Exhibit 10.25
STOCK OPTION AGREEMENT
NAME OF OPTIONEE: Xxxxxx Xxxxxxxx (the "Optionee")
NO. OF OPTION SHARES: 250,000 Shares of Common Stock
GRANT DATE: 1/19/01 (the "Grant Date")
EXPIRATION DATE: 1/19/11 (the "Expiration Date")
OPTION EXERCISE PRICE/SHARE: $4.50 (the "Option Exercise Price")
DOV Pharmaceutical, Inc., a Delaware corporation (together with all
successors thereto, the "Company"), hereby grants to the Optionee, who is an
employee of the Company, an option (the "Stock Option") to purchase on or prior
to the Expiration Date, or such earlier date as is specified herein, all or any
part of the number of shares of Common Stock, par value $0.0001 per share
("Common Stock"), of the Company indicated above (the "Option Shares," and such
shares once issued shall be referred to as the "Issued Shares"), at the Option
Exercise Price, subject to the terms and conditions set forth in this Stock
Option Agreement (this "Agreement").
1. DEFINITIONS. For the purposes of this Agreement, the following terms
shall have the following respective meanings. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
DOV Pharmaceutical, Inc. 2000 Stock Option and Grant Plan (the "Plan"). Although
the Stock Option hereunder was not granted pursuant to the Plan, it shall be
treated in all respects as if it was.
An "AFFILIATE" of any Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with the first mentioned Person. A Person shall be deemed
to control another Person if such first Person possesses directly or indirectly
the power to direct, or cause the direction of, the management and policies of
the second Person, whether through the ownership of voting securities, by
contract or otherwise.
"BANKRUPTCY" shall mean (i) the filing of a voluntary petition under
any bankruptcy or insolvency law, or a petition for the appointment of a
receiver or the making of an assignment for the benefit of creditors, with
respect to the Optionee or any Permitted Transferee, or (ii) the Optionee or any
Permitted Transferee being subjected involuntarily to such a petition or
assignment or
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to an attachment or other legal or equitable interest with respect to the
Optionee's or such Permitted Transferee's assets, which involuntary petition or
assignment or attachment is not discharged within sixty (60) days after its
date, and (iii) the Optionee or any Permitted Transferee being subject to a
transfer of the Stock Option or the Issued Shares by operation of law, except by
reason of death.
"CAUSE" shall mean a vote of the Board resolving that the Optionee
should be dismissed as a result of (i) the commission of any act by the Optionee
constituting financial dishonesty against the Company (which act would be
chargeable as a crime under applicable law); (ii) the Optionee's engaging in any
other act of dishonesty, fraud, intentional misrepresentation, moral turpitude,
illegality or harassment which, as determined in good faith by the Board, would:
(A) materially adversely affect the business or the reputation of the Company
with its current or prospective customers, suppliers, lenders and/or other third
parties with whom it does or might do business; or (B) expose the Company to a
risk of civil or criminal legal damages, liabilities or penalties; (iii) the
repeated failure by the Optionee to follow the directives of the Company's chief
executive officer or Board or (iv) any material misconduct, violation of the
Company's policies, or willful and deliberate non-performance of duty by the
Optionee in connection with the business affairs of the Company.
"PERMITTED TRANSFEREES" shall mean any of the following to whom the
Optionee may transfer Issued Shares hereunder: the Optionee's spouse, children
(natural or adopted), stepchildren or a trust for their sole benefit of which
the Optionee is the settlor; PROVIDED, HOWEVER, that any such trust does not
require or permit distribution of any Issued Shares during the term of this
Agreement unless subject to its terms. Upon the death of the Optionee (or a
Permitted Transferee to whom shares have been transferred hereunder), the term
Permitted Transferees shall also include such deceased Optionee's (or such
deceased Permitted Transferee's) estate, executions, administrations, personal
representations, heirs, legatees and distributees, as the case may be.
