-----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, AkR+l8UTHPwW0mvbzkBgQjzpSB/hdxX2uDAiLwAt3MWExh8/4ZAsMCCDI987P/zC 7SnmhubLf5vphnDEIfY6VQ== 0000912057-97-000433.txt : 19970109 0000912057-97-000433.hdr.sgml : 19970109 ACCESSION NUMBER: 0000912057-97-000433 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970108 EFFECTIVENESS DATE: 19970108 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CV THERAPEUTICS INC CENTRAL INDEX KEY: 0000921506 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 431570294 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-19389 FILM NUMBER: 97502476 BUSINESS ADDRESS: STREET 1: 3172 PORTER DR CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: 4158129300 MAIL ADDRESS: STREET 1: 3172 PORTER DRIVE CITY: PALO ALTO STATE: CA ZIP: 94304 S-8 1 S-8 As filed with the Securities and Exchange Commission on January 8, 1997 Registration No. 333- - ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- CV THERAPEUTICS, INC. (Exact name of registrant as specified in its charter) --------------------- DELAWARE 43-1570294 (State of Incorporation) (I.R.S. Employer Identification No.) --------------------- 3172 PORTER DRIVE PALO ALTO, CALIFORNIA 94304 (415) 812-0585 (Address and telephone number of principal executive offices) --------------------- 1992 STOCK OPTION PLAN 1994 EQUITY INCENTIVE PLAN NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN NONSTATUTORY STOCK OPTIONS EMPLOYEE STOCK PURCHASE PLAN (Full title of the plans) LOUIS G. LANGE, M.D., PH.D. CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER CV THERAPEUTICS, INC. 3172 PORTER DRIVE PALO ALTO, CA 94304 (415) 812-0585 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- Copies to: Alan C. Mendelson, Esq. Cooley Godward LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, California 94306-2155 (415) 843-5000 --------------------- CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------------------- TITLE OF SECURITIES PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF REGISTRATION FEE TO BE REGISTERED AMOUNT TO BE REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) - ----------------------------------------------------------------------------------------------------------------------------------- Stock Options and Common Stock (par value $.001) 1,630,500 $1.41 - $6.81 $6,332,347 $1,918.70 - ----------------------------------------------------------------------------------------------------------------------------------- - -----------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457 under the Securities Act of 1933, as amended (the "Securities Act"). The offering price per share and aggregate offering price are based upon (a) the weighted average exercise price, for shares subject to options previously granted under the Registrant's (i) 1992 Stock Option Plan (the "1992 Plan"), (ii) 1994 Equity Incentive Plan (the "1994 Plan"), (iii) Non-Employee Directors' Stock Option Plan (the "Directors Plan") and (iv) options granted outside the 1992 Plan, 1994 Plan and Directors' Plan and (b) the average of the high and low prices of the Registrant's Common Stock as reported on the NASDAQ National Market System on January 3, 1997 for (i) shares issuable pursuant to the 1992 Plan, (ii) shares issuable pursuant to the 1994 Plan, (iii) shares issuable pursuant to the Directors' Plan, (iv) shares issuable outside the 1992 Plan, 1994 Plan and Directors' Plan and (v) shares issuable pursuant to the Registrant's Employee Stock Purchase Plan (the "Purchase Plan"). The following chart illustrates the computation of the registration fee:
- ------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------- SECURITIES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING SHARE PRICE - ------------------------------------------------------------------------------------------------------------- Shares issuable pursuant to outstanding 332,673 $1.41 (1)(a)(i) $469,069 options under the 1992 Plan - ------------------------------------------------------------------------------------------------------------- Shares issuable pursuant to outstanding 506,346 2.49 (1)(a)(ii) 1,260,802 options under the 1994 Plan - ------------------------------------------------------------------------------------------------------------- Shares issuable pursuant to outstanding 100,000 2.49 (1)(a)(iii) 249,000 options under the Directors' Plan - ------------------------------------------------------------------------------------------------------------- Shares issuable pursuant to outstanding 73,000 1.94 (1)(a)(iv) 141,620 options granted outside the 1992 Plan, 1994 Plan and Directors' Plan - ------------------------------------------------------------------------------------------------------------- Shares available for future grants 468,481 6.81 (1)(b)(i), 3,190,356 pursuant to the 1992 Plan, 1994 Plan, (ii), (iii) Director's Plan and outside the 1992 Plan, & (iv) 1994 Plan and Directors' Plan - ------------------------------------------------------------------------------------------------------------- Shares available for grants pursuant to 150,000 6.81 (1)(b)(v) 1,021,500 the Purchase Plan - ------------------------------------------------------------------------------------------------------------- Proposed Maximum Aggregate Offering Price $6,332,347 - ------------------------------------------------------------------------------------------------------------- x .000303 - ------------------------------------------------------------------------------------------------------------- Registration Fee $1,918.70 - ------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by CV Therapeutics, Inc. (the "Company") with the Securities and Exchange Commission are incorporated by reference into this Registration Statement: (a) The Company's final prospectus filed on November 19, 1996 which contains audited financial statements for the Company's latest fiscal year for which such statements have been filed. (b) The description of the Company's Common Stock which is contained in the Registration Statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on October 30, 1996. All reports and other 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 have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of the filing of such reports and documents. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the shares of Common Stock being registered hereby will be passed upon for the Company by Cooley Godward LLP ("Cooley Godward"), Palo Alto, California. As of the date of this Prospectus, Cooley Godward owns a warrant to purchase 2,500 units with each unit consisting of one share of Common Stock and one warrant to purchase one-half share of Common Stock at an exercise price of $20.00 per share. GC&H Investments, a general partnership formed by the partners of Cooley Godward for investment purposes, owns 20,050 shares of the Company's Common Stock and a warrant to purchase 875 shares of Common Stock. Alan C. Mendelson and Deborah A. Marshall, partners at Cooley Godward, are Secretary and Assistant Secretary of the Company, respectively. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS As permitted by the Delaware General Corporation Law ("Delaware Law"), the Company's Restated Certificate of Incorporation provides that no director of the Company will be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or to its stockholders, (ii) for acts or omissions not made in good faith or which involved intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware Law, relating to prohibited dividends or distributions or the repurchase or redemption of stock or (iv) for any transaction from which the director derives an improper personal benefit. In addition, the Company's Amended and Restated Certificate of Incorporation provides that any director or officer who was or is a party or is threatened to be made a party to any action or proceeding by reason of his or her services to the Company will be indemnified to the fullest extent permitted by the Delaware Law. The Company has entered into indemnity agreements with each of its directors and officers for the indemnification of, and advancement of expenses to, such persons to the full extent permitted by law. In addition, the Company currently maintains directors' and officers' liability insurance. ITEM 8. EXHIBITS EXHIBIT NUMBER 5 Opinion of Cooley Godward LLP. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 1. 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement. 24 Power of Attorney is contained on the signature pages. 99.1+ 1992 Stock Option Plan. 99.2+ 1994 Equity Incentive Plan. 99.3+ Non-Employee Directors' Stock Option Plan. 99.4+ Form of Incentive Stock Option Grant. 99.5+ Form of Non-Incentive Stock Option Grant. 99.6 Form of Non-Statutory Stock Option Grant under Non-Employee Directors' Stock Option Plan. 99.7+ Employee Stock Purchase Plan. _____________________________________ + Filed as an exhibit to the Company's Registration Statement on Form S-1 (No. 333-12675) on September 25, 1996, and incorporated herein by reference. ITEM 9. UNDERTAKINGS 1. The undersigned registrant hereby undertakes: (a) 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; (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. 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)(i) and (a)(ii) of this section 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 issuer pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (b) 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. (c) 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. 2. 2. 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 Section 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. 3. 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 Securities and Exchange 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. 3. 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 Palo Alto, State of California, on January 8, 1997. CV THERAPEUTICS, INC. By: /s/ Louis G. Lange, M.D., Ph.D. -------------------------------------- Louis G. Lange, M.D., Ph.D. Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Louis G. Lange, M.D., Ph.D., and Kathleen A. Stafford, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof. 4. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE /s/ Louis G. Lange, M.D., Ph.D. Chairman of the Board and Chief January 8, 1997 - ---------------------------------- Executive Officer (Principal Louis G. Lange, M.D., Ph.D. Executive Officer) /s/ Kathleen A. Stafford Chief Financial Officer (Principal January 8, 1997 - ---------------------------------- Financial and Accounting Officer) Kathleen A. Stafford /s/ Samuel D. Colella Director January 8, 1997 - ---------------------------------- Samuel D. Colella /s/ Thomas L. Gutshall Director January 8, 1997 - ---------------------------------- Thomas L. Gutshall /s/ Barbara J. McNeil, M.D., Ph.D. Director January 8, 1997 - ----------------------------------- Barbara J. McNeil, M.D., Ph.D. /s/ Costa G. Sevastopoulos, Ph.D. Director January 8, 1997 - ----------------------------------- Costa G. Sevastopoulos, Ph.D. /s/ J. Leighton Read, M.D. Director January 8, 1997 - ----------------------------------- J. Leighton Read, M.D. /s/ Isaac Stein Director January 8, 1997 - ----------------------------------- Isaac Stein
5. EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBER 5 Opinion of Cooley Godward LLP. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement. 24 Power of Attorney is contained on the signature pages. 99.1+ 1992 Stock Option Plan. 99.2+ 1994 Equity Incentive Plan. 99.3+ Non-Employee Directors' Stock Option Plan. 99.4+ Form of Incentive Stock Option Grant. 99.5+ Form on Non-Incentive Stock Option Grant. 99.6 Form of Non-Statutory Stock Option Grant under Non-Employee Directors' Stock Option Plan. 99.7+ Employee Stock Purchase Plan. _____________________ + Filed as an exhibit to the Company's Registration Statement on Form S-1 (No. 333-12675) on September 25, 1996, and incorporated herein by reference. EX-5 2 EXHIBIT 5 [Letterhead] Exhibit 5 January 8, 1997 CV Therapeutics, Inc. 3172 Porter Drive Palo Alto, California 94304 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by CV Therapeutics, Inc. (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 1,630,500 shares of the Company's Common Stock, $.001 par value, (the "Shares") pursuant to its 1992 Stock Option Plan, 1994 Equity Incentive Plan, Non-Employee Directors' Stock Option Plan, Employee Stock Purchase Plan (collectively, the "Plans") and pursuant to nonstatutory stock options granted outside of the Company's option plans. In connection with this opinion, we have examined the Registration Statement, the Company's Amended and Restated Certificate of Incorporation and Restated By-laws and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the option agreements and the Registration Statement, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full). We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Cooley Godward LLP /s/ Deborah A. Marshall Deborah A. Marshall 21222308 EX-23.1 3 EXHIBIT 23.1 Exhibit 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1992 Stock Option Plan, 1994 Equity Incentive Plan, Non-Employee Directors' Stock Option Plan, Nonstatutory Stock Options, and the Employee Stock Purchase Plan of CV Therapeutics, Inc. of our report dated February 23, 1996, except for Note 10, as to which the date is October 29, 1996, with respect to the consolidated financial statements of CV Therapeutics, Inc. for each of the three years ended December 31, 1995 included in its Registration Statement (Form S-1, No. 333-12675) and related prospectus, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Palo Alto, California January 7, 1997 EX-99.6 4 EXHIBIT 99.6 Exhibit 99.6 CV THERAPEUTICS, INC. NONSTATUTORY STOCK OPTION (NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN) 1 ~, Optionee: CV Therapeutics, Inc. (the "Company"), pursuant to its Non-Employee Directors' Stock Option Plan (the "Plan") has this day granted to you, the optionee named above, an option to purchase shares of the common stock of the Company ("Common Stock"). This option is not intended to qualify and will not be treated as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). The grant hereunder is in connection with and in furtherance of the Company's compensatory benefit plan for participation of the Company's Non-Employee Directors (as defined in the Plan). The details of your option are as follows: 1. The total number of shares of Common Stock subject to this option is 2~ (3~). Subject to the limitations contained herein, each option shall become exercisable as to thirty-three and thirty-three one-hundredths percent (33.33%) twelve (12) months from the date of grant and then at the rate of two and seventy-seven one hundreths percent (2.77%) per month over the next twenty-four (24) months such that the option shall be one hundred percent (100%) vested thirty-six (36) months from the Vesting Start Date. 2. The exercise price of this option is 4~ (5~) per share, being the Fair Market Value of the Common Stock on the date of grant of this option (as defined in the Plan). 3. (a) This option may be exercised, to the extent specified in the Plan, by delivering a notice of exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require pursuant to paragraph 6 of the Plan. This option may not be exercised for any number of shares which would require the issuance of anything other than whole shares. (b) By exercising this option you agree that the Company may require you to enter an arrangement providing for the cash payment by you to the Company of any tax withholding obligation of the Company arising by reason of the exercise of this option or the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise. (c) By exercising this option you agree that the Company (or a representative of the underwriters) may, in connection with the first underwritten registration of the offering of any securities of the Company under the Securities Act, require that you not sell or otherwise transfer or dispose of any shares of Common Stock or other securities of the Company during such period (not to exceed one hundred eighty (180) days) following the effective date of the registration statement of the Company filed under the Securities Act of 1933, as amended, as may be requested by the Company or the representative of the underwriters. 1. 4. Any notices provided for in this option or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the address specified below or at such other address as you hereafter designate by written notice to the Company. 