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EXHIBIT 10.11
FORM OF
STOCK OPTION AGREEMENT
AGREEMENT made as of the 13th day of August, 1996, by and between NeoPharm,
Inc., a Delaware corporation (the "Company")and
("Grantee");
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WITNESSETH:
WHEREAS, the Company desires to file a new drug application ("NDA") with
the United States Food and Drug Administration ("FDA") prior to December 31,
1996; and
WHEREAS, the Company believes that the services of Grantee will be
essential to the Company's ability to make a timely NDA FILING; and
WHEREAS, the Company desires to provide incentive stock grants to those
employees, directors and consultants, including the Grantee, whose assistance
is determined to be crucial to the Company's efforts to timely file the NDA;
and
WHEREAS, the parties desire to enter into an agreement pursuant to which
the Company will grant to the Grantee the right to purchase from the Company
shares of the Company's Common Stock (the "Option Shares"), but with the exact
number of Option Shares to be granted to be determined by the Company's Board
of Directors when and if the NDA is filed.
NOW, THEREFORE, in reliance upon the representations and warranties made
herein, and in consideration of the mutual agreements herein contained, the
parties hereby agree as follows:
ARTICLE ONE
OPTION
SECTION 1.01 Option Period. Subject to the terms and conditions of this
Agreement, the Company hereby grants to Grantee, subject to ARTICLE SEVEN, an
irrevocable option (the "Option") to purchase the Option Shares for a period
commencing upon the determination by the Company's Board of Directors of the
number, if any, of Option Shares to be granted and expiring ten (10) years
from the date of this Agreement (the "Option Period"). If Grantee elects to
exercise all or a portion of the Option, the Company hereby agrees to sell,
transfer, assign and deliver the Option Shares purchased to Grantee and
Grantee will purchase, accept,
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purchase and pay for such Option Shares upon the terms and
conditions provided herein.
SECTION 1.02 Purchase Price. The purchase price of the Option Shares
shall be $7.00 per Option Share (the "Purchase Price").
SECTION 1.03 Form of Purchase Price Payment. The Purchase Price shall be
payable in cash in the manner specified in Section 6.01(b).
SECTION 1.04 Exercise of Option. At any time during the Option Period,
Grantee may exercise all or a portion of the Option by giving written notice
thereof to the Company (the "Option Notice") specifying (i) the anticipated
date of the purchase of the Option Shares, which in no event shall be more
than ten (10) days after delivery of the Option Notice (the "Option Closing")
and (ii) whether the Purchase Price shall be made by certified check or wire
transfer of immediately available funds. Upon such exercise, the obligation of
Grantee to purchase the Option Shares and the Company to sell the Option
Shares shall be subject to the conditions set forth in Article Five.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Grantee as follows:
SECTION 2.01 Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
SECTION 2.02 Authorization. The Company has full corporate power and
authority to execute and deliver this Agreement and the execution and delivery
of this Agreement by the Company has been duly authorized by the Company's
Board of Directors. No other corporate proceeding on the part of the Company
is necessary to authorize the execution and delivery of this Agreement.
SECTION 2.03 No Violation. Neither the execution and delivery of this
Agreement by the Company nor, upon exercise of the Option, the sale of all or
any portion of the Option Shares, will (i) violate, conflict with or result in
any breach of any provision of the Certificate of Incorporation or Bylaws of
the Company, (ii) violate, conflict with or result in a violation or breach
of, or constitute a default (with or without due notice or lapse of time or
both) under, or permit the termination of, or require the consent of any other
Party to, or result in the acceleration of, or entitle any party to accelerate
any obligation or result in the loss of a benefit or give rise to the creation
of any lien, charge,
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security interest or encumbrance upon any of the properties or assets of the
Company under any of the terms, conditions or provisions of any material note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other
material instrument or obligation to which the Company is a party or by which
it or any of its properties or assets may be bound or affected, or (iii)
violate any order, writ, judgment, injunction, decree, statute, rule or
regulation of any court or governmental authority applicable to the Company or
any of its properties or assets, excluding from the foregoing clauses (ii) and
(iii) violations, conflicts, breaches, defaults, terminations, failures to
obtain consents, accelerations, losses of benefits or liens, damages, security
interests or encumbrances created which in the aggregate would not impair the
ability of the Company, upon exercise of the Option, to sell the Option
Shares.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF GRANTEE
Grantee hereby represents and warrants to the Company that:
SECTION 3.01 Authorization. Grantee has full power and authority to
execute and deliver this Agreement and to purchase the Option Shares.
