the records of the
Company,
or at such other address or addresses as may have been furnished by such either
party, in writing to the other party hereto. Any such notice, request, demand or
other communication
EX-10-7 - 11
<PAGE>
shall be effective (i) if given by mail. 72 hours after such communication is
deposited in the mail by first-class certified mail, return receipt requested,
postage prepaid, addressed as aforesaid, or (ii) if given by any other means,
when delivered at the address specified in this subparagraph (b).
(c) Transfer of Rights under this Option Agreement. The Company may at
any time .transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
(d) Option Non-Transferable. Optionee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent
and distribution and Stock Options may be exercised during the lifetime of
the Option Holder only by the Option Holder or by his or her guardian or
legal representative.
(e) Successors and Assigns. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs and personal representatives.
(f) Governing Law. THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE IN, AND TO BE PERFORMED WITHIN,
THAT STATE.
(g) Miscellaneous. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable by any of the
parties hereto without the prior written consent of the other party hereto.
The Signature Page to this Option Agreement
consists of the last page of the Certificate.
EX-10-7 - 12
<PAGE>
Exhibit "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
TO: BioSource International, Inc.
The undersigned, the holder of the enclosed Stock Option Agreement (Nora
Statutory Stock Option), hereby irrevocably elects to exercise the purchase
rights represented by the Option and to purchase thereunder __________________ *
shares of Common Stock of BioSource International, Inc. (the "Company"), and
herewith encloses payment of $_______ and/or _______ shares of the Company's
Common Stock in full payment of the purchase price of such shares being
purchased.
Dated: ________________________
--------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Option)
-----------------------------------
(Please Print Name)
-----------------------------------
(Address)
EX-10-7 - 13
<PAGE>
* Insert here the number of shares called for on the face of the Option
(or, in the case of a partial exercise, the number of shares being exercised),
in either case without making any adjustment for additional Common Stock of the
Company, other securities or property which, pursuant to the adjustment
provisions of the Option, may be deliverable upon exercise.
EX-10-7 - 14
Exhibit 10.8
OPTION CERTIFICATE
(NON-STATUTORY STOCK OPTION)
THIS IS TO CERTIFY that BioSource International, Inc., a Delaware
corporation (the "Company"), has granted to the person named below a
non-statutory stock option (the "Option") to purchase shares of the Company's
Common Stock, par value $0.001 per share (the "Shares"), as follows:
Name of Optionee: Jordan B. Fishman, Ph.D.
Address of Optionee: 29 Lynbrook Road
Southborough, Massachusetts 01772
Number of Shares: 100,000
Option Exercise Price: $2 13/16
Option Expiration Date: December 8, 2008
EXERCISE SCHEDULE: The Option shall become exercisable as follows: the
option to purchase 33,333 shares vests on December 9, 1999, the option to
purchase an additional 33,333 shares vests on December 9, 2000 and the option to
purchase an additional 33,334 shares vests on December 9, 2001 (the "Vesting
Date").
SUMMARY OF OTHER TERMS: This Option is defined in the Stock Option
Agreement (Non-Statutory Stock Option) (the "Option Agreement") which is
attached to this Option Certificate (the "Certificate") as Annex I. This
Certificate summarizes certain of the provisions of the Option Agreement for
your information, but is not complete. Your rights are governed by the Option
Agreement, not by this Summary. The Company strongly suggests that you carefully
review the full Option Agreement prior to signing this Certificate or exercising
the Option.
Among the terms of the Option Agreement are the following:
EMPLOYMENT: Unless otherwise provided in your Executive Employment
Agreement with the Company, dated as of December 9, 1998 ("Employment
Agreement"), the Option Agreement obligates you to work for the Company (or hold
office if you are a director) for one (1) year from the Date of Grant of the
Option. Note, however, that should you fail to do so, the Company's sole remedy
is to cancel the portion of your Option which is not then
<PAGE>
exercisable (unless otherwise provided in your Employment Agreement). The Option
Agreement does not obligate the Company to retain you for one (1) year. See
Paragraph 3 and the Exercise Schedule, above. Unless otherwise agreed in
writing, the Company reserves the right to terminate any employee at any time,
with or without cause.
