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Exhibit 4.15(a)
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 14 day of April, 1994 between DUSA
PHARMACEUTICALS, INC., a corporation incorporated under the laws of the State of
New Jersey (hereinafter referred to as the "Company") and XXXXX XXXXXXX, who
resides at 0 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred
to as the "Participant").
WITNESSETH:
WHEREAS, the Company granted on April 14, 1994 (the "Grant Date") to
Lumenetics, Inc., a corporation incorporated under the laws of the State of
Delaware, ("Lumenetics") stock options for 20,000 shares of the Company's common
stock (the "Options"); and
WHEREAS, Lumenetics has determined to assign its interest in the Options
to Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx, the principal shareholders of
Lumenetics; and
WHEREAS, the Company has determined that it is in the Company's interest
to acknowledge the assignment by Lumenetics of the Options 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 U.S. $3.625;
"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;
"Services" means consulting or other services provided by the
Participant to the Company; and
"Shares" means shares of common stock, without par value, 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 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
tenth (10th) anniversary date hereof, being April 14, 2004 (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 April 13, 1995;
(b) one-quarter of the option on the second anniversary of the day
immediately preceding the date hereof, being April 13, 1996;
(c) one-quarter of the option on the third anniversary of the day
immediately preceding the date hereof, being April 13, 1997; and
(d) one-quarter of the option on the fourth anniversary of the day
immediately preceding the date hereof, being April 13, 1998;
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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 Section 2.6 hereof, the option
shall continue to vest only so long as the Participant continues to
provide Services to the Company. Should the Participant cease to provide
such Services ("Termination"), no further vesting of the option shall
occur unless the Board of Directors determines otherwise 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.
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
Services to the Company, 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
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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, 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:
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If to the Company: DUSA Pharmaceuticals, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX X0X 0X0
XXXXXX
Attention: Dr. D. Xxxxxxxx Xxxxxxx
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".
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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/D. Xxxxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Secretary Dr. D. Xxxxxxxx Xxxxxxx, President
PARTICIPANT
s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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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, I hereby elect to purchase shares
of Common Stock of DUSA Pharmaceuticals, 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:
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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 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 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
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Exhibit 4.15(b)
NONQUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made and entered into as of the 13TH day of MARCH, 1997, by
and between DUSA Pharmaceuticals, Inc., a corporation incorporated under the
laws of the State of New Jersey (the "Company"), and XXXXX XXXXXXX, who resides
at 0 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Grantee").
WHEREAS, the Company granted on March 13, 1997 (the "Grant Date") to
Lumenetics, Inc., a corporation incorporated under the laws of the State of
Delaware, ("Lumenetics") stock options for 100,000 shares of the Company's
common stock (the "Options"); and
WHEREAS, Lumenetics has determined to assign its interest in the Options
to Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx, the principal shareholders of
Lumenetics; and
WHEREAS, the Company has determined that its interests will be advanced
by acknowledging the assignment by Lumenetics of the Options.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereby agree as follows:
SECTION 1
GRANT
1.1 The Company hereby acknowledges the assignment to the Grantee of
the right and option (the "Option") to purchase, in accordance
with the vesting rights outlined in Sections 3.1 and 3.6 hereof,
up to 50,000 shares of authorized but unissued Common Stock,
without par value ("Common Stock"), of the Company on the terms
and conditions herein set forth in this Agreement.
SECTION 2
PRICE
2.1 The purchase price of the shares of Common Stock subject to this
Option shall be the fair market value of the shares of Common
Stock on the Grant Date ($6.125 per share)(the "Exercise Price").
SECTION 3
WHEN EXERCISABLE
3.1 The aggregate number of shares of Common Stock of the Company
optioned by this Agreement (the "Optioned Shares") shall vest in
the Grantee as follows:
(a) 25% of the Option on the day of the grant, being March 13,
1997;
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(b) 25% of the Option on the second anniversary of the day of
grant, being March 13, 1999;
(c) 25% of the Option on the third anniversary of the day of
the grant, being March 13, 2000;
(d) 25% of the Option on the fourth anniversary of the day of
the grant, being March 13, 2001; and
and, except as provided by Sections 3.6 and 6.3 hereof, the Grantee
shall only be entitled to exercise this Option, in whole or in part, in
the amounts set out above and from and after the dates so specified.
