Registration No. 33-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Copy to: Salomon R. Sassoon, Esq.
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
(212) 735-8600
CALCULATION OF REGISTRATION FEE
================================================================================================================ Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of to be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted under 1993 Stock Option Plan 589,614 $3.15(1) $2,069,545.14 $627.14 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options and stock appreciation rights which may be granted under 1996 Incentive Plan 464,470 $15.50(2) $7,199,285 $2,181.60 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted under 1996 Incentive Plan 368,864 $6.625(3) $2,443,724 $740.52 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Philip N. Sussman under a Written Compensation Contract 33,334 $3.60 $120,002.40 $36.36 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to John Manfredi under a Written Compensation Contract 13,334 $3.60 $48,002.40 $14.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Andrew Murphy under a Written Compensation Contract 13,334 $3.60 $48,002.40 $14.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Jeremy Paul under a Written Compensation Contract 13,334 $3.60 $48,002.40 $14.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Lauren Silverman under a Written Compensation Contract 13,334 $3.60 $48,002.40 $14.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Joshua Trueheart under a Written Compensation Contract 13,334 $3.60 $48,002.40 $14.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to James S. Rielly under a Written Compensation Contract 6,667 $3.60 $24,001.20 $ 7.27 ================================================================================================================ |
================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Thomas F. Deuel under a Written Compensation Contract 6,667 $3.60 $24,001.20 $ 7.27 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Norman R. Klinman under a Written Compensation Contract 6,667 $3.60 $24,001.20 $ 7.27 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Elliott M. Ross under a Written Compensation Contract 5,501 $3.60 $19,803.60 $ 6.00 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Jeremy Thorner under a Written Compensation Contract 6,667 $3.60 $24,001.20 $ 7.27 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Arnold Levine under a Written Compensation Contract 6,667 $3.60 $24,001.20 $ 7.27 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to John Ransom under a Written Compensation Contract 5,040 $3.60 $18,144 $ 5.50 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Christine Klein under a Written Compensation Contract 4,667 $3.60 $16,801.20 $ 5.09 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Suzanne K. Wakamoto under a Written Compensation Contract 2,500 $3.60 $9,000 $ 2.73 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Christopher Pleiman under a Written Compensation Contract 1,667 $3.60 $6,001.20 $ .82 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Algis Anilionis under a Written Compensation Contract 1,000 $3.60 $3,600.00 $ 1.09 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Anupama K. Nadkarni under a Written Compensation Contract 834 $3.60 $3,002.40 $ 0.91 ================================================================================================================ |
================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Mitchell Silverstein under a Written Compensation Contract 834 $3.60 $3,002.40 $ 0.91 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Michael A. Spruyt under a Written Compensation Contract 834 $3.60 $3,002.40 $ 0.91 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to David Fruhling under a Written Compensation Contract 250 $3.60 $3,002.40 $ 0.27 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Theodore Altman under a Written Compensation Contract 12,000 $6.75 $81,000 $24.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Harold First under a Written Compensation Contract 12,000 $6.75 $81,000 $24.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Carl Icahn under a Written Compensation Contract 12,000 $6.75 $81,000 $24.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Peter Liebert under a Written Compensation Contract 12,000 $6.75 $81,000 $24.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Robert Mitchell under a Written Compensation Contract 12,000 $6.75 $81,000 $24.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Mark Rachesky under a Written Compensation Contract 12,000 $6.75 $81,000 $24.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to William Scott under a Written Compensation Contract 12,000 $6.75 $81,000 $24.55 ================================================================================================================ Common Stock, par value $0.01 per share, issuable upon exercise of options granted to Jack Wasserman under a Written Compensation Contract 12,000 $6.75 $81,000 $24.55 ================================================================================================================ |
================================================================================================================
Common Stock, par
value $0.01 per
share, issuable upon
exercise of options
granted to Samuel D.
Waksal under a
Written Compensation
Contract 12,000 $6.75 $81,000 $24.55
================================================================================================================
Common Stock, par
value $0.01 per
share, issuable upon
exercise of options
granted to John C.
Cambier under a
Written Compensation
Contract 166,667 $1.50 $250,000.50 $75.76
================================================================================================================
Common Stock, par
value $0.01 per
share, issuable upon
exercise of options
granted to Gary L.
Johnson, under a
Written Compensation
Contract 166,667 $1.50 $250,000.50 $75.76
================================================================================================================
Common Stock, par
value $0.01 issuable
upon exercise of
options granted to
James R. Broach,
under a Written
Compensation
Contract 141,667 $2.571 $364,225.85 $110.37
================================================================================================================
Total Registration Fee . . . . . . . . . . . . . . $ 4,202.75
================================================================================================================
|
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents (or parts thereof) filed or to be filed with the Securities and Exchange Commission (the "Commission") by Cadus Pharmaceutical Corporation (the "Company") are incorporated by reference in this registration statement:
(a) The Company's Prospectus, dated July 17, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 1996;
(c) All other reports filed by the Company pursuant to Section 13(a) and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since July 17, 1996, the effective date of the Prospectus referred to in (a) above;
(d) The description of the Company's common stock, $0.01 par value per share (the "Common Stock"), contained in the Company's registration statement on Form 8-A filed on June 18, 1996 (and which became effective on July 17, 1996) pursuant to Section 12(g) of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
The exhibit index appears on page 7 of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). Article Eighth of the Company's Amended and Restated Certificate of Incorporation and Section 6.4 of the Company's By-Laws provides for indemnification to the fullest extent authorized by the Delaware General Corporation Law. The Company has also entered into agreements with each of its directors (other than Mr. Icahn) that provide for the indemnification of and the advancement of expenses to such persons to the greatest extent permitted by Delaware law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 Cadus Pharmaceutical Corporation 1993 Stock Option Plan (incorporated by reference to Exhibit 10.2 to the Company's Registration Statement on Form S-1, as amended (Commission File Number 333-4441), which became effective on July 17, 1996).
4.2 Cadus Pharmaceutical Corporation 1996 Incentive Plan (incorporated by reference to Exhibit 10.3 to the Company's Registration Statement on Form S-1, as amended (Commission File Number 333-4441), which became effective on July 17, 1996).
4.2.1 Amendment to Cadus Pharmaceutical Corporation 1996 Incentive Plan.
4.2.2 Form of Incentive Stock Option Agreement utilized in connection with issuances of incentive stock options under the Cadus Pharmaceutical Corporation 1996 Incentive Plan.
4.3 Form of Stock Option Agreement, made as of December 19, 1995, between Cadus Pharmaceutical Corporation and each of the following employees of the Company: Philip N. Sussman, John Manfredi, Andrew Murphy, Jeremy Paul, Lauren Silverman, Joshua Trueheart, James S. Rielly, Thomas F. Deuel, Norman R. Klinman, Elliott M. Ross, Jeremy Thorner, Arnold Levine, John Ransom, Christine Klein, Suzanne K. Wakamoto, Christopher Pleiman, Algis Anilionis, Anupama K. Nadkarni, Mitchell Silverstein, Michael A. Spruyt, and David Fruhling.