TERMINATION OF EMPLOYMENT: Unless otherwise provided in your Employment
Agreement, while the Option terminates on the Option Expiration Date, it will
terminate earlier if you cease to be employed by the Company (or hold office if
you are a director). If your employment is terminated "for cause" (as defined in
your Employment Agreement), the Option terminates 30 days after the date of
termination of employment, and is exercisable during such 30 day period as to
the portion of the Option which had vested prior to the date of termination of
employment. If your employment is terminated due to death or permanent
disability, the Option terminates one year after the date of death or
disability, and is exercisable during such one year period as to the portion of
the Option which had vested prior to the date of death or disability. Unless
otherwise provided in your Employment Agreement, in all other cases, the Option
terminates 90 days after the date of termination of employment, and is
exercisable during such 90 day period as to the portion of the Option which had
vested prior to the date of termination of employment. See Paragraph 5.
TRANSFER: The Option is personal to you, and cannot be sold, transferred,
assigned or otherwise disposed of to any other person, except on your death. See
Paragraph 15(d).
EXERCISE: You can exercise the Option (once it is exercisable), in whole or
in part, by delivering to the Company a Notice of Exercise identical to Exhibit
"A" attached to the Option Agreement, accompanied by payment of the Exercise
Price for the Shares to be purchased. The Company will then issue a certificate
to you for the Shares you have purchased. You are under no obligation to
exercise the Option. See Paragraph 4.
ANTI-DILUTION PROVISIONS: The Option contains provisions which adjust your
Option to reflect stock splits, stock dividends, mergers and other major
corporate reorganizations which would change the nature of the Shares underlying
your Option. See Paragraph 7.
WAIVER: By signing this Certificate, you will be agreeing to all of the
terms of the Option Agreement, including those not summarized in this
Certificate. You will waive your rights to options or stock which may have been
promised to you. See Paragraph 8.
WITHHOLDING: The Company may require you to make any arrangements necessary
to insure the proper withholding of any amount of tax, if any, required to be
withheld by the Company as a result of the exercise of the Option. See Paragraph
13.
EX-10-8 - 2
<PAGE>
AGREEMENT
BioSource International, Inc., a Delaware corporation (the "Company"), and
the above-named person (the "Optionee") each hereby agrees to be bound by all of
the terms and conditions of the Stock Option Agreement (Incentive Stock Option)
which is attached hereto as Annex I and incorporated herein by this reference if
set forth in full in this document.
DATED: December 9, 1998
BIOSOURCE INTERNATIONAL, INC.
BY: /S/ JAMES CHAMBERLAIN
-----------------------------------
Its: President & Chief Executive
Officer
BY: /S/ JORDAN S. FISHMAN
-----------------------------------
Employee Signature
-------------------------------
(Please print your name exactly
as you wish it to appear on any
stock certificates issued to you
upon exercise of the Option)
EX-10-8 - 3
<PAGE>
ANNEX I
STOCK OPTION AGREEMENT
(Non-Statutory Stock Option)
This STOCK OPTION AGREEMENT (this "Option Agreement") is made and entered
into on the execution date of the Option Certificate to which it is attached
(the "Certificate"), by and between BioSource International, Inc., a Delaware
corporation (the "Company"), and the person named in the Certificate
("Optionee").
The Board of Directors of the Company (the "Board") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), upon
the terms and subject to the conditions set forth in this Option Agreement.
The Company and Optionee agree as follows:
1. Grant of Option.
The Company hereby grants to Optionee the right and option (the
"Option"), upon the terms and subject to the conditions set forth in this
Option Agreement, to purchase all or any portion of that number of shares
of the Common Stock (the "Shares") set forth in the Certificate, at the
Option exercise price set forth in the Certificate (the "Exercise Price").
2. Term of Option.
The Option shall terminate and expire on the Option Expiration Date set
forth in the Certificate, unless sooner terminated as provided herein.
3. Exercise Period.
(a) Subject to the provisions of Paragraphs 3(b), 5, 7(c) and 7(d) of
this Option Agreement and except as otherwise provided in your Executive
Employment Agreement with the Company (the "Employment Agreement"), the
Option shall become exercisable (in whole or in part) upon and after the
dates set forth under the caption "Exercise Schedule" in the Certificate.
The installments shall be cumulative; i.e., the Option may be exercised, as
to any or all Shares covered by an installment, at any time or times after
the installment first becomes exercisable and until expiration or
termination of the Option.
