As filed with the Securities and Exchange Commission on July 13, 1998.
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Endogen, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts 04-2789249
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
30 Commerce Way
Woburn, Massachusetts 01801-1059
(Address of Principal Executive Offices) (Zip Code)
------------------------------------
1992 Stock Plan
(Full Title of the Plan)
------------------------------------
Owen A. Dempsey
Chief Executive Officer
Endogen, Inc.
30 Commerce Way
Woburn, Massachusetts 01801-1059
(781) 937-0890
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
------------------------------------
Copy to:
William J. Schnoor, Jr., Esq.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
(617) 248-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Maximum Proposed Maximum
Title Of Securities Amount To Be Offering Price Per Aggregate Offering Amount Of
To Be Registered Registered Share Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 20,226(1) $4.38(1) $ 88,589.88(1) $ 26.14
Common Stock, par value $.01 7,500(2) $4.00(2) $ 30,000.00(2) $ 8.85
Common Stock, par value $.01 89,750(3) $3.81(3) $341,947.50(3) $100.88
Common Stock, par value $.01 114,025(4) $3.69(4) $420,752.25(4) $124.13
-------- ----------- -------
TOTAL: 231,501 $881,289.63 $260.00
======== =========== =======
=======================================================================================================================
</TABLE>
(1) All such shares are issuable upon exercise of outstanding options to
purchase an aggregate of 20,226 shares at an exercise price of $4.38 per share.
Pursuant to Regulation C, Rule 457(h)(1) under the Securities Act of 1933, as
amended, the aggregate offering price and fee have been computed upon the basis
of the price at which the options may be exercised.
(2) All such shares are issuable upon exercise of outstanding options to
purchase an aggregate of 7,500 shares at an exercise price of $4.00 per share.
Pursuant to Regulation C, Rule 457(h)(1) under the Securities Act of 1933, as
amended, the aggregate offering price and fee have been computed upon the basis
of the price at which the options may be exercised.
(3) All such shares are issuable upon exercise of outstanding options to
purchase an aggregate of 89,750 shares at an exercise price of $3.81 per share.
Pursuant to Regulation C, Rule 457(h)(1) under the Securities Act of 1933, as
amended, the aggregate offering price and fee have been computed upon the basis
of the price at which the options may be exercised.
(4) Pursuant to Regulation C, Rule 457(h)(1) under the Securities Act of 1933,
as amended, the price of $3.69 per share, which is the average of the high and
low prices of the Common Stock as reported on the Nasdaq SmallCap Market on July
9, 1998, is set forth solely for purposes of calculating the filing fee.
<PAGE>
This Registration Statement registers additional securities of the same
class as other securities for which Registration Statement No. 33-64440 on Form
S-8 as filed with the Securities and Exchange Commission (the "SEC") on June 15,
1993 and Registration Statement No. 33-77576 on Form S-8 as filed with the SEC
on April 11, 1994, relating to the Endogen, Inc. 1992 Stock Plan are effective.
Pursuant to General Instruction E, the contents of the above-listed Registration
Statements are hereby incorporated by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits
--------
Exhibit No. Description of Exhibits
----------- -----------------------
4.1 1992 Stock Plan of the Registrant, as amended
November 6, 1997
4.2 Form of Non-Qualified Stock Option Agreement under
the 1992 Stock Plan of the Registrant
4.3 Form of Incentive Stock Option Agreement under the
1992 Stock Plan of the Registrant
4.4 By-Laws, as amended on September 5, 1997 (filed as
Exhibit 3.1 to the Company's Quarterly Report on
Form 10-QSB for the quarter ended August 31, 1997
and incorporated herein by reference)
4.5 Restated Articles of Organization, as amended (filed
as Exhibit 3.1 to the Company's Quarterly Report on
Form 10-QSB for the quarter ended November 30, 1996
and incorporated herein by reference)
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included
in Exhibit 5.1)
24.1 Power of Attorney (contained in Page 2 of this
Registration Statement)
<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 Woburn, Commonwealth of Massachusetts, on June 30,
1998.
ENDOGEN, INC.
/s/ Owen A. Dempsey
------------------------------------
Owen A. Dempsey
Director and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Endogen, Inc., hereby
severally constitute and appoint Owen A. Dempsey and Avery W. Catlin, and each
of them singly, our true and lawful attorneys, with full power to them and each
of them singly, to sign for us in our names in the capacities indicated below,
all pre-effective and post-effective amendments to this registration statement,
and generally to do all things in our names and on our behalf in such capacities
to enable Endogen, Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission.
Pursuant to the requirements of the Securities Act of 1933, as amended, 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/ Owen A. Dempsey Director and Chief Executive Officer (Principal June 30, 1998
- ------------------------------------ Executive Officer)
Owen A. Dempsey
/s/ Avery W. Catlin Vice President, Finance, Chief Financial Officer, June 30, 1998
- ------------------------------------ Treasurer and Clerk (Principal Financial and
Avery W. Catlin Accounting Officer)
/s/ Wallace G. Dempsey Director June 30, 1998
- ------------------------------------
Wallace G. Dempsey
/s/ Hayden H. Harris Director June 30, 1998
- ------------------------------------
Hayden H. Harris
/s/ Wolfgang Woloszcuzuk Director June 30, 1998
- ------------------------------------
Wolfgang Woloszczuk
/s/ Irwin Gruverman Director June 30, 1998
- ------------------------------------
Irwin Gruverman
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 1992 Stock Plan of the Registrant, as amended November 6,
1997
4.2 Form of Non-Qualified Stock Option Agreement under the 1992
Stock Plan of the Registrant
4.3 Form of Incentive Stock Option Agreement under the 1992 Stock
Plan of the Registrant
4.4 By-Laws, as amended on September 5, 1997 (filed as Exhibit
3.1 to the Company's Quarterly Report on Form 10-QSB for the
quarter ended August 31, 1997 and incorporated herein by
reference)
4.5 Restated Articles of Organization, as amended (filed as
Exhibit 3.1 to the Company's Quarterly Report on Form 10-QSB
for the quarter ended November 30, 1996 and incorporated
herein by reference)
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (contained in Page 2 of this Registration
Statement)
Exhibit 4.1
-----------
ENDOGEN, INC.
