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Exhibit 4.4(a)
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 30th day of September, 1991 between
DEPRENYL USA, INC., a corporation incorporated under the laws of the State of
New Jersey (hereinafter referred to as the "Company") and D. XXXXXXXX XXXXXXX,
MD, FRCPC, an individual residing at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxx X0X
0X0, XXXXXX (hereinafter referred to as the "Participant").
WITNESSETH:
WHEREAS, the Board of Directors of the Company has determined that in
consideration for services rendered on the Company's behalf and in order to
provide an inducement to the Participant to acquire a proprietary interest in
the Company, it is in the Company's best interest to grant an option to him to
purchase shares of the Company's common stock ("Shares") on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
expressed herein, it is agreed by and between the parties as follows:
1.1 DEFINITIONS
In this Agreement:
"Board of Directors" means the board of directors of the Company;
"Exercise Price" means CDN. $6.79;
"Expiration Date" means 5:00 p.m. (Eastern Standard Time) on the later
of the dates provided in Section 2.2;
"Optioned Shares" means that number of Shares which are subject to the
option granted by the Company to the Participant pursuant to this
Agreement; and
"Shares" means shares of common stock, without par value, of the
Company.
2.1 GRANT OF OPTION
The Company hereby grants to the Participant an option to purchase, in
accordance with the vesting rights outlined in Sections 2.6 and 2.7
hereof, up to 50,000 Shares for an amount per Share equal to the
Exercise Price, upon the terms and subject to the conditions herein
contained.
2.2 Subject to Sections 2.6, 2.7 and 3.1 hereof, the Participant shall have
the right, at any time prior to 5:00 p.m. (Eastern Standard Time) on
the fifth anniversary date hereof, being
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September 30, 1996 (provided that if such day is not a day on which the
Company is open for business then on the first following day on which
the Company is open for business) to exercise this option for any
number of the Optioned Shares up to the maximum number of Shares
specified in Section 2.1 above.
2.3 The option may be exercised by the Participant or by his executors or
personal representatives in the circumstances described in Section 4.1
by providing to the Company notice in writing in the form of Schedule A
hereto setting out the number of Optioned Shares with respect to which
the option is being exercised. The notice must be accompanied by a
certified check, official bank cashier's check or money order in an
amount equal to the Exercise Price multiplied by the number of Shares
requested and a duly executed copy of this Agreement.
2.4 The Company shall cause its registrar and transfer agent to deliver to
the Participant as soon as practicable after receipt of such notice and
payment a certificate or certificates registered in the name of the
Participant or as the Participant may direct for the number of Shares
with respect to which the option is duly exercised.
2.5 Nothing contained in this Agreement or action taken pursuant hereto
shall obligate the Participant to purchase and/or pay for, or the
Company to issue, any Shares except those Optioned Shares with respect
to which the Participant shall have duly exercised the option to
purchase in accordance with this Agreement.
2.6 Subject to Section 2.7 hereof, the option granted hereunder shall vest
in the following manner:
(a) one-quarter of the option on the first anniversary of the day
immediately preceding the date hereof, being September 29,
1992;
(b) one-quarter of the option on the second anniversary of the day
immediately preceding the date hereof, being September 29,
1993;
(c) one-quarter of the option on the third anniversary of the day
immediately preceding the date hereof, being September 29,
1994; and
(d) one-quarter of the option on the fourth anniversary of the day
immediately preceding the date hereof, being September 29,
1995;
and, except as provided by Section 6.1, the Participant shall only be
entitled to exercise this option in the amounts set out above and from
and after the dates so specified.
2.7 Notwithstanding anything contained in Section 2.6 hereof, the option
shall continue to vest only so long as the Participant continues to
serve the Company as a director or officer. Should the Participant
cease to serve in such capacity ("Termination"), no further vesting of
the option shall occur and the provisions of Section 3.1 shall apply
with respect to the exercise of the option to the extent that it has
vested and has not yet been exercised.
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3.1 EXPIRATION ON TERMINATION
Subject to Section 4.1 hereof, upon Termination, such part of the
option as is then vested but unexercised may be exercised by the
Participant for a period of ninety (90) days after Termination or such
later date as the Board of Directors may approve after which time this
option shall expire; provided, however, that in no event may this
option be exercised after the Expiration Date.