EX-10-8 - 4
<PAGE>
(b) Notwithstanding anything to the contrary contained in this Option
Agreement, the Option may not be exercised, in whole or in part, unless and
until any then-applicable requirements of all federal, state and local laws
and regulatory agencies shall have been fully complied with to the
satisfaction of the Company and its counsel.
4. Exercise of Option.
There is no obligation to exercise the Option, in whole or in part.
The Option may be exercised, in whole or in part, only by delivery to the
Company of:
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares
of Common Stock then being purchased (the "Purchased Shares"); and
(b) payment of the Exercise Price of the Purchased Shares, either in
cash, by check, by cancellation of any indebtedness of the Company to
Optionee for accrued and unpaid salary or, with the consent of the Board
(or a committee thereof), by transfer to the Company of issued and
outstanding shares of Common Stock which have been held by Optionee for a
period of at least six calendar months preceding the date of surrender and
which have a fair market value equal to the exercise price, or by any
combination of the above methods of payment. If payment is made, in whole
or in part, by transfer to the Company of issued and outstanding shares of
Common Stock, the value of such shares shall be determined as follows: (i)
if the Stock is listed on an exchange or exchanges, or admitted for trading
in a market system which provides last sale data under Rule l lAa3-1 of the
General Rules and Regulations of the Securities and Exchange Commission
under the Securities and Exchange Act of 1934, as amended (a "Market
System"), the last reported sales price per share on the last business day
prior to such date on the principal exchange on which it is traded, or in
such a Market System, as applicable, or if no sale was made on such day on
such principal exchange or in such a Market System, as applicable, the last
reported sales price per share on the most recent day prior to such date on
which a sale was reported on such exchange or such Market System, as
applicable; or (ii) if the Common Stock is not then traded on an exchange
or in such a Market System, the average of the closing bid and asked prices
per share for the Common Stock in the over-the-counter market as quoted on
NASDAQ on the day prior to such date; or (iii) if the Common Stock is not
listed on an exchange or quoted on NASDAQ, an amount determined in good
faith by the Board (or a committee thereof).
Following receipt of the notice and payment referred to above, the Company
shall issue and deliver to Optionee a stock certificate or stock certificates
evidencing the
EX-10-8 - 5
<PAGE>
Purchased Shares; provided, however, that the Company shall not be obligated to
issue a fraction or fractions of a share of its Common Stock, and may pay to
Optionee, in cash or by check, the fair market value of any fraction or
fractions of a share exercised by Optionee, which fair market value shall be
determined as set forth in the preceding paragraph.
5. Termination of Employment.
(a) Unless otherwise provided in your Employment Agreement, if
Optionee shall cease to be a Director of the Company, or to be in the
employ of, or a consultant to the Company, any Subsidiary or any Parent for
any reason other than Optionee's death, permanent disability, or
retirement, Optionee shall have the right to exercise the Option at any
time within 90 days after the date Optionee ceased to be a Director of the
Company, or to be employed by, or to be a consultant to the Company, and
prior to the date of termination of the Option under Paragraph 2 of this
Option Agreement with respect to all shares with respect to which the
Option was exercisable at the date Optionee's employment terminated as to
which the Option had not previously been exercised; and, unless otherwise
provided in your Employment Agreement, to the extent unexercised at the end
of this period, the Option shall terminate. Unless otherwise provided in
your Employment Agreement, the Board (or a committee thereof), in its sole
and absolute discretion, shall determine whether or not authorized leaves
of absence shall constitute termination of employment for purposes of this
Option Agreement.
(b) If Optionee shall be terminated "for cause" by the Company, any
Subsidiary or any Parent, Optionee shall have the right to exercise the
Option at any time within 30 days after such termination of employment and
prior to the date of termination of the Option under Paragraph 2 of this
Option Agreement with respect to all Shares with respect to which the
Option was exercisable on the effective date his employment terminated as
to which the Option had not previously been exercised.
(c) Unless otherwise provided in your Employment Agreement, if
Optionee shall cease to be a Director of the Company, or to be in the
employ of, or a consultant to the Company, any Subsidiary or any Parent by
reason of Optionee's death, permanent disability, or retirement (a "Special
Terminating Event"), then Optionee, Optionee's executors or administrators
or any person or persons acquiring the Option directly from Optionee by
bequest or inheritance, shall have the right to exercise the Option with
respect to all Shares granted under the Option at any time within one year
after such Special Terminating Event; to the extent the Option is
unexercised at the end of that period, the Option will terminate.