1992 STOCK PLAN
---------------
1. Purpose. This 1992 Stock Plan (the "Plan") is an amendment and
restatement of the 1989 Stock Plan of Endogen, Inc. (the "Company") and is
intended to provide incentives: (a) to the officers and other employees of the
Company, its parent (if any) and any present or future subsidiaries of the
Company (collectively, "Related Corporations") by providing them with
opportunities to purchase stock in the Company pursuant to options granted
hereunder which qualify as "incentive stock options" under Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code") ("ISO" or "ISOs"); (b) to
directors, officers, employees and consultants of the Company and Related
Corporations by providing them with opportunities to purchase stock in the
Company pursuant to options granted hereunder which do not qualify as ISOs
("Non-Qualified Option" or "Non-Qualified Options"); (c) to directors, officers,
employees and consultants of the Company and Related Corporations by providing
them with awards of stock in the Company ("Awards"); and (d) to directors,
officers, employees and consultants of the Company and Related Corporations by
providing them with opportunities to make direct purchases of stock in the
Company ("Purchases"). Both ISOs and Non-Qualified Options are referred to
hereafter individually as an "Option" and collectively as "Options". Options,
Awards and authorizations to make Purchases are referred to hereafter
collectively as "Stock Rights". As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation",
respectively, as those terms are defined in Section 424 of the Code.
2. Administration of the Plan.
A. Board or Committee Administration. The Plan shall be administered by
the Board of Directors of the Company (the "Board") or, subject to
paragraph 2(D) (relating to compliance with Section 162(m) of the Code),
by a committee appointed by the Board (the "Committee"); provided, that,
to the extent required by Rule 16b-3, or any successor provision ("Rule
16b-3"), of the Securities Exchange Act of 1934, with respect to specific
grants of Stock Rights, the Plan shall be administered by a disinterested
administrator or administrators within the meaning of Rule 16b-3.
Hereinafter, all references in this Plan to the "Committee" shall mean the
Board if no Committee has been appointed. Subject to ratification of the
grant or authorization of each Stock Right by the Board (if so required by
applicable state law), and subject to the terms of the Plan, the Committee
shall have the authority to (i) determine the employees of the Company and
Related Corporations (from among the class of employees eligible under
paragraph 3 to receive ISOs) to whom ISOs may be granted, and to determine
(from among the class of individuals and entities eligible under paragraph
3 to receive Non-Qualified Options and Awards and to make Purchases) to
whom Non-Qualified Options, Awards and authorizations to make Purchases
may be granted; (ii) determine the time or times at which Options or
Awards may be granted or Purchases made; (iii) determine the option price
of shares subject to each Option, which price shall not be less than the
minimum price specified in paragraph 6, and the purchase price of shares
subject to each Purchase; (iv) determine whether each Option granted shall
be an ISO or a Non-Qualified Option; (v) determine (subject to paragraphs
7 and 9) the time or times when each Option shall become exercisable and
the duration of the exercise period; (vi) determine whether restrictions
such as repurchase options are to be imposed on shares subject to Options,
Awards and Purchases and the nature of such restrictions, if any, and
(vii) interpret the Plan and prescribe and rescind rules and regulations
relating to it. If the Committee determines to issue a Non-Qualified
Option, it shall take whatever actions it deems necessary, under Section
422 of the Code and the regulations promulgated thereunder, to ensure that
such Option is not treated as an ISO. The interpretation and construction
by the Committee of any provisions of the Plan or of any Stock Right
granted under it shall be final unless otherwise determined by the Board.
The Committee may from time to time adopt such rules and regulations for
carrying out the Plan as it may deem best. No member of the Board or the
Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any Stock Right granted under it.
<PAGE>
B. Committee Actions. The Committee may select one of its members as
its chairman, and shall hold meetings at such times and places as it may
determine. Acts by a majority of the Committee, or acts reduced to or
approved in writing by a majority of the members of the Committee (if
consistent with applicable state law), shall be the valid acts of the
Committee. From time to time the Board may increase the size of the
Committee and appoint additional members thereof, remove members (with or
without cause) and appoint new members in substitution therefor, fill
vacancies however caused, or remove all members of the Committee and
thereafter directly administer the Plan.
C. Grant of Stock Rights to Board Members. Stock Rights may be granted
to members of the Board consistent with the provisions of the first
sentence of paragraph 2(A) above, if applicable. All grants of Stock
Rights to members of the Board shall in all other respects be made in
accordance with the provisions of this Plan applicable to other eligible
persons. Members of the Board who are either (i) eligible for Stock Rights
pursuant to the Plan or (ii) have been granted Stock Rights may vote on
any matters affecting the administration of the Plan or the grant of any
Stock Rights pursuant to the Plan, except that no such member shall act
upon the granting to himself of Stock Rights, but any such member may be
counted in determining the existence of a quorum at any meeting of the
Board during which action is taken with respect to the granting to him of
Stock Rights.
D. Performance-Based Compensation. The Board, in its discretion, may
take such action as may be necessary to ensure that Stock Rights granted
under the Plan qualify as "qualified performance-based compensation"
within the meaning of Section 162(m) of the Code and applicable
regulations promulgated thereunder ("Performance-Based Compensation").
Such action may include, in the Board's discretion, some or all of the
following (i) if the Board determines that Stock Rights granted under the
Plan generally shall constitute Performance-Based Compensation, the Plan
shall be administered, to the extent required for such Stock Rights to
constitute Performance-Based Compensation, by a Committee consisting
solely of two or more "outside directors" (as defined in applicable
regulations promulgated under Section 162(m) of the Code), (ii) if any
Non-Qualified Options with an exercise price less than the fair market
value per share of Common Stock are granted under the Plan and the Board
determines that such Options should constitute Performance-Based
Compensation, such options shall be made exercisable only upon the
attainment of a pre-established, objective performance goal established by
the Committee, and such grant shall be submitted for, and shall be
contingent upon shareholder approval and (iii) Stock Rights granted under
the Plan may be subject to such other terms and conditions as are
necessary for compensation recognized in connection with the exercise or
disposition of such Stock Right or the disposition of Common Stock
acquired pursuant to such Stock Right, to constitute Performance-Based
Compensation.
3. Eligible Employees and Others. ISOs may be granted to any employee
of the Company or any Related Corporation. Those officers and directors of the
Company who are not employees may not be granted ISOs under the Plan.
Non-Qualified Options, Awards and authorizations to make Purchases may be
granted to any employee, officer or director (whether or not also an employee)
or consultant of the Company or any Related Corporation. The Committee may take
into consideration a recipient's individual circumstances in determining whether
to grant an ISO, a Non-Qualified Option, an Award or an authorization to make a
Purchase. Granting of any Stock Right to any individual or entity shall neither
entitle that individual or entity to, nor disqualify him from, participation in
any other grant of Stock Rights.
4. Stock. The stock subject to Options, Awards and Purchases shall be
authorized but unissued shares of Common Stock of the Company, par value $.01
per share (the "Common Stock"), or shares of Common Stock reacquired by the
Company in any manner. The aggregate number of shares which may be issued
pursuant to the Plan is 1,000,000, subject to adjustment as provided in
paragraph 13. Any such shares may be issued pursuant to any type of Stock Rights
granted under the Plan, so long as the number of shares so issued does not
exceed such number, as adjusted. If any Stock Right granted under the Plan shall
expire or terminate for any reason without having been exercised in full or
shall cease for any reason to be exercisable in whole or in part, the
unpurchased shares subject to such Stock Right shall again be available for
grants of Stock Rights under the Plan.
