EXHIBIT 4.2
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VION PHARMACEUTICALS, INC.
STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the ___ day of ____, 2000 by and
between VION PHARMACEUTICALS, INC., a Delaware corporation (the "Company"), and,
______________________________ , (the "Holder"):
The Board of Directors (the "Board") has determined that it
would be to the advantage and interest of the Company to grant the option
provided for herein to the Holder for services rendered for the benefit of the
Company.
NOW, THEREFORE, the Company, with the approval of the Board,
hereby grants to the Holder, as of the date hereof, pursuant to the terms of the
Company's Amended and Restated 1993 Stock Option Plan (the terms of which are
incorporated by reference herein), an incentive stock option to purchase all or
any part of __________ shares of Common Stock of the Company, par value $.01 per
share, at a price per share of $ _____ (the "Option"), and upon the following
terms and conditions:
1. (a) The Option shall expire on the tenth anniversary of the
date hereof, unless sooner terminated as provided herein (the "Expiration
Date").
(b) Commencing ________________ , the Holder may exercise
25% of the Option, and an additional 25% of the Option may be exercised on a
cumulative basis commencing at the end of each 12 month period thereafter, such
that 100% of the Option may be exercised on ___________ ; provided, that the
Option may be exercised in full upon a "Change in Control" (as described below).
A "Change in Control" of the Company shall be deemed to have occurred if
(i) any "person" (as such term is defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
modified and used in Sections 13(d) and 14(d) of the Exchange Act)
other than (A) the Company or any of its subsidiaries, (B) any trustee
or other fiduciary holding securities under an employee benefit plan of
the Company or any of its subsidiaries, (C) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (D)
any corporation, owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of
stock of the Company (a "Person"), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 40% or more of
the combined voting power of the Company's then outstanding securities;
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(ii) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who at
the beginning of such period constitute the Board of Directors of the
Company, and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii) or (iv) of this Section)
whose election by the Board of Directors of the Company or nomination
for election by the Company's stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously approved, cease for any reason
to constitute at least a majority of the Company's Board of Directors;
(iii) the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than (A) a merger or
consolidation that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities
of the surviving entity), in combination with the ownership of any
trustee or other fiduciary holding securities under an employee benefit
plan of the Company, at least 60% of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (B) merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person acquires more than 50% of
the combined voting power of the Company's then outstanding securities;
or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
of the Company or all or substantially all of the Company's assets.
2. (a) The Holder may exercise the Option with respect to all or any
part of the shares then purchasable hereunder by giving the Company written
notice of such exercise in the form annexed, as provided in paragraph 8 hereof.
Such notice shall specify the number of shares as to which the Option is being
exercised and shall be accompanied by payment in full in cash of an amount equal
to the exercise price of such shares multiplied by the number of shares as to
which the Option is being exercised; provided that, if permitted by the Board,
the purchase price may be paid, in whole or in part, by surrender or delivery to
the Company of Common Stock of the Company having a fair market value on the
date of the exercise equal to the portion of the purchase price being so paid.
In such event, fair market value shall be determined as follows. If, at the time
an Option is granted, the Common Stock is publicly traded, such fair market
value shall be the closing price (or the mean of the latest bid and asked
prices) of a share of Common Stock on such date as reported in The Wall Street
Journal (or a publication or reporting service deemed equivalent to The Wall
Street Journal for such purpose by the Board). If the Board shall determine such
stock price quotation is not representative of fair market value by reason of
the lack of a significant number of recent transactions or otherwise, the Board
may determine fair market value in such a manner as it shall deem appropriate
under the circumstances. If, at the time an Option is exercised, the Common
Stock is not publicly traded, the Board shall make a good faith attempt to
determine such fair market value.