EX-10-8 - 6
<PAGE>
(d) For purposes of this Option Agreement, unless otherwise defined in
your Employment Agreement, a termination "for cause" shall mean termination
by the Company by reason of:
(1) with respect to employees of the Company:
(i) the failure or refusal by Optionee to perform his duties
to the Company; or
(ii) Optionee's willful disobedience of any orders or
directives of the Board or any officers thereof acting under the
authority thereof or Optionee's deliberate interference with the
compliance by other employees of the Company with any such orders
or directives; or
(iii) the failure or refusal of Optionee to abide by or
comply with the written policies, standard procedures or
regulations of the Company; or
(iv) any willful or continued act or course of conduct by
Optionee which the Board in good faith determines might
reasonably be expected to have a material detrimental effect on
the Company or the business, operations, affairs or financial
position thereof; or
(v) the committing by the Optionee of any fraud, theft,
embezzlement or other dishonest act against the Company; or
(vi) the determination by the Board, in good faith and in
the exercise of reasonable discretion, that Optionee is not
competent to perform his duties of employment; and
(2) with respect to consultants, any material breach of their
consulting agreement with the Company.
(e) For purposes of this Option Agreement, "permanent disability"
shall have the meaning set forth in Section 2(a)(iii) of your Employment
Agreement.
6. Restrictions on Purchased Shares.
None of the Purchased Shares shall be transferred (with or without
consideration), sold, offered for sale, assigned, pledged, hypothecated or
otherwise disposed of (each a "Transfer") and the Company shall not be
required to register any such Transfer and the Company may instruct its
transfer agent not to register any such Transfer, unless and until all of
the following events shall have occurred:
EX-10-8 - 7
<PAGE>
(a) the Purchased Shares are Transferred pursuant to and in conformity
with (i) (x) an effective registration statement filed with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Act
of 1933, as amended (the "Act"), or (y) an exemption from registration
under the Act; and (ii) the securities laws of any state of the United
States; and
(b) Optionee has, prior to the Transfer of such Purchased Shares,
provided all relevant information to Company's counsel so that upon
Company's request, Company's counsel is able to, and actually prepares and
delivers to the Company a written opinion that the proposed Transfer (i)
(x) is pursuant to a registration statement which has been filed with the
Commission and is then effective, or (y) is exempt from registration under
the Act as then in effect, and the Rules and Regulations of the Commission
thereunder; and (ii) is either qualified or registered under any applicable
state securities laws, or exempt from such qualification or registration.
The Company shall bear all reasonable costs of preparing such opinion.
Any attempted Transfer which is not in full compliance with this
Paragraph 6 shall be null and void ab initio, and of no force or effect.
7. Adjustments upon Recapitalization.
Subject to any required action by the shareholders of the Company:
(a) If the outstanding shares of the Common Stock shall be subdivided
into a greater number of shares of the Common Stock, or a dividend in
shares of Common Stock or other securities of the Company convertible into
or exchangeable for shares of the Common Stock (in which latter event the
number of shares of Common Stock issuable upon the conversion or exchange
of such securities shall be deemed to have been distributed) shall be paid
in respect of the shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such
dividend shall, simultaneously with the effectiveness of such subdivision
or immediately after the record date of such dividend, be proportionately
reduced, and conversely, if the outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Exercise
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately increased.
(b) When any adjustment is required to be made in the Exercise Price,
the number of Shares purchasable upon the exercise of the Option shall be
adjusted to that number of Shares determined by (i) multiplying an amount
equal to the number of Shares purchasable on the exercise of the Option
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment,
EX-10-8 - 8
<PAGE>
and then (ii) dividing that product by the Exercise Price in effect
immediately after such adjustment.
