EXHIBIT 5
EXECUTION COPY
PHARMACEUTICAL RESOURCES, INC.
Stock Option Agreement
PHARMACEUTICAL RESOURCES, INC., a New Jersey corporation (the
"Company"), hereby grants Genpharm Inc., a corporation organized and existing
under the laws of the Province of Ontario, Canada (the "Optionee"), a
non-statutory stock option (the "Option") to purchase from the Company up to
351,040 shares of common stock, par value $.01 per share, of the Company
("Option Shares") at a price and on the terms set forth in this Option
Agreement. The Option is granted by the Company to the Optionee in consideration
for Services (as such term is defined in the Services Agreement) to be provided
by the Optionee to the Company pursuant to the Services Agreement, dated June
30, 1998, between the Company and the Optionee (the "Services Agreement").
SECTION 1. Term of Option. The Option is granted as of the
date hereof (the "Grant Date") and shall be exercisable at any time beginning
three years and ten days after the date hereof; provided that, to the extent not
exercised, this Option shall terminate on April 30, 2003.
SECTION 2. Vesting. The Option shall vest on the
following schedule:
Cumulative vested
Measured from Grant Date portion of Option Shares
First anniversary one-third
Second anniversary two-thirds
Third anniversary entire amount
SECTION 3. Exercise of Option. Subject to the provisions
hereof, this Option may be exercised in whole or in part at any time, or from
time to time, to the extent vested, during its term, as set forth in Section 1
herein, by presentation to the Company at its principal office of the Option
Exercise Form attached hereto, duly executed and accompanied by payment (either
in cash or by United States certified or official bank check payable to the
order of the Company) of the Exercise Price for the number of Option
Shares specified in such Form. Upon receipt of the Option Exercise Form and such
payment, the Company shall, within five (5) business days, cause to be delivered
to the Optionee one or more certificates representing the aggregate number of
fully-paid and nonassessable Option Shares issuable upon exercise as specified
in the Form.
SECTION 4. Exercise Price. The exercise price ("Exercise
Price") shall be US $2.00 per share.
SECTION 5. Reservation of Shares. The Company will reserve for
issuance and delivery upon exercise of this Option all authorized but unissued
Common Shares or other shares of capital stock of the Company (and other
securities and property) from time to time receivable upon exercise of this
Option.
SECTION 6. Restrictions on Transfer, Exercise and
Registration.
6.1 Transferability. This Option may not be sold, transferred,
pledged, assigned or otherwise disposed of (collectively, "Transferred") by the
Optionee.
6.2 Compliance with Securities Legislation. No Option Shares
may be transferred except in full compliance with all applicable provisions of
the Securities Act of 1933 and of applicable state securities laws.
6.3 Legend. Each certificate for the Option Shares shall be
endorsed with the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT
BE SOLD, TRANSFERRED, PLEDGED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF EFFECTIVE REGISTRATION STATEMENTS UNDER APPLICABLE FEDERAL
AND STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT THE TRANSFER IS EXEMPT FROM REGISTRATION UNDER APPLICABLE
FEDERAL AND STATE SECURITIES LAWS."
6.4 Registration. The Option Shares shall have the benefit of
the Registration Rights Agreement, dated March 25, 1998, between the Company,
Lipha Americas, Inc., Merck KGaA and the Optionee.
6.5 Restrictions on Exercise. The Option may not be exercised
if the issuance of the Option Shares upon such exercise would constitute a
violation of any applicable federal or state securities laws or other laws or
regulations. As a condition to the exercise of the Option,
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the Company may require the Optionee to make any representation and warranty to
the Company as may be required by any applicable law or regulation.
SECTION 7. Rights of the Optionee. The Optionee shall not be
entitled to any rights of a shareholder of the Company with respect to the
Option Shares solely as a result of the grant of the Option. Such rights shall
exist only after issuance of a stock certificate in accordance with Section 3
above following the Optionee's exercise of the Option (or a portion thereof)
hereunder. The rights of the Optionee are limited to those expressly provided in
this Option.
SECTION 8. Termination of Services Agreement
(a) If the Services Agreement terminates other than as a result of the
Optionee's Breach and the Optionee thereby ceases to provide Services to the
Company, this Option may be exercised in full during the remaining balance of
the term of the Option (but not in any event before three years and ten days
have elapsed from the date hereof or beyond the expiration of the term of this
Option), notwithstanding anything to the contrary in this Option Agreement.
(b) If the Services Agreement terminates as a result of the Optionee's
Breach and the Optionee thereby ceases to provide Services to the Company, the
Optionee may exercise the Option, to the extent vested as of the date of such
termination, during the remaining balance of the term of the Option (but not in
any event before three years and ten days have elapsed from the date hereof or
beyond the expiration of the term of the Option).
(c) For purposes of this section, "Breach" means willful refusal of the
Optionee to provide Services to the Company in accordance with the Services
Agreement.
SECTION 9. Anti-Dilution Provisions.