5. This option is subject to all the provisions of the Plan, a copy of which is attached hereto and its provisions are hereby made a part of this option, including without limitation the provisions of paragraph 6 of the Plan relating to option provisions, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this option and those of the Plan, the provisions of the Plan shall control. Dated the 6~. Very truly yours, CV THERAPEUTICS, INC. By: -------------------------------- Duly authorized on behalf of the Board of Directors ATTACHMENTS: Non-Employee Directors' Stock Option Plan Notice of Exercise 2. The undersigned: (a) Acknowledges receipt of the foregoing option and the attachments referenced therein and understands that all rights and liabilities with respect to this option are set forth in the option and the Plan; (b) Acknowledges that as of the date of grant of this option, it sets forth the entire understanding between the undersigned optionee and the Company and its affiliates regarding the acquisition of stock in the Company and supersedes all prior oral and written agreements on that subject with the exception of (i) the options previously granted and delivered to the undersigned under stock options plans of the Company, and (ii) the following agreements only: NONE ----------------------------------- (Initial) OTHER -------------------------------------- -------------------------------------- -------------------------------------- ---------------------------------------------- 1~, Optionee ---------------------------------------------- ---------------------------------------------- ---------------------------------------------- Address 3. NOTICE OF EXERCISE (Non-Employee Directors' Stock Option Plan) CV Therapeutics, Inc. 3172 Porter Drive Palo Alto, CA 94304 Date of Exercise: ---------------- Ladies and Gentlemen: This constitutes notice under my stock option that I elect to purchase the number of shares for the price set forth below. Stock option dated: ----------------------- Number of shares as to which option is exercised: ----------------------- Certificates to be issued in name of: ----------------------- Total exercise price: $ ----------------------- Cash payment delivered herewith: $ ----------------------- Value of ______ shares of CV Therapeutics, Inc. common stock delivered herewith(1): $ ----------------------- By this exercise, I agree (i) to provide such additional documents as you may require pursuant to the terms of the CV Therapeutics, Inc. Non-Employee Directors' Stock Option Plan, - --------------------------- (1) Shares must meet the public trading requirements set forth in the option. Shares must be valued in accordance with the terms of the option being exercised, must have been owned for the minimum period required in the option, and must be owned free and clear of any liens, claims, encumbrances or security interests. Certificates must be endorsed or accompanied by an executed assignment separate from certificate. 1. (ii) to provide for the payment by me to you (in the manner designated by you) of your withholding obligation, if any, relating to the exercise of this option, and (iii) if this exercise relates to an incentive stock option, to notify you in writing within fifteen (15) days after the date of any disposition of any of the shares of Common Stock issued upon exercise of this option that occurs within two (2) years after the date of grant of this option or within one (1) year after such shares of Common Stock are issued upon exercise of this option. I hereby make the following certifications and representations with respect to the number of shares of Common Stock of the Company listed above (the "Shares"), which are being acquired by me for my own account upon exercise of the Option as set forth above: I acknowledge that the Shares have not been registered under the Securities Act of 1933, as amended (the "Act"), and are deemed to constitute "restricted securities" under Rule 701 and "control securities" under Rule 144 promulgated under the Act. I warrant and represent to the Company that I have no present intention of distributing or selling said Shares, except as permitted under the Act and any applicable state securities laws. I further acknowledge that I will not be able to resell the Shares for at least ninety days after the stock of the Company becomes publicly traded (i.e., subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934) under Rule 701 and that more restrictive conditions apply to affiliates of the Company under Rule 144. I further acknowledge that all certificates representing any of the Shares subject to the provisions of the Option shall have endorsed thereon appropriate legends reflecting the foregoing limitations, as well as any legends reflecting restrictions pursuant to the Company's Articles of Incorporation, Bylaws and/or applicable securities laws. I further agree that, if required by the Company (or a representative of the underwriters) in connection with the first underwritten registration of the offering of any securities of the Company under the Act, I will not sell or otherwise transfer or dispose of any shares of Common Stock or other securities of the Company during such period (not to exceed one hundred eighty (180) days) following the effective date of the registration statement of the Company filed under the Act (the "Effective Date") as may be requested by the Company or the representative of the underwriters. For purposes of this restriction I will be deemed to own securities that (i) are owned directly or indirectly by me, including securities held for my benefit by nominees, custodians, brokers or pledgees; (ii) may be acquired by me within sixty (60) days of the Effective Date; (iii) are owned directly or indirectly, by or for my brothers or sisters (whether by whole or half blood), spouse, ancestors and lineal descendants; or (iv) are owned, directly or indirectly, by or for a corporation, partnership, estate or trust of which I am 2. a stockholder, partner or beneficiary, but only to the extent of my proportionate interest therein as a stockholder, partner or beneficiary thereof. I further agree that the Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such period. Very truly yours, ---------------------------------- Signature ---------------------------------- Print Name Address: ------------------------- ---------------------------------- 3. -----END PRIVACY-ENHANCED MESSAGE-----