<PAGE>
No employee of the Company or any Related Corporation
may be granted Stock Rights to acquire, in the aggregate, more than 200,000
shares of Common Stock under the Plan during any fiscal year of the Company. If
any Stock Right granted under the Plan shall expire or terminate for any reason
without having been exercised in full or shall cease for any reason to be
exercisable in whole or in part or shall be repurchased by the Company, the
shares subject to such Stock Right shall be included in the determination of the
aggregate number of shares of Common Stock deemed to have been granted to such
employee under the Plan.
5. Granting of Stock Rights. Stock Rights may be granted under the Plan
at any time after August 10, 1992 and prior to August 9, 2002. The date of grant
of a Stock Right under the Plan will be the date specified by the Committee at
the time it grants the Stock Right; provided, however, that such date shall not
be prior to the date on which the Committee acts to approve the grant. The
Committee shall have the right, with the consent of the optionee, to convert an
ISO granted under the Plan to a Non-Qualified Option pursuant to paragraph 16.
6. Minimum Option Price; ISO Limitations.
A. Price for Non-Qualified Options. Subject to paragraph 2(D) (relating
to compliance with Section 162(m) of the Code), the exercise price per
share specified in the agreement relating to each Non-Qualified Option
granted under the Plan shall in no event be less than the minimum legal
consideration required therefor under the laws of the Commonwealth of
Massachusetts or the laws of any jurisdiction in which the Company or its
successors in interest may be organized.
B. Price for ISOs. The exercise price per share specified in the
agreement relating to each ISO granted under the Plan shall not be less
than the fair market value per share of Common Stock on the date of such
grant. In the case of an ISO to be granted to an employee owning stock
possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any Related Corporation, the
price per share specified in the agreement relating to such ISO shall not
be less than one hundred ten percent (110%) of the fair market value per
share of Common Stock on the date of grant. For purposes of determining
stock ownership under this paragraph, the rules of Section 424(d) of the
Code shall apply.
C. $100,000 Annual Limitation on ISO Vesting. Each eligible employee
may be granted Options treated as ISOs only to the extent that, in the
aggregate under this Plan and all incentive stock option plans of the
Company and any Related Corporation, ISOs do not become exercisable for
the first time by such employee during any calendar year with respect to
stock having a fair market value (determined at the time the ISOs were
granted) in excess of $100,000. The Company intends to designate any
Options granted in excess of such limitation as Non-Qualified Options.
D. Determination of Fair Market Value. If, at the time an Option is
granted under the Plan, the Company's Common Stock is publicly traded,
"fair market value" shall be determined as of the last business day for
which the prices or quotes discussed in this sentence are available prior
to the date such Option is granted and shall mean (i) the average (on that
date) of the high and low prices of the Common Stock on the principal
national securities exchange on which the Common Stock is traded, if the
Common Stock is then traded on a national securities exchange; or (ii) the
last reported sale price (on that date) of the Common Stock on the Nasdaq
National Market List, if the Common Stock is not then traded on a national
securities exchange; or (iii) the closing bid price (or average of bid
prices) last quoted (on that date) by an established quotation service for
over-the-counter securities, if the Common Stock is not reported on the
Nasdaq National Market List. However, if the Common Stock is not publicly
traded at the time an Option is granted under the Plan, "fair market
value" shall be deemed to be the fair value of the Common Stock as
determined by the Committee after taking into consideration all factors
which it deems appropriate, including, without limitation, recent sale and
offer prices of the Common Stock in private transactions negotiated at
arm's length.
7. Option Duration. Subject to earlier termination as provided in
paragraphs 9 and 10, each Option shall expire on the date specified by the
Committee, but not more than (i) ten years and one day from the date of grant in
the case of Non-Qualified Options, (ii) ten years from the date of grant in the
case of ISOs generally, and
<PAGE>
(iii) five years from the date of grant in the case of ISOs granted to an
employee owning stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any Related
Corporation, as determined under paragraph 6(B). Subject to earlier termination
as provided in paragraphs 9 and 10, the term of each ISO shall be the term set
forth in the original instrument granting such ISO, except with respect to any
part of such ISO that is converted into a Non-Qualified Option pursuant to
paragraph 16.
8. Exercise of Option. Subject to the provisions of paragraphs 9
through 12, each Option granted under the Plan shall be exercisable as follows:
A. Vesting. The Option shall either be fully exercisable on the
date of grant or shall become exercisable thereafter in such installments
as the Committee may specify.
B. Full Vesting of Installments. Once an installment becomes
exercisable it shall remain exercisable until expiration or termination of
the Option, unless otherwise specified by the Committee.
C. Partial Exercise. Each Option or installment may be exercised at any
time or from time to time, in whole or in part, for up to the total number
of shares with respect to which it is then exercisable.
D. Acceleration of Vesting. The Committee shall have the right to
accelerate the date of exercise of any installment of any Option; provided
that the Committee shall not, without the consent of an optionee,
accelerate the exercise date of any installment of any Option granted to
any employee as an ISO (and not previously converted into a Non-Qualified
Option pursuant to paragraph 16) if such acceleration would violate the
annual vesting limitation contained in Section 422(d) of the Code, as
described in paragraph 6(C).
9. Termination of Employment. If an ISO optionee ceases to be employed
by the Company and all Related Corporations other than by reason of death or
disability as defined in paragraph 10, no further installments of his ISOs shall
become exercisable, and his ISOs shall terminate after the passage of ninety
(90) days from the date of termination of his employment, but in no event later
than on their specified expiration dates, except to the extent that such ISOs
(or unexercised installments thereof) have been converted into Non-Qualified
Options pursuant to paragraph 16. For purposes of this paragraph 9 only,
employment shall be considered as continuing uninterrupted during any bona fide
leave of absence (such as those attributable to illness, military obligations or
governmental service) provided that the period of such leave does not exceed 90
days or, if longer, any period during which such optionee's right to
re-employment is guaranteed by statute. A bona fide leave of absence with the
written approval of the Committee shall not be considered an interruption of
employment under this paragraph 9, provided that such written approval
contractually obligates the Company or any Related Corporation to continue the
employment of the optionee after the approved period of absence. ISOs granted
under the Plan shall not be affected by any change of employment within or among
the Company and Related Corporations, so long as the optionee continues to be an
employee of the Company or any Related Corporation. Nothing in the Plan shall be
deemed to give any grantee of any Stock Right the right to be retained in
employment or other service by the Company or any Related Corporation for any
period of time.
10. Death; Disability.
A. Death. If an ISO optionee ceases to be employed by the Company and
all Related Corporations by reason of his death, any ISO of his may be
exercised, to the extent of the number of shares with respect to which he
could have exercised it on the date of his death, by his estate, personal
representative or beneficiary who has acquired the ISO by will or by the
laws of descent and distribution, at any time prior to the earlier of the
specified expiration date of the ISO or 180 days from the date of the
optionee's death.