4.1 DEATH OR PERMANENT DISABILITY
In the event that on or prior to the Expiration Date, the Participant
dies or becomes totally and permanently disabled while providing
serving the Company as a director or officer, this option, to the
extent then vested but unexercised, may be exercised by the Participant
for a period up to six (6) months after the death or disability of the
Participant; provided, however, that in no event may this option be
exercised after the Expiration Date. Disability shall be defined as in
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended. For
the purposes of this provision only, reference to the Participant in
this Agreement shall be construed as including the executors or
personal representatives of a deceased Participant. In the event that
this option is not exercised within the period of six (6) months set
out above, this option shall expire.
5.1 SUBDIVISION, CONSOLIDATION OR REORGANIZATION
(a) In the event of any subdivision, redivision or change of the
Shares of the Company into a greater number of Shares at any time after
the date of this Agreement and prior to the Expiration Date of this
option, the Company shall deliver at the time of exercise of this
option, but for the same aggregate consideration payable therefor, such
additional number of Shares as the Participant would have been entitled
to receive as a result of such subdivision, redivision or change if on
the record date thereof the Participant had been the registered holder
of the number of such Shares with respect to which the option is later
exercised.
(b) In the event of any consolidation or change of the Shares of the
Company into a lesser number of Shares at any time after the date of
this Agreement and prior to the expiration of this option, the Company
shall deliver at the time of exercise of this option, but for the same
aggregate consideration payable therefor, such reduced number of
Shares, as the Participant would have been entitled to receive upon
such consolidation or change if on the record date thereof the
Participant had been the registered holder of the number of such Shares
with respect to which the option is later exercised.
(c) If at any time after the date of this Agreement and prior to the
expiration of this option, the Shares shall be reclassified or
reorganized, otherwise than as specified in Sections 5.1(a) and (b),
the Participant shall be entitled to receive upon the exercise of this
option and shall accept in lieu of the number of Shares then subscribed
for, but for the same aggregate consideration payable therefor, the
same aggregate number of shares of the appropriate class of shares that
the Participant would have been entitled to receive as a result of such
reclassification or other reorganization of Shares if on the record
date thereof the Participant
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had been the registered holder of the number of such Shares with
respect to which the option is later exercised.
6.1 TAKE-OVER BID
If an offeror makes an offer to purchase 50% or more of the outstanding
Shares to substantially all holders of the Shares or, if an insider of
the Company makes an offer to purchase Shares to substantially all
holders of the Shares, and the Board of Directors recommends acceptance
of such offer to the shareholders of the Company and the offer price is
greater than the Exercise Price, then this option, whether or not it
has vested in whole or in part, shall become immediately exercisable.
The Participant shall be bound to exercise this option and to tender
the Optioned Shares issued upon exercise of this option into the offer
upon receipt of notice from the Company if the Company provides an
interest-free loan to the Participant in the amount of the Exercise
Price for all of the Optioned Shares issuable upon exercise of this
option, subject to the execution of a security agreement by the
Participant in favor of the Company securing repayment of the loan.
7.1 NO ASSIGNMENT
The Participant may not assign, transfer, pledge or hypothecate any of
his rights hereunder in any way (whether by operation of law or
otherwise) except by will or by the laws of succession on intestacy
which may apply to the estate of the Participant upon his death. The
option granted herein shall not be subject to execution, attachment or
similar process. Upon any attempt to assign, transfer, pledge,
hypothecate or otherwise dispose of this option contrary to the
provisions hereof, or upon the levy of any attachment or similar
process upon the option granted herein, such option shall immediately
become void.
8.1 GENERAL
(a) Time shall be of the essence of this Agreement.
(b) In this Agreement, words importing the singular number include
the plural and vice versa and words importing the masculine gender
include the feminine and neuter genders.
(c) All notices which may be or are required to be given by one
party to the other party pursuant to this Agreement shall be in writing
and shall be mailed by first class or certified mail, return receipt
requested, postage prepaid, or transmitted by hand delivery as follows:
If to the Company: Deprenyl USA, Inc.
000 Xxxxxxxxxxxx Xxx.
Xxxxxxx, XX X0X 0X0
XXXXXX
Attention: Dr. D. Xxxxxxxx Xxxxxxx
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with a copy to: Xxxxxxx X. Xxxxxxx, Esq., Corporate Secretary
Lane and Xxxxxxx
000 Xxxxx 00 Xxxx
XX Xxx 0000
Xxxxxxxxxx, XX 00000
X.X.X.
If to the Participant: at the address of the Participant from time
to time in the records of the Company,
or such other address as to which either party may from time to time
notify the other as aforesaid.