(c) In case of any capital reorganization, any reclassification of the
Common Stock (other than a change in par value or recapitalization
described in Paragraph 7(a) of this Option Agreement), or the consolidation
of the Company with, or a sale of substantially all of the assets of the
Company to (which sale is followed by a liquidation or dissolution of the
Company), or merger of the Company with another person (a "Reorganization
Event"), the Board (or a committee thereof) shall be obligated to determine
whether the Reorganization Event shall constitute a "Liquidity Event," and
to deliver to Optionee at least 15 days prior to such Reorganization Event
a notice which shall (i) indicate whether the Reorganization Event is a
Liquidity Event; (ii) indicate whether the Liquidity Event shall result in
the acceleration of the vesting provisions of this Option; and (iii) advise
Optionee of his or her fights pursuant to this Option Agreement. If the
Reorganization Event is determined to be a Liquidity Event, in its sole and
absolute discretion, the surviving corporation may, but shall not be
obligated to, (i) tender to Optionee Stock Options with respect to the
surviving corporation which shall contain terms and provisions that
substantially preserve the rights and benefits of this Option, and (ii) in
the event that no Stock Options have been tendered by the surviving
corporation pursuant to the terms of item (i) immediately above, Optionee
shall have the right exercisable during a ten-day period ending on the
fifth day prior to the Reorganization Event (or ending on the fifth day
prior to the date of record for shareholders entitled to share in the
securities or property distributed in the Reorganization Event, if a record
date is set) to exercise his or her Stock Options in whole or in part, and
if so determined by the Board (or a committee thereof), without regard to
any installment provisions under his or her Stock Option Agreement, on the
condition, however, that the Reorganization Event is actually effected; and
if the Reorganization Event is actually effected, such exercise shall be
deemed effective (and, if applicable, the Optionee shall be deemed a
shareholder with respect to the Stock Options exercised) immediately
preceding the effective time of the Reorganization Event (or on the date of
record for shareholders entitled to share in the securities or property
distributed in the Reorganization Event, if a record date is set). If the
Reorganization Event is not determined to be a Liquidity Event, Optionee
shall thereafter be entitled upon exercise of the Option to purchase the
kind and number of shares of stock or other securities or property of the
surviving corporation receivable upon such event by a holder of the number
of shares of the Common Stock which the Option entitles Optionee to
purchase from the Company immediately prior to such event, and in any such
case, appropriate adjustment shall be made in the application of the
provisions set forth in this Option Agreement with respect to Optionee's
rights and interests
EX-10-8 - 9
<PAGE>
thereafter, to the end that the provisions set forth in this Option
Agreement (including the specified changes and other adjustments to the
Exercise Price) shall thereafter be applicable in relation to any shares or
other property thereafter purchasable upon exercise of the Option.
(d) In the event of the proposed dissolution or liquidation of the
Company, or in the event of any corporate separation or division,
including, but not limited to, a split-up, split-off or spin-off (each, a
"Liquidating Event"), the holder of any Stock Option then exercisable shall
have the right to exercise such Stock Option (at the price provided in the
Stock Option Agreement) subsequent to the Liquidating Event, and for the
balance of its term, solely for the kind and amount of shares of Stock and
other securities, property, cash or any combination thereof receivable upon
such Liquidating Event by a holder of the number of shares of Stock for or
with respect to which such Stock Option might have been exercised
immediately prior to such Liquidating Event; or, in the alternative, that
each Stock Option granted shall terminate as of a date to be fixed by the
Board (or a committee thereof); provided, however, that not less than 30
days written notice of the date so fixed shall be given to each Option
Holder and if such notice is given, each Option Holder shall have the
right, during the period of 30 days preceding such termination, to exercise
the Stock Option as to all or any part of the shares of Stock covered
thereby, without regard to installment or vesting provisions in Section 3
of this Option Agreement, on the condition, however, that the Liquidating
Event actually occurs; and if the Liquidating Event actually occurs, such
exercise shall be deemed effective (and, if applicable, the Option Holder
shall be deemed a shareholder with respect to the Stock Options exercised)
immediately preceding the occurrence of the Liquidating Event, or the date
of record for shareholders entitled to share in such Liquidating Event, if
a record date is set.
(e) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Board (or
a committee thereof), and their determination shall be final, binding and
conclusive.
(f) The provisions of this Paragraph 7 are intended to be exclusive,
and Optionee shall have no other fights upon the occurrence of any of the
events described in this Paragraph 7.
(g) The grant of the Option shall not affect in any way the fight or
power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to
merge, consolidate, dissolve or liquidate, or to sell or transfer all or
any part of its business or assets.
EX-10-8 - 10
<PAGE>
8. Waiver of Rights to Purchase Stock.
By signing this Option Agreement, Optionee acknowledges and agrees that
neither the Company nor any other person or entity is under any obligation to
sell or transfer to Optionee any option or equity security of the Company, other
than the shares of Common Stock subject to the Option and any other fight or
option to purchase Common Stock which was previously granted to Optionee by the
Board (or a committee thereof). By signing this Option Agreement, Optionee
specifically waives all fights which he may have had prior to the date of this
Option Agreement to receive any option or equity security of the Company.