B. Disability. If an ISO optionee ceases to be employed by the Company
and all Related Corporations by reason of his disability, he shall have
the right to exercise any ISO held by him on the date of termination of
employment, to the extent of the number of shares with respect to which he
could have exercised it on that date, at any time prior to the earlier of
the specified expiration date of the ISO or 180 days from the date of the
termination of the optionee's employment. For the purposes of the Plan,
the term
<PAGE>
"disability" shall mean "permanent and total disability" as defined in
Section 22(e)(3) of the Code or successor statute.
11. Assignability. No Stock Right shall be assignable or transferable
by the grantee except by will or by the laws of descent and distribution. During
the lifetime of the grantee each Stock Right shall be exercisable only by him.
12. Terms and Conditions of Options. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. In granting any Non-Qualified Option, the
Committee may specify that such Non-Qualified Option shall be subject to the
restrictions set forth herein with respect to ISOs, or to such other termination
and cancellation provisions as the Committee may determine. The Committee may
from time to time confer authority and responsibility on one or more of its own
members and/or one or more officers of the Company to execute and deliver such
instruments. The proper officers of the Company are authorized and directed to
take any and all action necessary or advisable from time to time to carry out
the terms of such instruments.
13. Adjustments. Upon the occurrence of any of the following events, an
optionee's rights with respect to Options granted to him hereunder shall be
adjusted as hereinafter provided, unless otherwise specifically provided in the
written agreement between the optionee and the Company relating to such Option:
A. Stock Dividends and Stock Splits. If the shares of Common Stock
shall be subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of Common Stock as a stock
dividend on its outstanding Common Stock, the number of shares of Common
Stock deliverable upon the exercise of Options shall be appropriately
increased or decreased proportionately, and appropriate adjustments shall
be made in the purchase price per share to reflect such subdivision,
combination or stock dividend.
B. Consolidations or Mergers. If the Company is to be consolidated with
or acquired by another entity in a merger, sale of all or substantially
all of the Company's assets or otherwise (an "Acquisition"), the Committee
or the board of directors of any entity assuming the obligations of the
Company hereunder (the "Successor Board"), shall, as to outstanding
Options, either (i) make appropriate provision for the continuation of
such Options by substituting on an equitable basis for the shares then
subject to such Options the consideration payable with respect to the
outstanding shares of Common Stock in connection with the Acquisition; or
(ii) upon written notice to the optionees, provide that all Options must
be exercised, to the extent then exercisable, within a specified number of
days of the date of such notice, at the end of which period the Options
shall terminate; or (iii) terminate all Options in exchange for a cash
payment equal to the excess of the fair market value of the shares subject
to such Options (to the extent then exercisable) over the exercise price
thereof.
C. Recapitalization or Reorganization. In the event of a
recapitalization or reorganization of the Company (other than a
transaction described in subparagraph B above) pursuant to which
securities of the Company or of another corporation are issued with
respect to the outstanding shares of Common Stock, an optionee upon
exercising an Option shall be entitled to receive for the purchase price
paid upon such exercise the securities he would have received if he had
exercised his Option prior to such recapitalization or reorganization.
D. Modification of ISOs. Notwithstanding the foregoing, any adjustments
made pursuant to subparagraphs A, B or C with respect to ISOs shall be
made only after the Committee, after consulting with counsel for the
Company, determines whether such adjustments would constitute a
"modification" of such ISOs (as that term is defined in Section 424 of the
Code) or would cause any adverse tax consequences for the
<PAGE>
holders of such ISOs. If the Committee determines that such adjustments
made with respect to ISOs would constitute a modification of such ISOs, it
may refrain from making such adjustments.
E. Dissolution or Liquidation. In the event of the proposed dissolution
or liquidation of the Company, each Option will terminate immediately
prior to the consummation of such proposed action or at such other time
and subject to such other conditions as shall be determined by the
Committee.
F. Issuances of Securities. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares subject to Options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the
Company.
G. Fractional Shares. No fractional shares shall be issued under the
Plan and the optionee shall receive from the Company cash in lieu of such
fractional shares.
H. Adjustments. Upon the happening of any of the events described in
subparagraphs A, B or C above, the class and aggregate number of shares
set forth in paragraph 4 hereof that are subject to Stock Rights which
previously have been or subsequently may be granted under the Plan shall
also be appropriately adjusted to reflect the events described in such
subparagraphs. The Committee or the Successor Board shall determine the
specific adjustments to be made under this paragraph 13 and, subject to
paragraph 2, its determination shall be conclusive.
If any person or entity owning restricted Common Stock obtained by
exercise of a Stock Right made hereunder receives shares or securities or cash
in connection with a corporate transaction described in subparagraphs A, B or C
above as a result of owning such restricted Common Stock, such shares or
securities or cash shall be subject to all of the conditions and restrictions
applicable to the restricted Common Stock with respect to which such shares or
securities or cash were issued, unless otherwise determined by the Committee or
the Successor Board.
14. Means of Exercising Stock Rights. A Stock Right (or any part or
installment thereof) shall be exercised by giving written notice to the Company
at its principal office address. Such notice shall identify the Stock Right
being exercised and specify the number of shares as to which such Stock Right is
being exercised, accompanied by full payment of the purchase price therefor
either (a) in United States dollars in cash or by check, or (b) at the
discretion of the Committee, through delivery of shares of Common Stock having a
fair market value equal as of the date of the exercise to the cash exercise
price of the Stock Right, (c) at the discretion of the Committee, by delivery of
the grantee's personal recourse note bearing interest payable not less than
annually at no less than 100% of the lowest applicable Federal rate, as defined
in Section 1274(d) of the Code, (d) at the discretion of the Committee and
consistent with applicable law, through the delivery of an assignment to the
Company of a sufficient amount of the proceeds from the sale of the Common Stock
acquired upon exercise of the Stock Right and an authorization to the broker or
selling agent to pay that amount to the Company, which sale shall be at the
participant's direction at the time of exercise, or (e) at the discretion of the
Committee, by any combination of (a), (b), (c) and (d) above. If the Committee
exercises its discretion to permit payment of the exercise price of an ISO by
means of the methods set forth in clauses (b), (c), (d) or (e) of the preceding
sentence, such discretion shall be exercised in writing at the time of the grant
of the ISO in question. The holder of a Stock Right shall not have the rights of
a shareholder with respect to the shares covered by his Stock Right until the
date of issuance of a stock certificate to him for such shares. Except as
expressly provided above in paragraph 13 with respect to changes in
capitalization and stock dividends, no adjustment shall be made for dividends or
similar rights for which the record date is before the date such stock
certificate is issued.