4.4 Stock Option Agreement, dated as of November 1, 1994, between Cadus Pharmaceutical Corporation and John C. Cambier (incorporated by reference to Exhibit 10.21 to the Company's Registration Statement on Form S-1, as amended (Commission File Number 333-4441), which became effective on July 17, 1996).
4.5 Stock Option Agreement, dated as of November 1, 1994, between Cadus Pharmaceutical Corporation and Gary L. Johnson (incorporated by reference to Exhibit 10.22 to the Company's Registration Statement on Form S-1, as amended (Commission File Number 333-4441), which became effective on July 17, 1996).
4.6 Stock Option Agreement, dated as of December 18, 1995, between Cadus Pharmaceutical Corporation and James R. Broach (incorporated by reference to Exhibit 10.26 to the Company's Registration Statement on Form S-1, as amended (Commission File Number 333-4441), which became effective on July 17, 1996).
4.7 Form of Stock Option Agreement, made as of November 15, 1996, between Cadus Pharmaceutical Corporation and each of the following non-employee directors of the Company: Theodore Altman, Harold First, Carl Icahn, Peter Liebert, Robert Mitchell, Mark Rachesky, William Scott, Jack Wasserman, and Samuel D. Waksal.
4.8 Specimen of Common Stock certificate of Cadus Pharmaceutical Corporation (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-1, as amended (Commission File Number 333-4441), which became effective on July 17, 1996).
4.9 Amended and Restated Certificate of Incorporation of Cadus Pharmaceutical Corporation filed with the Secretary of the State of Delaware on July 22, 1996.
4.10 By-Laws, as amended (incorporated by reference to Exhibit 3.4 to the Company's Registration Statement on Form S-1, as amended (Commission File Number 333- 4441), which became effective on July 17, 1996).
5. Opinion of Morrison Cohen Singer & Weinstein, LLP, as to the validity of the securities being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Morrison Cohen Singer & Weinstein, LLP (contained in its Opinion filed as part of Exhibit 5).
24. Powers of Attorney (included on the signature page of the registration statement filed February 14, 1997).
Item 9. Undertakings
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
H. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tarrytown, State of New York, on this 14th day of February, 1997.
CADUS PHARMACEUTICAL CORPORATION
By: s/Jeremy M. Levin
-------------------------------------
Jeremy M. Levin
President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jeremy M. Levin and James S. Rielly, or either of them, each with the power of substitution, his or her attorney-in-fact, to sign any amendments to this registration statement and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorney-in-fact, or his or her substitute, may do or choose to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
S/Jeremy M. Levin President and Chief Executive February 14, 1997
- ---------------------- Officer (Principal Executive
Jeremy M. Levin Officer) and Chairman of the
Board of Directors
S/James S. Rielly Director of Finance, Controller, February 14, 1997
- ---------------------- Treasurer and Secretary
James S. Rielly (Principal Financial and
Accounting Officer)
Director February ___, 1997
- ----------------------
Carl C. Icahn
Director February ___, 1997
- ----------------------
Theodore Altman
Director February ___, 1997
- ----------------------
Harold First
S/Peter Liebert Director February 14, 1997
- ----------------------
Peter Liebert
S/Robert Mitchell Director February 14, 1997
- ----------------------
Robert Mitchell
S/Lawrence Muschek Director February 14, 1997
- ----------------------
Lawrence Muschek
Director February ___, 1997
- ----------------------
Mark H. Rachesky
S/Nicole Vitullo Director February 14, 1997
- ----------------------
Nicole Vitullo
Director February ___, 1997
- ----------------------
Samuel D. Waksal
S/Jack G. Wasserman Director February 14, 1997
- ----------------------
Jack G. Wasserman
|
EXHIBIT INDEX
No. Description
- --- -----------
4.1 Cadus Pharmaceutical Corporation 1993 Stock
Option Plan (incorporated by reference).
4.2 Cadus Pharmaceutical Corporation 1996 Incentive
Plan (incorporated by reference).
4.2.1 Amendment to Cadus Pharmaceutical Corporation 1996 Incentive Plan
4.2.2 Form of Incentive Stock Option Agreement utilized in connection with
issuances of incentive stock options under the Cadus Pharmaceutical
Corporation 1996 Incentive Plan.
4.3 Form of Stock Option Agreement between Cadus Pharmaceutical
Corporation and each of the following employees of the Company: Philip
N. Sussman, John Manfredi, Andrew Murphy, Jeremy Paul, Lauren
Silverman, Joshua Trueheart, James S. Rielly, Thomas F. Deuel,
Norman R. Klinman, Elliott M. Ross, Jeremy Thorner, Arnold
Levine, John Ransom, Christine Klein, Suzanne K. Wakamoto,
Christopher Pleiman, Algis Anilionis, Anupama K.
Nadkarni, Mitchell Silverstein, Michael A. Spruyt, and David Fruhling.
4.4 Stock Option Agreement, dated as of November 1, 1994, between Cadus
Pharmaceutical Corporation and John C. Cambier (incorporated by
reference).
4.5 Stock Option Agreement, dated as of November 1, 1994, between Cadus
Pharmaceutical Corporation and Gary L. Johnson (incorporated by
reference).
4.6 Stock Option Agreement, dated as of December 18, 1995, between Cadus
Pharmaceutical Corporation and James R. Broach (incorporated by
reference).
4.7 Form of Stock Option Agreement between Cadus Pharmaceutical
Corporation and each of the following non-employee directors of the
Company: Theodore Altman, Harold First, Carl Icahn, Peter Liebert,
Robert Mitchell, Mark Rachesky, William Scott, Jack Wasserman,
and Samuel D. Waksal.
4.8 Specimen of Common Stock certificate of Cadus Pharmaceutical
Corporation (incorporated by reference).
4.9 Amended and Restated Certificate of Incorporation of Cadus
Pharmaceutical Corporation filed with the Secretary of State of the
State of Delaware on July 22, 1996.
4.10 By-Laws, as amended (incorporated by reference).
5. Opinion of Morrison Cohen Singer & Weinstein, LLP, as to the
validity of the securities being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Morrison Cohen Singer & Weinstein, LLP (contained in its
Opinion filed as Exhibit 5).
24. Powers of Attorney (included on the signature page of the
registration statement filed February 14, 1997).
|
AMENDMENT NO. 1
TO
CADUS PHARMACEUTICAL CORPORATION
1996 INCENTIVE PLAN
This Amendment No. 1 to the Cadus Pharmaceutical Corporation 1996 Incentive Plan (the "Plan") was adopted by the Board of Directors of Cadus Pharmaceutical Corporation on December 12, 1996.
1. All references in the Plan to the par value of the common stock of Cadus Pharmaceutical Corporation is hereby amended from "$0.001" per share to "$0.01" per share.
