Exhibit 11
-----------
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
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)
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
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 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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.
