EXHIBIT 10.2
Dated
1998
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[ ]
AND
INCYTE PHARMACEUTICALS, INC.
AND
HEXAGEN LIMITED
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SHARE EXCHANGE OPTION AGREEMENT
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Table of Contents
1. Recitals..............................................................1
2. Definitions...........................................................1
3. Grant of Exchange Option..............................................2
4. Exercise of Original Option by Option Holder..........................2
5. Exercise of Option Holder Exchange Option.............................2
6. Exercise of Incyte Exchange Option....................................2
7. Consideration.........................................................3
8. Completion............................................................3
9. Transfer Formalities..................................................3
10. Governing Law........................................................3
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Dated:
BETWEEN:
(1) of (the "Option Holder"); and
(2) INCYTE PHARMACEUTICALS, INC., a corporation incorporated in the State
of Delaware, USA whose principal place of business is at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ of America ("Incyte"); and
(3) HEXAGEN LIMITED (registered in England with number 317808) whose
registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ("Hexagen").
1. Recitals
1.1 The Option Holder holds options over [ ] ordinary shares in Hexagen
(the "Original Share Option") pursuant to an option agreement between
the Option Holder and Hexagen executed on __________________________
(the "Original Option Agreement").
1.2 Upon exercise of the Original Share Option the Option Holder wishes to
have the opportunity to offer to Incyte and Incyte wishes to have the
opportunity to require the purchase of the Hexagen ordinary shares
issued in respect thereof in exchange for Incyte Common Stock.
1.3 Incyte is prepared to offer to the Option Holder in exchange for his
ordinary shares in Hexagen such number of shares of Incyte Common Stock
as is determined in accordance with the provisions of this Agreement.
Should the Original Share Option be exercised in full, [ ] shares of
Incyte Common Stock (subject to adjustment as provided in clause 7.1)
would be offered in exchange for such Hexagen shares.
2. Definitions
"Incyte Common Stock" means the common stock, $0.001 par value, of
Incyte, and any securities of Incyte issued as a dividend or other
distribution with respect to or in exchange for or in replacement of
such Common Stock.
"Incyte Exchange Option" means the option granted to Incyte under
clause 3.1;
"Exchange Options" means the Incyte Exchange Option and the Option
Holder Exchange Option;
"Exchange Ratio" means the calculation set out at Schedule III to the
Share Purchase Agreement between Incyte, Hexagen and the shareholders
of Hexagen being Appendix A to an agreement between Incyte and Hexagen
dated 14th August 1998;
"Exchange Shares" means the Incyte Common Stock to be issued and
exchanged by Incyte for Hexagen Shares as set out herein;
"Original Option Agreement" means an Agreement granting the Original
Share Option to the Option Holder under the terms and conditions
specified therein;
"Original Share Option" means the option to acquire ordinary shares in
Hexagen granted by Hexagen pursuant to the Original Option Agreement to
the Option Holder;
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"Option Holder Exchange Option" means the option granted to the Option
Holder under clause 3.2; and
"Hexagen Shares" means the ordinary shares in Hexagen issued to the
Option Holder following the exercise of his Original Share Option.
3. Grant of Exchange Option
3.1 The Option Holder grants to Incyte an option to purchase his Hexagen
Shares in accordance with the terms herein.
3.2 Incyte grants to the Option Holder an option to require Incyte to
purchase his Hexagen Shares in accordance with the terms herein.
4. Exercise of Original Option by Option Holder
When the Original Share Option becomes exercisable the Option Holder
may exercise it in whole or in part in accordance with the terms of the
Original Share Option.
5. Exercise of Option Holder Exchange Option
5.1 If the Option Holder wishes to exercise his Option Holder Exchange
Option, he shall be required to give notice in writing (the "Exchange
Exercise Notice") to Incyte of his intention to exercise the Option
Holder Exchange Option no later than five days following his exercise
of an Original Share Option, whether such exercise be in whole or part.
The Exchange Exercise Notice shall indicate the number of Hexagen
Shares in respect of which the exercise is to take effect.
5.2 For the avoidance of doubt, the Option Holder shall be entitled to so
exercise his Option Holder Exchange Option on each occasion that he
exercises an Original Share Option (whether in whole or part).
6. Exercise of Incyte Exchange Option
6.1 The Option Holder is required to give notice in writing (the "Option
Exercise Notice") to Incyte upon any exercise by him of the Original
Share Option and such Option Exercise Notice shall be given no later
than five days following his exercise of an Original Share Option. The
Option Exercise Notice shall set out the number of shares in respect of
which he has so exercised the Original Share Option. The Option Holder
acknowledges that the service on Incyte itself of such Option Exercise
Notice within five days of the exercise of an Original Share Option is
to be a requirement for a valid exercise of the said Original Share
Option.
6.2 If Incyte wishes to exercise its Incyte Exchange Option, it shall be
required to give notice in writing to the Original Option Holder no
later than five days following receipt of the Option Exercise Notice,
such notice by Incyte to indicate the number of Hexagen Shares in
respect of which it so exercises the Incyte Exchange Option.
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7. Consideration
7.1 On any exercise of an Incyte Exchange Option or an Option Holder
Exchange Option, the consideration payable by Incyte for the
acquisition of Hexagen Shares from the Option Holder shall be the issue
of Exchange Shares in accordance with the Exchange Ratio provided
always that in the event of a rights or capitalisation issue in respect
of the shares in Incyte, or a reduction, consolidation, subdivision or
reorganisation of Incyte's share capital, such number of Exchange
Shares to be issued to the Option Holder shall be subject to adjustment
by the Directors of Incyte so as to protect any appreciation in the
value of the shares over which Incyte Exchange Option or an Option
Holder Exchange Option is granted and if there be a dispute over the
number of Exchange Shares to be issued hereunder, such dispute is to be
settled by Incyte's auditors for the time being, acting as experts and
not as arbitrators, who shall decide what is fair and reasonable.
8. Completion
8.1 Completion of the exchange of any Hexagen Shares for Exchange Shares
hereunder shall take place within seven business days of the giving of
the relevant notice to exercise the Exchange Options hereunder pursuant
to Clause 5 or Clause 6 as the case may be.
8.2 On the date of completion, Incyte shall issue a share certificate for
the relevant number of Exchange Shares and deliver it to the Option
Holder in exchange for the delivery by the Option Holder to Incyte of a
share transfer, duly executed, in favour of the Company in respect of
the relevant Hexagen Shares together with the certificate in respect of
the Hexagen Shares.
9. Transfer Formalities
The Option Holder hereby irrevocably appoints such one of the Directors
of Hexagen as Incyte shall nominate in writing as the Option Holder's
attorney to execute, upon any completion as aforesaid, on his behalf
any transfer of Hexagen Shares in favour of Incyte (or as Incyte may
direct) and such other documents as may be necessary to transfer title
thereto.
10. Governing Law
The construction, validity and performance of this Agreement shall be
governed in all respects by English Law.
IN WITNESS whereof this Agreement has been executed as a Deed the day and year
first above written.
EXECUTED as a Deed by )
[ ] )
in the presence of: )
.................................. Signature of Witness
.................................. Name
.................................. Address
..................................
.................................. Occupation
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EXECUTED as a Deed by )
INCYTE PHARMACEUTICALS, INC. )
acting by )
Authorized Officer
Secretary
EXECUTED as a Deed by )
HEXAGEN LIMITED acting by )
Director
Director/Secretary
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