2. The last sentence of Section 1.1 is hereby amended to read as follows:
"Upon approval of the Plan by the Board of Directors of the Corporation (the "Board"), awards may be made by the Board or the Board's Compensation Committee (the "Committee"), as provided herein."
3. The first sentence of Section 2.2 of the Plan is hereby amended to read as follows:
"2.2 Maximum Shares Available. The maximum aggregate number of shares of Common Stock available for award under the Plan is 833,334, subject to adjustment pursuant to Article 12 hereof. The maximum aggregate number of shares of Common Stock or Options or Stock Appreciation Rights with respect thereto that may be awarded under the Plan to any individual during any calendar year is 300,000, subject to adjustment pursuant to Article 12 hereof."
4. Section 3.1 of the Plan is hereby amended in its entirety to read as follows:
"3.1 Committee. Awards shall be determined, and the Plan shall be administered, by the Board or the Committee. Whenever the Plan grants power and authority to the Committee it shall also be deemed to have granted the same power and authority to the Board. The Committee shall be appointed from time to time by the Board, which Committee shall consist of not less than two (2) members of the Board; provided, however, that in order to permit transactions pursuant to the Plan by employees of the Corporation to be exempt from the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), each member of the Committee shall be a "Non-Employee Director," as that term is defined in subparagraph (b)(3)(i) of Rule 16b-3 promulgated under the 1934 Act, as in effect from time to time ("Rule 16b-3"); and provided further, however, that each member of the Committee shall also be an "outside director" as that term is defined in Treasury Regulation Section 1.162-27(e)(3).
5. The proviso in the first sentence of Section 3.3 of the Plan is hereby amended to read as follows:
"provided, however, that the Committee may not delegate any of its
responsibilities hereunder to any director who is not a
"Non-Employee Director," as that terms is defined in subparagraph
(b)(3)(i) of Rule 16b-3."
6. The first paragraph of Article 4 of the Plan is hereby amended to read as follows:
"Awards may be made to all directors, employees and consultants of the Corporation or any of its subsidiaries (subject to such requirements as may be prescribed by the Board or the Committee). In determining the directors, employees and consultants to whom awards shall be granted and the number of shares to be covered by each award, the Board and the Committee shall take into account the nature of the services rendered by such directors, employees and consultants, their present and potential contributions to the success of the Corporation and its subsidiaries and such other factors as the Board or the Committee in its sole discretion shall deem relevant."
EXHIBIT 4.2.2
THE OPTION GRANTED PURSUANT TO THIS INCENTIVE STOCK OPTION AGREEMENT (THE "OPTION") AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE OPTION OR THE SHARES UNDER THE SECURITIES ACT, OR AN OPINION OF COUNSEL, WHICH IS SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
CADUS PHARMACEUTICAL CORPORATION
1996 INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
This Incentive Stock Option Agreement (this "Agreement") is effective as of __________ 1996, between Cadus Pharmaceutical Corporation, a Delaware corporation (the "Company"), and _________________ (the "Optionee").
WITNESSETH:
WHEREAS, the Company's Board of Directors established the 1996 Incentive Plan of Cadus Pharmaceutical Corporation (the "Plan") and the Plan was approved by the stockholders of the Company; and
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the "Committee") has granted this Option to the Optionee;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties hereto agree as follows:
1. Grant of Option
(a) Option. On the terms and conditions set forth in the Plan and this Agreement, the Company hereby grants to the Optionee this Option to purchase an aggregate of _________ shares of common stock, $.01 par value per share, of the Company (the "Shares") at a price of $____ per Share, such exercise price being, in the judgment of the Committee, equal to the "Market Price" (as defined in the Plan) of a Share at the date hereof. This Option is intended to qualify as an "incentive stock option" under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), and shall be construed accordingly.
(b) Stock Option Plan. This Option is granted pursuant to the Plan, a copy of which the Optionee acknowledges having received, read and understood. The provisions of the Plan are hereby incorporated into this Agreement.
2. Right to Exercise.
Subject to the terms and conditions of the Plan and this Agreement, this Option shall become exercisable in four equal installments. Each installment shall consist of twenty-five percent (25%) of the total number of Shares subject to this Option. Such installments shall become exercisable on the first, second, third and fourth anniversaries of ________. The number of Shares included in each installment shall be rounded to the nearest integer.
3. No Transfer.
This Option is not transferable by Optionee otherwise than by will or the laws of descent and distribution. During the Optionee's lifetime, this Option is only exercisable by Optionee.
4. Exercise Procedures.
(a) Notice of Exercise. The Optionee or the Optionee's representative may exercise this Option by giving written notice to the Secretary of the Company in the manner provided in the Plan and substantially in the form annexed hereto as Exhibit A. The notice shall specify the election to exercise this Option, the number of Shares for which it is being exercised and the form of payment (if more than one form is available). The notice shall be signed by the person exercising this Option. In the event that this Option is being exercised by the representative of the Optionee, the notice shall be accompanied by proof (satisfactory to the Company) of the representative's right to exercise this Option. The Optionee or the Optionee's representative shall deliver to the Secretary of the Company, at the time of giving the notice, payment in a form permissible under Section 5 for the full amount of the exercise price applicable to that portion of the Option being exercised.
(b) Issuance of Shares. After receiving a proper notice of exercise, the Company shall cause to be issued a certificate or certificates for the Shares as to which this Option has been exercised, registered in the name of the person exercising this Option. The Company shall cause such certificate or certificates to be delivered to or upon the order of the person exercising this Option.
(c) Withholding Taxes. In the event that the Company determines that it is required to withhold foreign, federal, state or local tax as a result of the exercise of this Option, the Optionee, as a condition to the exercise of this Option, shall make arrangements satisfactory to the Company to enable it to satisfy all withholding
requirements. The Optionee shall also make the arrangements satisfactory to the Company to enable it to satisfy any withholding requirements that may arise in connection with the disposition of Shares purchased by exercising this Option.
5. Payment for Stock.
(a) Cash. All or part of the exercise price may be paid in lawful money of the United States of America.
(b) Surrender of Stock. All or part of the exercise price may be paid by the surrender of Shares in good form for transfer. Such Shares must have a Market Price (as determined by the Committee) on the date of exercise of this Option which, together with any amount paid in another form permissible under this Section 5, is equal to the aggregate exercise price.
(c) Exercise/Sale. All or part of the exercise price and any withholding taxes may be paid by the delivery of an irrevocable direction (acceptable to the Company) to a securities broker approved by the Company to sell Shares and to deliver all or part of the sales proceeds to the Company.
(d) Exercise/Pledge. All or part of the exercise price and any withholding taxes may be paid by the delivery of an irrevocable direction (acceptable to the Company) to a securities broker or lender approved by the Company to pledge Shares as security for a loan and to deliver all or part of the loan proceeds to the Company.
6. Term and Expiration.
This Option shall expire on the day before the tenth anniversary of the date hereof, unless sooner terminated as provided in the Plan, and may be exercised during such term only in accordance with the Plan and this Agreement.