3.2 Subject to Sections 3.1 and 3.6 hereof, the Grantee shall have
the right, at any time prior to 5:00 p.m. (Eastern Standard Time)
on the date prior to the tenth anniversary date of the grant,
being March 12, 2007, 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 1.1 above.
3.3 No less than one thousand (1,000) shares may be purchased upon
any one exercise of the Option granted hereby unless the number
of shares purchased at such time is the total number of shares in
respect of which the Option hereby granted is then exercisable.
3.4 In no event shall any Option granted hereby be exercisable for a
fractional share.
3.5 From time to time, in its discretion, the Company's Stock Option
Committee (the "Committee") may offer the Grantee the right to
cancel any Option granted hereunder in exchange for such
consideration as the Committee shall determine.
3.6 Notwithstanding anything contained in Sections 1 and 3.1 hereof,
the Option shall continue to vest in the Grantee as provided by
the terms of Paragraph 3(d)(ii) of the Consulting and Development
Agreement, dated October 14, 1997 (the "Consulting Agreement")
between the Company and Lumenetics, which Consulting Agreement
was subsequently partially terminated pursuant to a certain
Partial Termination Agreement dated as of the February 25, 1999.
The Board of Directors shall be entitled to determine if and when
service to the Company has ceased with respect to the Grantee.
SECTION 4
HOW EXERCISABLE
4.1 Subject to such administrative regulations as the Committee may
from time to time adopt, the Grantee or beneficiary shall, in
order to exercise this Option give to the Company at its
principal office notice in writing in the form of Schedule A
hereto setting out the number of Optioned Shares with respect to
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which the Option is being exercised. The notice must be
accompanied by payment of 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. At the discretion of the
Committee, the Grantee may pay all or a portion of the purchase
price by tender of Common Stock or a combination of stock and
cash or other means determined by the Committee.
4.2 Any notice under this Section shall include an undertaking to
furnish or execute such documents as the Committee in its
discretion shall deem necessary (i) to evidence such exercise, in
whole or in part, of the Option evidenced by this Agreement, (ii)
to determine whether registration is then required under the
Securities Act of 1933, or any other law, as then in effect, and
(iii) to comply with or satisfy the requirements of the
Securities Act of 1933, or any other law, as then in effect.
4.3 The Grantee agrees that all shares purchased by it under the
Option will be acquired for investment, not distribution, and
that any notice of exercise of the Option must be accompanied by
a written representation to that effect, signed by the Grantee.
SECTION 5
TERMINATION OF OPTION
5.1 The Option granted hereby shall terminate and be of no force or
effect upon the expiration of ten years from the date of the
Grant unless terminated prior to such time as provided below.
5.2 Any determination made by the Committee with respect to any
matter referred to in this Section 5 shall be final and
conclusive on all persons affected thereby. Service to the
Company shall be deemed to include service to any subsidiary of
the Company by the Grantee.
SECTION 6
ADJUSTMENTS TO OPTION
6.1 Subject to any required action by the Committee and shareholders,
the number of shares provided for in the Option, and the price
per share thereof shall be proportionately adjusted for any
increase or decrease in the number of issued shares of the
Company resulting from the payment of a share dividend, a share
split or any transaction which is a "corporate transaction" (as
defined in the Treasury regulations promulgated under Section 424
of the Code.
6.2 Subject to any required action by the Committee and shareholders,
if the Company shall be the surviving entity in any merger or
consolidation, or after a consolidation of the Company and one or
more entities in which the resulting entity is an independent
entity, the Option shall pertain to and apply to the
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securities of the surviving entity in an amount that the board of
directors of the surviving entity, at its sole discretion,
determines to be equivalent, as nearly as practicable, to the
nearest whole number and class of shares that were subject to the
Option. These shares of stock or other securities shall, after
such merger or consolidation, be deemed to be shares for all
purposes hereof. The aforesaid adjustments, when applicable,
shall be made by the Committee, and the Committee's determination
shall be final, binding and conclusive.