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(b) Prior to, or concurrently with, delivery by the Company to
the Holder of a certificate(s) representing such shares, the Holder shall, upon
notification of the amount due, pay promptly any amount necessary to satisfy
applicable federal, state or local withholding tax requirements. In the event
such amount is not paid promptly, the Company shall have the right to apply from
the purchase price paid (including payment in Common Stock) any taxes required
by law to be withheld by the Company with respect to such payment and the number
of shares to be issued by the Company will be reduced accordingly. Furthermore,
if permitted by the Board, the Company may, at the Holder's request, undertake
to pay any taxes required to be paid by the Holder as a consequence of the
exercise of the Option (and as to which the Company does not have a withholding
obligation), provided the Holder surrenders or delivers to the Company Common
Stock having a fair market value (determined in accordance with paragraph 2(a)
above) on the date of the exercise of the Option equal to the amount of the
taxes payable by the Holder.
3. In the event of a change in the outstanding Common Stock of the
Company by reason of a stock dividend, split-up, reverse split,
recapitalization, merger, consolidation, combination or exchange of shares,
spin-off, reorganization, liquidation or the like, then the aggregate number of
shares and price per share subject to the Option shall be appropriately adjusted
by the Board, whose determination shall be conclusive.
4. The Option shall not be transferable other than by will or by the
laws of descent and distribution. Any attempt by the Holder to transfer, assign,
pledge, hypothecate or otherwise dispose of this Option or of any right
hereunder, or in the event of the levy or any attachment, execution or similar
process upon the rights or interest hereby conferred, the Company may terminate
this option by notice to the Holder and it shall thereupon become null and void.
5. In the event the Holder shall become permanent and totally disabled
within the meaning of Section 22 (e) (3) of the Internal Revenue Code of 1986,
as amended, and not be able to exercise the Option, or if the Holder shall die,
then the Option may be exercised as set forth herein by the person or persons to
whom the Holder's rights under the Option pass by will or applicable law, or if
no such person has such right, by his personal representatives, at any time
prior to the Expiration Date.
6. Neither the Holder nor, in the event of his death or disability, any
person entitled to exercise his rights hereunder, shall have any of the rights
of a stockholder with respect to the shares subject to the Option until share
certificates have been issued and registered in the name of the Holder, his
personal representative(s) or his estate, as the case maybe.
7. The Holder hereby represents and warrants to the Company that he
understands that:
(a) the Option has not been registered under the Securities
Act of 1993 (the "Securities Act") or any state securities laws ("State Laws");
(b) the Option may not be exercised unless the shares of
Common Stock to be issued upon such exercise have been registered under the
Securities Act and State Laws or counsel to the Company is satisfied that an
exemption from registration is available (which may be conditioned upon the
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Company receiving certain information from and agreements of the Holder and the
Holder satisfying certain suitability standards or other requirements imposed by
law);
(c) the Option and any Common Stock purchased upon exercise of
the Option cannot be sold or otherwise disposed of unless they are subsequently
registered under the Securities Act and applicable State Laws or counsel to the
Company is satisfied that an exemption from registration is available; and
(d) neither the Holder nor any person entitled to exercise his
rights will have any right to require that the Option or such Common Stock be
registered under the Securities Act or State Laws.
8. Any notice to the Company provided for in this Agreement shall be
addressed to the Company in care of its Treasurer, Thomas E. Klein, c/o Vion
Pharmaceuticals, Inc., 4 Science Park, New Haven, Connecticut 06511, and any
notice to the Holder shall be addressed to him at his address now on file with
the Company, or to such other address as either may last have designated to the
other by notice as provided herein. Notice may be given by hand delivery
(including federal express or an equivalent overnight delivery service), by
facsimile transmission, with receipt confirmed, or by registered or certified
mail. Any notice given by hand or facsimile shall be deemed to be given on the
date of delivery or transmission, and any notice mailed by registered or
certified mail shall be deemed to be given on the third business day after
mailing.
9. In the event that any question or controversy shall arise with
respect to the nature, scope or extent of any one or more rights conferred by
this Option, the determination by the Board (as constituted at the time of such
determination) of the rights of the Holder shall be conclusive, final and
binding upon the Holder and upon any other person who shall assert any right
pursuant to this Stock Option Agreement.
VION PHARMACEUTICALS, INC.
By: _____________________________
Name:
Title:
ACCEPTED AND AGREED:
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