NQL Plan Option
NONTRANSFERABLE
NONQUALIFIED STOCK OPTION AGREEMENT
for
Xxxxx xx Xxxxx
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THIS AGREEMENT (this "Agreement"), dated as of September 9, 2002, is by and
between SYNAPTIC PHARMACEUTICAL CORPORATION, a Delaware corporation (the
"Company"), and Xxxxx xx Xxxxx (the "Optionee," which term as used herein shall
be deemed to include any successor to the Optionee by will or by the laws of
descent and distribution, unless the context shall otherwise require).
W I T N E S S E T H:
WHEREAS, the Company and the Optionee are parties to an Employment
Agreement dated as of September 9, 2002 (the "Employment Agreement");
WHEREAS, the Employment Agreement provides for the grant of an option to
acquire 250,000 shares (the "Plan Option Shares") of the Company's common stock
pursuant to the Synaptic Pharmaceutical Corporation 1996 Incentive Plan (the
"Plan"), with such option to be treated as an "incentive stock option" to the
maximum extent permitted by law;
WHEREAS, it is legally impermissible for all of the Plan Option Shares to
be subject to an incentive stock option agreement, and, pursuant to a separate
option agreement, the Company is granting to the Optionee an option to acquire
69,565 shares of the Company's common stock, which option is intended to qualify
as an incentive stock option and is exercisable for the maximum number of shares
with respect to which incentive stock options granted to the Optionee may be
exercisable;
WHEREAS, this Agreement is being entered into to provide an option for the
balance of the Plan Option Shares; and
WHEREAS, pursuant to the Plan, the Company, acting through the Compensation
Committee (the "Committee") of its Board of Directors (the "Board"), effective
September 9, 2002 (the "Start Date"), granted to the Optionee an option to
purchase up to an aggregate of 180,435 shares of Common Stock, $0.01 par value,
of the Company (the "Common Stock"), at the price of $5.75 per share, such
option to be for the term and upon the terms and conditions hereinafter stated.
NOW, THEREFORE, in consideration of the mutual premises and undertakings
hereinafter set forth, the parties hereto agree as follows:
1. Option; Option Price. Pursuant to said action of the Committee, the
Company has granted to the Optionee the option (the "Option") to purchase, upon
and subject to the terms and conditions of this Agreement and the terms and
conditions of the Plan (which are hereby incorporated by reference herein),
180,435 shares (the "Option Shares") of Common Stock of the Company at the price
of $5.75 per share (the "Option Price"), which Option is not intended to qualify
for Federal income tax purposes as an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. Term. The term (the "Option Term") of the Option shall commence on the
Start Date and expire on the tenth anniversary of the Start Date, unless the
Option shall theretofore have been terminated in accordance with the terms
hereof or of the Plan.
3. Exercisability; Time of Exercise.
(a) General. Unless accelerated in the discretion of the Committee or as
otherwise provided herein, the Option shall vest and become exercisable as to
1/48th of the Option Shares each month, commencing on the one-month anniversary
of the Start Date, so that the Option shall be vested and exercisable as to all
of the Option Shares on the 48-month anniversary of the Start Date. The Option
shall remain exercisable as to all shares as to which is becomes vested and
exercisable until the expiration of the Option Term, unless it is terminated
earlier as provided in any of the other paragraphs of this Section 3 or Section
6 or as provided in the Plan.
(b) Termination for Cause. If the Optionee shall cease to be an employee of
the Company as the result of a Termination for Cause (as defined in the
Employment Agreement), the Option shall automatically terminate on, and the
Optionee shall have no further right to exercise the Option on or after, the
date as of which notice of such termination is given to the Optionee by the
Company. As used in this Agreement, the term "Cause" has the meaning given to
such term in the Employment Agreement.
(c) Termination Without Cause; Resignation for Good Reason. If the
Optionee's employment with the Company terminates and such termination
constitutes a Termination Without Cause (as defined in the Employment Agreement)
or a Resignation for Good Reason (as defined in the Employment Agreement), the
vesting of the Option shall accelerate so that, as of the date of such
termination, the Option shall be exercisable for the Option Shares, if any, for
which it has become exercisable pursuant to paragraph (a) of this Section 3 as
of the date of such termination plus an additional 24/48ths of the Option Shares
(up to the total number of Option Shares). The Option shall in any event
terminate upon, and the Optionee shall have no further right to exercise the
Option after, the earlier of (i) the expiration of the Option Term and (ii) 30
days after the date of such a termination.