7. No Registration Rights.
The Company may, but shall not be obligated to, register or qualify the sale of Shares under the Securities Act or any other applicable law. The Company shall not be obligated to take any affirmative action in order to cause the sale of Shares under this Agreement to comply with any law.
8. Securities Law Restrictions.
(a) Restrictions. Regardless of whether the offering and sale of Shares under the Plan have been registered under the Securities Act or have been registered or qualified under the securities laws of any state, the Company at its direction may impose restrictions upon the sale, pledge or other transfer of such Shares (including
the placement of appropriate legends on stock certificates) if, in the judgment of the Company and its counsel, such restrictions are necessary or desirable in order to achieve compliance with the Securities Act, the securities laws of any state or any other law or with restrictions imposed by the Company's underwriters.
(b) Investment Intent at Grant. The Optionee represents and agrees that the Shares to be acquired upon exercising this Option will be acquired for investment, and not with a view to the sale or distribution thereof.
(c) Investment Intent at Exercise. In the event that the sale of Shares under the Plan is not registered under the Securities Act but an exemption is available which requires an investment representation or other representation, the Optionee shall represent and agree at the time of exercise that the Shares being acquired upon exercising this Option are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations as are deemed necessary or appropriate by the Company and its counsel.
(d) Legend. All certificates evidencing Shares acquired under this Agreement in an unregistered transaction shall bear the following restrictive legend (and such other restrictive legends as are required or deemed advisable under the provisions of any applicable law):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE. THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES LAWS, OR THE AVAILABILITY, IN THE OPINION OF COUNSEL, OF AN EXEMPTION FROM REGISTRATION THEREUNDER."
(e) Administration. Any determination by the Company and its counsel in connection with any of the matters set forth in this Section 8 shall be conclusive and binding on the Optionee and all other persons.
9. Shares and Adjustments.
(a) General. In the event of a subdivision of the outstanding shares
of common stock of the Company (the "Common Stock"), a stock split, a reverse
stock split, a declaration of a dividend payable in Common Stock, a declaration
of a dividend payable in a form other than Common Stock in an amount that has a
material effect on the value of Common Stock, a combination or consolidation of
the outstanding shares of Common Stock into a lesser number of shares of Common
Stock, a recapitalization, a spinoff, a reclassification or a similar
occurrence, the Committee shall make appropriate adjustments in one or both of
(i) the number of shares of Common Stock covered by this Option or (ii) the
exercise price to prevent dilution or enlargement of the Optionee's rights
hereunder.
(b) Reorganizations. In the event that the Company is a party to a merger or other reorganization, this Option shall be subject to the agreement of merger or reorganization. Such agreement shall provide (i) for the assumption of outstanding options by the surviving corporation or its parent, (ii) for their continuation by the Company (if the Company is the surviving corporation), (iii) for payment of a cash settlement equal to the difference between the amount to be paid for one Share under such agreement and the exercise price, or (iv) for the acceleration of their exercisability followed by the cancellation of options not exercised, in all cases except subsection 9(b)(iii) without the Optionee's consent. The Optionee's consent shall be required for a cash settlement under subsection 9(b)(iii) above. Any cancellation shall not occur until after such acceleration is effective and the Optionee has been given at least 30 days notice of both such acceleration and the intended date of cancellation.
(c) Reservation of Rights. Except as provided in this Section 9, the Optionee shall have no rights by reason of (i) any subdivision or consolidation of shares of stock of any class, (ii) the payment of any dividend or (iii) any other increase or decrease in the number of shares of stock of any class. Any issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or exercise price of the Shares subject to this Option. The grant of this Option shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets.
10. "Lock-Up" Agreement.
The Optionee, if so requested by the Company and an underwriter of Common Stock or other securities of the company, shall not sell, grant any option or right to buy or sell, or otherwise transfer or dispose of in any manner, whether in privately-negotiated or open-market transactions, any Common Stock or other securities of the Company held by him or which he has the right to acquire during the 180-day period following the effective date of a registration statement of the Company filed with the Securities and Exchange Commission in connection with such offering or such shorter period as such underwriter shall have advised the Company in writing is adequate to permit
the successful and orderly distribution of such Common Stock or other securities; provided, however, that such "lock-up" agreement shall be in writing and in form and substance satisfactory to the Company and such underwriter. The Company may impose stop-transfer instructions with respect to the shares subject to the foregoing restrictions until the end of said 180-day period. This Section 10 shall survive the termination or exercise of this Option.
11. Miscellaneous Provisions.
(a) Entire Agreement; Amendments. This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof. This Agreement may not be amended except by a written instrument signed by both parties hereto.
(b) Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by a duly authorized officer and the Optionee has personally executed this Agreement.
CADUS PHARMACEUTICAL CORPORATION
__________________ By:______________________________
[Optionee] James S. Rielly, Treasurer
Optionee's Address:
EXHIBIT A
[Date of Exercise]
Cadus Pharmaceutical Corporation
777 Old Saw Mill River Road
Tarrytown, NY 10591-6705
Attention: Corporate Secretary
Re: Stock Option
Dear Sir:
I am the holder of a stock option granted to me by Cadus Pharmaceutical Corporation (the "Company"), pursuant to an Incentive Stock Option Agreement dated as of ___________, to purchase _______________ shares of Common Stock of the Company ("Shares"). I hereby exercise such option with respect to ____________ Shares, the total purchase price for which is $________, and [I enclose a certified, bank cashier's or other acceptable check payable to the order of the Company in the amount of $________, representing the total purchase price for the Shares] [I hereby elect to pay the purchase price by delivering to the Company _____ shares of Common Stock of the Company having a fair market value equal to $___________ from the Shares I am purchasing pursuant to the exercise of such option] [I enclose an irrevocable direction to a securities broker to deliver sales or loan proceeds to the Company in the amount of $________, representing the total purchase price for the Shares]. The certificate or certificates representing the Shares should be registered in my name and should be forwarded to me at _________________________________________.
Please acknowledge receipt of the exercise of my stock option on the attached copy of this letter.
Very truly yours,
[OPTIONEE]
RECEIPT ACKNOWLEDGED:
CADUS PHARMACEUTICAL CORPORATION
By: ___________________________
EXHIBIT 4.3
STOCK OPTION AGREEMENT
AGREEMENT made as of December 19, 1995 by and between CADUS PHARMACEUTICAL CORPORATION (the "Corporation"), a Delaware corporation having offices at 777 Old Saw Mill River Road, Tarrytown, New York 10591-8705, and _________________ ("Employee"), residing at ______________________________________________.
W I T N E S S E T H:
WHEREAS, Employee desires to participate in the equity ownership of the Corporation and the Corporation desires to provide Employee with an added incentive to remain in the employ of the Corporation by granting to Employee the right and option, subject to certain conditions, to purchase shares of the common stock, $.001 par value, of the Corporation (the "Common Stock");
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties hereto agree as follows:
1. Grant of Stock Option.
As an additional inducement to Employee to continue in the employ of
the Corporation, the Corporation hereby grants to Employee the right and option
(the "Option") to purchase from the Corporation One Hundred Thousand (100,000)
shares of Common Stock (the "Shares"), subject to adjustment as provided in
Paragraph 7 hereof, on the terms and subject to the conditions hereinafter set
forth.
