-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LtKR9it3qkWzAjFCMpBR43/X9s1IH8Gn4krpPjPPEjDwW+PzgBvTeFc2oolDQ7Ri Rz4mQpharzp/BdKAoPYzSg== 0000927016-98-002380.txt : 19980616 0000927016-98-002380.hdr.sgml : 19980616 ACCESSION NUMBER: 0000927016-98-002380 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980615 EFFECTIVENESS DATE: 19980615 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CURAGEN CORP CENTRAL INDEX KEY: 0001030653 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 06133140 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-56829 FILM NUMBER: 98648063 BUSINESS ADDRESS: STREET 1: 555 LONG WHARF DRIVE STREET 2: 11TH FL CITY: NEW HAVEN STATE: CT ZIP: 06511 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on June 15, 1998 REGISTRATION NO. 333 - ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- CURAGEN CORPORATION (Exact name of Registrant as specified in its charter) DELAWARE 06-1331400 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 555 LONG WHARF DRIVE, 11TH FLOOR NEW HAVEN, CONNECTICUT 06511 (203)-401-3330 (203)-401-3333 facsimile (Address of Principal Executive Offices) CURAGEN CORPORATION 1993 STOCK OPTION AND INCENTIVE AWARD PLAN CURAGEN CORPORATION 1997 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN NON-QUALIFIED STOCK OPTION AGREEMENTS TO PURCHASE AN AGGREGATE OF 570,000 SHARES OF COMMON STOCK (Full titles of the plans) JONATHAN M. ROTHBERG, PH.D. CHIEF EXECUTIVE OFFICER, PRESIDENT AND CHAIRMAN OF THE BOARD CURAGEN CORPORATION 555 LONG WHARF DRIVE, 11TH FLOOR NEW HAVEN, CONNECTICUT 06511 (203)-401-3330 (203)-401-3333 facsimile (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------------- CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------- Proposed Proposed maximum maximum Title of Amount to be offering price aggregate Amount of securities to be registered registered(1) per share(2) offering price(2) registration fee - --------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value 2,147,483 $5.78 $12,412,451 $3,661.67 910,900 $7.75 $7,059,475 $2,082.55 --------- --------- 3,058,383 $5,744.22 ==============================================================================================================
(1) The number of shares of common stock, par value $.01 per share ("Common Stock"), stated above consists of the aggregate number of shares which may be sold upon the exercise of options which have been granted and/or may hereafter be granted under the CuraGen Corporation 1993 Stock Option and Incentive Award Plan, the CuraGen Corporation 1997 Employee, Director and Consultant Stock Plan, and certain Non-Qualified Stock Option Agreements to purchase an aggregate of 570,000 shares of Common Stock (collectively, the "Plans"). The maximum number of shares which may be sold upon the exercise of such options granted under the Plans are subject to adjustment in accordance with certain anti-dilution and other provisions of said Plans. Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement covers, in addition to the number of shares stated above, an indeterminate number of shares which may be subject to grant or otherwise issuable after the operation of any such anti-dilution and other provisions. (2) This calculation is made solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(h) under the Securities Act as follows: (i) in the case of shares of Common Stock which may be purchased upon exercise of outstanding options, the fee is calculated on the basis of the price at which the options may be exercised; and (ii) in the case of shares of Common Stock for which options have not yet been granted and the option price of which is therefore unknown, the fee is calculated on the basis of the average of the high and low sale prices per share of the Common Stock on the National Market System of the National Association of Securities Dealers Automated Quotation System (NASDAQ) as of a date (June 11, 1998) within 5 business days prior to filing this Registration Statement. ================================================================================ EXPLANATORY NOTE ---------------- In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of Common Stock pursuant to the Plans. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. - -------------------------------------------------------- The following documents filed by the Registrant with the Commission are incorporated herein by reference: (a) The Company's Prospectus dated March 18, 1998 filed with the Commission pursuant to Rule 424(b) of the Securities Act. (b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998. (c) The description of the Common Stock contained in the Registrant's Registration Statement on Form 8-A, File No. 000-23223 filed under the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description. All reports and other documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 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 herein and to be part hereof from the date of filing of such reports and documents. Item 4. Description of Securities. - ---------------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. - ----------------------------------------------- The validity of the issuance of the shares of Common Stock registered under this Registration Statement has been passed upon for the Company by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. of Boston, Massachusetts. