<PAGE>
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
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
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)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.001) 1,630,500 $1.41 - $6.81 $6,332,347 $1,918.70
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(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").
<PAGE>
The following chart illustrates the computation of the registration fee:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
SECURITIES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING
SHARE PRICE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
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
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/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
</TABLE>
5.
<PAGE>
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.
<PAGE>
[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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
(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.
<PAGE>
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.