2. Purchase Price.
Subject to adjustment as provided in Paragraph 7 hereof, the purchase price (the "Option Purchase Price") to be paid upon exercise of the Option shall be $1.20 per share.
3. Exercisability of Option.
(a) The Option shall be exercisable, on a cumulative basis, during a period of ten (10) years commencing from the date hereof and terminating at the close of business on December 19, 2005, as follows:
(i) up to ______ Shares subject to the Option may be purchased by Employee after December 19, 1996;
(ii) up to an additional ______ Shares subject to the Option may be purchased by Employee after December 19, 1997;
(iii) up to an additional ______ Shares subject to the Option may be purchased by Employee after December 19, 1998; and
(iv) up to an additional ______ Shares subject to the Option may be purchased by Employee after December 19, 1999.
(b) The unexercised portion of the Option will automatically and without notice terminate and become null and void at the close of business on December 19, 2005. If, however, Employee's employment with the Corporation or parent or subsidiary corporation terminates before the close of business on December 31, 2005, the Option will terminate on the applicable date as described below; provided, however, that none of the events described below shall extend the period of exercisability of the Option beyond the close of business on December 31, 2005:
(i) the date of termination, if Employee voluntarily terminates his employment or his employment is terminated by the Corporation for "cause" (as hereinafter defined);
(ii) the expiration of twelve (12) months after Employee's death or the termination of his employment by reason of his "disability" (as hereinafter defined); or
(iii) the expiration of three (3) months from the date of termination of Employee's employment by the Corporation without cause.
(c) For the purposes of this Agreement, the term "cause" shall mean the commission by Employee of any material act of malfeasance, fraud, dishonesty, or breach of fiduciary duty against the Corporation or any unauthorized disclosure of confidential information by Employee. The determination of cause by the Board of Directors of the Corporation shall be final and binding for all purposes.
(d) For purposes of this Agreement, the term "disability" shall mean such physical or mental illness or incapacity or Employee as shall (i) prevent Employee from performing his customary services and duties to the Corporation and (ii) continue during any period of one hundred twenty (120) consecutive days or for periods aggregating one hundred eighty (180) days in any 365 day period.
4. Exercise of Option.
(a) The Option may be exercised by Employee as to all or a portion of the Shares (but not as to a fractional share of Common Stock) as to which the Option has become exercisable, at any time within the applicable period specified in Paragraph 3 hereof, by the giving of written notice of the exercise thereof to the Corporation in the manner provided in Paragraph 14 hereof and substantially in the form annexed hereto as Exhibit A, which notice shall be accompanied by payment in full of the purchase price therefor by certified or bank cashier's or other acceptable check. Such exercise shall be effective upon receipt by the Corporation of such written notice and payment; and Employee, to the extent permitted by law, shall be deemed the owner of the Shares being purchased as of the close of business on the date of such exercise and payment. The Corporation shall cause a certificate or certificates representing the Shares purchased to be delivered to Employee within ten (10) days after the effective date of such exercise. Employee agrees that such certificate or certificates shall bear such legend or legends as the Board of Directors of the Corporation, in its sole discretion, determines to be necessary or appropriate to prevent a violation of, or to perfect an exemption from, the registration requirements of the Securities Act of 1933, as amended (the "Securities Act").
(b) In lieu of the check provided for in subparagraph 4(a) above, Employee may, at his sole option and to the extent permitted by applicable law, pay for the purchase price of the Shares being purchased by the exercise of the Option, by delivering to the Corporation shares of Common Stock (in proper form for transfer and accompanied by all requisite stock transfer tax stamps or cash in lieu thereof) owned by Employee having a Fair Market Value (as hereinafter defined in subparagraph 4(c) hereof) equal to such purchase price. Employee may elect to make such delivery to the Corporation of shares of Common Stock from Shares he is purchasing pursuant to his exercise of the Option by including such election in his notice of exercise.
(c) The Fair Market Value of a share of Common Stock as of a particular date (the "Determination Date") shall mean:
(i) If the Corporation's Common Stock is traded on an exchange or is quoted through the National Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") National Market System, then the closing or last sale price, respectively,
reported for the last business day immediately preceding the Determination Date.
(ii) If the Corporation's Common Stock is not listed on an exchange or quoted on the NASDAQ National Market System 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 subparagraph 4(c)(iv) and 4(c)(v) below, if the Corporation's Common Stock is not publicly traded, then as determined in good faith by the Corporation's Board of Directors upon a review of relevant factors.
(iv) If the Determination Date is the date on which the Corporation's Common Stock is first sold to the public by the Corporation in a firm commitment public offering under the Securities Act, then the initial public offering price (before deducting commissions, discounts or expenses) at which the Common Stock is sold in such offering.
(v) If the Determination Date is the date of a liquidation, dissolution or winding up of the Corporation, then all amounts to be payable per share to holders of the Common Stock in the event of such liquidation, dissolution or winding up.
5. Purchase for Investment.
Employee agrees that at the request of the Corporation and upon exercise of the Option, he shall execute and deliver to the Corporation a written statement, in form satisfactory to the Corporation, representing and warranting that he is purchasing the Shares for his own account, for investment only and not with a view to the resale or distribution thereof and that any subsequent offer for sale or sale of any of such Shares shall be made either pursuant to (a) a registration statement on an appropriate form under the Securities Act, which registration statement has become effective and is current with respect to the shares being offered and sold, or (b) a specific exemption from the registration requirements of the Securities Act, but in claiming such exemption Employee shall, prior to any offer for sale or sale of such shares, obtain a favorable written opinion from counsel for or approved by the Corporation as to the availability of such exemption.
6. Non-Transferability of Option.
The Option shall not be transferable by Employee other than by will or the laws of descent and distribution.
7. Adjustment of Shares.
If any change is made in the Shares deliverable upon exercise of the Option (through merger, consolidation, reorganization, recapitalization, stock dividend, stock split, split-up, spin-off, split-off, subdivision or combination of shares, exchange of shares, issuance of rights to subscribe, change in capital structure or similar event), such adjustments or substitutions shall be made by the Board of Directors of the Corporation in or for the Shares (including adjustments in the number of Shares and in the per share price of Shares subject to the Option) as the Board of Directors of the Corporation reasonably shall determine to be appropriate and equitable to prevent dilution or enlargement of Employee's rights hereunder.
8. Covenants of the Corporation.
The Corporation hereby covenants and agrees that:
(a) During the period within which the Option may be exercised, the Corporation shall at all times reserve and keep available by all necessary corporate action out of its shares of Common Stock for the purpose of issuance or transfer upon exercise of the Option the number of shares of Common Stock included in the Shares and such additional securities as may from time to time be deliverable hereunder. Such shares may be authorized but unissued shares, or may be shares held in the treasury of the Corporation or a combination thereof, at the option of the Corporation.
