STOCK OPTION AGREEMENT (Non-Qualified Stock Option to Director) PURSUANT TO SAVIENT PHARMACEUTICALS, INC.
Exhibit 10.23
STOCK OPTION AGREEMENT
(Non-Qualified Stock Option to Director)
(Non-Qualified Stock Option to Director)
PURSUANT TO
SAVIENT PHARMACEUTICALS, INC.
2004 INCENTIVE PLAN
* * *
* * *
NON-QUALIFIED STOCK OPTION AGREEMENT made as of date, between SAVIENT PHARMACEUTICALS,
INC., a Delaware corporation (the “Company”), and NAME, a member of the Board of Directors of the
Company (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company desires, by affording the Optionee an opportunity to purchase shares of
its Common Stock, $.01 par value per share (the “Common Stock”), as hereinafter provided, to carry
out the purpose of the Company’s 2004 Incentive Plan (the “Plan”):
NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements
hereinafter contained, the parties hereto mutually covenant and agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee a non-qualified stock
option to purchase all or any part of an aggregate of number shares of Common Stock (such number
being subject to adjustment as provided in Paragraph 6) on the terms and conditions hereinafter set
forth (the “Option”).
2. Purchase Price. The purchase price of the shares of Common Stock issuable upon
exercise of the Option (the “Option Price”) shall be $price per share, which is not less than one
hundred percent (100%) of the fair market value per share of Common Stock on the date hereof.
Payment shall be made in cash, by certified check or in shares of Common Stock in the manner
prescribed in Paragraph 7 hereof.
3. Term of Option. The term of the Option shall be for a period of ten (10) years
from the date hereof, subject to earlier termination as provided in Paragraph 5. The Option is
exercisable during its term only in accordance with the provisions of Exhibit A attached
hereto.
Except as provided in Paragraph 5, the Option may not be exercised unless, at the time the
Option is exercised and at all times from the date it was granted, the Optionee shall then be and
shall have been, a member of the Board of Directors of the Company.
4. Nontransferability. The Option shall not be transferable otherwise than by will
or the laws of descent and distribution to the extent provided in Paragraph 5, and the Option may
be exercised, during the lifetime of the Optionee, only by him. More particularly (but without
limiting the generality of the foregoing), the Option may not be assigned, transferred (except as
provided above), pledged or hypothecated in any way, shall not be assignable by operation of law,
and shall
1
not be subject to
execution, attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions hereof and of the Plan,
and the levy of any execution, attachment, or similar process upon the Option, shall be null and
void and without effect; provided, however, that if the Optionee shall die while in the employ of
the Company or any subsidiary, his estate, personal representative, or beneficiary shall have the
right to exercise the Option to the extent provided in Paragraph 5.
5. Termination of Option. If the Optionee shall cease to serve as a member of the
Board of Directors of the Company for any reason other than his death, then the Option, to the
extent that it is exercisable by him at the time he ceases to be a director of the Company, and
only to the extent that the Option is exercisable as of such time, may be exercised by him within
six (6) months after such time; provided, however, that the Compensation Committee may, in its sole
discretion, determine that he has more than six (6) months from the date he ceases to be employed
by the Company or any subsidiary to exercise the Option.
If the Optionee shall die while serving as a member of the Board of Directors of the Company,
his estate, personal representative, or beneficiary shall have the right, subject to the provisions
of Paragraph 3, to exercise the Option (to the extent that the Optionee would have been entitled to
do so at the time of his death) at any time within twelve (12) months from the date of his death.
6. Changes in Capital Stock. Upon any readjustment or recapitalization of the
Company’s capital stock whereby the character of the Common Stock shall be changed, appropriate
adjustments shall be made so that the capital stock issuable upon exercise of the Option after such
readjustment or recapitalization shall be the substantial equivalent of the Common Stock issuable
upon exercise of the Option. In the case of a merger, sale of assets or similar transaction which
results in a replacement of the Common Stock with stock of another corporation, the Company will
make a reasonable effort, but shall not be required, to replace any outstanding Options granted
under the Plan with comparable options to purchase the stock of such other corporation, or will
provide for immediate maturity of all outstanding Options, with all Options not being exercised
within the time period specified by the Board of Directors being terminated.
7. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by written notice to the Company at its offices at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: President), or as
otherwise directed by the Company. Such notice shall state that the Option is being exercised
thereby and the number of shares of Common Stock in respect of which it is being exercised. It
shall be signed by the person or persons so exercising the Option and shall be accompanied by
payment in full of the Option Price for such shares of Common Stock in cash, by certified check or
in shares of Common Stock, provided that such shares of Common Stock are not subject to any
repurchase, forfeiture, unfulfilled vesting or other similar requirements.
