EXHIBIT 10.35
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED STOCK OPTION AGREEMENT (the "Agreement") is
made and entered into this 31st day of March, 2004, by and between XECHEM
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and XXXXXXX XXXXXXX
(the "Executive"), under the following circumstances:
RECITALS:
WHEREAS, the Executive and the Company are currently parties to an the
Stock Option Agreement dated December 1, 2003 (the "Prior Option Agreement");
WHEREAS, the Executive, the Company and Ceptor Corporation have entered
into an Agreement calling for the Executive's full-time employment by Ceptor
Corporation in lieu of the Company (the "Spin-Out Agreement"); and
WHEREAS, in connection with the Spin-Out Agreement, the Executive and
the Company desire to amend and restate in its entirety the Prior Option
Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
GRANT OF OPTIONS
1.1 GRANT OF OPTIONS; VESTING; EXERCISE PRICE. The Company hereby
documents the stock option previously contemplated to be issued to the Executive
and awards the same to establish the right and option to purchase from the
Company (the "Option"), upon the terms and conditions hereinafter set forth, in
whole or in part, from time to time, up to 43,000,000 shares (the "Option
Shares") of common stock of the Company, par value $.00001 per share ("Common
Stock") at a purchase price per Option Share equal to $0.0025 per share (the
"Exercise Price"). The right to purchase Option Shares under this Option shall
vest on January 1, 2005, provided the Executive's employment is not terminated
from Ceptor Corporation on or before such date due to "Cause" as that term is
defined in the Executive's employment agreement on or before such date. Should
Executive's employment terminate for any other reason prior to January 1, 2005,
then the Option shall still vest on January 1, 2005. The parties may elect to
accelerate vesting in their joint discretion. The Executive shall have the right
to purchase Option Shares for a period of five (5) years from the date of this
Agreement (the "Expiration Date"). The number of Option Shares and Exercise
Price are subject to adjustment as provided herein, and all references to
"Option Shares" and "Exercise Price" herein shall be deemed to include any such
adjustment or series of adjustments.
1.2 NON-TRANSFERABLE. During the lifetime of Executive, the Option
shall be exercisable only by Executive, shall not be transferred, assigned,
pledged, or hypothecated in any way and shall not be subject to execution,
attachment, or similar process, without the prior
written consent of the Company. In the event of Executive's death, the Option
shall be exercisable by Executive's heir(s), beneficiary(ies) or estate as
provided for under Executive's will or applicable laws of intestate succession.
Upon any attempt to transfer, assign, pledge, hypothecate, or otherwise dispose
of such Option contrary to the provisions in this Agreement, or upon the levy of
any attachment or similar process upon such Option or such rights, such Option
and such rights shall immediately become null and void.
1.3 ACKNOWLEDGMENT. The parties acknowledge that the Option is not an
"incentive stock option" as defined in Section 422 of the Internal Revenue Code
of 1986, as amended.
ARTICLE II
EXERCISE OF OPTIONS
2.1 EXERCISE PRICE; METHOD OF PAYMENT. The price for which each Option
Share may be purchased by exercise of this Option shall be the Exercise Price.
Payment of the aggregate Exercise Price shall be by cash or certified or
cashier's check to the Company.
2.2 EXERCISE OF OPTION.
(a) Executive may exercise this Option, in whole or in part,
at any time, or from time to time, subsequent to the applicable Vesting
Dates and prior to the Expiration Date, by giving written notice to the
Company (the "Exercise Notice"). The Exercise Notice shall: (i) be
signed by Executive; (ii) state the number of Option Shares with
respect to which the Option is being exercised; (iii) be accompanied by
a certified or cashier's check made payable to the Company in the
amount of the Exercise Price multiplied by the number of Option Shares
being purchased (unless utilization of the Cashless Exercise Option set
forth below applies); and (iv) otherwise comply with the terms and
conditions of this Agreement. No partial exercise of this Option shall
be for less than one (1) Option Share. Payment may be made either in:
(i) cash as set forth immediately above; or
(ii) by delivery of Common Stock issuable upon
exercise of the Options in accordance with SECTION 2.2(B)
below; or
(iii) by a combination of any of the foregoing
methods, for the number of shares specified in such form (as
such exercise number shall be adjusted to reflect any
adjustment in the total number of shares of Common Stock
issuable to the holder per the terms of this Agreement) and
the Executive shall thereupon be entitled to receive the
number of duly authorized, validly issued, fully-paid and
non-assessable shares of Common Stock determined as provided
herein.