(b) All shares which may be issued upon exercise of the Option or delivered pursuant to this Agreement will, upon issuance and payment therefor as provided herein, be validly issued, fully paid, nonassessable and free from all liens and charges with respect to the issue thereof.
9. Representations and Warranties of the Corporation.
The Corporation represents and warrants to Employee as follows:
(a) The Corporation is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The Corporation has all requisite legal and corporate power to execute this Agreement. The execution, delivery and performance by the Corporation of this Agreement and the consummation of the transactions contemplated hereby have been authorized by all necessary corporate action on the part of the Corporation.
(c) This Agreement has been duly executed by the Corporation and, assuming due and valid execution and delivery of the same by Employee, constitutes the valid and legally binding obligation of the Corporation enforceable in accordance with its terms.
10. No Fractional Shares.
Upon the exercise of the Option, the Corporation shall not be required to issue any fractional shares or scrip certificates evidencing any fractional interest in shares. In any case where, pursuant to the terms of the Option, Employee would be entitled, except for the provisions of this Paragraph 10, to receive a fractional share, the number of shares issuable upon such exercise shall be rounded to the next larger whole share if such fractional share interest is a major fraction; if such fractional share interest is not a major fraction, it shall be disregarded.
11. "Lock-Up" Agreement.
Employee, if so requested by the Corporation and an underwriter of Common Stock or other securities of the Corporation, shall not sell, grant any option or right to buy or sell, or otherwise transfer or dispose of in any manner, whether in privately-negotiated or open-market transactions, any Common Stock or other securities of the Corporation held by him or which he has the right to acquire during the 180-day period following the effective date of a registration statement of the Corporation filed with the Securities and Exchange Commission in connection with such offering or such shorter period as such underwriter shall have advised the Corporation in writing is adequate to permit the successful and orderly distribution of such Common Stock or other securities; provided, however, that such "lock-up" agreement shall be in writing and in form and substance satisfactory to the Corporation and such underwriter. The Corporation may impose stop-transfer instructions with respect to the shares subject to the foregoing restrictions until the end of said 180-day period. This Paragraph 11 shall survive the termination or exercise of the Option.
12. Entire Agreement Amendments.
This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, and no statement, representation, warranty or covenant has been made by either party except as expressly set forth herein. This Agreement supersedes and cancels all prior agreements between the parties, whether written or oral, with respect to the subject matter hereof. No alteration, amendment or modification of any of the terms and provisions hereof shall be valid unless made pursuant to a written instrument signed by all of the parties hereto.
13. Applicable Law.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.
14. Notices.
All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, first class, postage prepaid, certified mail, return receipt requested, to the other party at its address as set forth at the beginning of this Agreement or as either of the parties may designate in conformity with the foregoing.
15. Paragraph Headings.
The paragraph headings set forth in this Agreement are for reference purposes only and shall not be considered as part of this Agreement in any respect nor shall they in any way affect the substance of any provisions contained in this Agreement.
16. Successors and Assigns.
This Agreement shall not be assignable by Employee, but the rights hereunder may be transferred as described in Paragraph 6 hereof. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by Employee, the Corporation, the heirs and personal representatives of Employee and the successors and assigns of the Corporation.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
CADUS PHARMACEUTICAL CORPORATION
By: __________________________________
Jeremy M. Levin, President
EXHIBIT A
[Date of Exercise]
Cadus Pharmaceutical Corporation
777 Old Saw Mill River Road
Tarrytown, NY 10591-6705
Attention: Corporate Secretary
Re: Stock Option
Dear Sir:
I am the holder of a Stock Option granted to me by Cadus Pharmaceutical Corporation (the "Corporation"), pursuant to a Stock Option Agreement dated as of December , 1995, to purchase shares of Common Stock of the Corporation ("Shares"). I hereby exercise such option with respect to Shares, the total purchase price for which is $ , and [I enclose a certified or bank cashier's or other acceptable check payable to the order of the Corporation in the amount of $ , representing the total purchase price for the Shares] [I hereby elect to pay the purchase price by delivering to the Corporation shares of Common Stock of the Corporation having a fair market value equal to $ from the Shares I am purchasing pursuant to the exercise of such option]. The certificate or certificates representing the Shares should be registered in my name and should be forwarded to me at .
Please acknowledge receipt of the exercise of my stock option on the attached copy of this letter.
Very truly yours,
[EMPLOYEE]
RECEIPT ACKNOWLEDGED:
CADUS PHARMACEUTICAL CORPORATION
By: ______________________________
EXHIBIT 4.7
STOCK OPTION AGREEMENT
AGREEMENT made as of November 15, 1996 by and between CADUS PHARMACEUTICAL CORPORATION (the "Corporation"), a Delaware corporation having offices at 777 Old Saw Mill River Road, Tarrytown, New York 10591-8705, and _____________________ ("Director"), residing at _____________________________.
W I T N E S S E T H:
WHEREAS, Director desires to participate in the equity ownership of the Corporation and the Corporation desires to provide Director with an incentive to remain a director of the Corporation by granting to Director the right and option, subject to certain conditions, to purchase shares of the common stock, $.01 par value, of the Corporation (the "Common Stock");
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties hereto agree as follows:
1. Grant of Stock Option.
As an inducement to Director to continue to serve as a director of the Corporation, the Corporation hereby grants to Director the right and option (the "Option") to purchase from the Corporation Twelve Thousand (12,000) shares of Common Stock (the "Shares"), subject to adjustment as provided in Paragraph 7 hereof, on the terms and subject to the conditions hereinafter set forth.
2. Purchase Price.
Subject to adjustment as provided in Paragraph 7 hereof, the purchase price (the "Option Purchase Price") to be paid upon exercise of the Option shall be $6.75 per share.
3. Exercisability of Option.
(a) The Option shall be exercisable, on a cumulative basis, during a period of ten (10) years commencing from the date hereof and terminating at the close of business on November 14, 2006, as follows:
(i) up to 3,000 Shares subject to the Option may be purchased by Director after November 15, 1997;
(ii) up to an additional 3,000 Shares subject to the Option may be purchased by Director after November 15, 1998;
(iii) up to an additional 3,000 Shares subject to the Option may be purchased by Director after November 15, 1999; and
(iv) up to an additional 3,000 Shares subject to the Option may be purchased by Director after November 15, 2000.