"PERSON" shall mean any individual, corporation, partnership
(limited or general), limited liability company, limited liability partnership,
association, trust, joint venture, unincorporated organization or any similar
entity.
"SALE EVENT" shall mean, regardless of form thereof, consummation of
(i) the dissolution or liquidation of the Company, (ii) the sale of all or
substantially all of the assets of the Company on a consolidated basis to an
unrelated person or entity, (iii) a merger, reorganization or consolidation in
which the outstanding shares of Stock are converted into or exchanged for a
different kind of securities of the successor entity and the holders of the
Company's outstanding voting power immediately prior to such transaction do not
own a majority of the outstanding voting power of the successor entity
immediately upon completion of such transaction, (iv) the sale of all or a
majority of the outstanding capital stock of the Company to an unrelated person
or entity or (v) any other transaction in which the owners of the Company's
outstanding voting power immediately prior to such transaction do not own at
least a majority of the outstanding voting power of the successor entity
immediately upon completion of the transaction.
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"SERVICE RELATIONSHIP" shall mean any relationship as an employee,
part-time employee, director or consultant of the Company or any Subsidiary of
the Company such that, for example, a Service Relationship shall be deemed to
continue without interruption in the event the Optionee's status changes from
full-time employee to part-time employee or consultant.
"SUBSIDIARY" shall mean any corporation (other than the Company) in
any unbroken chain of corporations or other entities beginning with the Company
if each of the corporations (other than the last corporation in the unbroken
chain) owns stock or other interests possessing 50 percent or more of the total
combined voting power of all classes of stock or in one of the other
corporations in the chain.
2. VESTING, EXERCISABILITY, AND TERMINATION.
(a) No portion of this Stock Option may be exercised until such
portion shall have vested.
(b) Subject to the determination of the Committee to accelerate the
vesting schedule hereunder, this Stock Option shall vest in accordance with the
terms of Section 2.03(b) of that certain Employment Agreement by and between the
Optionee and the Company, dated as of July 10, 2000, as amended from time to
time (the "Employment Agreement").
(c) TERMINATION. Except as may otherwise be provided by the
Committee, if the Optionee's Service Relationship with the Company or a
Subsidiary is terminated, the period within which to exercise this Stock Option
may be subject to earlier termination as set forth below:
(i) TERMINATION DUE TO DEATH, DISABILITY OR RETIREMENT. If the
Optionee's Service Relationship terminates by reason of such Optionee's death,
disability (as defined in Section 422(c) of the Code) or retirement (after
attainment of age sixty (60)) this Stock Option may be exercised, to the extent
exercisable on the date of such termination, by the Optionee, the Optionee's
legal representative or legatee for a period of twelve (12) months from the date
of death, disability or retirement or until the Expiration Date, if earlier .
(ii) OTHER TERMINATION. If the Optionee's employment terminates
for any reason other than death, disability or retirement (after attainment of
age sixty (60)), and unless otherwise determined by the Committee, this Stock
Option may be exercised, to the extent exercisable on the date of termination,
for a period of ninety (90) days from the date of termination or until the
Expiration Date, if earlier, PROVIDED HOWEVER, if the Optionee's Service
Relationship is terminated for Cause, this Stock Option shall terminate
immediately upon the date of such termination.
For purposes hereof, the Committee's determination of the reason for
termination of the Optionee's Service Relationship shall be conclusive and
binding on the Optionee and his or her
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representatives or legatees. Any portion of the Stock Option that is not
exercisable on the date of termination of the Service Relationship shall
terminate immediately and be null and void.