(d) Voluntary Termination. If the Optionee terminates his employment with
the Company by a Voluntary Termination (as defined in the Employment Agreement),
the Option shall be exercisable for the Option Shares, if any, for which it has
become exercisable pursuant to paragraph (a) of this Section 3 as of the date
the Optionee gives notice of such termination. The Option shall in any event
terminate upon and the Optionee shall have no further right to exercise the
Option after, the earlier of (i) the expiration of the Option Term and (ii) 30
days after the date the Optionee gives notice of such termination.
(e) Disability Termination. If the Optionee's employment with the Company
terminates and such termination constitutes a Disability Termination (as defined
in the Employment Agreement), the vesting of the Option shall accelerate so
that, as of the date of such termination, the Option shall be exercisable for
the Option Shares, if any, for which it has become exercisable pursuant to
paragraph (a) of this Section 3 as of the date of such termination plus an
additional 12/48ths of the Option Shares (up to the total number of Option
Shares). The Option shall in any event terminate upon, and the Optionee shall
have no further right to exercise the Option after, the earlier of (i) the
expiration of the Option Term and (ii) 180 days after the date of such a
termination. For purposes of Agreement, the term "Disability" has the meaning
given to the term "Employee's Disability" in the Employment Agreement.
(f) Termination as a Result of Death. If the Optionee's employment with the
Company terminates as a result of the Optionee's death, the Option shall, as of
the date of such termination, be exercisable by the Optionee's Designated
Beneficiary (as defined in the Plan) or personal representatives, heirs or
legatees (as provided in the Plan), and the vesting of the Option shall
accelerate so that, as of the date of such termination, the Option shall be
exercisable for the Option Shares, if any, for which it has become exercisable
pursuant to paragraph (a) of this Section 3 as of the date of such termination
plus an additional 12/48ths of the Option Shares (up to the total number of
Option Shares). The Option shall in any event terminate upon, and the Optionee
(and the Designated Beneficiary) shall have no further right to exercise the
Option after, the earlier of (i) the expiration of the Option Term and (ii) one
year after the date of the Optionee's death.
(g) Death Following Disability. In the event of the Optionee's death within
180 days following a Disability Termination (as defined in the Employment
Agreement), the Option shall thereafter be exercisable by the Optionee's
Designated Beneficiary or personal representatives, heirs or legatees, to the
extent, if any, which it shall have vested and become exercisable pursuant to
paragraphs (a) and (d) of this Section 3 for a period of one (1) year following
the date of death but in no event later than the expiration of the Option Term.
4. Procedure for Exercise. (a) The Option may be exercised, from time to
time, in whole or in part (but for the purchase of whole shares only), by
delivery of a written notice (the "Notice") from the Optionee to the Secretary
of the Company, which Notice shall:
(i) state that the Optionee elects to exercise the Option under this
Agreement;
(ii) state the number of shares with respect to which the Optionee is
exercising the Option (the "Acquired Shares");
(iii) include any representations of the Optionee required under Section
7(b) hereof;
(iv) state the method of payment for the Acquired Shares pursuant to
Section 4(b);
(v) in the event that the Option shall be exercised by any person other
than the Optionee pursuant to Sections 3 and 8, include appropriate proof of the
right of such person to exercise the Option; and
(vi) state the date upon which the Optionee desires to consummate the
purchase of the Acquired Shares (which date must be prior to the termination of
such Option).
(b) Payment of the Option Price for the Acquired Shares shall, unless
otherwise provided by the Committee, be made (i) in cash or by personal or
certified check, or (ii) by delivery of shares of the Company's Common Stock
owned by the Optionee for more than six months prior to the date of exercise
having a value equal to the aggregate Option Price of the Acquired Shares, with
such delivered shares to be valued at the closing sale price of the Company's
Common Stock on the Nasdaq National Market on the date of exercise (provided
that, if the Company's Common Stock does not trade on the Nasdaq National Market
at such time, the value thereof shall be determined by the Committee in a manner
it deems appropriate).
