EXHIBIT 10.4
ALPHA INNOTECH CORP.
1999 STOCK OPTION PLAN, AS AMENDED
INCENTIVE STOCK OPTION AGREEMENT
(A) Name of Optionee:
(B) Grant Date:
(C) Number of Shares:
(D) Exercise Price:
(E) Vesting Base Date:
(F) Effective Date:
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Agreement"), is made and
entered into as of the date set forth in Item F above (the "Effective Date")
between Alpha Innotech Corp., a Delaware corporation (the "Company"), and the
person named in Item A above ("Optionee").
THE PARTIES AGREE AS FOLLOWS:
1. GRANT OF OPTION; VESTING BASE DATE.
1.1 GRANT. The Company hereby grants to Optionee pursuant
to the Company's 1999 Stock Option Plan, as amended (the "PLAN"), a copy of
which is attached to this Agreement as Exhibit 1, an incentive stock option (the
"ISO") to purchase all or any part of an aggregate of the number of shares (the
"ISO SHARES") of the Company's Common Stock (as defined in the Plan) listed in
Item C above on the terms and conditions set forth herein and in the Plan, the
terms and conditions of the Plan being hereby incorporated into this Agreement
by reference.
1.2 VESTING BASE DATE. The parties hereby establish the
date set forth in Item E above as the Vesting Base Date (as defined in Section
5.1 below).
2. EXERCISE PRICE. The exercise price for purchase of each share
of Common Stock covered by this ISO shall be the price set forth in Item D
above.
3. TERM. Unless otherwise specified on Exhibit 3 attached hereto,
if any (the absence of such exhibit indicating that no such exhibit was
intended), this ISO shall expire as provided in Section 6.1.12 of the Plan.
4. ADJUSTMENT OF ISOS. The Company shall adjust the number and
kind of shares and the exercise price thereof in certain circumstances in
accordance with the provisions of Section 6.1.1 of the Plan.
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5. EXERCISE OF OPTIONS.
5.1 VESTING; TIME OF EXERCISE. This ISO shall be
exercisable according to the schedule set forth on Exhibit 5.1 attached hereto.
Such schedule shall commence as of the date set forth in Item (E) above (the
"VESTING BASE DATE").
5.2 EXERCISE AFTER TERMINATION OF STATUS AS AN EMPLOYEE,
DIRECTOR OR CONSULTANT. In the event of termination of Optionee's continuous
status as an employee, director or consultant, this ISO may be exercised only in
accordance with the provisions of Section 6.1.7 of the Plan; provided, however,
that in the event of termination of Optionee's continuous status as an employee,
director or consultant for any reason other than death or disability, this ISO
may be exercised in whole or in part at any time within thirty days of the date
of such termination (but in no event after the Expiration Date, as such term is
defined in the Plan).
5.3 MANNER OF EXERCISE. Optionee may exercise this ISO,
or any portion of this ISO, by giving written notice to the Company at its
principal executive office, to the attention of the officer of the Company
designated by the Plan Administrator, accompanied by a copy of the 1999 Stock
Option Plan Stock Purchase Agreement in substantially the form attached hereto
as Exhibit 5.3 executed by Optionee (or at the option of the Company such other
form of stock purchase agreement as shall then be acceptable to the Company),
payment of the exercise price and payment of any applicable withholding or
employment taxes. The date the Company receives written notice of an exercise
hereunder accompanied by payment will be considered as the date this ISO was
exercised.
5.4 PAYMENT. Except as provided in Exhibit 5.4 attached
hereto, if any (the absence of such exhibit indicating that no exhibit was
intended), payment may be made for ISO Shares purchased at the time written
notice of exercise of the ISO is given to the Company, by delivery of cash or
check or other method set forth in Section 6.1.6 of the Plan. Any applicable
taxes must be paid in cash or by other method permitted by the Plan
Administrator as set forth in Section 6.1.9 of the Plan. The proceeds of any
payment shall constitute general funds of the Company.
5.5 DELIVERY OF CERTIFICATE. Promptly after receipt of
written notice of exercise of the ISO, the Company shall, without stock issue or
transfer taxes to the Optionee or other person entitled to exercise, deliver to
the Optionee or other person a certificate or certificates for the requisite
number of ISO Shares or shall register the Optionee as a stockholder on the
books of the Company. An Optionee or transferee of an Optionee shall not have
any privileges as a stockholder with respect to any ISO Shares covered by the
ISO until the date of issuance of a stock certificate or, if applicable, such
registration.
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6. NONASSIGNABILITY OF ISO. This ISO is not assignable or
transferable by Optionee except by will or by the laws of descent and
distribution. During the life of Optionee, the ISO is exercisable only by the
Optionee. Any attempt to assign, pledge, transfer, hypothecate or otherwise
dispose of this ISO in a manner not herein permitted, and any levy of execution,
attachment, or similar process on this ISO, shall be null and void.
7. COMPANY'S RIGHT OF REPURCHASE UPON TERMINATION OF EMPLOYMENT.
The ISO Shares arising from exercise of this ISO shall be subject to a right of
repurchase in favor of the Company (the "RIGHT OF REPURCHASE") to the extent set
forth on Exhibit 7 attached hereto (the absence of such exhibit indicating that
no such exhibit was intended and that the ISO shall be subject to the
limitations set forth on Exhibit 5.1). If the Optionee's employment with the
Company terminates before the Right of Repurchase lapses in accordance with
Exhibit 7, the Company may purchase ISO Shares subject to the Right of
Repurchase (either by payment of cash or by cancellation of purchase money
indebtedness) for an amount equal to the price the Optionee paid for such ISO
Shares (exclusive of any taxes paid upon acquisition of the stock) by giving
notice at any time within the later of (a) 30 days after the acquisition of the
ISO Shares upon option exercise, or (b) 90 days after such termination of
employment that the Company is exercising its right of repurchase. The Company
shall include with such notice payment in full in cash or by evidence of
cancellation of purchase money indebtedness. The Optionee may not dispose of or
transfer ISO Shares while such shares are subject to the Right of Repurchase and
any such attempted transfer shall be null and void.