(d) It is understood and intended that this Stock Option is intended to
qualify as an "incentive stock option" as defined in Section 422 of the Code to
the extent permitted under applicable law. Accordingly, the Optionee understands
that in order to obtain the benefits of an incentive stock option under Section
422 of the Code, no sale or other disposition may be made of Issued Shares for
which incentive stock option treatment is desired within the one-year period
beginning on the day after the day of the transfer of such Issued Shares to him
or her, nor within the two-year period beginning on the day after the grant of
this Stock Option and further that this Stock Option must be exercised within
three (3) months after termination of employment as an employee (or twelve (12)
months in the case of death or disability) to qualify as an incentive stock
option. If the Optionee disposes (whether by sale, gift, transfer or otherwise)
of any such Issued Shares within either of these periods, he or she will notify
the Company within 30 days after such disposition. The Optionee also agrees to
provide the Company with any information concerning any such dispositions
required by the Company for tax purposes. Further, to the extent Option Shares
and any other incentive stock options of the Optionee having an aggregate Fair
Market Value in excess of $100,000 (determined as of the Grant Date) vest in any
year, such options will not qualify as incentive stock options.
3. EXERCISE OF STOCK OPTION.
(a) The Optionee may exercise this Stock Option only in the
following manner: Prior to the Expiration Date (subject to Section 6), the
Optionee may deliver a Stock Option exercise notice (an "EXERCISE NOTICE") in
the form of APPENDIX A hereto indicating his or her election to purchase some or
all of the Option Shares with respect to which this Stock Option is exercisable
at the time of such notice. Such notice shall specify the number of Option
Shares to be purchased. Payment of the purchase price may be made by one or more
of the methods described below. Payment instruments will be received subject to
collection.
(i) in cash, by certified or bank check, or other instrument
acceptable to the Committee in U.S. funds payable to the order of the Company in
an amount equal to the purchase price of such Option Shares;
(ii) by the Optionee delivering to the Company a promissory note
if the Board has expressly authorized the loan of funds to the Optionee for the
purpose of enabling or assisting the Optionee to effect the exercise of his or
her Stock Option; provided that at least so much of the exercise price as
represents the par value of the Stock shall be paid other than with a promissory
note if otherwise required by state law; or
(iii) if the Initial Public Offering has occurred, then (A)
through the delivery (or attestation to ownership) of shares of Common Stock
that have been purchased by the Optionee on the open market or that have been
held by the Optionee for at least six months and are not subject to restrictions
under any plan of the Company, (B) by the Optionee
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delivering to the Company a properly executed Exercise Notice together with
irrevocable instructions to a broker to promptly deliver to the Company cash or
a check payable and acceptable to the Company to pay the option purchase price,
provided that in the event the Optionee chooses to pay the option purchase price
as so provided, the Optionee and the broker shall comply with such procedures
and enter into such agreements of indemnity and other agreements as the
Committee shall prescribe as a condition of such payment procedure, or (C) a
combination of (i), (ii), (iii)(A) and (iii)(B) above.
(b) Certificates for the Option Shares so purchased will be issued
and delivered to the Optionee upon compliance to the satisfaction of the
Committee with all requirements under applicable laws or regulations in
connection with such issuance. Until the Optionee shall have complied with the
requirements hereof and of the Plan, the Company shall be under no obligation to
issue the Option Shares subject to this Stock Option, and the determination of
the Committee as to such compliance shall be final and binding on the Optionee.
The Optionee shall not be deemed to be the holder of, or to have any of the
rights of a holder with respect to, any shares of Common Stock subject to this
Stock Option unless and until this Stock Option shall have been exercised
pursuant to the terms hereof, the Company shall have issued and delivered the
Issued Shares to the Optionee, and the Optionee's name shall have been entered
as a stockholder of record on the books of the Company. Thereupon, the Optionee
shall have full dividend and other ownership rights with respect to such Issued
Shares, subject to the terms of this Agreement.
(c) Notwithstanding any other provision hereof or of the Plan, no
portion of this Stock Option shall be exercisable after the Expiration Date.
4. INCORPORATION OF PLAN. Notwithstanding anything herein to the
contrary, this Stock Option shall be subject to and governed by all the terms
and conditions of the Plan.