15. Term and Amendment of Plan. This Plan was adopted by the Board of
Directors of the Company on August 10, 1992, subject to approval of the Plan by
the stockholders of the Company. The Plan shall expire at the end of the day on
August 9, 2002 (except as to Options outstanding on that date). The Board may
terminate or amend the Plan in any respect at any time, except that, without the
approval of the stockholders obtained within 12 months before or after the Board
adopts a resolution authorizing any of the following actions:
<PAGE>
(a) the total number of shares that may be issued under the Plan may not
materially be increased (except by adjustment pursuant to paragraph 13); (b) the
benefits accruing to participants under the Plan may not materially be
increased; (c) the requirements as to eligibility to participate in the Plan may
not materially be modified; (d) the provisions of paragraph 3 regarding
eligibility for grants of ISOs may not be modified; (e) the provisions of
paragraph 6(B) regarding the exercise price at which shares may be offered
pursuant to ISOs may not be modified (except by adjustment pursuant to paragraph
13); and (f) the expiration date of the Plan may not be extended. Except as
otherwise provided in this paragraph 15, in no event may action of the Board or
stockholders alter or impair the rights of a grantee, without his consent, under
any Stock Right previously granted to him.
16. Conversion of ISOs into Non-Qualified Options; Termination of ISOs.
The Committee, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but shall not be limited to, extending the exercise period
or reducing the exercise price of the appropriate installments of such ISOs. At
the time of such conversion, the Committee (with the consent of the optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee the right to have such optionee's ISOs converted
into Non-Qualified Options, and no such conversion shall occur until and unless
the Committee takes appropriate action. The Committee, with the consent of the
optionee, may also terminate any portion of any ISO that has not been exercised
at the time of such termination.
17. Application Of Funds. The proceeds received by the Company from the
sale of shares pursuant to Options granted and Purchases authorized under the
Plan shall be used for general corporate purposes.
18. Notice to Company of Disqualifying Disposition. By accepting an ISO
granted under the Plan, each optionee agrees to notify the Company in writing
immediately after he/she (or any transferee to whom Section 424(c)(4) of the
Code, relating to transfers to a spouse or former spouse, applies) makes a
Disqualifying Disposition, as described in Sections 421, 422 and 424 of the Code
and regulations thereunder, of any stock acquired under the Plan (or stock or
securities received in a transaction described in Section 424(b) or 424(c)(1)(B)
of the Code, relating to distributions of stock with respect to stock acquired
under the Plan and certain tax-free exchanges of stock acquired under the Plan
for other stock or securities). A Disqualifying Disposition (with certain
exceptions) is generally any disposition within two years of the date the ISO
was granted or within one year of the date the ISO was exercised, whichever
period ends later. With respect to stock or securities held jointly with right
of survivorship, a termination of such joint tenancy may constitute a
Disqualifying Disposition. This paragraph 18 shall be made binding upon the
optionee and upon any transferee of stock or securities described in this
paragraph to whom Section 424(c)(4) of the Code applies.
19. Withholding of Additional Income Taxes. Upon the exercise of a
Non-Qualified Option, the grant of an Award, the making of a Purchase of Common
Stock for less than its fair market value, the making of a Disqualifying
Disposition (as defined in paragraph 18), the vesting or transfer of restricted
stock acquired on the exercise of a Stock Right hereunder (or stock or
securities received in a transaction described in Section 424(b) or 424(c)(1)(B)
of the Code), or the making of a distribution or other payment with respect to
such stock or securities, the Company may withhold taxes in respect of amounts
that constitute compensation includible in gross income, whenever the Company
determines that such withholding is required. The Committee in its discretion
may condition (i) the exercise of an Option, (ii) the grant of an Award, (iii)
the making of a Purchase of Common Stock for less than its fair market value, or
(iv) the vesting of restricted Common Stock acquired by exercising a Stock
Right, on the grantee's making satisfactory arrangement for such withholding.
20. Governmental Regulation. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval of
any governmental authority required in connection with the authorization,
issuance or sale of such shares.
<PAGE>
In addition to tax withholding, government regulations may impose
reporting or other obligations on the Company with respect to the Plan. For
example, the Company may be required to send tax information statements to
employees and former employees that exercise ISOs.
21. Compliance with Regulations. It is the Company's intent that the
Plan comply in all respects with Rule 16b-3 and any applicable Securities and
Exchange Commission interpretations thereof. If any provision of this Plan is
deemed not to be in compliance with Rule 16b-3, the provisions shall be null and
void.
22. Governing Law; Construction. The validity and construction of the
Plan and the instruments evidencing Stock Rights shall be governed by the laws
of the Commonwealth of Massachusetts, or the laws of any jurisdiction in which
the Company or its successors in interest may be organized. In construing this
Plan, the singular shall include the plural and the masculine gender shall
include the feminine and neuter, unless the context otherwise requires.
Exhibit 4.2
-----------
ENDOGEN, INC.
Non-Qualified Stock Option Agreement
------------------------------------
Endogen, Inc., a Massachusetts corporation (the "Company"), hereby
grants this _____________to ______________(the "Optionee"), an option to
purchase a maximum of _______________shares of its Common Stock, $.01 par value,
at the price of $_____________ per share, on the following terms and conditions:
1. Grant Under 1992 Stock Option Plan. This option is granted pursuant
to and is governed by the Company's 1992 Stock Option Plan (the "Plan") and,
unless the context otherwise requires, terms used herein shall have the same
meaning as in the Plan. Determinations made in connection with this option
pursuant to the Plan shall be governed by the Plan as it exists on this date.
2. Grant as Non-Qualified Option; Other Options. This option shall be
treated for federal income tax purposes as a Non-Qualified Option (rather than
an incentive stock option), and the Committee will take appropriate action, if
necessary, to achieve this result. This option is in addition to any other
options heretofore or hereafter granted to the Optionee by the Company, but a
duplicate original of this instrument shall not effect the grant of another
option.
3. Extent of Option if Business Relationship Continues. If the Optionee
has continued to serve the Company or any Related Corporation (as such term is
defined in the Plan) in the capacity of an employee, officer, director or
consultant (such service is described herein as maintaining or being involved in
a "Business Relationship" with the Company), on the following dates, the
Optionee may exercise this option for the number of shares set opposite the
applicable date:
Less than one year from ______________ - 0 shares
One year but less than two years from ___________________ - _________shares
Two years but less than three years from ________________ - _________shares
Three years but less than four years from _______________ - _________shares
Four years or more from _________________________________ - _________shares
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is ten (10) years from the date this option is granted.
All of the foregoing rights are subject to Articles 4 and 5, as appropriate, if
the Optionee ceases to maintain a Business Relationship with the Company or
Related Corporation or dies or becomes disabled or undergoes dissolution while
involved in a Business Relationship with the Company or Related Corporation.