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., members of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and certain members of their families and trusts for their benefit own an aggregate of approximately 39,349 shares of Common Stock of the Company and warrants to purchase an aggregate of approximately 18,413 shares of Common Stock of the Company. Item 6. Indemnification of Directors and Officers. - -------------------------------------------------- Incorporated herein by reference from Registration Statement on Form S-1, File No. 333-38051. Item 7. Exemption from Registration Claimed. - -------------------------------------------- Not applicable. II-1 Item 8. Exhibits. - ----------------- (4.1) Form of Common Stock Certificate (Filed as Exhibit 4.2 to the Registrant's Registration Statement on Form S-1, as amended, File No. 333-38051, and incorporated herein by reference). (4.2) Article Fourth of the Amended and Restated Certificate of Incorporation of the Registrant (Filed as Exhibit 3.3 to the Registrant's Registration Statement on Form S-1, File No. 333-38051, and incorporated herein by reference). (4.3) Amended and Restated Bylaws of the Registrant (Filed as Exhibit 3.5 to the Registrant's Registration Statement on Form S-1, as amended, File No. 333-38051, and incorporated herein by reference). (5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to the legality of shares being registered. (23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in opinion of counsel filed as Exhibit 5). (23.2) Consent of Deloitte & Touche LLP (23.3) Consent of Pennie & Edmonds LLP (24) Power of Attorney to file future amendments (set forth on the signature page of this Registration Statement.) (99.1) 1993 Stock Option and Incentive Award Plan (Filed as Exhibit 10.5 to the Registrant's Registration Statement on Form S-1, as amended, File No. 333-38051, and incorporated herein by reference). (99.2) 1997 Employee, Director and Consultant Stock Plan (Filed as Exhibit 10.4 to the Registrant's Registration Statement on Form S-1, as amended, File No. 333-38051, and incorporated herein by reference). (99.3) Form of Non-Qualified Stock Option Agreement with respect to options to purchase an aggregate of 570,000 Shares of Common Stock. 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; II-2 (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, represents a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, 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 Boston, Massachusetts on this 15th day of June, 1998 CURAGEN CORPORATION By /s/ Jonathan M. Rothberg --------------------------------- Jonathan M. Rothberg Chief Executive Officer, President and Chairman of the Board Each person whose signature appears below constitutes and appoints Jonathan M. Rothberg his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post- effective amendments) to this Registration Statement on Form S-8 of CuraGen Corporation, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date - --------- ----- ---- /s/ Jonathan M. Rothberg - --------------------------------- Chief Executive Officer, June 15, 1998 Jonathan M. Rothberg President and Chairman of the Board (principal executive officer) /s/ Gregory T. Went - --------------------------------- Executive Vice President June 15, 1998 Gregory T. Went and a Director /s/ David M. Wurzer - --------------------------------- Executive Vice President, June 15, 1998 David M. Wurzer Treasurer and Chief Financial Officer (principal financial and accounting officer) - --------------------------------- Director June , 1998 Vincent T. DeVita, M.D. -- /s/ Richard H. Booth - --------------------------------- Director June 15, 1998 Richard H. Booth /s/ Robert E. Patricelli - --------------------------------- Director June 15, 1998 Robert E. Patricelli /s/ James L. Vincent - --------------------------------- Director June 15, 1998 James L. Vincent II-4 CURAGEN CORPORATION INDEX TO EXHIBITS FILED WITH FORM S-8 REGISTRATION STATEMENT (4.1) Form of Common Stock Certificate (Filed as Exhibit 4.2 to the Registrant's Registration Statement on Form S-1, as amended, File No. 333-38051, and incorporated herein by reference). (4.2) Article Fourth of the Amended and Restated Certificate of Incorporation of the Registrant (Filed as Exhibit 3.3 to the Registrant's Registration Statement on Form S-1, File No. 333-38051, and incorporated herein by reference). (4.3) Amended and Restated Bylaws of the Registrant (Filed as Exhibit 3.5 to the Registrant's Registration Statement on Form S-1, as amended, File No. 333-38051, and incorporated herein by reference). (5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to the legality of shares being registered. (23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in opinion of counsel filed as Exhibit 5). (23.2) Consent of Deloitte & Touche LLP (23.3) Consent of Pennie & Edmonds LLP (24) Power of Attorney to file future amendments (set forth on the signature page of this Registration Statement.) (99.1) 1993 Stock Option and Incentive Award Plan (Filed as Exhibit 10.5 to the Registrant's Registration Statement on Form S-1, as amended, File No. 333-38051, and incorporated herein by reference). (99.2) 1997 Employee, Director and Consultant Stock Plan (Filed as Exhibit 10.4 to the Registrant's Registration Statement on Form S-1, as amended, File No. 333-38051, and incorporated herein by reference). (99.3) Form of Non-Qualified Stock Option Agreement with respect to options to purchase an aggregate of 570,000 Shares of Common Stock. II-5 EX-5 2 OPINION OF MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, Massachusetts 02111 701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000 Washington, D.C. 20004 Fax: 617/542-2241 Telephone: 202/434-7300 www.Mintz.com Fax: 202/434-7400 Direct Dial Number 617-542-6000 June 15, 1998 CuraGen Corporation 555 Long Wharf Drive, 11th Floor New Haven, Connecticut 06511 Ladies and Gentlemen: We have acted as counsel to CuraGen Corporation, a Delaware corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement"), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended, of a total of 3,058,383 shares (the "Shares") of its common stock, $.01 par value per share (the "Common Stock"). This opinion is being rendered in connection with the filing of the Registration Statement. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement. In connection with this opinion, we have examined the Company's Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, both as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company's officers as we have deemed relevant; and the Registration Statement and the exhibits thereto. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. Based upon the foregoing, we are of the opinion that (i) the Shares have been duly and validly authorized by the Company and (ii) the Shares, when sold, will have been duly and validly issued, fully paid and non-assessable shares of the Common Stock, free of preemptive rights. Our opinion is limited to the General Corporation Laws of the State of Delaware, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction. We understand that you wish to file this opinion as an exhibit to the Registration Statement, and we hereby consent thereto. Very truly yours, /s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. EX-23.2 3 CONSENT OF DELOITTE & TOUCHE LLP Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of CuraGen Corporation of our report dated February 13, 1998 (February 20, 1998 as to Note 10), appearing in CuraGen Corporation's Prospectus dated March 18, 1998 included in the CuraGen Corporation Registration Statement on Form S-1. /s/ Deloitte & Touche LLP - ------------------------- Deloitte & Touche LLP Hartford, Connecticut June 15, 1998 EX-23.3 4 CONSENT OF PENNIE & EDMONDS LLP Exhibit 23.3 CONSENT OF PENNIE & EDMONDS LLP We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of CuraGen Corporation of the reference to us under the headings "Experts" appearing in CuraGen Corporation's Prospectus dated March 18, 1998 included in the CuraGen Corporation Registration Statement on Form S-1. /s/ Pennie & Edmonds LLP -------------------- Pennie & Edmonds LLP New York, New York June 15, 1998 EX-99.3 5 FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT EXHIBIT 99.3 CURAGEN CORPORATION NON-QUALIFIED OPTION AGREEMENT WITH [INSERT NAME] [DATE] NOTE: ALTERNATIVE PROVISIONS ARE BRACKETED. - ------------------------------------------- CURAGEN CORPORATION (the "Corporation"), a Delaware corporation having its principal place of business in Branford, Connecticut, hereby grants to ______________________ , of Branford, Connecticut, (the "Optionee") personally the right and option (the "Option") to purchase a total of _____ shares (the "Stock") of Common Stock, par value $.01 per share, of the Corporation (the "Common Stock") at the price and on the terms determined as provided herein. 1. Option Price. The purchase price per share of the stock covered by the ------------ Option shall be $_____ per share. 2. Vesting. The Option shall vest cumulatively as follows: ------- _____ shares of Stock shall vest on _____ , provided the Optionee is employed full time by the Corporation on such date; _____ shares of Stock shall vest on _____ , provided the Optionee is employed full time by the Corporation on such date; shares of Stock shall vest on _____ , provided the Optionee is employed full time by the Corporation on such date; _____ shares of Stock shall vest on _____ , provided the Optionee is employed full time by the Corporation on such date. [The Option shall vest upon execution of this Agreement.] [The Option shall vest as follows: (i) ______ shares of Stock on __________; (ii) ______ shares of Stock on __________, provided that the Optionee worked as a Scientific Advisor on at least one day (eight hours) a year at the Corporation's Designated Office during the period from __________ through __________ (subparagraph 2(ii) is referred to herein as the "199_ Vesting Condition"); and (iii) ______ shares of Stock on __________ provided that the Optionee (a) satisfied the 199_ Vesting Conditions, and (b) worked as a Scientific Advisor at the Corporation's Designated Office on at least one day (eight hours) a year at the -2- Corporation's Designated Office during the period from __________through __________ (subparagraph 2(iii) is referred to herein as the "199_ Vesting Condition"). Notwithstanding the foregoing, if the Optionee's employment with the Company is terminated without cause prior to __________, then all unvested shares shall vest on the date of termination. The Corporation, in its sole reasonable discretion, shall determine if the foregoing Vesting Conditions have been met. As used in this Agreement, the following terms shall have the following meanings: (i) the term "Scientific Advisor" means that the Optionee shall use his best efforts and advise the Corporation as to the Project, including being available to respond to questions and assist with analysis and testing; (ii) the term "Corporation's Designated Office" means the Corporation's principal office or such other office of the Corporation as may be designated by the Corporation; and (iii) the term "Project" shall mean the Corporation's project which involves the development of molecular recognition technology for the precise design of protein-specific drugs, or any other research or development project which the Corporation shall designate.] 3. Term. The Option granted hereunder shall be exercisable by the Optionee ---- from the date the Option (or part of the Option) is vested pursuant to Section 2 of this Agreement until [Ten years from date of grant](the "Option Period") unless sooner terminated pursuant to the provisions of this Agreement. [Except for directors, the effect and exercise of the Option is conditioned upon the Optionee being an employee of the Corporation or its Subsidiaries for a one year period ending on ____, except (i) if the Optionee is a member of the Board of Directors and is not an employee of the Corporation or (ii) the Optionee's employment with the Corporation or its Subsidiaries terminates as a result of death or Disability.] 4. Exercise of Option. During the Option Period, the Optionee shall be ------------------ entitled to purchase from the Corporation the shares of Stock subject to the Option in whole at any time or in part from time to time, to the extent that the Option is vested (or to the extent that the Option is otherwise exercisable pursuant to Section 5 below), by giving written notice of exercise to the Corporation, provided however, that any exercise of the Option is conditioned upon: (i) the Optionee purchasing at least fifty (50) percent of the aggregate vested portion of the Option as of the date of exercise; (ii) the Optionee not exercising the Optionee's right to purchase stock hereunder more than once per calendar year [and (iii) the Optionee being an employee or director of the Corporation or its Subsidiaries at the time of exercise, except as provided in Section 5 below] [and (iii) -3- except as provided to the contrary in Section 5 below, if the Optionee exercises the Option after (a) __________, the Optionee having satisfied the 199_ Vesting Condition and (b) March 31, 199_, the Optionee having satisfied the 199_ and 199_ Vesting Conditions. [Or one may use the following alternative to paragraph 1 to Section 4: During the Option Period, the Optionee shall be entitled to purchase from the Corporation the shares of Stock subject to the Option in whole at any time or in part from time to time, to the extent that the Option is vested (or to the extent that the Option is otherwise exercisable pursuant to Section 5 below), by giving written notice of exercise to the Corporation.] The notice must be accompanied by payment to the Corporation of the full purchase price for the Stock being purchased. Such purchase price is payable in cash or by certified check, or, if the Optionee's Representative (as defined in Article II, Section 1(c) of the Curagen Corporation 1993 Stock Option and Incentive Award Plan (the "Plan")) exercises an Option as a result of the death or Disability (as defined in Article V, Section 3(d) of the Plan) of the Optionee, the purchase price may be paid, at the discretion of the Administrator (as defined in Article I, Section 2 of the Plan): (a) by the Optionee's Representative tendering a promissory note for the full purchase price, which promissory note shall provide for interest on the unpaid balance, calculated monthly, equal to the prime or base rate (or its equivalent) of Fleet Bank on the date of the note (and thereafter fixed for the term of the loan), and shall provide for equal monthly payments, consisting of a portion of the principal balance and accrued interest, for a period of 24 consecutive months commencing on the first day of the month following the exercise of the Option; (b) by tendering to the Corporation shares of Common Stock owned by the Optionee; or (c) partly by cash, certified check