9.1 RESTRICTIONS ON TRANSFER
The Participant understands and acknowledges that the option and Shares
underlying the option have not been registered and that they are
subject to certain restrictions on transfer under the Securities Act of
1933 of the United States, as amended, (the "1933 Act"); such
restrictions provide that the Shares may not be sold without
registration or exemption from registration under the 1933 Act; and,
for purposes of the Securities Act (Ontario) (the "Ontario Act"), the
first trade of the Shares issued pursuant to the exercise of the
option, other than a trade exempted by the Ontario Act, will be a
distribution unless the Company has been a reporting issuer for at
least twelve (12) months and the Company is not in default of any
requirement of the Ontario Act, disclosure has been made to the Ontario
Securities Commission of the exempt trade, no unusual effort is made to
prepare the market or create a demand for the Shares, and no
extraordinary commission or consideration is paid with respect to the
trade, provided that such first trade is not from the holdings of a
so-called "control block".
10.1 REPORTING REQUIREMENTS
The Participant understands and acknowledges that he will be subject to
certain reporting requirements upon his receipt and exercise of the
option, and in connection therewith, upon the receipt and exercise of
the option, the Participant agrees to timely file with the Securities
and Exchange Commission, the National Association of Securities
Dealers, Inc., and any appropriate Canadian securities regulatory
authorities, the appropriate documentation regarding his ownership of
the Company's securities.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto.
Attest: DEPRENYL USA, INC.
a New Jersey corporation
s/Xxxxxx X. Xxxxxx By: s/ D. Xxxxxxxx Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxx, Treasurer Dr. D. Xxxxxxxx Xxxxxxx, President
PARTICIPANT
s/D. Xxxxxxxx Xxxxxxx
---------------------------------------
Dr. D. Xxxxxxxx Xxxxxxx
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SCHEDULE A
SUBSCRIPTION FORM
To: The Secretary of Deprenyl USA, Inc.
Pursuant to the terms and subject to the conditions set forth in the
Stock Option Agreement (the "Agreement") dated , between Deprenyl USA, Inc.
and the undersigned, I hereby elect to purchase shares of Common Stock of
Deprenyl USA, Inc. I understand that such purchase is subject to all the terms
and conditions of the Agreement. I request that the certificates for such shares
of Common Stock shall be issued in the name of:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or type name and address)
and be delivered to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or type name and address)
In full payment of the purchase price with respect to the Optioned
Shares exercised, the undersigned hereby tenders payment of $___________ by
certified check or official bank cashier's check or money order payable in
Canadian currency to the order of Deprenyl USA, Inc.
Dated: X
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(Signature)
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Name (Please Print)
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(Address)
-------------------------------------
Taxpayer Identification Number
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Exhibit 4.4(b)
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 16th day of March, 1993 between DEPRENYL
USA, INC., a corporation incorporated under the laws of the State of New Jersey
(hereinafter referred to as the "Company") and D. XXXXXXXX XXXXXXX, an
individual residing in the Province of Ontario, CANADA (hereinafter referred to
as the "Participant").
WITNESSETH:
WHEREAS, the Board of Directors of the Company has determined that in
consideration for services rendered on the Company's behalf and in order to
provide an inducement to the Participant to acquire a proprietary interest in
the Company, it is in the Company's best interest to grant him an option to
purchase Shares on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
expressed herein, it is agreed by and between the parties as follows:
1.1 DEFINITIONS
In this Agreement:
"Board of Directors" means the board of directors of the Company;
"Exercise Price" means CDN. $10.875;
"Expiration Date" means 5:00 p.m. (Eastern Standard Time) on the later of
the dates provided in Section 2.2;
"Management Agreement" means an agreement dated October 1, 1991 between
the Company and Deprenyl Research Limited pursuant to which Deprenyl
Research Limited will provide to the Company administrative, financial,
scientific and marketing support, and other management services which may
be required by the Company;
"Optioned Shares" means that number of Shares which are subject to the
option granted by the Company to the Participant pursuant to this
Agreement;
"Research Institution" means the research institution with which the
Participant was affiliated as of the date hereof;
"Services" means consulting or other services provided by the Participant
to the Company with respect to 5-aminolevulinic acid photodynamic therapy
or improvements thereon or in connection with the Management Agreement;
and
"Shares" means shares of Common Stock in the share capital of the
Company.
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2.1 GRANT OF OPTION
The Company hereby grants to the Participant an option to purchase, in
accordance with the vesting rights outlined in Sections 2.6 and 2.7
hereof, up to 25,000 Shares for an amount per Share equal to the Exercise
Price, upon the terms and subject to the conditions herein contained.