4. Termination of Business Relationship. If the Optionee ceases to
maintain a Business Relationship with the Company or Related Corporation, other
than by reason of death or disability as defined in Article 5 hereof, no further
installments of this option shall become exercisable and this option shall
terminate after the passage of ninety (90) days from the date the Business
Relationship ceases, but in no event later than the scheduled expiration date.
In such a case, the Optionee's only rights hereunder shall be those which are
properly exercised before the termination of this option.
5. Death; Disability; Dissolution. If the Optionee is a natural person
who dies while involved in a Business Relationship with the Company or Related
Corporation, this option may be exercised, to the extent of the number of shares
with respect to which the Optionee could have exercised it on the date of the
Optionee's death, by
<PAGE>
his estate, personal representative or beneficiary to whom this option has been
assigned pursuant to Article 9, at any time within 180 days after the date of
death, but not later than the scheduled expiration date. If the Optionee is a
natural person whose Business Relationship with the Company or Related
Corporation is terminated by reason of his disability (as defined in the Plan),
this option may be exercised, to the extent of the number of shares with respect
to which the Optionee could have exercised it on the date the Business
Relationship was terminated, at any time within 180 days after the date of such
termination, but not later than the scheduled expiration date. At the expiration
of such 180-day period or the scheduled expiration date, whichever is the
earlier, this option shall terminate and the only rights hereunder shall be
those as to which the option was properly exercised before such termination. If
the Optionee is a corporation, partnership, trust or other entity that is
dissolved, liquidated, becomes insolvent or enters into a merger or acquisition
with respect to which such optionee is not the surviving entity at the time when
such entity is involved in a Business Relationship with the Company or Related
Corporation, this Option shall immediately terminate as of the date of such
event, and the only rights hereunder shall be those as to which this option was
properly exercised before such dissolution or other event.
6. Partial Exercise. Exercise of this option up to the extent above
stated may be made in part at any time and from time to time within the above
limits, except that this option may not be exercised for a fraction of a share
unless such exercise is with respect to the final installment of stock subject
to this option and a fractional share (or cash in lieu thereof) must be issued
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. Payment of Price. [The person signing on behalf of the Company must
initial one of the three following clauses.] The option price is payable in
United States dollars and may be paid:
(a) in cash or by check, or any combination of the foregoing,
equal in amount to the option price.
----------
(Initials)
(b) in cash, by check, by delivery of shares of the Company's
Common Stock having a fair market value (as determined by the Board of
Directors) equal as of the date of exercise to the option price, or by any
combination of the foregoing, equal in amount to the option price.
----------
(Initials)
(c) in cash, by check, by delivery of shares of the Company's
Common Stock having an aggregate fair market value (as determined by the Board
of Directors) equal as of the date of exercise to the option price, by delivery
of the Optionee's personal recourse note bearing interest payable not less than
annually at no less than 100% of the lowest applicable Federal rate, as defined
in Section 1274(d) of the Code, or by any combination of the foregoing, equal in
amount to the option price.
----------
(Initials)
Notwithstanding the foregoing, the Optionee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company (i) if such Common
Stock is both subject to a substantial risk of forfeiture and not transferable
within the meaning of Section 83 of the Code, and (ii) unless such Common Stock
has been owned by the Optionee free of any substantial risk of forfeiture for at
least six months.
8. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company,
at the principal executive office of the Company. Such notice shall state the
election to exercise this option and the number of shares in respect of which it
is being exercised and
<PAGE>
shall be signed by the person or persons so exercising this option. Such notice
shall be accompanied by payment of the full purchase price of such shares, and
the Company shall deliver a certificate or certificates representing such shares
as soon as practicable after the notice shall be received. The certificate or
certificates for the shares as to which this option shall have been so exercised
shall be registered in the name of the person or persons so exercising this
option (or, if this option shall be exercised by the Optionee and if the
Optionee shall so request in the notice exercising this option, shall be
registered in the name of the Optionee and another person jointly, with right of
survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this option. In the event this option
shall be exercised, pursuant to Article 5 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this option. All shares that shall
be purchased upon the exercise of this option as provided herein shall be fully
paid and non-assessable.
9. Option Not Transferable. This option is not transferable or
assignable except by will or by the laws of descent and distribution. During the
Optionee's lifetime only the Optionee can exercise this option.
10. No Obligation to Exercise Option. The grant and acceptance of this
option imposes no obligation on the Optionee to exercise it.
11. No Obligation to Continue Business Relationship. The Company and
any Related Corporations are not by the Plan or this option obligated to
continue to maintain a Business Relationship with the Optionee.
12. No Rights as Stockholder until Exercise. The Optionee shall have no
rights as a stockholder with respect to shares subject to this Agreement until a
stock certificate therefor has been issued to the Optionee and is fully paid
for. Except as is expressly provided in the Plan with respect to certain changes
in the capitalization of the Company, no adjustment shall be made for dividends
or similar rights for which the record date is prior to the date such stock
certificate is issued.
13. Capital Changes and Business Successions. It is the purpose of this
option to encourage the Optionee to work for the best interests of the Company
and its stockholders. Since, for example, that might require the issuance of a
stock dividend or a merger with another corporation, the purpose of this option
would not be served if such a stock dividend, merger or similar occurrence would
cause the Optionee's rights hereunder to be diluted or terminated and thus be
contrary to the Optionee's interest. The Plan contains extensive provisions
designed to preserve options at full value in a number of contingencies.
Therefore, provisions in the Plan for adjustment with respect to stock subject
to options and the related provisions with respect to successors to the business
of the Company are hereby made applicable hereunder and are incorporated herein
by reference. In particular, without affecting the generality of the foregoing,
it is understood that for the purposes of Articles 3 through 5 hereof, both
inclusive, maintaining or being involved in a Business Relationship with the
Company includes maintaining or being involved in a Business Relationship with a
Related Corporation as defined in the Plan.
14. Withholding Taxes. If the Company in its discretion determines that
it is obligated to withhold any tax in connection with the exercise of this
option, or in connection with the transfer of, or lapse of restrictions on, any
Common Stock received by the Optionee on exercise of this option, the Optionee
hereby agrees that the Company may withhold from the Optionee's wages or other
remuneration the appropriate amount of federal, state and local withholding
taxes. At the Company's discretion, the amount required to be withheld may be
withheld in cash from such wages or other remuneration, or in kind from the
Common Stock otherwise deliverable to the Optionee on exercise of this option.
The Optionee further agrees that, if the Company does not withhold an amount
from the Optionee's wages or other remuneration sufficient to satisfy the
Company's withholding obligation, the Optionee will reimburse the Company on
demand, in cash, for the amount underwithheld.