8. RESTRICTION ON ISSUANCE OF SHARES.
8.1 LEGALITY OF ISSUANCE. The Company shall not be
obligated to sell or issue any ISO Shares pursuant to this Agreement if such
sale or issuance, in the opinion of the Company and the Company's counsel, might
constitute a violation by the Company of any provision of law, including without
limitation the provisions of the Securities Act.
8.2 REGISTRATION OR QUALIFICATION OF SECURITIES. The
Company may, but shall not be required to, register or qualify the sale of this
ISO or any ISO Shares under the Securities Act or any other applicable law. The
Company shall not be obligated to take any affirmative action in order to cause
the grant or exercise of this option or the issuance or sale of any ISO Shares
pursuant thereto to comply with any law.
9. RESTRICTION ON TRANSFER. Regardless whether the sale of the
ISO Shares has been registered under the Securities Act or has been registered
or qualified under the securities laws of any state, the Company may impose
restrictions upon the sale, pledge, or other transfer of ISO Shares (including
the placement of appropriate legends on stock certificates) if, in the judgment
of the Company and the Company's counsel, such restrictions are necessary or
desirable in order to achieve compliance with the provisions
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of the Securities Act, the securities laws of any state, or any other law, or if
the Company does not desire to have a trading market develop for its securities.
10. STOCK CERTIFICATE. Stock certificates evidencing ISO Shares
may bear such restrictive legends as the Company and the Company's counsel deem
necessary or advisable under applicable law or pursuant to this Agreement.
11. DISQUALIFYING DISPOSITIONS. If stock acquired by exercise of
this ISO is disposed of within two years after the Effective Date or within one
year after the date of such exercise (as determined under Section 5.3 of this
Agreement), the Optionee immediately prior to the disposition shall promptly
notify the Company in writing of the date and terms of the disposition and shall
provide such other information regarding the disposition as the Company may
reasonably require.
12. TAX ADVICE. The Company has made no warranties or
representations to Purchaser with respect to the income tax consequences of the
transactions contemplated by the agreement pursuant to which the ISO Shares will
be purchased and Purchaser is in no manner relying on the Company or its
representatives for an assessment of such tax consequences.
13. EMPLOYMENT OR CONSULTING RELATIONSHIP. Nothing in this
Agreement shall interfere with or limit in any way the right of the Company or
of any of its Affiliates to terminate the Optionee's employment or consulting at
any time, nor confer upon the Optionee any right to continue in the employ of,
or consult with, the Company or any of its Affiliates.
14. ASSIGNMENT; BINDING EFFECT. Subject to the limitations set
forth in this Agreement, this Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, legal representatives, and
successors of the parties hereto; provided, however, that except as otherwise
provided in this Agreement, Optionee may not assign any of Optionee's rights
under this Agreement.
15. DAMAGES. Optionee shall be liable to the Company for all costs
and damages, including incidental and consequential damages, resulting from a
disposition of ISO Shares which is not in conformity with the provisions of this
Agreement.
16. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California excluding
those laws that direct the application of the laws of another jurisdiction.
17. NOTICES. All notices and other communications under this
Agreement shall be in writing. Unless and until the Optionee is notified in
writing to the contrary, all
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notices, communications, and documents directed to the Company and related to
the Agreement, if not delivered by hand, shall be mailed, addressed as follows:
Alpha Innotech Corp.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Unless and until the Company is notified in writing to the contrary, all
notices, communications, and documents intended for the Optionee and related to
this Agreement, if not delivered by hand, shall be mailed to Optionee's last
known address as shown on the Company's books. Notices and communications shall
be mailed by first class mail, postage prepaid; documents shall be mailed by
registered mail, return receipt requested, postage prepaid. All mailings and
deliveries related to this Agreement shall be deemed received when actually
received, if by hand delivery, and two business days after mailing, if by mail.
18. ARBITRATION. Any and all disputes or controversies arising out
of this Agreement shall be finally settled by arbitration conducted in San
Francisco, California, in accordance with the then existing rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof; provided
that nothing in this Section 18 shall prevent a party from applying to a court
of competent jurisdiction to obtain temporary relief pending resolution of the
dispute through arbitration. The parties hereby agree that service of any
notices in the course of such arbitration at their respective addresses as
provided for in Section 17 shall be valid and sufficient.
19. ENTIRE AGREEMENT. Company and Optionee agree that this
Agreement (including its attached Exhibits) is the complete and exclusive
statement between Company and Optionee regarding its subject matter and
supersedes all prior proposals, communications, and agreements of the parties
(including any letter from the Company to Optionee setting forth proposed terms
of employment), whether oral or written, regarding the grant of stock options or
issuances of ISO Shares to Optionee.
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IN WITNESS WHEREOF, the parties have executed this Incentive Stock
Option Agreement as of the Effective Date.
ALPHA INNOTECH CORP.
By: _______________________________
Title: _______________________________
The Optionee hereby accepts and agrees to be bound by all of the terms and
conditions of this Agreement and the Plan.
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Optionee
Optionee's spouse indicates by the execution of this Incentive Stock
Option Agreement his or her consent to be bound by the terms thereof as to his
or her interests, whether as community property or otherwise, if any, in the
option granted hereunder, and in any ISO Shares purchased pursuant to this
Agreement.
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Optionee's Spouse
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