2.2 Subject to Sections 2.6, 2.7 and 3.1 hereof, the Participant shall have
the right, at any time prior to 5:00 p.m. (Eastern Standard Time) on the
fifth anniversary date hereof, being March 16, 1998, provided that if
such day is not a day on which the Company is open for business then on
the first following day on which the Company is open for business, to
exercise this option for any number of the Optioned Shares up to the
maximum number of Shares specified in Section 2.1 above.
2.3 The option may be exercised by the Participant or by his executors or
personal representatives in the circumstances described in Section 4.1 by
giving to the Company at its registered office notice in writing in the
form of Schedule A hereto setting out the number of Optioned Shares with
respect to which the option is being exercised. The notice must be
accompanied by a certified check, official bank cashier's check or money
order in an amount equal to the Exercise Price multiplied by the number
of Shares requested and a duly executed copy of this Agreement.
2.4 The Company shall cause its registrar and transfer agent to deliver to
the Participant as soon as practicable after receipt of such notice and
payment a certificate or certificates registered in the name of the
Participant or as the Participant may direct for the number of Shares
with respect to which the option is duly exercised.
2.5 Nothing contained in this Agreement or done pursuant hereto shall
obligate the Participant to purchase and/or pay for, or the Company to
issue, any Shares except those Optioned Shares with respect to which the
Participant shall have duly exercised the option to purchase in
accordance with this Agreement.
2.6 Subject to Sections 2.1 and 2.7 hereof, the option granted hereunder
shall vest in the Participant in the following manner:
(a) one-quarter of the option on the first anniversary of the day
immediately preceding the date hereof, being March 15, 1994;
(b) one-quarter of the option on the second anniversary of the day
immediately preceding the date hereof, being March 15, 1995;
(c) one-quarter of the option on the third anniversary of the day
immediately preceding the date hereof, being March 15, 1996; and
(d) one-quarter of the option on the fourth anniversary of the day
immediately preceding the date hereof, being March 15, 1997;
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and, except as provided by Section 6.1, the Participant shall only be
entitled to exercise this option in the amounts set out above and from
and after the dates so specified.
2.7 Notwithstanding anything contained in Sections 2.1 and 2.6 hereof,
options shall continue to vest in the Participant only so long as the
Participant shall continue to be (a) employed or engaged by the Company
as an employee, director or officer, (b) providing Services to the
Company in connection with the Management Agreement, or (c) affiliated
with the Research Institution and providing Services when requested by
the Company. Immediately upon the Participant's ceasing to be so
employed, engaged, or affiliated, or upon termination of the provision of
Services (collectively, "Termination"), no further options shall vest or
become exercisable, except at the discretion of the board, and the
provisions of Section 3.1 shall apply with respect to the exercise of
those options which have already vested in the Participant and have not
yet been exercised. The Board of Directors shall be entitled to determine
if and when Termination has occurred with respect to a Participant.
3.1 EXPIRATION ON TERMINATION
Subject to Section 4.1 hereof, upon Termination, such part of the option
as is then exercisable or vested but unexercised may be exercised by the
Participant for a period of ninety (90) days after Termination or such
later date as the Board of Directors may approve after which time this
option shall expire; provided, however, that in no event may this option
be exercised after the Expiration Date.
4.1 DEATH OR PERMANENT DISABILITY OF EMPLOYEE
In the event that on or prior to the Expiration Date, the Participant
dies or becomes totally and permanently disabled while (a) employed or
engaged by the Company as an employee, director or officer, (b) employed
by Deprenyl Research Limited and providing Services to the Company in
connection with the Management Agreement or (c) affiliated with the
Research Institution and providing Services when requested by the
Company, this option, to the extent then exercisable but unexercised, may
be exercised by the Participant for a period of six (6) months after the
death or disability of the Participant, notwithstanding the Expiration
Date. The Board of Directors shall be entitled to determine if and when a
Participant has become permanently disabled. For the purposes of this
provision only, reference to the Participant in this Agreement shall be
construed as including the executors or personal representatives of a
deceased Participant. In the event that this option is not exercised
within the period of six (6) months set out above, this option shall
expire.