5. TRANSFERABILITY OF STOCK OPTION. This Agreement is personal to the
Optionee and is not transferable by the Optionee in any manner other than by
will or by the laws of descent and distribution. The Stock Option may be
exercised during the Optionee's lifetime only by the Optionee (or by the
Optionee's guardian or personal representative in the event of the Optionee's
incapacity). The Optionee may elect to designate a beneficiary by providing
written notice of the name of such beneficiary to the Company, and may revoke or
change such designation at any time by filing written notice of revocation or
change with the Company; such beneficiary may exercise the Optionee's Stock
Option in the event of the Optionee's death to the extent provided herein. If
the Optionee does not designate a beneficiary, or if the designated beneficiary
predeceases the Optionee, the legal representative of the Optionee may exercise
this Stock Option to the extent provided herein in the event of the Optionee's
death.
6. EFFECT OF CHANGE OF CONTROL. In the case of a Change of Control (as
defined in Section 3.05(c) of the Employment Agreement) and the Optionee's
subsequent termination in accordance with Section 3.04 of the Employment
Agreement, this Stock Option, to the extent not vested, shall vest.
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7. WITHHOLDING TAXES. The Optionee shall, not later than the date as of
which the exercise of this Stock Option becomes a taxable event for federal
income tax purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any federal, state and local taxes required by law to
be withheld on account of such taxable event. Subject to approval by the
Committee, the Optionee may elect to have the minimum tax withholding obligation
satisfied, in whole or in part, by authorizing the Company to withhold from
shares of Common Stock to be issued or transferring to the Company, a number of
shares of Common Stock with an aggregate Fair Market Value that would satisfy
the minimum withholding amount due. The Optionee acknowledges and agrees that
the Company or any Subsidiary of the Company has the right to deduct from
payments of any kind otherwise due to the Optionee, or from the Option Shares to
be issued in respect of an exercise of this Stock Option, any federal, state or
local taxes of any kind required by law to be withheld with respect to the
issuance of Option Shares to the Optionee.
8. RESTRICTIONS ON TRANSFER OF ISSUED SHARES. None of the Issued Shares
acquired upon exercise of the Stock Option shall be sold, assigned, transferred,
pledged, hypothecated, given away or in any other manner disposed of or
encumbered, whether voluntarily or by operation of law, unless such transfer is
in compliance with all applicable securities laws (including, without
limitation, the Securities Act of 1933, as amended, and the rules and
regulations thereunder (the "ACT")), and such disposition is in accordance with
the terms and conditions of Sections 8 and 9. In connection with any transfer of
Issued Shares, the Company may require the transferor to provide at the
Optionee's own expense an opinion of counsel to the transferor, satisfactory to
the Company, that such transfer is in compliance with all foreign, federal and
state securities laws (including, without limitation, the Act). Any attempted
disposition of Issued Shares not in accordance with the terms and conditions of
Sections 8 and 9 shall be null and void, and the Company shall not reflect on
its records any change in record ownership of any Issued Shares as a result of
any such disposition, shall otherwise refuse to recognize any such disposition
and shall not in any way give effect to any such disposition of any Issued
Shares. Subject to the foregoing general provisions, Issued Shares may be
transferred pursuant to the following specific terms and conditions:
(a) TRANSFERS TO PERMITTED TRANSFEREES. The Optionee may sell,
assign, transfer or give away any or all of the Issued Shares to Permitted
Transferees; PROVIDED, HOWEVER, that such Permitted Transferee(s) shall, as a
condition to any such transfer, agree to be subject to the provisions of this
Agreement to the same extent as the Optionee (including, without limitation, the
provisions of Sections 8, 9, 10 and 12) and shall have delivered a written
acknowledgment to that effect to the Company.
(b) TRANSFERS UPON DEATH. Upon the death of the Optionee, any Issued
Shares then held by the Optionee at the time of such death and any Issued Shares
acquired thereafter by the Optionee's legal representative pursuant to this
Agreement shall be subject to the provisions of Sections 8, 9, 10 and 12, if
applicable, and the Optionee's estate, executors, administrators,
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personal representatives, heirs, legatees and distributees shall be obligated to
convey such Issued Shares to the Company or its assigns under the terms
contemplated hereby.