(b) CASHLESS EXERCISE. Notwithstanding any provisions herein
to the contrary, if the Fair Market Value (as defined below) of one
share of Common Stock is greater than the Exercise Price (at the date
of calculation as set forth below), in lieu of exercising this Option
for cash, upon consent of the Company, the Executive may elect to
receive shares equal to the value (as determined below) of this Option
(or the portion thereof
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being cancelled) by delivery of written notice to the Company at the
principal office of the Company together with the properly endorsed
Subscription Form in which event the Company shall issue to the
Executive a number of shares of Common Stock computed using the
following formula:
X=Y (A-B)
---------------
A
Where: X = the number of shares of Common Stock to be issued to
the Executive
Y = the number of shares of Common Stock purchasable
under the Option or, if only a portion of the shares
purchasable under the Option are being purchased, the
portion of the Option being exercised (at the date of
such calculation)
A = the Fair Market Value of one share of the
Company's Common Stock (at the date as of
the end of the last business day immediately
preceding the day of delivery of notice of
exercise)
B = Exercise Price (as adjusted to the date of such
calculation)
(c) FAIR MARKET VALUE. Fair Market Value of a share of Common
Stock as of a particular date (the "Determination Date") shall mean the
Fair Market Value of a share of the Company's Common Stock. Fair Market
Value of a share of Common Stock as of a Determination Date shall mean:
(i) If the Company's Common Stock is traded on an
exchange or is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation ("NASDAQ")
National Market System, the NASDAQ SmallCap Market or the
American Stock Exchange, Inc., then the closing or last sale
price, respectively, reported for the last business day
immediately preceding the Determination Date.
(ii) If the Company's Common Stock is not traded on
an exchange or on the NASDAQ National Market System, the
NASDAQ SmallCap Market or the American Stock Exchange, Inc.,
but is traded in the over-the-counter market, then the mean of
the closing bid and asked prices reported for the last
business day immediately preceding the Determination Date.
(iii) Except as provided in clause (iv) below, if the
Company's Common Stock is not publicly traded, then as the
Executive and the Company agree or in the absence of agreement
by arbitration in accordance with the rules then standing of
the American Arbitration Association, before a single
arbitrator to be chosen from a panel of persons qualified by
education and training to pass on the matter to be decided.
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(iv) If the Determination Date is the date of a
liquidation, dissolution or winding up, or any event deemed to
be a liquidation, dissolution or winding up pursuant to the
Company's charter, then all amounts to be payable per share to
holders of the Common Stock pursuant to the charter in the
event of such liquidation, dissolution or winding up, plus all
other amounts to be payable per share in respect of the Common
Stock in liquidation under the charter, assuming for the
purposes of this SECTION 2.2(C) that all of the shares of
Common Stock then issuable upon exercise of the Option and
similar options issued to other current or former officers of
the Company are outstanding at the Determination Date.
2.3 ISSUANCE OF OPTION SHARES. Within five (5) business days following
receipt by the Company of the Exercise Notice (which date may be extended by the
Company if any law or regulation requires the Company to take any action with
respect to the Option Shares prior to the issuance thereof), the Company shall
deliver to Executive an appropriate certificate or certificates for the Option
Shares as to which the Option was exercised, registered in the name of Executive
and containing the legend provided for in SECTION 2.6. The Company hereby
represents and warrants that all Option Shares that may be issued upon the
exercise of this Option will, upon payment of the Exercise Price, be duly and
validly authorized and issued, fully paid and nonassessable and free from all
taxes, liens and charges in respect of the issuance thereof (other than liens or
charges created by or imposed upon Executive as the holder of the Option
pursuant to this Agreement or taxes in respect of any transfer occurring
contemporaneously or otherwise specified herein).