or promissory note and partly by tendering to the Corporation shares of Common stock in accordance with (b) above. Shares surrendered in accordance with (b) or (c) above shall be valued at the Per Share Value (as defined below) at the date of exercise. Surrender of such shares shall be evidenced by the delivery of certificate(s) representing such shares in such manner, and endorsed in such form, or accompanied by stock powers endorsed in such form, as the Administrator may determine. The exercise of the Option shall be effective only upon the actual receipt of the notice and the required payment. The Optionee shall not have any rights of a shareholder of the Corporation with respect to the shares of Stock subject to the Option except insofar as the Option has been exercised. -4- In lieu of permitting the Optionee to purchase any vested Stock pursuant to this Option, the Corporation may, in its sole discretion, pay to the Optionee an amount equal to the Appreciated Value multiplied by the number of shares of Stock being purchased by the Optionee (the "Appreciated Amount"). The Appreciated Amount shall be payable to the Optionee within thirty (30) days of receipt by the Corporation of the notice from the Optionee that the Optionee intends to exercise the Option. As used herein, the following terms shall have the following meanings: "Appreciated Value" shall mean the amount by which (a) the Per Share Value on the date of exercise of the Option, exceeds (b) the option price per share set forth in paragraph 1 hereof. "Control" shall have the meaning set forth in Section 203(c)(4) of the Delaware General Corporation Law, or any amendments thereto. "Net Income" shall mean the net income of the Corporation for the last four (4) completed fiscal quarters for which financial information is available at the time of the calculation, determined in accordance with generally accepted accounting principles (except that, for such purpose, any interest upon debt for borrowed money that was incurred during such four (4) quarters shall, to the extent that it was not incurred to refinance or substitute for other debt for borrowed money, be annualized and shall thereby reduce such net income for the purposes hereof). "Net Revenues" shall mean the net revenues of the Corporation for the last four (4) completed fiscal quarters for which financial information is available at the time of the calculation, determined in accordance with generally accepted accounting principles. "Per Share Preference" shall mean the quotient of (1) the aggregate amount of the preference that any class of stock of the Corporation, excluding convertible preferred stock, would have over the Common Stock in the event of the liquidation of the Corporation, divided by (2) the total number of outstanding shares of all Common Stock. For purposes of calculating the total number of shares of Common Stock outstanding, Common Stock subject to being issued pursuant to options, warrants, convertible preferred stock and convertible debt shall be deemed to be outstanding. "Per Share Value" shall mean (a) if the Common Stock is listed on a securities exchange or is quoted on the NASDAQ Stock Market, the closing price of the Common Stock on the date on which the Per Share Value must be determined; or (b) if subsection (a) is not applicable, the most recent price per share paid for the Common Stock by a purchaser which does not control, and is not -5- controlled by or under common control with the Corporation, provided that (A) such purchaser paid cash for such Common Stock, (B) the purchase is not pursuant to the exercise of any stock option, warrant, right or convertible preferred stock, and (C) such price was paid within the six month period preceding the date on which the Per Share Value must be determined; or (c) if subsections (a) and (b) are not applicable, the greater of (A) $1.00 per share, or (B) 15 multiplied by the amount by which (y) the quotient of (1) Net Income, divided by (2) the total number of outstanding shares of all Common Stock, exceeds (z) the Per Share Preference, or (C) 1.5 multiplied by the amount by which (y) the quotient of (1) Net Revenues, divided by (2) the total number of outstanding shares of Common Stock exceeds (z) the Per Share Preference. [5. Termination of Employment. The Option shall terminate upon termination of ------------------------- the Optionee's employment with the Corporation, regardless of whether such termination was voluntary or involuntary, with cause or without cause, except that upon termination of employment, the Optionee may exercise the Option to the extent that the Optionee was entitled to do so at termination of employment, at any time within two years [three months] thereafter if such termination is [for any reason other than Disability or death and is] without cause (as defined in Article V, Section 3(b) of the Plan); provided, however, that if the -------- ------- Administrator determines, subsequent to an Optionee's termination of service but prior to the exercise of an Option, that either prior or subsequent to the Optionee's termination, the Optionee