6.3 In the event of a Change of Control (as defined below), any and
all outstanding Options not fully vested shall automatically vest
in full and shall be immediately exercisable. The date on which
such accelerated vesting and immediate exercisability shall occur
shall be the date of the occurrence of the Change of Control.
A "Change of Control" shall be deemed to have taken place upon
(i) the acquisition by a third person, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of
1934, as amended, of shares of the Company having 50% or more of
the total number of votes that may be cast for the election of
Directors of the Company; (ii) shareholder approval of a
transaction for the acquisition of the Company, or substantially
all of its assets by another entity or for a merger,
reorganization, consolidation or other business combination to
which the Company is a part; or (iii) the election during any
period of 24 months or less of 50% or more of the Directors of
the Company where such Directors were not in office immediately
prior to such period provided, however, that no "Change of
Control" shall be deemed to have taken place if the Directors of
the Company in office on the date of adoption of the Plan, or
their successors in office nominated by such Directors,
affirmatively approve a resolution to such effect.
Except as provided with respect to a Grantee in its stock option
agreement or other controlling agreement between it and the
Company, to the extent that the acceleration, exercisability or
parachute payment attributable to the Option following a Change
of Control would result in "excess parachute payments"(1) when
the former are aggregated with other payments or benefits to the
Grantee, such parachute payments or benefits provided to a
Grantee under this Agreement shall be reduced to the extent
necessary so that no portion thereof shall be subject to the
excise tax imposed by Section 4999 of the Code. This reduction
will only be made if it will cause the Grantee's net after-tax
benefit to exceed the net after-tax benefit that would have
existed if such reduction were not made. "Net after-tax benefit"
shall be the sum of (i) all payments and benefits which a Grantee
receives or is entitled to receive that would constitute a
"parachute payment" under Section 280G of the Code, less (ii) the
amount of federal income taxes payable with respect to the
payments and benefits described in (i) above,
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(1) "Excess parachute payments" are defined in Section 280G of the Code
and are determined by tax counsel of the Company.
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calculated at the maximum marginal income tax rate(2) for the
year in which such payments and benefits shall be paid to the
Grantee, less (iii) the amount of excise taxes imposed with
respect to the payments and benefits described in (i) above by
Section 4999 of the Code.
6.4 In the event of a change in the Company's shares which is limited
to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without
par value, the shares resulting from any such change shall be
deemed to be shares within the meaning of this Agreement.
6.5 Except as herein before expressly provided in Paragraphs 6.1,
6.2, 6.3 and 6.4 of this Section 6, the Grantee shall have no
rights by reason of any subdivision or consolidation of shares of
any class or payment of any share dividend or any other increase
or decrease in the number of shares of any class or by reason of
any dissolution, liquidation, merger, consolidation or spin-off
of assets or stock of another corporation and any issuance by the
Company of shares of any class, or securities convertible into
shares of any class, shall not affect the Option, and no
adjustment by reason thereof shall be made with respect to the
number or price of the Company's shares subject to the Option.
The grant of the Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure
or to merge, consolidate, dissolve, liquidate, sell or transfer
all or any part of its business or assets.
SECTION 7
TRANSFER
7.1 This Option shall not be transferable by the Grantee in any way.
During the existence of the Grantee, the Option shall be
exercisable only by it. Any other attempted assignment, transfer,
pledge, hypothecation or other disposition of the Option shall be
void and have no effect unless in accordance with the terms set
forth herein.
SECTION 8
WITHHOLDING TAXES
8.1 The Company shall have the right to retain and withhold from any
payment, under the Option granted, any amount that is to be
withheld or otherwise deducted and paid with respect to such
payment. At its discretion, the Company may require the Grantee,
if it receives shares under a nonqualified stock option grant, to
reimburse the Company for any taxes that are required to be
withheld by the Company, and may withhold any distribution in
whole or in part until the Company is so reimbursed. In lieu
thereof, the Company shall have the right to
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(2) "This rate is based on the rate for the year set forth in the Code
at the time of the first payment to the participant.