5.1 SUBDIVISION, CONSOLIDATION OR REORGANIZATION
(a) In the event of any subdivision, redivision or change of the Shares
of the Company into a greater number of Shares at any time after the date
of this Agreement and prior to the Expiration Date of this option, the
Company shall deliver at the time of exercise of this option, but for the
same aggregate consideration payable therefor, such additional number of
Shares as the Participant would have been entitled to receive as a result
of such subdivision, redivision or change if on the record date thereof
the Participant had been the
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registered holder of the number of such Shares with respect to which the
option is later exercised.
(b) In the event of any consolidation or change of the Shares of the
Company into a lesser number of Shares at any time after the date of this
Agreement and prior to the expiration of this option, the Company shall
deliver at the time of exercise of this option, but for the same
aggregate consideration payable therefor, such reduced number of Shares,
as the Participant would have been entitled to receive upon such
consolidation or change if on the record date thereof the Participant had
been the registered holder of the number of such Shares with respect to
which the option is later exercised.
(c) If at any time after the date of this Agreement and prior to the
expiration of this option, the Shares shall be reclassified or
reorganized, otherwise than as specified in Sections 5.1(a) and (b), the
Participant shall be entitled to receive upon the exercise of this option
and shall accept in lieu of the number of Shares then subscribed for, but
for the same aggregate consideration payable therefor, the same aggregate
number of shares of the appropriate class of shares that the Participant
would have been entitled to receive as a result of such reclassification
or other reorganization of Shares if on the record date thereof the
Participant had been the registered holder of the number of such Shares
with respect to which the option is later exercised.
6.1 TAKE-OVER BID
If an offeror makes an offer to purchase 50% or more of the outstanding
Shares to substantially all holders of the Shares or, if an insider of
the Company makes an offer to purchase Shares to substantially all
holders of the Shares, and the Board of Directors recommends acceptance
of such offer to the shareholders of the Company and the offer price is
greater than the Exercise Price, then this option, whether or not it has
vested in whole or in part in the Participant, shall become immediately
exercisable. The Participant shall be bound to exercise this option and
to tender the Optioned Shares issued upon exercise of this option into
the offer upon receipt of notice from the Company if the Company provides
an interest-free loan to the Participant in the amount of the Exercise
Price for all of the Optioned Shares issuable upon exercise of this
option, subject to the execution of a security agreement by the
Participant in favor of the Company securing repayment of the loan.
7.1 NO ASSIGNMENT
The Participant may not assign, transfer, pledge or hypothecate any of
his rights hereunder in any way (whether by operation of law or
otherwise) except by will or by the laws of succession on intestacy which
may apply to the estate of the Participant upon his death. The option
granted herein shall not be subject to execution, attachment or similar
process. Upon any attempt to assign, transfer, pledge, hypothecate or
otherwise dispose of this option contrary to the provisions hereof, or
upon the levy of any attachment or similar process upon the option
granted herein, such option shall immediately become void.
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8.1 GENERAL
(a) Time shall be of the essence of this Agreement.
(b) In this Agreement, words importing the singular number include the
plural and vice versa and words importing the masculine gender include
the feminine and neuter genders.
(c) All notices which may be or are required to be given by one party
to the other party pursuant to this Agreement shall be in writing and
shall be mailed by first class or certified mail, return receipt
requested, postage prepaid, or transmitted by hand delivery as follows:
If to the Company: Deprenyl USA, Inc.
000 Xxxxxxxxxxxx Xxx.
Xxxxxxx, XX X0X 0X0
XXXXXX
Attention: Xx. Xxxxxx X. Xxxxxx
If to the Participant: Dr. D. Xxxxxxxx Xxxxxxx
at the address of the Participant from time to time in
the records of the Company,
or such other address as to which either party may from time to time
notify the other as aforesaid.
9.1 RESTRICTIONS ON TRANSFER
The Participant understands and acknowledges that he is subject to
certain restrictions on transfer under the Securities Act of 1933 of the
United States, as amended, (the "1933 Act") of the Shares issued pursuant
to the exercise of the option; such restrictions provide that the Shares
may not be sold without registration or exemption from registration under
the 1933 Act; and, for purposes of the Securities Act (Ontario) (the
"Ontario Act"), the first trade of such Shares, other than a trade
exempted by the Ontario Act, will be a distribution unless the Company
has been a reporting issuer for at least twelve (12) months and the
Company is not in default of any requirement of the Ontario Act,
disclosure has been made to the Ontario Securities Commission of the
exempt trade, no unusual effort is made to prepare the market or create a
demand for the Shares, and no extraordinary commission or consideration
is paid with respect to the trade, provided that such first trade is not
from the holdings of a so-called "control block".