(b) The unexercised portion of the Option will automatically and without notice terminate and become null and void at the close of business on November 14, 2006. If, however, Director ceases to serve as a director of the Corporation before the close of business on November 14, 2006, the Option will terminate on the applicable date as described below; provided, however, that the Compensation Committee of the Board of Directors shall have the authority to accelerate the vesting schedule and/or extend the termination date and the time for exercise of all or any part of the Option in any such event; and provided further that none of the events described below shall extend the period of exercisability of the Option beyond the close of business on November 14, 2006:
(i) the date Director ceases serving as a director of the Corporation, if Director resigns or otherwise voluntarily ceases serving as a director of the Corporation or if Director is removed as a director of the Corporation for "cause" (as hereinafter defined);
(ii) the expiration of five (5) years after Director's death or his ceasing to serve as a director of the Corporation by reason of his "disability" (as hereinafter defined); or
(iii) the expiration of four (4) years from the date Director involuntarily ceases serving as a director of the Corporation by reason of his not being re-elected at an annual meeting of stockholders of the Corporation or the date Director is removed as a director of the Corporation without "cause".
(c) For the purposes of this Agreement, the term "cause" shall mean the commission by Director of any material act of malfeasance, fraud, dishonesty, or breach of fiduciary duty against the Corporation or any unauthorized disclosure of confidential information by Director. The determination of cause by the Board of Directors of the Corporation shall be final and binding for all purposes.
(d) For purposes of this Agreement, the term "disability" shall mean such physical or mental illness or incapacity or Director as shall (i) prevent Director from serving as a director of the Corporation and (ii) continue during any period of one hundred twenty (120) consecutive days or for periods aggregating one hundred eighty (180) days in any 365 day period.
4. Exercise of Option.
(a) The Option may be exercised by Director as to all or a portion of the Shares (but not as to a fractional share of Common Stock) as to which the Option has become exercisable, at any time within the applicable period specified in Paragraph 3 hereof, by the giving of written notice of the exercise thereof to the Corporation in the manner provided in Paragraph 14 hereof and substantially in the form annexed hereto as Exhibit A, which notice shall be accompanied by payment in full of the purchase price therefor by certified or bank cashier's or other acceptable check. Such exercise shall be effective upon receipt by the Corporation of such written notice and payment; and Director, to the extent permitted by law, shall be deemed the owner of the Shares being purchased as of the close of business on the date of such exercise and payment. The Corporation shall cause a certificate or certificates representing the Shares purchased to be delivered to Director within ten (10) days after the effective date of such exercise. Director agrees that such certificate or certificates shall bear such legend or legends as the Board of Directors of the Corporation, in its sole discretion, determines to be necessary or appropriate to prevent a violation of, or to perfect an exemption from, the registration requirements of the Securities Act of 1933, as amended (the "Securities Act").
(b) In lieu of the check provided for in subparagraph 4(a) above, Director may, at his sole option and to the extent permitted by applicable law, pay for the purchase price of the Shares being purchased by the exercise of the Option, by delivering to the Corporation shares of Common Stock (in proper form for transfer and accompanied by all requisite stock transfer tax stamps or cash in lieu thereof) owned by Director having a Fair Market Value (as hereinafter defined in subparagraph 4(c) hereof) equal to such purchase price. Director may elect to make such delivery to the Corporation of shares of Common Stock from Shares he is purchasing pursuant to his exercise of the Option by including such election in his notice of exercise.
(c) The Fair Market Value of a share of Common Stock as of a particular date (the "Determination Date") shall mean:
(i) If the Corporation's Common Stock is traded on an exchange or is quoted through the National Association of Securities Dealers, Inc. Automated Quotation ("NASDAQ") National Market System, then the closing or last sale price, respectively, reported for the last business day immediately preceding the Determination Date.
(ii) If the Corporation's Common Stock is not listed on an exchange or quoted on the NASDAQ National Market System 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 subparagraph 4(c)(iv) below, if the Corporation's Common Stock is not publicly traded, then as determined in good faith by the Corporation's Board of Directors upon a review of relevant factors.
(iv) If the Determination Date is the date of a liquidation, dissolution or winding up of the Corporation, then all amounts to be payable per share to holders of the Common Stock in the event of such liquidation, dissolution or winding up.
5. Purchase for Investment.
Director agrees that at the request of the Corporation and upon exercise of the Option, he shall execute and deliver to the Corporation a written statement, in form satisfactory to the Corporation, representing and warranting that he is purchasing the Shares for his own account, for investment only and not with a view to the resale or distribution thereof and that any subsequent offer for sale or sale of any of such Shares shall be made either pursuant to (a) a registration statement on an appropriate form under the Securities Act, which registration statement has become effective and is current with respect to the shares being offered and sold, or (b) a specific exemption from the registration requirements of the Securities Act, but in claiming such exemption Director shall, prior to any offer for sale or sale of such shares, obtain a favorable written opinion from counsel for or approved by the Corporation as to the availability of such exemption.
6. Non-Transferability of Option.
The Option shall not be transferable by Director other than by will or the laws of descent and distribution.
7. Adjustment of Shares.
If any change is made in the Shares deliverable upon exercise of the Option (through merger, consolidation, reorganization, recapitalization, stock dividend, stock split, split-up, spin-off, split-off, subdivision or combination of shares, exchange of shares, issuance of rights to subscribe, change in capital structure or similar event), such adjustments or substitutions shall be made by the Board of Directors of the Corporation in or for the Shares (including adjustments in the number of Shares and in the per share price of Shares subject to the Option) as the Board of Directors of the Corporation reasonably shall determine to be appropriate and equitable to prevent dilution or enlargement of Director's rights hereunder.
8. Covenants of the Corporation.
The Corporation hereby covenants and agrees that:
(a) During the period within which the Option may be exercised, the Corporation shall at all times reserve and keep available by all necessary corporate action out of its shares of Common Stock for the purpose of issuance or transfer upon exercise of the Option the number of shares of Common Stock included in the Shares and such additional securities as may from time to time be deliverable hereunder. Such shares may be authorized but unissued shares, or may be shares held in the treasury of the Corporation or a combination thereof, at the option of the Corporation.
(b) All shares which may be issued upon exercise of the Option or delivered pursuant to this Agreement will, upon issuance and payment therefor as provided herein, be validly issued, fully paid, nonassessable and free from all liens and charges with respect to the issue thereof.
9. Representations and Warranties of the Corporation.
The Corporation represents and warrants to Director as follows:
(a) The Corporation is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The Corporation has all requisite legal and corporate power to execute this Agreement. The execution, delivery and performance by the Corporation of this Agreement and the consummation of the transactions contemplated hereby have been authorized by all necessary corporate action on the part of the Corporation.
(c) This Agreement has been duly executed by the Corporation and, assuming due and valid execution and delivery of the same by Director, constitutes the valid and legally binding obligation of the Corporation enforceable in accordance with its terms.
10. No Fractional Shares.
Upon the exercise of the Option, the Corporation shall not be required to issue any fractional shares or scrip certificates evidencing any fractional interest in shares. In any case where, pursuant to the terms of the Option, Director would be entitled, except for the provisions of this Paragraph 10, to receive a fractional share, the number of shares issuable upon such exercise shall be rounded to the next larger whole share if
such fractional share interest is a major fraction; if such fractional share interest is not a major fraction, it shall be disregarded.
11. "Lock-Up" Agreement.