engaged in conduct which would constitute "cause," then the right to exercise any Option is forfeited. If the Optionee dies within two years [three months] after termination of employment with the Corporation or its Subsidiaries [or termination as a director] (other than from a termination for cause [or resulting from a Disability]) [or if the Optionee dies within one year after termination of employment or service as a director as a result of Disability], the Option may be exercised by such Optionee's Representative (to the extent that the Optionee was entitled to do so at the termination of Optionee's employment [or service as a director]) at any time within the period ending on (i) the first anniversary of the Optionee's death, [or (ii) the second anniversary of the termination of the Optionee's employment with the Corporation or its Subsidiaries, whichever period is longer]. In no event shall an Option be exercisable in whole or in part after the termination date provided in this Agreement. [If an Optionee's employment or service is terminated as a result of death or Disability and if such death or Disability occurs while the Optionee is employed by or rendering service to the Corporation or its Subsidiaries, then upon termination of employment or service with the Corporation or its Subsidiaries, -6- the Optionee's Representative may exercise the Option to the extent the Optionee was entitled to do so on the date of the Optionee's Disability or death at any time within one year after such Disability or death. Notwithstanding the foregoing, if the Optionee's employment with the Corporation terminates either voluntarily or involuntarily, and without cause, (i) prior to ________, or (ii) prior to 195 calendar days subsequent to the effective date declared by the United States Securities and Exchange Commission with respect to the initial public offering of shares of Common Stock of the Corporation, which ever event shall first occur (the "Minimum Exercise Period"), the Option shall remain in full force and effect throughout the Minimum Exercise Period, provided, however, the Optionee has not been employed since his termination of employment by an employer operating a business engaged in by the Corporation.]] 6. Non-Transferability of Option. The Option may not be transferred in any ----------------------------- manner other than by will or by the laws of descent and distribution and may be exercised during the lifetime of the Optionee only by Optionee, or, if the Optionee has a Disability by the Optionee's Representative. The terms of the Option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee. [Or, instead of the foregoing paragraph the following text may be inserted: This Option may be transferred, in whole or in part, by the Optionee to (i) the spouse, children, step-children or any other issue of the Optionee ("Immediate Family Members"), (ii) any trust for the exclusive benefit of Immediate Family Members, (iii) any partnership of which Immediate Family Members are the only partners, or (iv) any limited liability company of which Immediate Family Members are the only shareholders; provided, however, that any subsequent transfers of this Option, or any part thereof, shall be prohibited except by will or by the laws of descent and distribution. The Administrator may permit transfers in addition to those described above in its discretion. In the event of the Optionee's death or disability, the Option may be exercised by the Optionee's Representative. Following any transfer hereunder, the Option shall continue to be subject to the terms and conditions of this Agreement as if the Transferee were the Optionee; provided, however, that the events of (i) vesting based on continued employment in Section 2 hereof and (ii) termination of employment in Sections 5 and 13 hereof shall continue to be applied to the original Optionee, and following termination of employment the Option shall be exercisable by any transferee only to the extent and for the -7- periods specified in Section 5 hereof. The original Optionee will also remain subject to withholding taxes upon exercise of the Option pursuant to Section 12 hereof. The original Optionee agrees to notify the Corporation in writing upon the completion of any transfer pursuant to this Section, such notice to include the name and address of the transferee and the date of transfer. The Company undertakes no obligation to notify any transferee of any event affecting the employment status of the original Optionee or otherwise affecting this Option which may have the effect of limiting or terminating the Option.] 