9.1. Adjustments for Stock Dividends; Combinations, Etc. In
case the Company shall do any of the following (each, an "Event"):
(a) declare a dividend or other distribution on its common
shares payable in common shares of the Company;
(b) effect a subdivision of its outstanding common shares
into a greater number of common shares (by reclassification,
stock split or otherwise by payment of a dividend in common
shares);
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(c) effect a combination of its outstanding common shares
into a lesser number of common shares (by reclassification,
reverse split or otherwise);
(d) issue by reclassification, exchange or substitution of
its common shares any shares of capital stock of the Company; or
(e) effect any other transaction having a similar effect,
then the Exercise Price in effect at the time of the record date for such Event
shall be adjusted to a price determined by multiplying such Exercise Price by a
fraction, the numerator of which shall be the number of shares of common stock
outstanding immediately prior to such Event and the denominator of which shall
be the number of Common Shares outstanding immediately after such Event. Each
such adjustment of the Exercise Price shall be calculated to the nearest cent.
No such adjustment shall be made in an amount less than One Cent ($.01), but any
such amount shall be carried forward and shall be given effect in connection
with the next subsequent adjustment. Such adjustment shall be made successively
whenever any Event shall occur.
9.2 Adjustment in the Number of Option Shares. Whenever the
Exercise Price shall be adjusted pursuant to Section 9.1 hereof, the number of
Option Shares which the Optionee may purchase upon exercise of the Service
Option shall be adjusted, to the nearest full share, by multiplying such number
of Option Shares immediately prior to such adjustment by a fraction, the
numerator of which shall be the Exercise Price immediately prior to such
adjustment and the denominator of which shall be the Exercise Price immediately
thereafter.
9.3 Adjustment for Consolidation or Merger. In case of any
consolidation or merger to which the Company shall be a party, other than a
consolidation or merger in which the Company shall be the surviving or
continuing corporation, or in case of any sale or conveyance to another entity
of all or substantially all of the property of the Company, or in the case of
any statutory exchange of securities with another entity (including any exchange
effected in connection with a merger of any other corporation with the Company),
the Optionee shall have the right thereafter to receive from the Company upon
exercise of the Option the kind and amount of securities, cash or other property
which it would have owned or have been entitled to receive immediately after
such consolidation, merger, statutory exchange, sale or conveyance had this
Option been exercised immediately prior to the effective
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date of such transaction and, if necessary, appropriate adjustment shall be made
in the application of the provisions set forth in this Section 9 with respect to
the rights and interests thereafter of the Optionee to the end that the
provisions set forth in this Section 9 shall thereafter correspondingly be made
applicable, as nearly as then may reasonably be, in relation to any shares of
stock or other securities or property thereafter deliverable upon the exercise
of this Option. Notice of any such consolidation, merger, statutory exchange,
sale or conveyance, and of the provisions proposed to be adjusted, shall, to the
extent reasonably practicable, be mailed to the Optionee not less than thirty
(30) days prior to such event.
SECTION 10. Fully Paid Shares; Taxes. The Company agrees that
the common shares of the Company represented by each and every certificate for
the Option Shares delivered on the exercise of this Option in accordance with
the terms hereof shall, at the time of such delivery, be validly issued,
fully-paid and nonassessable, free and clear of all liens, pledges, options,
claims or other encumbrances. The Company further covenants and agrees that it
will pay, when due and payable, any and all Federal and state stamp, original
issue or similar taxes (but specifically not including any income taxes) which
may be payable in respect of the issue of any Option Shares or certificates
therefor.
SECTION 11. Notices. All notices hereunder shall be in writing
and shall be given: (a) if to the Company, at ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇), fax number: (▇▇▇) ▇▇▇-▇▇▇▇, with
a copy to ▇▇▇▇▇▇▇, Calamari & ▇▇▇▇▇▇▇, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq., and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.), fax
number: (▇▇▇) ▇▇▇-▇▇▇▇, or (b) if to the Optionee, at Genpharm Inc., ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ (attention: [Chief Financial Officer]),
fax number: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Coudert Brothers, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.), fax
number: (▇▇▇) ▇▇▇-▇▇▇▇. Any notice shall be deemed to have been given if
personally delivered or sent by express commercial courier or delivery service
or by telegram, telefax, telex or facsimile transmission. Any notice given in
any other manner shall be deemed given when actually received.
SECTION 12. Amendments; Waiver. This Option may not be
amended, and no provision hereof may be waived, without the prior written
consent of at least a majority of the Company Designees (as defined in the Stock
Purchase
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Agreement, dated March 25, 1998, between the Company and Lipha Americas, Inc.)
on behalf of the Company and except pursuant to a written instrument executed by
the Company and the Optionee.
SECTION 13. Headings. The headings of the Sections of this
Option have been inserted for convenience of reference only and shall not be
deemed to be a part of this Option.
SECTION 14. Governing Law. This Option is issued under, and
shall be governed by and construed in accordance with, the laws of the State of
New York applicable to contracts made and to be performed wholly within such
State.
IN WITNESS WHEREOF, the Company has caused this Option to be
signed on its behalf, in its corporate name, by its duly authorized officer, on
June 30, 1998.
PHARMACEUTICAL RESOURCES, INC.
By: /s/▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Secretary
GENPHARM, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
Title CEO
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PHARMACEUTICAL RESOURCES, INC.
STOCK OPTION EXERCISE FORM
For services performed, the undersigned hereby irrevocably elects to
exercise the attached Option to purchase ______ shares of common stock of
Pharmaceutical Resources, Inc. at the Exercise Price of $2.00 per share, in
accordance with the Option Agreement.
Attached hereto is cash or a U.S. certified or official bank check
payable to the order of the Company in the amount of the total Exercise Price
set forth above.
Name of Optionee
Signature of Optionee
or Authorized Representative
Name and Title of Authorized
Representative
Address of Optionee
Date