Director, if so requested by the Corporation and an underwriter of Common Stock or other securities of the Corporation, shall not sell, grant any option or right to buy or sell, or otherwise transfer or dispose of in any manner, whether in privately-negotiated or open-market transactions, any Shares held by him or which he has the right to acquire during the 180-day period following the effective date of a registration statement of the Corporation filed with the Securities and Exchange Commission in connection with such offering or such shorter period as such underwriter shall have advised the Corporation in writing is adequate to permit the successful and orderly distribution of the Common Stock or such other securities; provided, however, that such "lock-up" agreement shall be in writing and in form and substance satisfactory to the Corporation and such underwriter. The Corporation may impose stop-transfer instructions with respect to the Shares subject to the foregoing restrictions until the end of said 180-day period. This Paragraph 11 shall survive the termination or exercise of the Option.
12. Entire Agreement Amendments.
This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, and no statement, representation, warranty or covenant has been made by either party except as expressly set forth herein. This Agreement supersedes and cancels all prior agreements between the parties, whether written or oral, with respect to the subject matter hereof. No alteration, amendment or modification of any of the terms and provisions hereof shall be valid unless made pursuant to a written instrument signed by all of the parties hereto.
13. Applicable Law.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.
14. Notices.
All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, first class, postage prepaid, certified mail, return receipt requested, to the other party at its address as set forth at the beginning of this Agreement or as either of the parties may designate in conformity with the foregoing.
15. Paragraph Headings.
The paragraph headings set forth in this Agreement are for reference purposes only and shall not be considered as part of this Agreement in any respect nor shall they in any way affect the substance of any provisions contained in this Agreement.
16. Successors and Assigns.
This Agreement shall not be assignable by Director, but the rights hereunder may be transferred as described in Paragraph 6 hereof. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by Director, the Corporation, the heirs and personal representatives of Director and the successors and assigns of the Corporation.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
CADUS PHARMACEUTICAL CORPORATION
By: ________________________________
Jeremy M. Levin, President
EXHIBIT A
[Date of Exercise]
Cadus Pharmaceutical Corporation
777 Old Saw Mill River Road
Tarrytown, NY 10591-6705
Attention: Corporate Secretary
Re: Stock Option
Dear Sir:
I am the holder of a Stock Option granted to me by Cadus Pharmaceutical Corporation (the "Corporation"), pursuant to a Stock Option Agreement dated as of November 15, 1996, to purchase 12,000 shares of Common Stock of the Corporation ("Shares"). I hereby exercise such option with respect to __________ Shares, the total purchase price for which is $_________, and [I enclose a certified or bank cashier's or other acceptable check payable to the order of the Corporation in the amount of $______________, representing the total purchase price for the Shares] [I hereby elect to pay the purchase price by delivering to the Corporation __________ shares of Common Stock of the Corporation having a fair market value equal to $__________ from the Shares I am purchasing pursuant to the exercise of such option]. The certificate or certificates representing the Shares should be registered in my name and should be forwarded to me at ___________________________________.
Please acknowledge receipt of the exercise of my stock option on the attached copy of this letter.
Very truly yours,
[Director]
RECEIPT ACKNOWLEDGED:
CADUS PHARMACEUTICAL CORPORATION
By: ________________________________
EXHIBIT 4.9
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CADUS PHARMACEUTICAL CORPORATION
(formerly Cadus Therapeutics Corp.)
CADUS PHARMACEUTICAL CORPORATION, a Delaware corporation (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is CADUS PHARMACEUTICAL CORPORATION.
2. The Corporation's original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on January 23, 1992, under the name Cadus Therapeutics Corp.
3. This Restated Certificate of Incorporation (the "Restated Certificate") which was duly adopted in accordance with Sections 242 and 245, with prompt written notice thereof having been given to the stockholders of the Corporation pursuant to Section 228(d), of the General Corporation Law of the State of Delaware, amends and restates the provisions of the present certificate of incorporation, as amended, of the Corporation.
4. Immediately upon filing this Restated Certificate, the text of the present certificate of incorporation, as amended, is hereby amended and restated to read in full as set forth herein:
FIRST: The name of the Corporation is CADUS PHARMACEUTICAL CORPORATION (the "Corporation").
SECOND: The address of the Corporation's registered office in the State of Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of capital stock which the Corporation shall have authority to issue is 35,000,000, all of which shall be Common Stock having a par value of $.01 per share.
FIFTH: The Board of Directors of the Corporation is expressly authorized and empowered to adopt, amend or repeal the by-laws of the Corporation, without any action on the part of the stockholders of the Corporation, but the stockholders of the Corporation may make additional by-laws and may amend or repeal any by-law whether adopted by them or otherwise.
SIXTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
SEVENTH: The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by subsection 102(b)(7) of the General Corporation Law of the State of Delaware as the same may be amended and supplemented.
EIGHTH: The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses,
Liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. The Corporation shall advance expenses for the defense of any director, officer, employee or agent prior to a final disposition of a claim provided such party executes an undertaking to repay advances from the Corporation if it is ultimately determined that such party is not entitled to indemnification. Any repeal or modification of this Article shall not adversely affect any right or protection existing hereunder immediately prior to such repeal or modification.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by Jeremy M. Levin, its President, and attested by James S. Rielly, its Secretary, on July 18, 1996.
CADUS PHARMACEUTICAL CORPORATION
By: s/ Jeremy M. Levin
-------------------------
Jeremy M. Levin
President
Attest:
s/ James S. Rielly
- -------------------------
James S. Rielly
Secretary
|
[Letterhead of Morrison Cohen Singer & Weinstein, LLP]
February 14, 1997
Cadus Pharmaceutical Corporation
777 Old Saw Mill River Road
Tarrytown, New York 10591
Re: Cadus Pharmaceutical Corporation Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Cadus Pharmaceutical Corporation, a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") being filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, covering an aggregate of 2,162,415 shares (the "Shares") of common stock of the Company, $.01 par value per share (the "Common Stock"), issuable upon the exercise of certain stock options (the "Options").
In so acting, we have examined copies of such records of the Company and such other certificates and documents as we have deemed relevant and necessary for the opinion hereinafter set forth. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic originals of all documents submitted to us as certified or reproduced copies. We have also assumed the legal capacities of all persons executing such documents and the truth and correctness of any representations or warranties contained therein. As to various questions of fact material to such opinion, we have relied upon certificates of officers of the Company.
Based upon and subject to the foregoing, we are of the opinion that the Shares issuable upon exercise of the Options, when paid for and issued in accordance with the terms of the Options, will be validly issued and fully paid and nonassessable.
February 14, 1997
We hereby consent to your filing copies of this opinion as an exhibit to the Registration Statement or any amendment thereto.
Very truly yours,
/s/ Morrison Cohen Singer & Weinstein, LLP MORRISON COHEN SINGER & WEINSTEIN, LLP |
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Cadus Pharmaceutical Corporation:
We consent to the use of our report incorporated herein by reference.
S/KPMG Peat Marwick LLP
New York, New York
February 14, 1997
|