2.4 NO RIGHTS AS STOCKHOLDER PRIOR TO EXERCISE. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate evidencing
the issuance of Option Shares upon the exercise of the Option, no right to vote
or receive dividends or any other rights as a shareholder shall exist with
respect to the Option Shares, notwithstanding the exercise of the Option. Except
as provided herein, no adjustment will be made for a dividend or other right for
which the record date is prior to the date the stock certificate is issued.
2.5 TAXES. Executive shall be responsible for all federal, state and
other taxes related to the receipt or exercise of the Option and of receipt of
the Option Shares. The Company shall have the power to withhold from any source,
or require Executive to remit to the Company, an amount sufficient to satisfy
any withholding or other federal, state or other tax due from Executive or the
Company as a result of any transaction contemplated by this Agreement. If
Executive does not remit to the Company amounts sufficient to meet such
obligations, the Company shall withhold Option Shares from Executive, such that
the number of Option Shares withheld has a fair market value (as determined in
the sole discretion of the Company) sufficient to satisfy the associated
obligation of the Company to withhold federal, state and other taxes.
2.6 WARRANTIES. Unless the Option Shares to be issued upon the
particular exercise of an Option granted under this Agreement shall have been
effectively registered under the Securities Act of 1933, as now in force or
hereafter amended, the Company shall be under no obligation to issue the Option
Shares covered by such exercise unless Executive warrants to the Company, at the
time of such exercise, that Executive is acquiring the Option Shares for
investment and not with a view toward, or for sale in connection with, the
distribution of any
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such shares; and in such event Executive shall be bound by the provisions of the
following legend or similar legend which shall be endorsed upon the certificate
or certificates evidencing the Option Shares issued by the Company pursuant to
such exercise:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR UNDER THE LAWS OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION UNDER SUCH LAWS OR AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED."
ARTICLE III
ADJUSTMENTS TO OPTIONS SHARES AND EXERCISE PRICE
3.1 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF OPTION SHARES. The
number of Option Shares and the Exercise Price shall be subject to adjustment
from time to time upon the occurrence of certain events, as follows:
(a) RECLASSIFICATION, MERGER OR CERTAIN OTHER TRANSACTIONS. In
case of (i) any reclassification, change or conversion of securities of
the class issuable upon exercise of the Option (other than as a result
of a subdivision or combination), or (ii) in case of any merger of the
Company with or into another corporation (other than a merger with
another corporation in which the Company is a continuing corporation
and which does not result in any reclassification or change of
outstanding securities issuable upon exercise of the Option), the
Company or such successor, as the case may be, shall execute a new
Stock Option Agreement (on substantially the same terms and conditions
as this Agreement, except as the context otherwise requires, and in
form reasonably satisfactory to Executive) providing that Executive
shall have the right to exercise such new options and upon such
exercise to receive, in lieu of each Option Share theretofore issuable
upon exercise of the Option, the kind and amount of shares of stock,
other securities, money and property receivable upon such event or
transaction by a holder of one share of Common Stock. Such new options
shall provide for adjustments that shall be as nearly equivalent as may
be practicable to the adjustments provided for in this SECTION 3.1. The
provisions of this SECTION 3.1 shall similarly apply to successive
events and transactions described above.
(b) SUBDIVISIONS OR COMBINATION OF SHARES. If the Company at
any time while this Option remains outstanding and unexercised shall
subdivide or combine its Common Stock, the Exercise Price and the
number of Option Shares issuable upon exercise shall be proportionally
adjusted.