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withhold from any other cash amounts due (or to become due) to
the Grantee an amount equal to such taxes required to be withheld
by the Company to reimburse the Company for any such taxes, or
the Company may retain and withhold a number of shares of Common
Stock having a market value not less than the amount of such
taxes and cancel (in whole or in part) any shares of Common Stock
so withheld in order to reimburse the Company for any such taxes.
SECTION 9
IMPACT ON OTHER BENEFITS
9.1 The value of the Option (either on the date of grant of the
Option or at the time the shares are vested) shall not be
includable as compensation or earnings for purposes of any other
benefit plan offered by the Company.
SECTION 10
ADMINISTRATION
10.1 The Committee shall have full authority and discretion to decide
all matters relating to the administration and interpretation of
this Agreement. All such Committee determinations shall be final,
conclusive and binding upon the Company, the Grantee and any and
all interested parties.
SECTION 11
AGREEMENT TO CONTINUE IN EMPLOYMENT
OR SERVICE AS A CONSULTANT
11.1 Nothing in this Agreement shall confer on a Grantee any right to
continue in the employ of the Company or in the service of the
Company as a consultant or interfere in any way with the right of
the Company to terminate such consulting relationship at any
time.
SECTION 12
AMENDMENT(S)
12.1 This Agreement may not in any way be amended or terminated
without the Grantee's written consent.
SECTION 13
FORCE AND EFFECT
13.1 The various provisions of this Agreement are severable in their
entirety. Any determination of invalidity or unenforceability of
any one provision shall have no effect on the continuing force
and effect of the remaining provisions.
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SECTION 14
NOTICE OF DISPOSITION OF SHARES
14.1 The Grantee agrees that if it should dispose of any shares of
Common Stock acquired on the exercise of the Option, including a
disposition by sale, exchange, gift or transfer of legal title
within twelve (12) months of the date such shares are transferred
to the Grantee, the Grantee will notify the Company promptly of
such disposition.
SECTION 15
NOTICES
15.1 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 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX X0X 0X0
XXXXXX
Attention: Dr. D. Xxxxxxxx Xxxxxxx
If to the Grantee: Xxxxx Xxxxxxx
0 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
or such other address as to which either party may from time to
time notify the other as aforesaid.
SECTION 16
RESTRICTIONS ON TRANSFER
16.1 The Grantee understands and acknowledges that it 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.
SECTION 17
REPORTING REQUIREMENTS
17.1 The Grantee understands and acknowledges that it may be subject
to certain reporting requirements upon its receipt and exercise
of the Option, and in
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connection therewith, upon the receipt and exercise of the
Option, the Grantee 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.
SECTION 18
GOVERNING LAW
18.1 This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of New Jersey.
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/D. Xxxxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Secretary Dr. D. Xxxxxxxx Xxxxxxx, President
PARTICIPANT
s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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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
Nonqualified Stock Option Agreement (the "Agreement") dated , between DUSA
Pharmaceuticals, Inc. and the undersigned, and the Option 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 Option. 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)
The undersigned hereby represents and warrants to, and agrees with the
Company as follows:
(a) The shares are being purchased for the undersigned's own account,
for investment purposes only, and not for the account of any other person, and
not with a view to distribution, assignment, or resale to others, or to
fractionalization in whole or in part and that the offering and sale of the
shares is intended to be exempt from registration under the Securities Act of
1933 (the "Act"). In furtherance thereof, the undersigned represents, warrants
and agrees as follows: (i) no other person has or will have a direct or indirect
beneficial interest in such shares and the undersigned will not sell,
hypothecate, or otherwise transfer his shares except in accordance with the Act
and applicable state securities laws or unless in the opinion of counsel for the
Company, an exemption from the registration requirements of the Act and such
laws is available; and (ii) the Company is under no obligation to register the
shares on behalf of the undersigned or to assist the undersigned in complying
with any exemption from registration.
17
(b) The undersigned has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating the merits and
risks of investment in the Company and of making an informed investment
decision.
In full payment of the purchase price with respect to the Option
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