(c) COMPANY'S RIGHT OF FIRST REFUSAL. In the event that the Optionee
(or any Permitted Transferee holding Issued Shares subject to this Section 8(c))
desires to sell or otherwise transfer all or any part of the Issued Shares, the
Optionee (or Permitted Transferee) first shall give written notice to the
Company of the Optionee's (or Permitted Transferee's) intention to make such
transfer. Such notice shall state the number of Issued Shares which the Optionee
(or Permitted Transferee) proposes to sell (the "OFFERED SHARES"), the price and
the terms at which the proposed sale is to be made and the name and address of
the proposed transferee. At any time within thirty (30) days after the receipt
of such notice by the Company, the Company or its assigns may elect to purchase
all or any portion of the Offered Shares at the price and on the terms offered
by the proposed transferee and specified in the notice. The Company or its
assigns shall exercise this right by mailing or delivering written notice to the
Optionee (or Permitted Transferee) within the foregoing 30-day period. If the
Company or its assigns elect to exercise its purchase rights under this Section
8(c), the closing for such purchase shall, in any event, take place within
forty-five (45) days after the receipt by the Company of the initial notice from
the Optionee (or Permitted Transferee). In the event that the Company or its
assigns do not elect to exercise such purchase right, or in the event that the
Company or its assigns do not pay the full purchase price within such 45-day
period, the Optionee (or Permitted Transferee) may, within sixty (60) days
thereafter, sell the Offered Shares to the proposed transferee and at the same
price and on the same terms as specified in the Optionee's (or Permitted
Transferee's) notice. Any Shares purchased by such proposed transferee shall no
longer be subject to the terms of this Agreement. Any Shares not sold to the
proposed transferee shall remain subject to this Agreement.
9. COMPANY'S RIGHT OF REPURCHASE.
(a) RIGHT OF REPURCHASE. The Company shall have the right (the
"REPURCHASE RIGHT") upon the occurrence of any of the events specified in
Section 9(b) below (the "REPURCHASE EVENT") to repurchase from the Optionee (or
any Permitted Transferee) some or all (as determined by the Company) of the
Issued Shares held or subsequently acquired upon exercise of this Stock Option
in accordance with the terms hereof by the Optionee (or any Permitted
Transferee) at the price per share specified below. The Repurchase Right may be
exercised by the Company within twenty-four (24) months following the date of
such event (the "REPURCHASE PERIOD"). The Repurchase Right shall be exercised by
the Company by giving the holder written notice on or before the last day of the
Repurchase Period of its intention to exercise the Repurchase Right, and,
together with such notice, tendering to the holder an amount equal to the Fair
Market Value of the shares, determined as provided in Section 9(c). The Company
may assign the Repurchase Right to one or more Persons. Upon such notification,
the Optionee and any Permitted Transferees shall promptly surrender to the
Company any certificates representing the Issued Shares being purchased,
together with a duly executed stock power for the transfer of such Issued Shares
to the Company or the Company's assignee or assignees. Upon the Company's or its
assignee's receipt of the certificates from the Optionee or
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any Permitted Transferees, the Company or its assignee or assignees shall
deliver to him, her or them a check for the Repurchase Price of the Issued
Shares being purchased; PROVIDED, HOWEVER, that the Company may pay the
Repurchase Price for such shares by offsetting and canceling any indebtedness
then owed by the Optionee to the Company. At such time, the Optionee and/or any
holder of the Issued Shares shall deliver to the Company the certificate or
certificates representing the Issued Shares so repurchased, duly endorsed for
transfer, free and clear of any liens or encumbrances.