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ARTICLE IV
REGISTRATION RIGHTS
4.1 PIGGYBACK REGISTRATION. If the Company files a registration
statement (other than a registration relating to the sale of securities to
participants in a dividend reinvestment plan, a registration on Form S-4
relating to a business combination or similar transaction permitted to be
registered on such Form S-4 or a registration on Form S-8 relating to the sale
of securities to participants in a stock or employee benefit plan, to the extent
that registration of the Option Shares is not permitted pursuant to Form S-8)
with the Securities and Exchange Commission (the "Commission") while any
Registrable Securities (as defined herein) are outstanding, the Company shall
give Executive at least ten (10) days' prior written notice of the filing of
such registration statement (a "Piggyback Registration"). If requested by
Executive in writing within two (2) days after receipt of any such notice, the
Company shall register all or, at such Executive's option, any portion of
Executive's Registrable Securities concurrently with the registration of such
other securities, all to the extent required to permit the public offering and
sale of the Registrable Securities. The Company will use its reasonable efforts
through its officers, directors, auditors, and counsel to cause such
registration statement to become effective as promptly as reasonably
practicable; PROVIDED, HOWEVER, that the number of Registrable Securities that
may be registered pursuant to this SECTION 4.1 on any such registration
statement involving an underwriting shall be subject to those reductions
determined to be necessary by the underwriter of the offering pursuant to
SECTION 4.2.
As used herein, "Registrable Securities" shall mean (i) the Option
Shares acquired by Executive from the Company upon the exercise of this Option
and (ii) any Common Stock issued by way of a stock split, stock dividend,
recapitalization, merger or other distribution with respect to, or in exchange
for, or in replacement of, such Option Shares.
4.2 UNDERWRITING. If a Piggyback Registration is for a registered
public offering involving an underwriting (an "Underwritten Offering") or
pursuant to a registration required by a purchaser of Company shares pursuant to
a private offering (a "PIPE Offering"), the Company shall so advise Executive as
part of the notice given pursuant hereto. The Company shall (together with all
other holders of Common Stock proposing to distribute their securities through
such underwriting), if requested by the underwriter, enter into an underwriting
agreement in customary form with a managing underwriter selected for such
underwriting by the Company. Notwithstanding any other provision of this ARTICLE
IV, if: (i) the managing underwriter advises the Company in writing that market
factors require exclusion of shares to be sold by selling stockholders, or a
limitation of the number of shares to be so sold, then the Company shall so
advise Executive and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
holders of Common Stock proposing to distribute their securities through such
underwriting (except those holders who have indicated to the Company their
decision not to distribute any of their Securities through such underwriting) in
proportion, as nearly as practicable, to the respective amounts of securities
held by such holders at the time of filing the registration statement; and (ii)
if the securities issuance documents in the PIPE Offering as interpreted by the
Company's Board of Directors impose any restriction on the Company granting
registration rights to other persons during the pendency of the PIPE Offering or
at any particular time thereafter, then the Company shall be under no
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obligation to register any of the Option Shares during the applicable period of
time so required by the PIPE Offering documents. No Registrable Securities
excluded from the underwriting by reason of the underwriter market limitation
shall be included in such registration.
Notwithstanding anything to the contrary in this ARTICLE IV, (a) no
reduction shall be made with respect to securities offered by the Company for
its own account in connection with the Piggyback Registration, and (b) no
reduction in the securities to be registered by Executive shall occur until all
other securities, other than those offered by the Company, have been reduced pro
rata to the reduction of the Registrable Securities which were requested to be
included and eligible for resale in such offering. If Executive disapproves of
the terms of the underwriting, Executive may elect to withdraw therefrom by
written notice to the Company, the managing underwriter and the other holders.
In such event, the Registrable Securities affected shall be withdrawn from
registration.
4.3 EXPENSES OF REGISTRATION. All Registration Expenses (defined below)
incurred in connection with a Piggyback Registration shall be borne by the
Company. All Selling Expenses (defined below) incurred in connection with a
Piggyback Registration shall be borne by Executive for the Registrable
Securities so registered. For purposes of this SECTION 4.3:
(a) "Registration Expenses" shall mean all expenses incurred
by the Company in connection with a Piggyback Registration, including,
without limitation, all registration, filing and qualification fees,
underwriters expense allowances, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses
(but excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company).
(b) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of the Registrable
Securities in the Piggyback Registration and all fees and disbursements
of any special counsel (other than the Company's regular counsel) for
Executive (but excluding the compensation of regular employees of the
Company which shall be paid in any event by the Company).