9. Investment Intent.
Optionee represents and agrees that if he exercises the Option in whole or
in part and if at the time of such exercise the Purchased Shares have not been
registered under the Act, he will acquire the Shares upon such exercise for the
purpose of investment and not with a view to the distribution of such Shares,
and that upon each exercise of the Option he will furnish to the Company a
written statement to such effect, if so requested by the Company.
10. Legend on Stock Certificates.
Optionee agrees that all certificates representing the Purchased Shares
will be subject to such stock transfer orders and other restrictions (if any) as
the Company may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the `Common Stock is then listed and any applicable federal or state
securities laws, and the Company may cause a legend or legends to be put on such
certificates to make appropriate reference to such restrictions.
11. No Rights as Shareholder.
Optionee shall have no rights as a shareholder with respect to the Shares
until the date of the issuance to Optionee of a stock certificate or stock
certificates evidencing such Shares. Except as may be provided in Paragraph 7 of
this Option Agreement, 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.
12. Modification.
The Board (or a committee thereof) may modify, extend or renew the Option
or accept the surrender of, and authorize the grant of a new option in
substitution for, the
EX-10-8 - 11
<PAGE>
Option (to the extent not previously exercised).
13. Withholding.
(a) The Company shall be entitled to require as a condition of
delivery of any Purchased Shares upon exercise of any Option that the
Optionee agree to remit, at the time of such delivery or at such later date
as the Company may determine, an amount sufficient to satisfy all federal,
state and local withholding tax requirements relating thereto, and Optionee
agrees to take such other action required by the Company to satisfy such
withholding requirements.
(b) With the consent of the Board (or a committee thereof), and in
accordance with any rules and procedures from time to time adopted by the
Board (or a committee thereof), Optionee may elect to satisfy his or her
obligations under Paragraph 13(a) above by (i) directing the Company to
withhold a portion of the Shares otherwise deliverable (or to tender back
to the Company a portion of the Shares issued where the Optionee (a
"Section 16(b) Recipient") is required to report the ownership of the
Shares pursuant to Section 16(a) of the Securities Exchange Act of 1934, as
amended, and has not made an election under Section 83(b) of the Code (a
"Withholding Right")); or (ii) tendering other shares of the Common Stock
of the Company which are already owned by Optionee which in all cases have
a fair market value (as determined in accordance with the provisions of
Paragraph 4(b) hereof) on the date as of which the amount of tax to be
withheld is determined (the "Tax Date") equal to the amount of taxes to be
paid by such method.
(c) To exercise a Withholding Right, the Optionee must follow the
election procedures set forth below, together with such additional
procedures and conditions set forth in this Option Agreement or otherwise
adopted by the Board (or a committee thereof):
(i) the Optionee must deliver to the Company his or her written
notice of election (the "Election") and specify whether all or a
stated percentage of the applicable taxes will be paid in accordance
with Paragraph 13(b) above and whether the amount so paid shall be
made in accordance with the "flat" withholding rates for supplemental
wages or as determined in accordance with Optionee's form W-4 (or
comparable state or local form);
(ii) unless disapproved by the Board (or a committee thereof) or
as provided in Subsection (iii) below, the Election once made will be
irrevocable; and
EX-10-8 - 12
<PAGE>
(iii) no Election is valid unless the Board (or a committee
thereof) consents to the Election; the Board (or a committee thereof)
has the right and power, in its sole discretion, with or without cause
or reason therefor, to consent to the Election, to refuse to consent
to the Election, or to disapprove the Election; and if the Board (or a
committee thereof) has not consented to the Election on or prior to
the Tax Date, the Election will be deemed approved.
(iv) If the Optionee on the date of delivery of the Election to
the Company is a Section 16(b) Recipient, the following additional
provisions will apply:
(a) the Election cannot be made during the six calendar
month period commencing with the date of ant of the Withholding
Right (even if the Option to which such Withholding Right relates
has been granted prior to such date); and
(b) the Election must be made on a date which is six
calendar months or more prior to the Tax Date.
14. Character of Option.
The Option is not intended to qualify as an "incentive stock option"as
that term is defined in Section 422 of the Code.