(b) COMPANY'S RIGHT TO EXERCISE REPURCHASE RIGHT. The Company shall
have the Repurchase Right in the event that any of the following events shall
occur:
(i) The termination of the Optionee's Service Relationship with
the Company and its Subsidiaries for any reason whatsoever, regardless of the
circumstances thereof, and including without limitation upon death, disability,
retirement, discharge or resignation for any reason, whether voluntarily or
involuntarily; or
(ii) The Optionee's or Permitted Transferee's Bankruptcy.
(c) DETERMINATION OF FAIR MARKET VALUE. The fair market value of the
Issued Shares shall be, for purposes of this Section 9, determined by the Board
as of the date the Board elects to exercise its repurchase rights in connection
with a Repurchase Event.
10. DRAG ALONG RIGHT. In the event the holders of a majority of the
Company's equity securities then outstanding (the "MAJORITY SHAREHOLDERS")
determine to sell or otherwise dispose of all or substantially all of the assets
of the Company or all or fifty percent (50%) or more of the capital stock of the
Company in each case in a transaction constituting a change in control of the
Company, to any non-Affiliate(s) of the Company or any of the Majority
Shareholders, or to cause the Company to merge with or into or consolidate with
any non-Affiliate(s) of the Company or any of the Majority Shareholders (in each
case, the "BUYER") in a BONA FIDE negotiated transaction (a "SALE"), the
Optionee, including any Permitted Transferees, shall be obligated to and shall
upon the written request of a Majority Shareholders (subject to Section 6): (a)
sell, transfer and deliver, or cause to be sold, transferred and delivered, to
the Buyer, his or her Issued Shares (including for this purpose all of such
Optionee's or his or her Permitted Transferee's Issued Shares that presently or
as a result of any such transaction may be acquired upon the exercise of options
(following the payment of the exercise price therefor)) on substantially the
same terms applicable to the Majority Shareholders (with appropriate adjustments
to reflect the conversion of convertible securities, the redemption of
redeemable securities and the exercise of exercisable securities as well as the
relative preferences and priorities of preferred stock); and (b) execute and
deliver such instruments of conveyance and transfer and take such other action,
including voting such Issued Shares in favor of any Sale proposed by the
Majority Shareholders and executing any purchase agreements, merger agreements,
indemnity agreements, escrow agreements or related documents, as the Majority
Shareholders or the Buyer may reasonably require in order to carry out the terms
and provisions of this Section 10.
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11. ESCROW ARRANGEMENT.
(a ) ESCROW. In order to carry out the provisions of Sections 8, 9
and 10 of this Agreement more effectively, the Company shall hold any Issued
Shares in escrow together with separate stock powers executed by the Optionee in
blank for transfer, and any Permitted Transferee shall, as an additional
condition to any transfer of Issued Shares, execute a like stock power as to
such Issued Shares. The Company shall not dispose of the Issued Shares except as
otherwise provided in this Agreement. In the event of any repurchase by the
Company (or any of its assigns), the Company is hereby authorized by the
Optionee and any Permitted Transferee, as the Optionee's and each such Permitted
Transferee's attorney-in-fact, to date and complete the stock powers necessary
for the transfer of the Issued Shares being purchased and to transfer such
Issued Shares in accordance with the terms hereof. At such time as any Issued
Shares are no longer subject to the Company's repurchase and first refusal
rights, the Company shall, at the written request of the Optionee, deliver to
the Optionee (or the relevant Permitted Transferee) a certificate representing
such Issued Shares with the balance of the Issued Shares to be held in escrow
pursuant to this Section 11.