If shares of Common Stock are tendered as payment of the Option Price, the value of such
shares shall be their fair market value as of the date of exercise. If such tender would result in
the issuance of fractional shares of Common Stock, the Company shall instead return the balance in
cash or by check to the Optionee. The Company shall issue, in the name of the person or persons
exercising the Option, and deliver a certificate or certificates representing such shares as soon
as practicable after notice and payment shall be received.
2
In the event the Option shall be exercised by any person or persons other than the Optionee,
pursuant to Paragraph 5, such notice shall be accompanied by appropriate proof of the right of such
person or persons to exercise the Option.
The Optionee shall have no rights of a stockholder with respect to shares of Common Stock to
be acquired by the exercise of the Option until a certificate or certificates representing such
shares are issued to him. All shares of Common Stock purchased upon the exercise of the Option as
provided herein shall be fully paid and non-assessable.
8. Treatment of Options. It is intended that this Option shall not be an “incentive
stock option” as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the “Code”).
9. General. The Company shall at all times during the term of the Option reserve and
keep available such number of shares of Common Stock as will be sufficient to satisfy the
requirements of this Agreement, shall pay all original issue taxes, if any, with respect to the
issuance of shares of Common Stock pursuant hereto and all other fees and expenses necessarily
incurred by the Company in connection therewith, and shall, from time to time, use its best efforts
to comply with all laws and regulations which, in the opinion of counsel for the Company, shall be
applicable thereto.
10. Representations of Optionee. The Optionee hereby represents that he and any
related persons or entities, within the meaning of Section 425(d) of the Code, do not own as much
as ten percent (10%) of the total combined voting power of all classes of capital stock of the
Company, and in accepting the Option herein granted to him, agrees to the terms of such Option as
of the date hereof.
11. Notices. Each notice relating to this Agreement shall be in writing and
delivered in person or by first class mail, postage prepaid, to the address as hereinafter
provided. Each notice shall be deemed to have been given on the date it is received. Each notice
to the Company shall be addressed to it at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: President). Each notice to the Optionee or other
person or persons then entitled to exercise the Option shall be addressed to the Optionee or such
other person or persons at the Optionee’s last known address.
12. Reimbursement of Expenses. If the Optionee is not a citizen or resident of the
United States, the Optionee, as a condition hereof, agrees to reimburse the Company at its request
for any foreign exchange premiums or license, transfer taxes or similar sums of money payable
outside the United States by the Company in connection with the exercise of the Option under this
Agreement.
13. Incorporation of Plan. Notwithstanding the terms and conditions herein, this
Agreement shall be subject to and governed by all the terms and conditions of the Plan. A copy of
the Plan has been delivered to the Optionee and is hereby incorporated by reference. In the event
of any discrepancy or inconsistency between the terms and conditions of this Agreement and of the
Plan, the terms and conditions of the Plan shall control.
14. Continuance of Service. The granting of the Option is in consideration of the
Optionee’s continuing service to the Company; provided, however, nothing in this Agreement shall
3
confer upon the Optionee the right to continue in the service of the Company or any subsidiary.
15. Interpretation. The interpretation and construction of any terms or conditions
of the Plan,
or of this Agreement or other matters related to the Plan by the Compensation and Stock Option
Plan Committee shall be final and conclusive.
16. Enforceability. This Agreement shall be binding upon the Optionee, his estate,
his personal representatives and beneficiaries.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly exercised by its officer
thereunto duly authorized, and the Optionee has hereunto set his hand all as of the day and year
first above written.
| SAVIENT PHARMACEUTICALS, INC. | ||||||||
| By: | ||||||||
| Authorized Officer | ||||||||
| OPTIONEE | ||||||||
| Name | ||||||||
| Address: | ||||||||
4
EXHIBIT A
TO
The Option is exercisable during its term only in accordance with the following:
| Number of Years From Date of | ||||
| Option Agreement | Percentage Exercisable | |||
One |
100 | % | ||
Notwithstanding the foregoing, if there occurs a Change in Control of the Company, the Option
shall become immediately exercisable in full whether or not the dates above have passed. For
purposes hereof, a Change in Control of the Company is deemed to occur if (1) there occurs (A) any
consolidation or merger in which the Company is not the continuing or surviving entity or pursuant
to which shares of the Common Stock would be converted into cash, securities or other property,
other than a merger of the Company in which the holders of the Common Stock immediately prior to
the merger have the same proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (B) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all the Company’s assets;
(2) the Company’s stockholders approve any plan or proposal for the liquidation or dissolution of
the Company; (3) any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934) shall become the beneficial owner (within the meaning of Rule 13d-3 under
said Act) of 40% or more of the Common Stock other than pursuant to a plan or arrangement entered
into by such person and the Company; or (4) during any period of two consecutive years, individuals
who at the beginning of such period constitute the entire Board of Directors shall cease for any
reason to constitute a majority of the Board unless the election or nomination for election by the
Company’s stockholders of each new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of the period.
5