15. General Provisions.
(a) Further Assurances. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to
be reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) Notices. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
If to the Company, to:
BioSource International, Inc.
820 Flynn Road
Camarillo, California 93012
Attention: Secretary
If to Optionee, to the address set forth in the records of the
Company,
EX-10-8 - 13
<PAGE>
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) Transfer of Rights under this Option Agreement. The Company may at
any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
(d) Option Non-Transferable. Optionee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent
and distribution and Stock Options may be exercised during the lifetime of
the Option Holder only by the Option Holder or by his or her guardian or
legal representative.
(e) Successors and Assigns. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, heirs and personal representatives.
(f) Governing Law. THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE IN, AND TO BE PERFORMED WITHIN,
THAT STATE.
(g) Miscellaneous. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not
constitute a part of this Option Agreement for any other purpose. Except as
specifically provided herein, neither this Option Agreement nor any right
pursuant hereto or interest herein shall be assignable by any of the
parties hereto without the prior written consent of the other party hereto.
The Signature Page to this Option Agreement
consists of the last page of the Certificate.
EX-10-8 - 14
<PAGE>
Exhibit "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
TO: BioSource International, Inc.
The undersigned, the holder of the enclosed Stock Option Agreement (Non
Statutory Stock Option), hereby irrevocably elects to exercise the purchase
fights represented by the Option and to purchase thereunder _______________*
shares of Common Stock of BioSource International, Inc. (the "Company"), and
herewith encloses payment of $_______________ and/or ______________shares of the
Company's Common Stock in full payment of the purchase price of such shares
being purchased.
Dated: ________________________
--------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Option)
-----------------------------------
(Please Print Name)
-----------------------------------
(Address)
EX-10-8 - 15
<PAGE>
* Insert here the number of shares called for on the face of the Option
(or, in the case of a partial exercise, the number of shares being exercised),
in either case without making any adjustment for additional Common Stock of the
Company, other securities or property which, pursuant to the adjustment
provisions of the Option, may be deliverable upon exercise.
EX-10-8 - 16
Exhibit 10.9
AMENDMENT NO. 1
TO
BIOSOURCE INTERNATIONAL, INC.
1993 STOCK INCENTIVE PLAN
This AMENDMENT NUMBER ONE to the 1993 Stock Incentive Plan (the "PLAN") of
BioSource International, Inc., a Delaware corporation (the "COMPANY"), is made
as of this 17th day of December, 1998.
R E C I T A L S
A. In December of 1993, the Company adopted the Plan for the purpose of
enabling the Company to obtain and retain the services of the types of
employees, consultants, officers and Directors who would contribute to the
Company's long range success and providing incentives which are linked directly
to increases in share value which would inure to the benefit of all shareholders
of the Company.
B. Article 9 of the Plan requires that the stockholders of the Company
approve certain amendments to the Plan.
C. Since the adoption of the Plan, and its approval by the stockholders of
the Company, there have been changes in Rule 16b-3 under the Securities Exchange
Act of 1934, and the regulations of the Nasdaq NMS eliminating the requirement
of stockholder approval for certain changes to the Plan.
D. The Company now desires to amend the Plan as it relates to stockholder
approval to be consistent with the changes in the law and Nasdaq regulations,
and to increase the number of shares authorized to be issued thereunder.
A G R E E M E N T
NOW THEREFORE, in furtherance of the above-stated purpose of the Plan, the
Plan is hereby amended as follows:
1. Article 9 of the Plan is hereby amended. The text formerly in Article 9
is hereby stricken and eliminated, and Article 9 shall hereafter read as
follows:
ARTICLE 9
AMENDMENT AND TERMINATION
The Board may amend, alter or discontinue the Plan at any time, pursuant to
the discretion of the Board.
<PAGE>
2. Section 4.1 of Article 4 of the Plan is hereby amended to increase the
total number of shares of Stock (as defined in the Plan) reserved and available
for issuance under the Plan to 2,000,000 shares of Stock (an increase of 500,000
Shares).
EX-10-9 - 2
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
BioSource International, Inc.:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of BioSource International, Inc. of our reports dated March 26, 1999,
with respect to the consolidated balance sheets of BioSource International, Inc.
and subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three year period ended December 31, 1998, and the related
schedule, which reports appear in the December 31, 1998 annual report on Form
10-K/A of BioSource International, Inc.
/S/ KPMG LLP
Los Angeles, California
February 17, 2000