5. No Rights as a Stockholder. The Optionee shall not have any privileges
of a stockholder with respect to any Option Shares until the date of a stock
certificate representing such Option Shares is issued to the Optionee.
6. Adjustments.
(a) Stock Dividends, Splits, Subdivisions or Combinations. Subject to the
other provisions of this Section 6, if, at any time while the Option is
outstanding, the Common Stock is changed by reason of dividends payable in
Common Stock or splits, subdivisions or combinations of shares of Common Stock,
then the number of shares of Common Stock deliverable upon the exercise
thereafter of the Option shall be increased or decreased proportionately, as the
case may be, without change in the aggregate Option Price.
(b) Cash Mergers. Upon the occurrence of a merger on consolidation of the
Company with another corporation in a transaction in which the stockholders of
the Company receive cash consideration in exchange for their shares of capital
stock of the Company (a "cash merger"), the Option shall automatically
terminate; provided, however, that the Optionee shall be given (i) written
notice of such cash merger at least 20 days prior to its proposed effective date
(as specified in such notice) and (ii) an opportunity, during the period
commencing with delivery of such notice and ending ten (10) days prior to such
proposed effective date, to exercise the Option in full as to all of the Option
Shares, whether or not then vested.
(c) Assumption or Substitution of Options. Notwithstanding anything
contained herein or in the Plan to the contrary, Section 6(b) shall not be
applicable if provision shall be made in connection with such cash merger for
the assumption of the Option by, or the substitution for the Option of a new
option covering the stock of, the surviving, successor or purchasing
corporation, or a parent or subsidiary thereof, with appropriate adjustments as
to the number, kind and option price of shares subject to such option.
(d) Corporate Transactions. Notwithstanding anything contained herein or in
the Plan to the contrary, upon the occurrence of (i) a merger or consolidation
of the Company with another corporation in a transaction (other than a cash
merger) in which the Company shall not survive or in which the Company is the
survivor but its capital stock is exchanged for stock, securities, or property
of another entity or (ii) a sale of all or substantially all of the assets of
the Company (any transaction described in clause (i) or (ii) being referred to
herein as a "corporate transaction"), provision shall be made in connection with
such corporate transaction for the assumption of the Option by, or the
substitution for the Option of a new option covering the stock of, the
surviving, successor or purchasing corporation, or a parent or subsidiary
thereof, with appropriate adjustments as to the number, kind and option price of
shares subject to such option.
(e) Termination Following a Change of Control. Notwithstanding anything
contained herein or in the Plan to the contrary, in the event the Optionee's
employment with the Company or the person which is the surviving, successor or
purchasing corporation, is terminated at any time following any Change of
Control (as defined in the Employment Agreement) and such termination
constitutes a Termination Without Cause (as defined in the Employment Agreement)
or a Resignation for Good Reason (as defined in the Employment Agreement), the
Option shall become exercisable in full as to all Option Shares, whether or not
vested, as of the date of such termination, and the Optionee shall have the
right to exercise the Option as to any or all of such shares until the earlier
of (i) the expiration of the Option Term and (ii) the 90th day following the
date of such termination, at which time the Option shall terminate.
7. Additional Provisions Related to Exercise.
(a) The Option shall be exercisable only on such date or dates and during
such period and for such number of shares of Common Stock as are set forth in
this Agreement.
(b) To exercise the Option, the Optionee shall follow the procedures set
forth in Section 4 hereof. Upon the exercise of the Option as a time when there
is not in effect a registration statement under the Securities Act of 1933, as
amended, relating to the shares of Common Stock issuable upon exercise of the
Option, the Optionee shall provide the Company with such representations and
warranties as may be required by the Committee to the effect that the Acquired
Shares are being acquired for investment and not with a view to the distribution
thereof. Anything contained herein to the contrary notwithstanding, in the event
the Board shall determine, in its sole and subjective discretion, that the
registration, qualification or listing of the Option Shares upon a securities
exchange or under any state or Federal law, or the consent or approval or any
government or regulatory body, is necessary or desirable as a condition of or in
connection with the exercise of the Option, the Option may not be exercised, in
whole or in part, unless and until such registration, qualification, listing,
consent or approval shall have been effected or obtained free of any conditions
not acceptable to the Board.