10.1 REPORTING REQUIREMENTS
The Participant understands and acknowledges that he may be subject to
certain reporting requirements upon his exercise of the option, and in
connection therewith, upon the receipt and exercise of the option, the
Participant agrees to timely file with the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc., and any
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appropriate Canadian securities regulatory authorities, the appropriate
documentation regarding his ownership of the Company's securities.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto.
Attest: DEPRENYL USA, INC.
a New Jersey corporation
s/Xxxxxxx X. Xxxxxxx By: s/Xxxxxx X. Xxxxxx
-------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx, Secretary Xxxxxx X. Xxxxxx, Treasurer
PARTICIPANT
s/D. Xxxxxxxx Xxxxxxx
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D. XXXXXXXX XXXXXXX, Chairman,
President and CEO
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SCHEDULE A
SUBSCRIPTION FORM
To: The Secretary of Deprenyl USA, Inc.
Pursuant to the terms and subject to the conditions set forth in the
Stock Option Agreement (the "Agreement") dated , between Deprenyl USA,
Inc. and the undersigned, and Stock Options granted to the undersigned by such
Agreement, I hereby elect to purchase shares of Common Stock of Deprenyl
USA, Inc. which were the subject of such Stock Options. I understand that such
purchase is subject to all the terms and conditions of the Agreement. I request
that the certificates for such shares of Common Stock shall be issued in the
name of:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or type name and address)
and be delivered to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or type name and address)
In full payment of the purchase price with respect to the Stock Options
exercised, the undersigned hereby tenders payment of $___________ by certified
check or official bank cashier's check or money order payable in Canadian or
United States currency to the order of Deprenyl USA, Inc.
Dated: X
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(Signature)
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Name (Please Print)
-------------------------------------
(Address)
-------------------------------------
Taxpayer Identification Number
15
Exhibit 4.4(c)
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 17th day of February, 1994 between DUSA
PHARMACEUTICALS, INC., a corporation incorporated under the laws of the State of
New Jersey (hereinafter referred to as the "Company") and D. XXXXXXXX XXXXXXX,
MD, FRCPC, an individual residing in the Province of Ontario, CANADA
(hereinafter referred to as the "Participant").
WITNESSETH:
WHEREAS, the Board of Directors of the Company has determined that in
consideration for services rendered on the Company's behalf and in order to
provide an inducement to the Participant to acquire a proprietary interest in
the Company, it is in the Company's best interest to grant him an option to
purchase Shares on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
expressed herein, it is agreed by and between the parties as follows:
1.1 DEFINITIONS
In this Agreement:
"Board of Directors" means the board of directors of the Company;
"Exercise Price" means CDN.$6.50;
"Expiration Date" means 5:00 p.m. (Eastern Standard Time) on the later of
the dates provided in Section 2.2;
"Optioned Shares" means that number of Shares which are subject to the
option granted by the Company to the Participant pursuant to this
Agreement; and
"Shares" means shares of Common Stock in the share capital of the
Company.
2.1 GRANT OF OPTION
The Company hereby grants to the Participant an option to purchase, in
accordance with the vesting rights outlined in Sections 2.6 and 2.7
hereof, up to 10,000 Shares for an amount per Share equal to the Exercise
Price, upon the terms and subject to the conditions herein contained.
2.2 Subject to Sections 2.6, 2.7 and 3.1 hereof, the Participant shall have
the right, at any time prior to 5:00 p.m. (Eastern Standard Time) on the
fifth anniversary date hereof, being February 17, 1999, provided that if
such day is not a day on which the Company is open for business then on
the first following day on which the Company is open for business, to
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exercise this option for any number of the Optioned Shares up to the
maximum number of Shares specified in Section 2.1 above.
2.3 The option may be exercised by the Participant or by his executors or
personal representatives in the circumstances described in Section 4.1 by
giving to the Company at its registered office notice in writing in the
form of Schedule A hereto setting out the number of Optioned Shares with
respect to which the option is being exercised. The notice must be
accompanied by a certified check, official bank cashier's check or money
order in an amount equal to the Exercise Price multiplied by the number
of Shares requested and a duly executed copy of this Agreement.
2.4 The Company shall cause its registrar and transfer agent to deliver to
the Participant as soon as practicable after receipt of such notice and
payment a certificate or certificates registered in the name of the
Participant or as the Participant may direct for the number of Shares
with respect to which the option is duly exercised.
2.5 Nothing contained in this Agreement or done pursuant hereto shall
obligate the Participant to purchase and/or pay for, or the Company to
issue, any Shares except those Optioned Shares with respect to which the
Participant shall have duly exercised the option to purchase in
accordance with this Agreement.