4.4 QUALIFICATION FOR SALE. In connection with a Piggyback
Registration, the Company shall use its reasonable best efforts to cause the
Registrable Securities so registered to be registered or qualified for sale
under the securities or blue sky laws of such jurisdictions as Executive may
reasonably request; PROVIDED, however, that the Company shall not be required to
qualify to do business in any state by reason of this SECTION 4.4 in which it is
not otherwise required to qualify to do business.
4.5 EFFECTIVENESS. In connection with a Piggyback Registration, the
Company shall prepare and file with the Commission a registration statement with
respect to the Registrable Securities requested to be registered and use its
reasonable best efforts to cause such registration statement to become
effective, and shall keep effective any Piggyback Registration and shall from
time to time amend or supplement each applicable registration statement,
preliminary prospectus, final prospectus, application, document and
communication for such period of time as shall be required to permit Executive
to complete the offer and sale of the Registrable Securities covered thereby.
The Company shall in no event be required to keep any such
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Piggyback Registration in effect for more than twelve (12) months from the
initial effective date of the Piggyback Registration; PROVIDED, HOWEVER, that,
if during the twelve (12) month period of effectiveness of the registration
statement, the Company gives to Executive a Blackout Notice pursuant to SECTION
4.6, the Company shall extend the effectiveness of the registration statement
for the same time period as that set forth in the Blackout Notice.
4.6 BLACKOUT RIGHTS. Following the effective date of any registration
statement filed pursuant to Article 4 of this Agreement, the Company shall be
entitled, from time to time, to notify Executive to discontinue offers or sales
of shares pursuant to such registration statement for Registrable Securities for
the period of time stated in the written notice (the "Blackout Notice"), if the
Company determines, in its reasonable business judgment, that the disclosure
required in connection with the offers and sales of the Registrable Securities
could materially damage the Company's ability to successfully complete an
acquisition, corporate reorganization, securities offering or other voluntary
transaction undertaken by the Company (which information the Company would not
be required to disclose at such time other than in connection with Executive's
registration statement) that is material to the Company and its subsidiaries
taken as a whole. The time period for which Executive must discontinue offers or
sales of shares pursuant to a Blackout Notice shall be for any period the
Company reasonably believes is necessary, and if, the Company is unable to
determine the duration of such period at the time the Blackout Notice is issued,
the Blackout Notice may state that the period extends "until the Executive is
otherwise notified by the Company;" provided that the Blackout Notice may not
exceed more than one hundred eighty (180) consecutive days within any period of
three hundred sixty-five (365) consecutive days. The Blackout Notice shall be
signed by an authorized officer of the Company and shall certify the Company's
determination. Executive agrees that upon receipt of a Blackout Notice he shall
discontinue offers or sales of Registrable Shares pursuant to any such
registration statement for the period of time stated in the Blackout Notice.
4.7 DISTRIBUTION OF REGISTRATION STATEMENT. In connection with
Piggyback Registration, the Company shall promptly furnish to Executive such
number of copies of the registration statement and of each amendment and
supplement thereto (in each case, including all exhibits), such reasonable
number of copies of each prospectus contained in such registration statement and
each supplement or amendment thereto (including each preliminary prospectus),
all of which shall conform to the requirements of the Securities Act of 1933, as
amended (the "Securities Act") and the rules and regulations thereunder, and
such other documents, as Executive may reasonably request to facilitate the
disposition of the Registrable Securities included in such registration.
4.8 NOTIFICATION OF EFFECTIVENESS. The Company shall notify Executive
promptly when such registration statement has become effective or a supplement
to any prospectus forming a part of such registration statement has been filed.
4.9 OTHER NOTIFICATIONS. The Company shall promptly notify Executive at
any time when the prospectus included in the Piggyback Registration, as then in
effect, would include an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the reasonable request of Executive prepare and furnish to it
such number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that,
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as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made.