(c) The Option shall not be affected by any change of duties or position of
the Optionee (including transfer to or from a subsidiary), so long as the
Optionee continues to be an employee of the Company or one of its subsidiaries.
Nothing in the Option granted hereunder shall confer upon the Optionee any right
to continue in the employ of the Company or any of its subsidiaries or interfere
in any way with the right of the Company or its subsidiaries or the stockholders
of the Company, as the case may be, to terminate the Optionee's employment or to
increase or decrease the Optionee's compensation at any time.
8. Restriction on Transfer. The Option may not be transferred, pledged,
assigned, hypothecated (whether by operation of law or otherwise), sold or
otherwise disposed of in any way by the Optionee, except by will or by the laws
of descent and distribution, and may be exercised during the lifetime of the
Optionee only by the Optionee. If the Optionee dies, the Option shall thereafter
be exercisable, during the applicable period specified in Section 3, by the
Optionee's Designated Beneficiary or personal representatives, heirs or legatees
(as provided in the Plan) to the full extent to which the Option was exercisable
by the Optionee at the time of the Optionee's death as provided herein. The
Option shall not be subject to execution, attachment or similar process. Any
attempted transfer, pledge, assignment, hypothecation, sale or other disposition
of the Option contrary to the provisions hereof, and the levy of any execution,
attachment or similar process upon the Option, shall be null and void and
without effect.
9. Restrictive Legends. In order to reflect certain restrictions on
disposition of the shares acquired upon exercise of the Option (the "Restricted
Shares"), all stock certificates representing the Restricted Shares issued shall
have affixed thereto any legends determined by the Company to be appropriate.
10. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if (i) personally
delivered or sent by telecopier, (ii) sent by nationally-recognized overnight
courier or (iii) sent by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Optionee, to:
Xxxxx xx Xxxxx
c/o Synaptic Pharmaceutical Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxxx
Managing Partner
Xxxxx Xxxxx & Partners
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
if to the Corporation, to:
Synaptic Pharmaceutical Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: President Telecopier: 201-261-0623
With a copy to:
Xxxxxx Xxxxxx, Esq.
Xxxxx Xxxxx L.L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxxxx, Esq.
Dechert
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
or to such other address as the party to whom notice is to be given may
have furnished to each other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, sent by telecopier or sent by nationally-recognized
overnight courier and (ii) on the third Business Day (as hereinafter defined)
following the date on which the piece of mail containing such communication is
posted, if sent by mail. As used herein, "Business Day" means a day that is not
a Saturday, Sunday or a day on which banking institutions in the city to which
the notice or communication is to be sent are not required to be open.
11. No Waiver. No waiver of any breach or condition of this Agreement shall
be deemed to be a waiver of any other or subsequent breach or condition, whether
of like or different nature.
12. Optionee Undertaking. The Optionee hereby agrees to take whatever
additional actions and execute whatever additional documents the Company may in
its reasonable judgement deem necessary or advisable in order to carry out or
effect one or more of the obligations or restrictions imposed on the Optionee
pursuant to the express provisions of this Agreement.
13. Modification of Rights. The rights of the Optionee are subject to
modification and termination in certain events as provided in this Agreement and
the Plan.
14. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey without giving effect to
principles of conflicts of laws.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
16. Entire Agreement. This Agreement, the Employment Agreement (the
provisions of which related to stock options are hereby incorporated herein by
reference) and the Plan constitute the entire agreement between the parties with
respect to the subject matter hereof and thereof, and supersede all previously
written or oral negotiations, commitments, representations and agreements with
respect thereto. In the event of any inconsistency between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall control.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
SYNAPTIC PHARMACEUTICAL CORPORATION
By:/s/ Xxxxxxxx Xxxx
---------------------------------
Name:
Title:
OPTIONEE
/s/ Xxxxx X. Xx Xxxxx
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Xxxxx xx Xxxxx