7. Representations. Unless the offering and sale of the Stock shall have --------------- been effectively registered under the Securities Act of 1933, as now in force or hereafter amended, (the "1933 Act") the Corporation shall be under no obligation to issue the shares unless and until the following conditions have been fulfilled: (a) The Optionee represents and warrants to the Corporation at the time of the exercise or receipt, as the case may be, that the Optionee is acquiring the Stock for the Optionee's own account for investment and not with a view toward distribution thereof, in which event the Optionee acquiring the Stock shall be bound by the provisions of the following legend which shall be endorsed upon the certificate(s) evidencing the Stock issued pursuant to such exercise or such grant: The shares represented by this certificate have been purchased for investment purposes and they may not be sold or otherwise transferred by any person, including a pledgee, unless (1) either (a) a Registration Statement with respect to such shares shall be effective under the Securities Act of 1933, as amended, or (b) the Corporation shall have received an opinion of counsel satisfactory to it that an exemption from registration under such Act is then available, and (2) there shall have been compliance with all applicable state securities laws. (b) The Corporation shall have received an opinion of its counsel that the Common Stock may be issued upon such particular exercise in compliance with the 1933 Act without registration thereunder. The Corporation may delay issuance of the Common Stock until completion of any action or obtaining of any consent which the Corporation deems necessary under any applicable law (including, without limitation, state securities or "blue sky" laws). 8. Dissolution or Liquidation of the Corporation. Upon the dissolution or --------------------------------------------- liquidation of the Corporation, all Options granted -8- under this Agreement which as of such date have not been exercised will terminate and become null and void; provided, however, that if the rights of an Optionee or any Optionee's Representative have not otherwise terminated and expired, the Optionee or the Optionee's Representative will have the right immediately prior to such dissolution or liquidation to exercise any Option to the extent vested as of the date immediately prior to such dissolution or liquidation. 9. Effect of Change of Stock Subject to the Option. Upon the occurrence of ----------------------------------------------- any of the following events, an Optionee's rights with respect to the Option, which have not previously been exercised in full, shall be adjusted as hereinafter provided, unless otherwise specifically provided herein: (a) Stock Dividends and Stock Splits. If the shares of Common Stock shall -------------------------------- be subdivided or combined into a greater or smaller number of shares or if the Corporation shall issue any shares of Common Stock as a stock dividend on its outstanding Common Stock, the number of shares of Common Stock deliverable upon the exercise of the Option shall be appropriately increased or decreased proportionately, and appropriate adjustments shall be made in the option price per share to reflect such subdivision, combination or stock dividend. (b) Consolidations or Mergers. If the Corporation is to be consolidated ------------------------- with or merged into another entity (such that the Corporation is not the surviving entity), or upon sale of all or substantially all of the Corporation's assets or otherwise (an "Acquisition"), the Administrator or the board of directors of any entity assuming the obligations of the Corporation hereunder (the "Successor Board"), shall, as to the Option, either (i) make appropriate provision for the continuation of such Option by substituting on an equitable basis for the Common Stock then subject to such Option either the consideration payable with respect to the outstanding shares of Common Stock in connection with the Acquisition or securities of any successor or acquiring entity; or (ii) upon written notice to the Optionee, provide that the Option must be exercised, to the extent then exercisable (as the Option may have been amended), within a specified number of days of the date of such notice, at the end of which period the Option shall terminate; or (iii) terminate the Option in exchange for a cash payment equal to the excess of the Per Share Value of the shares subject to the Option (to the extent then exercisable as the Option may have been amended) over the option price thereof. (c) Recapitalization or Reorganization. In the event of a recapitalization ---------------------------------- or reorganization of the Corporation (other than a transaction described in subsection (b) above) pursuant to which -9- securities of the Corporation or of another corporation are issued with respect to the outstanding shares of Common Stock, the Optionee, upon exercising the Option, shall be entitled to receive for the option price paid upon such exercise the securities the Optionee would have received if the Optionee had exercised the Option prior to such recapitalization or reorganization. 10. Issuance of Securities. Except as expressly provided herein, no issuance ---------------------- by the Corporation of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares subject to the Option. Except as expressly provided herein, no adjustments shall be made for dividends paid in cash or in property (including without limitation, securities) of the Corporation. 