SECTION 3.02 No Violation. Neither the execution and delivery of this
Agreement by Grantee nor, upon exercise of the Option, the purchase of all or
any portion of the Option Shares, will (i) violate, conflict with or result in
a violation or breach of, or constitute a default (with or without due notice
or lapse of time or both) under, or permit the termination of, or require the
consent of any other party to, or result in the acceleration of, or entitle
any party to accelerate any obligation or result in the loss of a benefit or
give rise to the creation of any lien, charge, security interest or
encumbrance upon any of the properties or assets of Grantee under any of the
terms, conditions or provisions of any material note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other material
instrument or obligation to which Grantee is a party or by which he or any of
his properties or assets may be bound or affected, or (ii) violate any order,
writ, judgment, injunction, decree, statute, rule or regulation of any court
or governmental authority applicable to Grantee or any of his properties or
assets, excluding from the foregoing clauses (i) and (ii) violations,
conflicts, breaches, defaults, terminations, failures to obtain consents,
accelerations, losses of benefits or liens, damages, security interests or
encumbrances created which in the aggregate would not impair the ability of
Grantee, upon exercise of the Option, to purchase and own the Option Shares.
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ARTICLE FOUR
COVENANTS
SECTION 4.01 Obligations upon Execution of Agreement.
The parties hereto agree that until termination of this Agreement,
neither the Company nor Grantee will enter into or become obligated under any
agreement, instrument or obligation which contains any provision which would
be violated upon the exercise of the Option or the purchase and sale of the
Option Shares or permit the violation with or default under any agreement,
instrument or obligation, or violate any order, statute, rule or regulation
which would otherwise impair its ability to perform its respective obligations
hereunder or to effect the purchase and sale of the Option Shares upon
exercise of the Option.
ARTICLE FIVE
OPTION CLOSING CONDITIONS
SECTION 5.01 Conditions to Obligations of Grantee. Upon the exercise of
all or any portion of the Option, the obligation of Grantee to purchase the
Option Shares shall be subject to the fulfillment by the Company, at or prior
to the Option Closing, of the following conditions:
(a) Any and all permits, consents, waivers, clearances, approvals and
authorizations of any governmental bodies which are necessary or advisable in
connection with the sale of the Option Shares shall have been obtained; and
(b) No injunction, restraining order or other ruling or order issued by
any court of competent jurisdiction or governmental authority preventing the
sale of the Option Shares shall be in effect and no proceeding brought by any
governmental authority shall be pending or threatened which seeks any
injunction, restraining order or other order which would prohibit consummation
of the sale of the Option Shares.
SECTION 5.02 Conditions to the Obligations of the Company. Upon exercise
of the Option, the obligation of the Company to sell the Option Shares shall
be subject to the fulfillment, at or prior to the Option Closing, of the
following conditions:
(a) Any and all permits, consents, waivers, clearances, approvals and
authorizations of any foreign or domestic governmental bodies which are
necessary or advisable in connection with the purchase of the Option Shares
shall have been received; and
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(b) No injunction, restraining order or other ruling or order issued by
any court of competent jurisdiction or domestic or foreign governmental
authority or other legal restraint or prohibition preventing the purchase of
the Option Shares shall be in effect and no proceeding brought by any foreign
or domestic governmental authority shall be pending or threatened which seeks
any injunction, restraining order or other order which would prohibit
consummation of the purchase of the Option Shares.