(b ) REMEDY. Without limitation of any other provision of this
Agreement or other rights, in the event that the Optionee, any Permitted
Transferees or any other person or entity is required to sell the Optionee's
Issued Shares pursuant to the provisions of Sections 8, 9 and 10 of this
Agreement and in the further event that he or she refuses or for any reason
fails to deliver to the Company or its designated purchaser of such Issued
Shares the certificate or certificates evidencing such Issued Shares together
with a related stock power, the Company or such designated purchaser may deposit
the applicable purchase price for such Issued Shares with a bank designated by
the Company, or with the Company's independent public accounting firm, as agent
or trustee, or in escrow, for the Optionee, any Permitted Transferees or other
person or entity, to be held by such bank or accounting firm for the benefit of
and for delivery to him, her, them or it, and/or, in its discretion, pay such
purchase price by offsetting any indebtedness then owed by the Optionee as
provided above. Upon any such deposit and/or offset by the Company or its
designated purchaser of such amount and upon notice to the person or entity who
was required to sell the Issued Shares to be sold pursuant to the provisions of
Sections 8, 9 and 10, such Issued Shares shall at such time be deemed to have
been sold, assigned, transferred and conveyed to such purchaser, the holder
thereof shall have no further rights thereto (other than the right to withdraw
the payment thereof held in escrow, if applicable), and the Company shall record
such transfer in its stock transfer book or in any appropriate manner.
12. LOCKUP PROVISION. The Optionee agrees, if requested by the Company
and any underwriter engaged by the Company, not to sell or otherwise transfer or
dispose of any Issued Shares (including, without limitation pursuant to Rule 144
under the Act) held by him or her for such period following the effective date
of any registration statement of the Company filed under the Act as the Company
or such underwriter shall specify reasonably and in good faith, not to exceed
one hundred eighty (180) days in the case of the Company's Initial Public
Offering or ninety (90) days in the case of any other public offering.
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13. MISCELLANEOUS PROVISIONS.
(a) TERMINATION. The Company's repurchase rights under Section 9,
the restrictions on transfer of Issued Shares under Section 8(c) and the Drag
Along obligations under Section 10 shall terminate upon the closing of the
Company's Initial Public Offering or upon consummation of any Sale Event, as a
result of which shares of the Company (or successor entity) of the same class as
the Issued Shares are registered under Section 12 of the Exchange Act and
publicly traded on NASDAQ/NMS or any national security exchange.
(b) EQUITABLE RELIEF. The parties hereto agree and declare that
legal remedies may be inadequate to enforce the provisions of this Agreement and
that equitable relief, including specific performance and injunctive relief, may
be used to enforce the provisions of this Agreement.
(c) ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. If, as a result
of any reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar change in the Common Stock, the
outstanding shares of Common Stock are increased or decreased or are exchanged
for a different number or kind of shares of the Company's stock, the
restrictions contained in this Section 8 shall apply with equal force to
additional and/or substitute securities, if any, received by the Optionee in
exchange for, or by virtue of his or her ownership of, Issued Shares.
(d) CHANGE AND MODIFICATIONS. This Agreement may not be orally
changed, modified or terminated, nor shall any oral waiver of any of its terms
be effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by the Company and the Optionee.
(e) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of Delaware without regard to conflict of
law principles.
(f) HEADINGS. The headings are intended only for convenience in
finding the subject matter and do not constitute part of the text of this
Agreement and shall not be considered in the interpretation of this Agreement.
(g) SAVING CLAUSE. If any provision(s) of this Agreement shall be
determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
(h) NOTICES. All notices, requests, consents and other
communications shall be in writing and be deemed given when delivered
personally, by telex or facsimile transmission or when received if mailed by
first class registered or certified mail, postage prepaid. Notices to the
Company or the Optionee shall be addressed as set forth underneath their
signatures below,
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or to such other address or addresses as may have been furnished by such party
in writing to the other.
(i) BENEFIT AND BINDING EFFECT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their respective
successors, permitted assigns, and legal representatives. The Company has the
right to assign this Agreement, and such assignee shall become entitled to all
the rights of the Company hereunder to the extent of such assignment.
(j) DISPUTE RESOLUTION. Except as provided below, any dispute
arising out of or relating to this Agreement or the breach, termination or
validity hereof shall be finally settled by binding arbitration conducted
expeditiously in accordance with the J.A.M.S./Endispute Comprehensive
Arbitration Rules and Procedures (the "J.A.M.S. Rules"). The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C. Sections
1-16, and judgment upon the award rendered by the arbitrators may be entered
by any court having jurisdiction thereof. The place of arbitration shall be
located within the State of New Jersey.