15. Acceleration of Vesting of Option for Business Combinations. In the
event of a sale of all or substantially all of the Company's assets, or if the
Company is to be consolidated with or acquired by another entity in a merger or
other reorganization in which the shares of the outstanding voting stock of the
Company immediately preceding the consummation of such an event are converted
into or represent securities of the surviving or resulting entity or other
consideration that will not have the ability to elect a majority of the board of
directors of the
<PAGE>
surviving or resulting entity, this option shall, immediately prior to the
consummation of any of the foregoing events, become fully vested and immediately
exercisable by the Optionee.
16. Provision of Documentation to Optionee. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Plan.
17. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall
be deemed given when sent by certified or registered mail, postage prepaid,
return receipt requested, to the address set forth below. The addresses for such
notices may be changed from time to time by written notice given in the manner
provided for herein.
(b) Entire Agreement; Modification. This Agreement constitutes the
entire agreement between the parties relative to the subject matter hereof, and
supersedes all proposals, written or oral, and all other communications between
the parties relating to the subject matter of this Agreement. This Agreement may
be modified, amended or rescinded only by a written agreement executed by both
parties.
(c) Severability. The invalidity, illegality or unenforceability
of any provision of this Agreement shall in no way affect the validity, legality
or enforceability of any other provision.
(d) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, subject to the limitations set forth in Article 9 hereof.
(e) Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of the conflicts of laws thereof. The
preceding choice of law provision shall apply to all claims, under any theory
whatsoever, arising out of the relationship of the parties contemplated herein.
IN WITNESS WHEREOF the Company and the Optionee have caused this
instrument to be executed, and the Optionee whose signature appears below
acknowledges receipt of a copy of the Plan and acceptance of an original copy of
this Agreement.
Optionee: ENDOGEN, INC.
- ------------------------------ ---------------------
(Signature) Owen A. Dempsey
President and Chief Executive Officer
- ------------------------------
Street Address
- ------------------------------
City State Zip Code
Note: Person signing on behalf of the Company must initial one of the three
clauses under Article 7 above.
Exhibit 4.3
-----------
ENDOGEN, INC.
Incentive Stock Option Agreement
--------------------------------
Endogen, Inc., a Massachusetts corporation (the "Company"), hereby grants
this __________to ___________(the "Employee"), an option to purchase a maximum
of ______________shares of its Common Stock, $.01 par value, at the price of
$________________ per share, on the following terms and conditions:
1. Grant Under 1992 Stock Plan. This option is granted pursuant to and is
governed by the Company's 1992 Stock Option Plan (the "Plan") and, unless the
context otherwise requires, terms used herein shall have the same meaning as in
the Plan. Determinations made in connection with this option pursuant to the
Plan shall be governed by the Plan as it exists on this date.
2. Grant as Incentive Stock Option; Other Options. This option is intended
to qualify as an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). This option is in addition to any
other options heretofore or hereafter granted to the Employee by the Company,
but a duplicate original of this instrument shall not effect the grant of
another option.
3. Extent of Option if Employment Continues. If the Employee has continued
to be employed by the Company or any Related Corporation (as such term is
defined in the Plan), on the following dates, the Employee may exercise this
option for the number of shares set opposite the applicable date:
Less than one year from __________________________ - 0 shares
One year but less than two
years from _______________________________________ - _________ shares
Two years but less than three
years from _______________________________________ - _________ shares
Three years but less than four
years from _______________________________________ - __________ shares
Four years or more from __________________________ - __________ shares
The foregoing rights are cumulative and, while the Employee continues to be
employed by the Company, may be exercised up to and including the date which is
ten (10) years from the date this option is granted. All of the foregoing rights
are subject to Articles 4 and 5 hereof, as appropriate, if the Employee ceases
to be employed by the Company or Related Corporation or dies or becomes disabled
while in the employ of the Company or Related Corporation.
4. Termination of Employment. If the Employee ceases to be employed by the
Company or Related Corporation, other than by reason of death or disability as
defined in Article 5 hereof, no further installments of this option shall become
exercisable and this option shall terminate after the passage of ninety (90)
days from the date employment ceases, but in no event later than the scheduled
expiration date. In such a case, the Employee's only rights hereunder shall be
those which are properly exercised before the termination of this option.
5. Death; Disability. If the Employee dies while in the employ of the
Company or Related Corporation, this option may be exercised, to the extent of
the number of shares with respect to which the Employee could have exercised it
on the date of his death, by his estate, personal representative or beneficiary
to whom this option has
<PAGE>
been assigned pursuant to Article 9 hereof, at any time within 180 days after
the date of death, but not later than the scheduled expiration date. If the
Employee ceases to be employed by the Company or Related Corporation by reason
of his disability (as defined in the Plan), this option may be exercised, to the
extent of the number of shares with respect to which he could have exercised it
on the date of the termination of his employment, at any time within 180 days
after such termination, but not later than the scheduled expiration date. At the
expiration of such 180-day period or the scheduled expiration date, whichever is
the earlier, this option shall terminate and the only rights hereunder shall be
those as to which the option was properly exercised before such termination.
6. Partial Exercise. Exercise of this option up to the extent above stated
may be made in part at any time and from time to time within the above limits,
except that this option may not be exercised for a fraction of a share unless
such exercise is with respect to the final installment of stock subject to this
option and a fractional share (or cash in lieu thereof) must be issued to permit
the Employee to exercise completely such final installment. Any fractional share
with respect to which an installment of this option cannot be exercised because
of the limitation contained in the preceding sentence shall remain subject to
this option and shall be available for later purchase by the Employee in
accordance with the terms hereof.
7. Payment of Exercise Price. [Person signing on behalf of the Company
must initial one of the three following clauses.] The option price is payable in
United States dollars and may be paid:
(a) in cash or by check, or any combination of the foregoing,
equal in amount to the option price.
----------
(Initials)
(b) in cash, by check, by delivery of shares of the Company's
Common Stock having a fair market value (as determined by the Board of
Directors) equal as of the date of exercise to the option price, or by any
combination of the foregoing, equal in amount to the option price.
----------
(Initials)
(c) in cash, by check, by delivery of shares of the Company's
Common Stock having an aggregate fair market value (as determined by the Board
of Directors) equal as of the date of exercise to the option price, by delivery
of the Employee's personal recourse note bearing interest payable not less than
annually at no less than 100% of the lowest applicable Federal rate, as defined
in Section 1274(d) of the Code, or by any combination of the foregoing, equal in
amount to the option price.
----------
(Initials)
Notwithstanding the foregoing, the Employee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company (i) if such Common
Stock is both subject to a substantial risk of forfeiture and not transferable
within the meaning of Section 83 of the Code, and (ii) unless such Common Stock
has been owned by the Employee free from any substantial risk of forfeiture for
at least six months.
8. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company,
at the principal executive office of the Company. Such notice shall state the
election to exercise this option and the number of shares for which it is being
exercised and shall be signed by the person or persons so exercising this
option. Such notice shall be accompanied by payment of the full purchase price
of such shares, and the Company shall deliver a certificate or certificates
representing such shares as soon as practicable after the notice shall be
received. The certificate or certificates for the shares as to which this option
shall have been so exercised shall be registered in the name of the person or
persons so exercising this option (or, if this option shall be exercised by the
Employee and if the Employee shall so request in the notice exercising this
option, shall be registered in the name of the Employee and another person
jointly, with right of survivorship)
<PAGE>
and shall be delivered as provided above to or upon the written order of the
person or persons exercising this option. In the event this option shall be
exercised, pursuant to Article 5 hereof, by any person or persons other than the
Employee, such notice shall be accompanied by appropriate proof of the right of
such person or persons to exercise this option. All shares that shall be
purchased upon the exercise of this option as provided herein shall be fully
paid and non-assessable.
9. Option Not Transferable. This option is not transferable or assignable
except by will or by the laws of descent and distribution. During the Employee's
lifetime only the Employee can exercise this option.
10. No Obligation to Exercise Option. The grant and acceptance of this
option imposes no obligation on the Employee to exercise it.
11. No Obligation to Continue Employment. The Company and any Related
Corporation are not by the Plan or this option obligated to continue the
Employee in employment.
12. No Rights as Stockholder until Exercise. The Employee shall have no
rights as a stockholder with respect to shares subject to this Agreement until a
stock certificate therefor has been issued to the Employee and is fully paid
for. Except as is expressly provided in the Plan with respect to certain changes
in the capitalization of the Company, no adjustment shall be made for dividends
or similar rights for which the record date is prior to the date such stock
certificate is issued.
13. Capital Changes and Business Successions. It is the purpose of this
option to encourage the Employee to work for the best interests of the Company
and its stockholders. Since, for example, that might require the issuance of a
stock dividend or a merger with another corporation, the purpose of this option
would not be served if such a stock dividend, merger or similar occurrence would
cause the Employee's rights hereunder to be diluted or terminated and thus be
contrary to the Employee's interest. The Plan contains extensive provisions
designed to preserve options at full value in a number of contingencies.
Therefore, provisions in the Plan for adjustment with respect to stock subject
to options and the related provisions with respect to successors to the business
of the Company are hereby made applicable hereunder and are incorporated herein
by reference. In particular, without affecting the generality of the foregoing,
it is understood that for the purposes of Articles 3 through 5 hereof, both
inclusive, employment by the Company includes employment by a Related
Corporation as defined in the Plan.
14. Early Disposition. The Employee agrees to notify the Company in
writing immediately after the Employee makes a Disqualifying Disposition of any
Common Stock received pursuant to the exercise of this option. A Disqualifying
Disposition is any disposition (including any sale) of such Common Stock before
the later of (a) two years after the date the Employee was granted this option
or (b) one year after the date the Employee acquired Common Stock by exercising
this option. The Employee also agrees to provide the Company with any
information which it shall request concerning any such disposition.
15. Withholding Taxes. If the Company in its discretion determines that it
is obligated to withhold any tax in connection with the exercise of this option,
or in connection with the transfer of, or lapse of restrictions on, any Common
Stock received by the Employee on exercise of this option, the Employee hereby
agrees that the Company may withhold from the Employee's wages or other
remuneration the appropriate amount of federal, state and local withholding
taxes. At the Company's discretion, the amount required to be withheld may be
withheld in cash from such wages or other remuneration, or in kind from the
Common Stock otherwise deliverable to the Employee on exercise of this option.
The Employee further agrees that, if the Company does not withhold an amount
from the Employee's wages or other remuneration sufficient to satisfy the
Company's withholding obligation, the Employee will reimburse the Company on
demand, in cash, for the amount underwithheld.
16. Acceleration and Vesting of Option for Business Combinations. In the
event of a sale of all or substantially all of the Company's assets, or if the
Company is to be consolidated with or acquired by another entity in a merger or
other reorganization in which the shares of the outstanding voting stock of the
Company immediately preceding the consummation of such an event are converted
into or represent securities of the surviving or resulting
<PAGE>
entity or other consideration that will not have the ability to elect a majority
of the board of directors of the surviving or resulting entity, this option
shall, immediately prior to the consummation of any of the foregoing events,
become fully vested and immediately exercisable by the Employee.
17. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall
be deemed given when sent by certified or registered mail, postage prepaid,
return receipt requested, to the address set forth below. The addresses for such
notices may be changed from time to time by written notice given in the manner
provided for herein.
(b) Entire Agreement; Modification. This Agreement constitutes the
entire agreement between the parties relative to the subject matter hereof, and
supersedes all proposals, written or oral, and all other communications between
the parties relating to the subject matter of this Agreement. This Agreement may
be modified, amended or rescinded only by a written agreement executed by both
parties.
(c) Severability. The invalidity, illegality or unenforceability
of any provision of this Agreement shall in no way affect the validity, legality
or enforceability of any other provision.
(d) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, subject to the limitations set forth in Article 9 hereof.
(e) Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of the conflicts of laws thereof. The
preceding choice of law provision shall apply to all claims, under any theory
whatsoever, arising out of the relationship of the parties contemplated herein.
[Signature Page to Follow]
IN WITNESS WHEREOF the Company and the Employee have caused this
instrument to be executed, and the Employee whose signature appears below
acknowledges receipt of a copy of the Plan and acceptance of an original copy of
this Agreement.
______________________________ ENDOGEN, INC.
EMPLOYEE
______________________________ ____________________________
Print Name of Employee Owen A. Dempsey
President and Chief Executive Officer
______________________________
Street Address
______________________________
City State Zip Code
NOTE: PERSON SIGNING ON BEHALF OF THE COMPANY MUST INITIAL ONE OF THE THREE
CLAUSES UNDER ARTICLE 7 ABOVE.
Exhibit 5.1
-----------
July 13, 1998
Endogen, Inc.
30 Commerce Way
Woburn, MA 01801
Re: Registration Statement on Form S-8 Relating to the
1992 Stock Plan of Endogen, Inc. (hereinafter the "Plan")
---------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by Endogen, Inc. (the "Company") on the
date hereof with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to an aggregate of 231,501 shares of Common Stock,
$.01 par value, of the Company issuable pursuant to the Plan (the "Shares").
We have examined, and are familiar with, and have relied as to factual
matters solely upon, copies of the Plan, the Restated Articles of Organization
and By-laws of the Company, the minute books and stock records of the Company
and originals of such other documents, certificates and proceedings as we have
deemed necessary for the purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and sold in accordance with the Plan will be
validly issued, fully paid and nonassessable.
We hereby consent to filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ TESTA, HURWITZ & THIBEAULT, LLP
TESTA, HURWITZ & THIBEAULT, LLP
Exhibit 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Endogen, Inc. of our report dated July 24,
1997 appearing on page F-2 of the Annual Report on Form 10-KSB for the year
ended May 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
July 10, 1998