ARTICLE SIX
OPTION CLOSING
SECTION 6.01 Option Closing. The Option Closing shall take place at the
offices of the Company at 000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx,
Xxxxxxxx at 10:00 a.m. (local time) within five business days following the
day on which the last of the conditions set forth in Article 5 is fulfilled or
waived or at such other time and place as the parties shall agree.
(a) At the Option Closing, the Company shall deliver or cause to be
delivered to the Grantee certificate(s) evidencing the Option Shares to be
purchased which certificate(s) shall be properly endorsed for transfer or
accompanied by duly executed stock power, in either case executed in blank or
in favor of Grantee; and
(b) At the Option Closing, Grantee shall deliver or cause to be delivered
to the Company an amount equal to the Purchase Price by certified check or
wire transfer of immediately available funds to an account designated by the
Company in writing prior to the Option Closing.
ARTICLE SEVEN
TERMINATION
SECTION 7.01 Termination. This Agreement shall terminate on the earliest
of the following:
(a) the expiration of the Option Period;
(b) the final Option Closing; or
(c) December 31, 1996, in the event that the NDA has not been filed
with the FDA by that date.
SECTION 7.02 Procedure and Effect of Termination. If this Agreement is
terminated pursuant to Section 7.01(a) hereof:
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(a) Upon request therefor, each party will redeliver all documents, work
papers and other material of any other party relating to the transactions
contemplated hereby, whether obtained before or after the execution hereof, to
the party furnishing the same; and
(b) No party hereto shall have any liability or further obligation to any
other party to this Agreement resulting from the termination of this Agreement
except that the provisions of this Section 7.02 shall remain in full force and
effect.
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01 Public Announcements. The Company and Grantee will consult
with each other and will mutually agree upon any press release or other public
statements with respect to the grant or exercise of the Option under this
Agreement and shall not issue any such press release or make any such public
statement prior to such consultation and agreement, except as may be required
by applicable law.
SECTION 8.02 Amendment. This Agreement may be amended only pursuant to a
written instrument signed by each of the parties.
SECTION 8.03 Waiver of Compliance. Any failure of the Company, on the one
hand, or the Grantee, on the other hand, to comply with any obligation,
covenant, agreement or condition contained herein may be waived in writing by
the Grantee or the Company, respectively, but such waiver or failure to insist
upon strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any other
failure.
SECTION 8.04 Expenses and Obligations. All costs and expenses incurred in
connection with the consummation of the transactions contemplated by this
Agreement by the Company shall be paid by the Company and all costs and
expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement by Grantee shall be paid by Grantee.
SECTION 8.05 Parties in Interest. Except as provided in Section 8.11,
nothing in this Agreement, express or implied, is intended to confer upon any
third party any rights or remedies of any nature whatsoever under or by reason
of this Agreement.
SECTION 8.06 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon the earlier of delivery
thereof if by hand or upon receipt if sent by mail (registered or certified
mail, postage prepaid, return receipt
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requested) or on the second next business day after deposit if sent by a
recognized overnight delivery service or upon transmission if sent by telecopy
or facsimile transmission (with request of assurance of receipt in a manner
customary for communicating such type) if delivered to the Company at its
principal office or if to Grantee at such address as shall be provided to the
Company from time to time.
SECTION 8.07 Governing Law. This Agreement shall be governed by construed
and enforced in accordance with the laws of the State of Delaware.
SECTION 8.08 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 8.9 Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 8.10 Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no agreements, representations, warranties
or covenants other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
SECTION 8.11 Assignment. This Agreement many not be assigned by Grantee,
whether by operation of law or otherwise, without the prior written consent of
the Company; provided, however, that in the event of the death or disability
of the Grantee while any Option Shares remain available under this Option,
Grantee's estate or personal representative shall succeed to all rights of the
Grantee hereunder and may exercise this Option to the same extent as the
Grantee would have as of the date of death or disability. This Agreement will
be binding upon and inure to the benefit of and be enforceable by the parties
and their respective successors, and permitted assigns.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed and
acknowledged this Option Agreement on the date first above written.
NEOPHARM, INC.
By:
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Title:
By:
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Grantee
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