2.6 Subject to Sections 2.1 and 2.7 hereof, the option granted hereunder
shall vest in the Participant in the following manner:
(a) one-quarter of the option on the first anniversary of the day
immediately preceding the date hereof, being February 16, 1995;
(b) one-quarter of the option on the second anniversary of the day
immediately preceding the date hereof, being February 16, 1996;
(c) one-quarter of the option on the third anniversary of the day
immediately preceding the date hereof, being February 16, 1997;
and
(d) one-quarter of the option on the fourth anniversary of the day
immediately preceding the date hereof, being February 16, 1998;
and, except as provided by Section 6.1, the Participant shall only be
entitled to exercise this option in the amounts set out above and from
and after the dates so specified.
2.7 Notwithstanding anything contained in Sections 2.1 and 2.6 hereof,
options shall continue to vest in the Participant only so long as the
Participant shall continue to serve the Company as a director and/or
officer. Should the Participant cease to serve in such capacity (the
"Termination"), no further options shall vest or become exercisable,
except at the discretion of the Board of Directors, and the provisions of
Section 3.1 shall apply with respect to the exercise of those options
which have already vested in the Participant and have not yet been
exercised. The Board of Directors shall be entitled to determine if and
when Termination has occurred with respect to the Participant.
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3.1 EXPIRATION ON TERMINATION
Subject to Section 4.1 hereof, upon Termination, such part of the option
as is then exercisable but unexercised may be exercised by the
Participant for a period of ninety (90) days after Termination or such
later date as the Board of Directors may approve after which time this
option shall expire; provided, however, that in no event may this option
be exercised after the Expiration Date.
4.1 DEATH OR PERMANENT DISABILITY OF EMPLOYEE
In the event that on or prior to the Expiration Date, the Participant
dies or becomes totally and permanently disabled while serving the
Company as a director or officer, this option, to the extent then
exercisable but unexercised, may be exercised by the Participant for a
period of six (6) months after the death or disability of the
Participant, [notwithstanding the Expiration Date]. The Board of
Directors shall be entitled to determine if and when a Participant has
become permanently disabled. For the purposes of this provision only,
reference to the Participant in this Agreement shall be construed as
including the executors or personal representatives of a deceased
Participant. In the event that this option is not exercised within the
period of six (6) months set out above, this option shall expire.
5.1 SUBDIVISION, CONSOLIDATION OR REORGANIZATION
(a) In the event of any subdivision, redivision or change of the
Shares of the Company into a greater number of Shares at any time after
the date of this Agreement and prior to the Expiration Date of this
option, the Company shall deliver at the time of exercise of this option,
but for the same aggregate consideration payable therefor, such
additional number of Shares as the Participant would have been entitled
to receive as a result of such subdivision, redivision or change if on
the record date thereof the Participant had been the registered holder of
the number of such Shares with respect to which the option is later
exercised.
(b) In the event of any consolidation or change of the Shares of the
Company into a lesser number of Shares at any time after the date of this
Agreement and prior to the expiration of this option, the Company shall
deliver at the time of exercise of this option, but for the same
aggregate consideration payable therefor, such reduced number of Shares,
as the Participant would have been entitled to receive upon such
consolidation or change if on the record date thereof the Participant had
been the registered holder of the number of such Shares with respect to
which the option is later exercised.
(c) If at any time after the date of this Agreement and prior to the
expiration of this option, the Shares shall be reclassified or
reorganized, otherwise than as specified in Sections 5.1(a) and (b), the
Participant shall be entitled to receive upon the exercise of this option
and shall accept in lieu of the number of Shares then subscribed for, but
for the same aggregate consideration payable therefor, the same aggregate
number of shares of the appropriate class of shares that the Participant
would have been entitled to receive as a result of such
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reclassification or other reorganization of Shares if on the record date
thereof the Participant had been the registered holder of the number of
such Shares with respect to which the option is later exercised.
6.1 TAKE-OVER BID
If an offeror makes an offer to purchase 50% or more of the outstanding
Shares to substantially all holders of the Shares or, if an insider of
the Company makes an offer to purchase Shares to substantially all
holders of the Shares, and the Board of Directors recommends acceptance
of such offer to the shareholders of the Company and the offer price is
greater than the Exercise Price, then this option, whether or not it has
vested in whole or in part in the Participant, shall become immediately
exercisable. The Participant shall be bound to exercise this option and
to tender the Optioned Shares issued upon exercise of this option into
the offer upon receipt of notice from the Company if the Company provides
an interest-free loan to the Participant in the amount of the Exercise
Price for all of the Optioned Shares issuable upon exercise of this
option, subject to the execution of a security agreement by the
Participant in favor of the Company securing repayment of the loan.
