Exhibit 99.7
QUORUM SCIENCES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of March 14, 2000 (the "Date of Grant") by and
between Quorum Sciences, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Xxxxx, M.D. (the "Optionee").
1. GRANT OF OPTION. Pursuant to the Science Advisor Agreement, dated as of
3/29/00 ("Advisor Agreement"), by and between the Company and the Optionee the
Company hereby grants to the Optionee, subject to the terms and conditions set
forth herein, the right and option (the "Option") to purchase from the Company
all or any part of an aggregate of Twenty Thousand (20,000) shares of Common
Stock, par value $0.001 per share, of the Company ("Stock") at the purchase
price of $0.50 per share ("Exercise Price"). This Option is not intended to
qua1ify as an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code.
2. EXERCISE OF OPTION. Optionee shall be entitled to first exercise this
Option with respect to the following percentages of the shares of Stock subject
to this Option on the dates listed in the vesting schedule below, provided the
Optionee remains an Advisor of the Company on any such date pursuant to the
Advisor Agreement:
Percentage of Shares
of Stock Subject to
this Option First Exercisable
-------------------- -----------------
35% at the Date of Grant
35% 1 year after Date of Grant
3O% 2 years after the Date of Grant
After shares of Stock are subject to exercise in accordance with the above
schedule, Optionee may exercise this option with respect to those shares in
whole or in part at any time or times prior to the expiration date as defined in
Section 3 hereof.
Notwithstanding any provision of this Agreement to the contrary, no part
of this Option may be exercised if the Stock to be purchased is not subject to
exercise in accordance with the above schedule.
3. EXPIRATION DATE. This Option may not be exercised more than 10 years
from the Date of Grant specified in Section 1 hereof and shall expire at the end
of such 10-year period. Additionally, this Option shall expire when the Optionee
terminates engagement with the Company or a subsidiary of the Company as an
advisor pursuant to the Advisor Agreement. The Option shall expire at the close
of business on such any such expiration date. This Option may be exercised
during such period only in accordance with the applicable provisions of this
Agreement.
4. LIMITATION ON EXERCISE. This Option may not be exercised in whole or in
part by Optionee for less than 100 shares of Stock unless only less than 100
shares of Stock remain subject to the Option.
5. METHOD OF EXERCISE. This Option shall be exercisable by a written
notice which shall:
(i) State the election to exercise the Option, the number of
shares of Stock with respect to which it is being exercised,
the person in whose name the stock certificate or certificates
for such shares of Stock is to be registered, his or her
address and Social Security Number (or if more than one, the
names, addresses and Social Security Numbers of such persons);
(ii) Be signed by the person or persons entitled to exercise the
Option and, if the Option is being exercised by any person or
persons other than the Optionee, be accompanied by proof,
satisfactory to counsel for the company, of the right of such
person or persons to exercise the Option;
(iii) Be delivered in person or by registered or certified mail to
the President of the Company; and
(iv) Be accompanied by signed written instructions acceptable to
the Company in the event that Optionee desires the Company to
deliver the Stock to Optionee's broker or to any party other
than Optionee.
Such notice shall be accompanied by payment of the full purchase price of the
shares of Stock with respect to which the Option is being exercised. Payment
shall be by certified or bank cashier's check, by the surrender and delivery to
the Company of certificates representing shares of its Stock duly endorsed for
transfer or accompanied by a duly executed assignment, or by an agreement signed
by the Optionee to surrender and deliver to the Company certificates
representing shares of its Stock duly endorsed for transfer, which may be
effected by means of a duly executed assignment, transferring to the Company
shares of Stock acquired through the exercise of the Option, or by a combination
of such methods of payment. The certificate or certificates for shares of Stock
as to which the Option shall be exercised shall be registered in the name of the
person or persons exercising the Option.
6. LOCK-UP PROVISION. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective Registration
Statement filed under the 1933 Act, including the Company's initial public
offering, Optionee shall not sell, make any short sale of, loan, hypothecate,
pledge, grant any option for the purchase of, or otherwise dispose or transfer
for value or otherwise agree to engage in any of the foregoing transactions with
respect to, any shares of Stock without the prior
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written consent of the Company. Such restriction (the "Market Stand-Off") shall
be in effect for such period of time from and after the effective date of the
final prospectus for the offerings as may be requested by the Company or the
underwriters. In no event, however, shall such period exceed one hundred eighty
(180) days after the effective date of the Company's Registration Statement with
respect to such offering. Optionee shall be subject to the Market Stand-Off
provided and only if the officers and directors of the Company holding common
stock of the Company are also subject to similar restrictions.
7. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or the laws of descent and distribution and
may be exercised during the period that the Optionee is an advisor to the
Company pursuant to the Advisor Agreement, and only by the Optionee. The terms
of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
8. REPRESENTATIONS AND WARRANTIES. The Optionee represents and warrants to
the Company, upon which representations and Warranties the Company is relying in
entering into this Agreement, as follows:
(a) The Optionee has been afforded the opportunity by the Company to
ask questions and request information to acquire detailed knowledge
and information concerning the business affairs and operations of
the Company and its financial condition and prospects. As a result
of such opportunity to ask questions and review information and the
business background, training, and expertise of the Optionee
(and/or of the advisors with whom the Optionee has consulted), the
Optionee is capable of evaluating the merits and risks of an
investment in the Stock and is in a position to comprehend, weigh,
and assess such knowledge and information in a meaningful fashion.
(b) The Optionee acknowledges and agrees that, in entering into this
Agreement and in exercising the Option, the Optionee is not relying
upon, and will not rely upon, any statements, representations, or
warranties, whether oral or written, made by any stockholder,
officers, director, representative, agent, or employee of the
Company, or any affiliate thereof, except for those set forth in any
historic financial statements provided to the Optionee by the
Company. Further, the Optionee acknowledges and agrees that any
business and financial projections of the Company that may be
provided by the Company are solely for purposes of describing the
Company's future business and financial goals and are not intended
to be, nor are they, representations or guaranties of the Company's
future performance. Accordingly, the Optionee is not relying upon,
and will not rely upon, any such projections in entering into this
Agreement or in exercising the Option.
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(c) The address set forth above is the true and correct residence of
the Optionee, and the Optionee has no present intention of becoming
a resident of any other state or jurisdiction.
(d) The Optionee understands that neither the Option nor the Stock
subject to the Option may have been registered under the Securities
Act, or any state securities laws and that there is no present
intention to so register them.
(e) The Option is being acquired by the Optionee solely for the
Optionee's own account, for investment, and not with a view to or
for the resale, distribution, subdivision, or fractionalization of
the Stock that is permitted to be acquired by the Optionee
thereunder. At such times as the Optionee may exercise the Option,
unless the Stock has been registered under the Securities Act, the
Stock so acquired will be acquired solely for the Optionee's own
account, for investment, and not with a view to or for the resale,
distribution, subdivision, or fractionalization thereof.
(f) The Optionee acknowledges and is aware that (i) there are
substantial restrictions on the transferability of the Stock, (ii)
the Stock will not be, and investors in the Company have no rights
to require that the Company be, registered under the Securities Act
or any state securities law, (iii) there will be no public market
for the Stock and accordingly, if the Option is exercised, the
Optionee may have to hold the Stock indefinitely without the
possibility of liquidating the Optionee's investment in the Company,
and (iv) any shares received through exercise of the Option will
bear legends restricting the transfer of such shares.
(g) As of the date of this Agreement and at such time(s) as the
Optionee may exercise the Option, the Optionee has and will have (i)
adequate means of providing for Optionee's needs and possible
personal and family contingencies, and (ii) the ability to bear the
economic risk of an investment in the Stock.
(h) The Optionee has entered into this Agreement voluntarily.
9. NON-MARKETABILITY OF STOCK. No representations or promises have been
made to the Optionee concerning the present or future marketability or value of
the Stock. The Optionee agrees that, unless the Stock is registered under the
Securities Act or relevant state securities laws, the Stock cannot be resold or
transferred unless (a) (i) they are subsequently registered thereunder or
exemptions from such registrations are available or (ii) the Company receives an
opinion of counsel satisfactory (both as to counsel and opinion) to the Company
that such transfer complies with federal and state securities laws, including
but not limited to Section 701 of the Securities Act of 1933, as amended, and
(b) the applicable restrictions on transfer contained in Section 10 of this
Agreement have been complied with.
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10. ADJUSTMENTS. In the event of any change in the Stock of the Company by
reason of any stock dividend, recapitalization, reorganization, merger,
consolidation, split-up, combination or exchange of shares, or of any similar
change affecting the common Stock, then in any such event the number and kind of
shares subject to this Option and their purchase price per share shall be
appropriately adjusted consistent with such change in such manner as the
committee appointed by the Company may deem equitable to prevent substantial
dilution or enlargement of the rights granted to Optionee hereunder. Any
adjustment so made shall be final and binding upon Optionee.
11. NO RIGHTS AS STOCKHOLDER. Optionee shall have no rights as a
stockholder with respect to any shares of Stock subject to this Option prior to
the date of issuance to him of a certificate or certificates for such shares.
Optionee agrees to execute, deliver and perform any stockholders agreement that
may then be in force by and among the Company and its stockholders.
12. NO RIGHTS TO CONTINUED EMPLOYMENT. This Option shall not confer upon
Optionee any right with respect to continuance of employment or directorship, or
engagement as an advisor, nor shall it interfere in any way with the right of
any party to terminate Optionee's engagement as an advisor, except pursuant to
the terms of the Advisor Agreement.