The parties covenant and agree that the arbitration shall commence
within sixty (60) days of the date on which a written demand for arbitration is
filed by any party hereto. In connection with the arbitration proceeding, the
arbitrator shall have the power to order the production of documents by each
party and any third-party witnesses. In addition, each party may take up to
three (3) depositions as of right, and the arbitrator may in his or her
discretion allow additional depositions upon good cause shown by the moving
party. However, the arbitrator shall not have the power to order the answering
of interrogatories or the response to requests for admission. In connection with
any arbitration, each party shall provide to the other, no later than seven (7)
business days before the date of the arbitration, the identity of all persons
that may testify at the arbitration and a copy of all documents that may be
introduced at the arbitration or considered or used by a party's witness or
expert. The arbitrator's decision and award shall be made and delivered within
six (6) months of the selection of the arbitrator. The arbitrator's decision
shall set forth a reasoned basis for any award of damages or finding of
liability. The arbitrator shall not have power to award damages in excess of
actual compensatory damages and shall not multiply actual damages or award
punitive damages or any other damages that are specifically excluded under this
Agreement, and each party hereby irrevocably waives any claim to such damages.
The parties covenant and agree that they will participate in the
arbitration in good faith. This Section 13(j) applies equally to requests for
temporary, preliminary or permanent injunctive relief, except that in the case
of temporary or preliminary injunctive relief any party may proceed in court
without prior arbitration for the limited purpose of avoiding immediate and
irreparable harm.
Each of the parties hereto (i) hereby irrevocably submits to the
jurisdiction of any United States District Court of competent jurisdiction for
the purpose of enforcing the award or decision in any such proceeding, (ii)
hereby waives, and agrees not to assert, by way of motion, as a
11
defense, or otherwise, in any such suit, action or proceeding, any claim that it
is not subject personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution (except as
protected by applicable law), that the suit, action or proceeding is brought in
an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Agreement or the subject matter hereof may not be enforced
in or by such court, and hereby waives and agrees not to seek any review by any
court of any other jurisdiction which may be called upon to grant an enforcement
of the judgment of any such court. Each of the parties hereto hereby consents to
service of process by registered mail at the address to which notices are to be
given. Each of the parties hereto agrees that its, his or her submission to
jurisdiction and its, his or her consent to service of process by mail is made
for the express benefit of the other parties hereto. Final judgment against any
party hereto in any such action, suit or proceeding may be enforced in other
jurisdictions by suit, action or proceeding on the judgment, or in any other
manner provided by or pursuant to the laws of such other jurisdiction.
(k) COUNTERPARTS. For the convenience of the parties and to
facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
[SIGNATURE PAGE FOLLOWS]
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of the date first above written.
DOV PHARMACEUTICAL, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: CEO
Address:
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of the date first above written.
OPTIONEE:
/s/ Xxxx Xxxxxxxx
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Name:
Address:
9 Maviners Cove
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Xxxxxxxxx, XX 00000
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(000) 000-0000
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APPENDIX A
STOCK OPTION EXERCISE NOTICE
DOV Pharmaceutical, Inc.
Attention: Chief Financial Officer
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Pursuant to the terms of my stock option agreement dated __________
(the "Agreement") under the DOV Pharmaceutical, Inc. 2000 Stock Option and Grant
Plan, I, [Insert Name] ________________, hereby [Circle One] partially/fully
exercise such option by including herein payment in the amount of $______
representing the purchase price for [Fill in number of Option Shares] _______
option shares. I have chosen the following form(s) of payment:
[ ] 1. Cash
[ ] 2. Certified or bank check payable to DOV Pharmaceutical, Inc.
[ ] 3. Other (as described in the Agreement (please describe))
--------------------------------------------------------------.
Sincerely yours,
------------------------------------
Name:
Address:
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