11. Fractional Common Stock. No fractional share shall be issued under this ----------------------- Agreement and the person exercising such right shall receive from the Corporation cash in lieu of such fractional share equal to the Per Share Value thereof determined in good faith by the Board of Directors of the Corporation. 12. Tax Withholding Requirement. In the event that any federal, state, or --------------------------- local income taxes, [employment taxes], Federal Insurance Contributions Act, withholdings or other amounts are required by applicable law or governmental regulation to be withheld from the Optionee's salary, wages or other renumeration in connection with the exercise of an Option, the Optionee shall advance in cash to the Corporation or its Subsidiaries the amount of such withholdings unless a different withholding arrangement, including the use of Common Stock, is authorized by the Administrator (and permitted by law); provided, however, that with respect to Optionee subject to Section 16 of the 1934 Act, any such withholding arrangement shall be in compliance with any applicable provisions of Rule 16b-3 promulgated under Section 16 of the 1934 Act. For purposes hereof, the value of the shares withheld [for purposes of payroll withholding] shall be the Per Share Value thereof, as of the most recent practicable date prior to the date of exercise. If the Per Share Value of the shares withheld is less than the amount [of payroll withholdings] required, the Optionee may be required to advance the difference in cash to the Corporation or its Subsidiaries. The Administrator in its discretion may condition the exercise of an Option for less than the then Per Share Value on the Optionee's payment of such additional withholding [amounts]. [13. Employment or other Relationship. Nothing in this Agreement shall be -------------------------------- deemed to prevent the Corporation or any Subsidiary from terminating the employment, director status or status as a member of the Scientific Advisory Board of an -10- Optionee, nor to prevent an Optionee from terminating his or her own employment, director status or member status of the Scientific Advisory Board, nor to give any Optionee a right to be retained in employment or other service by the Corporation or any Subsidiary for any period of time.] 14. Acceptance. The Optionee hereby accepts the Option subject to all of the ---------- terms and provisions hereof. The Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Option. It is understood that this Agreement is subject to the terms and conditions of the Plan unless otherwise stated. Terms not defined herein shall have the meanings set forth in the Plan. 15. Governing Law. This Agreement shall be construed and enforced in ------------- accordance with the law of the State of Delaware. [16. Incorporation of Curagen Corporation 1993 Stock Option and Incentive -------------------------------------------------------------------- Award Plan. The option granted herein has not been granted pursuant to the - ---------- Curagen Corporation 1993 Stock Option and Incentive Award Plan ("the Plan"), but certain terms and conditions of the Plan are incorporated herein by reference, and to the extent that the provisions of the Plan are not inconsistent with the terms of this Agreement, the terms of the Plan shall be deemed to be a part of this Agreement.] [17. Stockholder's Agreement. The Optionee agrees, as a condition precedent ----------------------- to the Optionee exercising the Option to purchase Stock, hereunder, to execute a Stockholder's Agreement with the Corporation in the form of Exhibit A, attached --------- hereto.] [18. Agreement Not to Compete. During the Optionee's employment as a ------------------------ Scientific Advisor and for one year after the completion of such employment, the Optionee shall not, directly or indirectly, alone or as an employee, partner, officer, director, agent or a major stockholder (beneficially owning ten percent (10%) or more of any class of capital stock) of any other entity, engage in the business of drug design or DNA analysis, either for the Optionee's own benefit or for the benefit of any other person, firm or corporation whatsoever other than the Corporation, without the written consent of the Board of Directors of the Corporation. In addition, during the term hereof, the Optionee shall not disclose any work, research, designs or results thereof made or developed by him, alone or with others, in connection with his employment by the Corporation, to any person or entity, other than to employees of the Corporation, without the written consent of the Board of Directors of the Corporation. The foregoing agreements not to disclose information and not to compete with the Company are collectively referred to herein as the "Agreement Not to Compete". -11- Dated as of ______________________. CURAGEN CORPORATION By --------------------------------- Jonathan M. Rothberg Its President Agreed to and accepted this ___th day of ______, 19__. _______________________________ Optionee -----END PRIVACY-ENHANCED MESSAGE-----