13. COMPLIANCE WITH LAW AND REGULATIONS. (a) This Option and the
obligation of the Company to sell and deliver shares hereunder, shall be subject
to all (i) applicable federal and state laws, rules and regulations, (ii) such
approvals by any government or regulatory agency as may be required, and (iii)
applicable rules and regulations of any stock exchange or Nasdaq on which the
Stock may be listed from time to time. The Company shall not be obligated to
issue any shares of Stock issuable under this Agreement until such time as such
shares of Stock have been registered under the Securities Act, and all
applicable state securities laws or until the Company receives an opinion of
counsel satisfactory (both as to opinion and counsel) to the Company that such
issuance is exempt from registration under said laws. Moreover, this Option may
not be exercised if its exercise, or the receipt of shares of Stock pursuant
thereto, would be contrary to applicable law.
(b) The inability of the Company to obtain approval from any regulatory
body having authority deemed by the Company to be necessary to the lawful
issuance and sale of any Common Stock pursuant to this option shall relieve the
Company of any liability with respect to the non-issuance or sale of the Common
Stock as to which such approval shall not have been obtained. The Company,
however, shall use its best efforts to obtain all such approvals.
14. WITHHOLDING OF TAXES. The Company or any affiliate shall have the
right to deduct from any compensation or any other payment of any kind
(including withholding the issuance of shares of Common Stock) due Grantee the
amount of any federal, state or local taxes required by law to be withheld as
the result of the exercise of
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the Option or the disposition (as that term is defined in ss.424(c) of the Code)
of shares of Common Stock acquired pursuant to the exercise of the Option;
provided, however, that the value of the shares of Common Stock withheld may not
exceed the statutory minimum withholding amount required by law. In lieu of such
deduction, the Committee may require Grantee to make a cash payment to the
Company or an affiliate equal to the amount required to be withheld. If Grantee
does not make such payment when requested, the Company may refuse to issue any
Common Stock certificate under the Agreement until arrangements satisfactory to
the Company or the committee of the Company for such payment have been made.
15. COVENANTS AS TO STOCK. The Company has taken all action necessary and
appropriate to grant to Optionee the Option. The Company covenants and agrees
that the Stock issuable on the exercise of the Option shall, at delivery, be
fully paid and non-assessable, free from taxes, liens and charges with respect
to its purchase. The Stock subject to the Option has not been and for the
Exercise Period will not be transferred, assigned, pledged or otherwise
encumbered in any way by the Company, and no other person or entity has or
during the Exercise Period, will have any rights, direct or indirect, in the
Stock subject to this Agreement or the rights of the Optionee hereunder.
16. EXCHANGE FOR OTHER DENOMINATIONS. The Option shall be exchangeable for
new instruments of like tenor and date representing in the aggregate the right
to exercise the Option in denominations designated by the Holder at the time of
surrender.
17. LOSS, THEFT, DESTRUCTION OR MUTILATION OF OPTION. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Option, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of the Option, if mutilated, the Company will
make and deliver a new option of like tenor and date, in lieu of the Option.
18. MISCELLANEOUS.
(a) This Agreement has been executed in two counterparts each of
which shall constitute one and the same instrument.
(b) In case any provision of this Agreement shall be invalid,
illegal or unenforceable, or partially invalid, illegal or unenforceable, the
provision shall be enforced to the extent, if any, that it may legally be
enforced and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(c) This Agreement and any term hereof may be changed, waived,
discharged or terminated only by a statement in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
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(d) Any covenants, representations, warranties and agreements made
by the parties shall be deemed to have been relied upon by the parties, shall
survive this Agreement, shall continue until the applicable statute of
limitations bars any claim thereon, and shall be effective regardless of any
investigation which may have been made at any time by or on behalf of a party.
(e) This Agreement shall be binding upon the heirs, personal
representatives, and permitted successors and assigns of the parties hereto.
(f) This Agreement is made, is entered into, and is to be performed
in, and shall be governed by and construed in accordance with, the laws of the
State of Delaware without regard to principles of conflict of laws.
(g) Any notices required to be given or delivered to the Company
under the terms of this Agreement shall be in writing and addressed to the
Company at its principal corporate offices. Any notice required to be given or
delivered to Optionee shall be in writing and addressed to Optionee at the
address indicated below Optionee's signature line on this Agreement. All notices
shall be deemed effective upon personal delivery or upon deposit in the U.S.
mail, postage prepaid and properly addressed to the party to be notified.
(h) This Agreement and the Advisor Agreement constitutes and
contains the entire agreement and understanding of the parties, and shall
supersede any and all prior negotiations, correspondence, understandings and
agreements between the parties respecting the subject matter hereof. To the
extent of any conflict between the terms of this Agreement and the Advisor
Agreement, this Agreement shall control in all respects.
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IN WITNESS WHEREOF, Quorum Sciences, Inc. has caused this Agreement to be
executed by its President and Optionee has executed this Agreement, both as of
the day and year first above written.
QUORUM SCIENCES, INC.
/s/ Xxxxxxx X. Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
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Witness Name: Xxxxxxx Xxxxxx
Title: CEO
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxx
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Witness Optionee
Name: Xxxxxxx X. Xxxxx
Address: 500 EMRB
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HHMI
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Univ of Iowa College of Medicine
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Xxxx Xxxx, XX 00000
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