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Exhibit 99.5
NONQUALIFIED STOCK OPTION AGREEMENT
UNDER THE DUSA PHARMACEUTICALS, INC. 1996 OMNIBUS PLAN, AS AMENDED
THIS AGREEMENT made as of the th day of , by and between DUSA
Pharmaceuticals, Inc., a corporation incorporated under the laws of the State of
New Jersey (the "Company"), and , an individual residing in the State (the
"Grantee").
WHEREAS, pursuant to the DUSA Pharmaceuticals, Inc. 1996 Omnibus Plan,
as amended (the "Plan"), the Company has determined that its interests will be
advanced by providing an incentive to the Grantee to acquire a proprietary
interest in the Company and, as a shareholder, to share in its success, with
added incentive to work effectively for and in the Company's interest;
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 grants to the Grantee, as a matter of
separate agreement and not in lieu of salary or any other
compensation for services, 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 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 exercise price of the shares of Common Stock subject to
this Option shall be determined on the day of the grant based
upon the fair market value of the shares of Common Stock on
such date (i.e., $ per share) and calculated by increasing
such fair market value price by ten percent (10%) per year for
four (4) years, rounded to the nearest cent (the "Exercise
Price").
SECTION 3
WHEN EXERCISABLE
3.1 This Option shall vest in the Grantee, and become exercisable,
as to twenty-five percent (25%) of the shares on the first
anniversary of the date of the grant, and an additional
twenty-five percent (25%) of the shares with respect to which
the Option has been granted on and after each of the three (3)
succeeding anniversaries of said date. Installments or
portions vested and not exercised in earlier periods shall be
accumulated and be available for exercise in later periods at
the then applicable Exercise Price as follows:
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3.1.1 up to twenty-five percent (25%) of the shares may be
exercised on or after the first anniversary of the
date of the grant, being at an Exercise Price of $ ;
3.1.2 up to fifty percent (50%) of the shares may be
exercised on or after the second anniversary of the
date of the grant, being at an Exercise Price of $ ;
3.1.3 up to seventy-five percent (75%) of the shares may be
exercised on or after the second anniversary of the
date of the grant, being at an Exercise Price of $ ;
and
3.1.4 up to one hundred percent (100%) of the shares may be
exercised on or after the second anniversary of the
date of the grant, being at an Exercise Price of $ ;
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 and at the Exercise Price 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 hereof,
being , 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 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 only
so long as the Grantee shall continue to serve the Company.
Should the Grantee cease to serve in all such capacities, the
Option shall not further vest or become exercisable, and the
provisions of Section 5.2 shall apply with respect to the
exercise of the Option which has already vested in the Grantee
and has not yet been exercised. The Board of Directors shall
be entitled to determine if and when employment or service to
the Company has ceased with respect to the Grantee.
SECTION 4
HOW EXERCISABLE
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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 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.
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 him or her
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 Subject to Section 3.6 hereof, should the Grantee cease to
serve the Company, the Grantee's Option shall be exercised as
follows:
5.2.1 If the Grantee's termination of employment or service
is other than for cause, or for the reasons provided
in subsections (b) - (d) below, the Option may be
exercised, to the extent exercisable, for a period of
three months after the date of such termination of
employment;
5.2.2 If the Grantee's termination of employment or service
is by reason of retirement or disability, the Option
may be exercised, to the extent exercisable, for a
period of 12 months after the date of such
termination;
5.2.3 In the event of death of the Grantee after
termination of employment or service pursuant to (a)
or (b) above, the person or persons to whom the
Grantee's rights are transferred by will or the laws
of descent and distribution shall have a period of
three years from the date of termination of the
Grantee's employment or service to exercise the
Option which could have been exercised during such
period; and
5.2.4 In the event of death of the Grantee while employed,
the Option shall become fully and immediately
exercisable and may be exercised by the person or
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persons to whom the Grantee's rights are transferred
by will or the laws of descent and distribution for a
period of three years after the Grantee's death,
subject to exercise during the remaining term of the
Option;
5.3 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. Employment by, or
service to, the Company shall be deemed to include employment
by, or 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 the
Company's shareholders, the number of shares provided for in
the Option, the price per share thereof and the number of
shares provided for in the Plan 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 the
Company's 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 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 of the Plan. 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
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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 his or her
stock option agreement or other controlling agreement between
him or her 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 (whether or not
payable by the Plan), 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, 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 the
Plan.
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
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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.
(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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7.1 This Option shall not be transferable by any individual
Grantee in any way other than by will and the laws of descent
and distribution. During the lifetime of any individual
Grantee, the Option shall be exercisable only by him or her.
Any other attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option by any
Grantee 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 he or she 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 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
(subject only to the express provisions of the 1996 Omnibus
Plan, as amended) to decide all matters relating to the
administration and interpretation of the Plan and 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 the Plan or 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 his or her
employment or consultantship at any time.
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SECTION 12
AMENDMENT(S)
12.1 This Agreement shall be subject to the terms of the Plan as
amended except that the Option that is the subject of 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.
SECTION 14
NOTICE OF DISPOSITION OF SHARES
14.1 The Grantee agrees that if it, he or she 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 six 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:
at the address of the Grantee 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.
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SECTION 16
RESTRICTIONS ON TRANSFER
16.1 The Grantee understands and acknowledges that it, he or she 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".
SECTION 17
REPORTING REQUIREMENTS
17.1 The Grantee understands and acknowledges that it, he or she
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
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
By:
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Xxxxxxx W, Xxxxxxx, Secretary Xxxxxx X. Xxxxxxx,
Executive Vice President
GRANTEE
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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.
(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.
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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
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