7.1 NO ASSIGNMENT
The Participant may not assign, transfer, pledge or hypothecate any of
his rights hereunder in any way (whether by operation of law or
otherwise) except by will or by the laws of succession on intestacy which
may apply to the estate of the Participant upon his death. The option
granted herein shall not be subject to execution, attachment or similar
process. Upon any attempt to assign, transfer, pledge, hypothecate or
otherwise dispose of this option contrary to the provisions hereof, or
upon the levy of any attachment or similar process upon the option
granted herein, such option shall immediately become void.
8.1 GENERAL
(a) Time shall be of the essence of this Agreement.
(b) In this Agreement, words importing the singular number include the
plural and vice versa and words importing the masculine gender include
the feminine and neuter genders.
(c) All notices which may be or are required to be given by one party
to the other party pursuant to this Agreement shall be in writing and
shall be mailed by first class or certified mail, return receipt
requested, postage prepaid, or transmitted by hand delivery as follows:
If to the Company: DUSA Pharmaceuticals, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
XXXXXX
Attention: Xxxxxx X. Xxxxxx, CA
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If to the Participant: Dr. D. Xxxxxxxx Xxxxxxx
at the address of the Participant
from time to time in the records of
the Company,
or such other address as to which either party may from time to time
notify the other as aforesaid.
9.1 RESTRICTIONS ON TRANSFER
The Participant understands and acknowledges that he is subject to
certain restrictions on transfer under the Securities Act of 1933 of the
United States, as amended, (the "1933 Act") of the Shares issued pursuant
to the exercise of the option; such restrictions provide that the Shares
may not be sold without registration or exemption from registration under
the 1933 Act; and, for purposes of the Securities Act (Ontario) (the
"Ontario Act"), the first trade of such Shares, other than a trade
exempted by the Ontario Act, will be a distribution unless the Company
has been a reporting issuer for at least twelve (12) months and the
Company is not in default of any requirement of the Ontario Act,
disclosure has been made to the Ontario Securities Commission of the
exempt trade, no unusual effort is made to prepare the market or create a
demand for the Shares, and no extraordinary commission or consideration
is paid with respect to the trade, provided that such first trade is not
from the holdings of a so-called "control block".
10.1 REPORTING REQUIREMENTS
The Participant understands and acknowledges that he may be subject to
certain reporting requirements upon his receipt and exercise of the
option, and in connection therewith, upon the receipt and exercise of the
option, the Participant agrees to timely file with the Securities and
Exchange Commission, the National Association of Securities Dealers,
Inc., and any appropriate Canadian securities regulatory authorities, the
appropriate documentation regarding his ownership of the Company's
securities.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto.
Attest: DUSA PHARMACEUTICALS, INC.,
a New Jersey corporation
s/Xxxxxxx X. Xxxxxxx By: s/Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxx, Secretary Xxxxxx X. Xxxxxx,
Chief Financial Officer and Treasurer
PARTICIPANT
s/ D. Xxxxxxxx Xxxxxxx
------------------------------------------
D. XXXXXXXX XXXXXXX, MD, FRCPC
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SCHEDULE A
SUBSCRIPTION FORM
To: The Secretary of DUSA Pharmaceuticals, Inc.
Pursuant to the terms and subject to the conditions set forth in the
Stock Option Agreement (the "Agreement") dated , between DUSA
Pharmaceuticals, Inc. and the undersigned, and Stock Options granted to the
undersigned by such Agreement, I hereby elect to purchase shares of
Common Stock of DUSA Pharmaceuticals, Inc. which were the subject of such Stock
Options. I understand that such purchase is subject to all the terms and
conditions of the Agreement. I request that the certificates for such shares of
Common Stock shall be issued in the name of:
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(please print or type name and address)
and be delivered to:
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(please print or type name and address)
In full payment of the purchase price with respect to the Stock Options
exercised, the undersigned hereby tenders payment of $___________ by certified
check or official bank cashier's check or money order payable in Canadian or
United States currency to the order of DUSA Pharmaceuticals, Inc.
Dated: X
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(Signature)
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Name (Please Print)
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(Address)
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Taxpayer Identification Number