4.10 INDEMNIFICATION BY COMPANY. Subject to the conditions set forth
below, the Company agrees to indemnify and hold harmless Executive from and
against any and all loss, liability, charge, claim, damage, and expense
whatsoever (which shall include, for all purposes of this SECTION 4.10, but not
be limited to, reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), as and when incurred,
arising out of, based upon, or in connection with any untrue statement or
alleged untrue statement of a material fact contained (A) in any registration
statement, preliminary prospectus, or final prospectus (as from time to time
amended and supplemented), or any amendment or supplement thereto, relating to
the sale of any of the Registrable Securities or (B) in any application or other
document or communication (in this SECTION 4.10 collectively called an
"Application") executed by or on behalf of the Company and based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to register or qualify any of the Registrable Securities under the
Securities Act or blue sky laws thereof or filed with the Commission or any
securities exchange; or any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements made
therein not misleading, unless such statement or omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of Executive for inclusion in any registration statement, preliminary
prospectus, or final prospectus, or any amendment or supplement thereto, or in
any application, as the case may be.
If any action is brought against Executive in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
Executive shall promptly notify the Company in writing of the institution of
such action (the failure to notify the Company within a reasonable time of the
commencement of any such action, to the extent prejudicial to the Company's
ability to defend such action, shall relieve the Company of liability to
Executive pursuant to this SECTION 4.10) and the Company shall promptly assume
the defense of such action, including the employment of counsel, provided that
Executive shall have the right to employ his own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of Executive
unless the employment of such counsel shall have been authorized in writing by
the Company in connection with the defense of such action or Executive shall
have reasonably concluded that there may be one or more legal defenses available
to him which are different from or additional to those available to the Company,
in any of which events such fees and expenses shall be borne by the Company and
the Company shall not have the right to direct the defense of such action on
behalf of Executive. Notwithstanding anything in this SECTION 4.10 to the
contrary, the Company shall not be liable for any settlement of any such claim
or action effected without its written consent. The Company shall not, without
the prior written consent of Executive, settle or compromise any action, or
permit a default or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, in respect of which indemnity may be
sought hereunder, unless such settlement, compromise, consent, or termination
includes an unconditional release of Executive from all liability in respect of
such action. The Company agrees promptly to notify Executive of the commencement
of any
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litigation or proceedings against the Company or any of its officers or
directors in connection with the sale of any Registrable Securities or any
preliminary prospectus, prospectus, registration statement, or amendment or
supplement thereto, or any application relating to any sale of any Registrable
Securities.
4.11 INDEMNIFICATION BY EXECUTIVE. Executive agrees to indemnify and
hold harmless the Company, each director of the Company, each officer of the
Company who shall have signed any registration statement covering Registrable
Securities held by Executive, to the same extent as the foregoing indemnity from
the Company to Executive in SECTION 4.10, but only with respect to statements or
omissions, if any, made in any registration statement, preliminary prospectus,
or final prospectus (as from time to time amended and supplemented), or any
amendment or supplement thereto, or in any application, in reliance upon and in
conformity with written information furnished to the Company with respect to
Executive by or on behalf of Executive, for inclusion in any such registration
statement, preliminary prospectus, or final prospectus, or any amendment or
supplement thereto, or in any application, as the case may be. If any action
shall be brought against the Company or any other person so indemnified based on
any such registration statement, preliminary prospectus, or final prospectus or
any amendment or supplement thereto, or in any application, and in respect of
which indemnity may be sought against Executive pursuant to this SECTION 4.11,
Executive shall have the rights and duties given to the Company, and the Company
and each other person so indemnified shall have the rights and duties given to
Executive, by the provisions of SECTION 4.10.
4.12 TERMINATION OF REGISTRATION RIGHTS. The covenants set forth in
ARTICLE IV of this Agreement shall terminate with respect to Executive on the
date that Executive is eligible to sell all of his Registrable Securities under
Rule 144 under the Securities Act.
ARTICLE V
LOCK UP
5.1 LOCK-UP PERIOD. Executive hereby agrees that, if so requested by
the Company or any representative of the underwriters in connection with any
registration of the offering of any securities of the Company under the
Securities Act or the registration of any outstanding shares for resale,
Executive shall not sell or otherwise transfer any Registrable Securities during
the period requested in writing by the Company and one of the following: the
managing underwriter or by the purchaser(s) of a majority of the shares to be
registered per the registration statement (the "Market Standoff Period"), not to
exceed a period of 180 days. The Company may impose stop-transfer instructions
with respect to Option Shares subject to the foregoing restrictions until the
end of such Market Standoff Period. The foregoing lock-up agreement shall cease
following passage of the first Market Standoff Period.
ARTICLE VI
GENERAL PROVISIONS
6.1 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the Parties relating to the subject matter contained herein
and merge all prior
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discussions, correspondence, agreements, promises, commitments, contracts or
other instruments or understandings between them. Upon execution of this
Agreement, the Prior Option Agreement shall be, and hereby is, amended and
restated in its entirety. No Party shall be bound by any subsequent instrument,
agreement or representation pertaining to the subject matter contained herein
unless expressed in writing and signed by the Parties hereto.
6.2 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each shall have the same force and effect as the other, as one and
the same instrument.
6.3 GOVERNING LAW. This Agreement shall be governed by laws of the
State of Delaware.
6.4 BINDING AGREEMENT. The Parties hereto warrant that each has been
represented by counsel in connection with this Agreement, that they have read
this Agreement, that they intend to be legally bound by the same, that they have
entered into this Agreement freely and voluntarily, and that they have the full
right, power, authority and capacity to enter into and execute the same. The
Parties hereto further warrant that this Agreement is entered into with no Party
relying upon any statement or representation made by any other Party not
expressly embodied in this Agreement.
6.5 ATTORNEYS' FEES. In any claim arising out of or relating to this
Agreement, the prevailing party shall recover his or its reasonable costs and
attorneys' fees.
6.6 NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to be duly given if delivered or mailed
by prepaid mail addressed to:
IF TO EXECUTIVE, TO: WITH A COPY TO:
Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx Frome
0000 Xxxxxxx Xxxx Xxxxxxxxxx & Xxxxxxx LLP
Monkton, MD 21111 Park Avenue Tower
Facsimile: 000-000-0000 00 Xxxx 00xx Xxxxxx
E-Mail: XXxxxxxx00@xxxxxxx.xxx Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: 212-451-2222
E-Mail: XXX@xxxxxxx.xxx
IF TO THE COMPANY, TO: WITH A COPY TO:
Xechem International, Inc. Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxxx Xxxxxx, Xxxxxxxx X, Xxxxx 000 000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000 - Suite 2500
Attention: Xxxxxx X. Xxxxxx, Ph.D. Xxxxxxx, XX 00000
Facsimile: 000-000-0000 Attention: Xxxxxxxx X. Xxxxxxxxx,
E-Mail: xxxxxx@xxxxxx.xxx Esq.
Facsimile: 000-000-0000
E-Mail: xxxxxxxxxx@xxxxxxxxxx.xxx
or such other address as the addressee may direct in writing.
6.7 CAPTIONS. The captions applied to the sections of this Agreement
are for convenience only and shall not affect their meaning or construction.
11
6.8 WAIVER. The failure of either party to insist in any instance or
performance of any term of this Agreement shall not be construed as a waiver of
future performance of any such term.
6.9 SEVERABILITY. If any portion of this Agreement is held invalid or
unenforceable, the remainder thereof shall remain in full force and effect, and
if the invalidity or unenforceability is due to the unreasonableness of time or
geographical restrictions, such covenants and restrictions shall be effective
for such period of time and for such areas as may be determined to be reasonable
by a court of competent jurisdiction.
6.10 RECITALS. The Recitals set forth above are hereby incorporated in
and made a part of this Agreement by this reference.
IN WITNESS WHEREOF, the parties have caused this Stock Option Agreement
to be executed by their duly authorized officers and to be dated the Date of
Issuance hereof.
COMPANY: EXECUTIVE:
XECHEM INTERNATIONAL, INC.
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XXXXXXX XXXXXXX
By:
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Its:
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