<PAGE> 1
As filed with the Securities and Exchange Commission on September 16, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVIGEN, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3647113
State of Incorporation I.R.S. Employer Identification No.
1201 Harbor Bay Parkway, #1000
Alameda, CA 94502
(510) 748-7150
(Address and telephone number of principal executive offices)
1993 Stock Option Plan
Nonstatutory Stock Option
1996 Equity Incentive Plan
1996 Non-Employee Directors' Stock Option Plan
(Full title of the plans)
John Monahan, Ph.D.
President and Chief Executive Officer
Avigen, Inc.
1201 Harbor Bay Parkway, #1000
Alameda, CA 94502
(510) 748-7150
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Alan C. Mendelson, Esq.
Cooley Godward Castro Huddleson & Tatum
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(415) 843-5000
Total Number of Pages:
Exhibit Index at Page:
<PAGE> 2
<TABLE>
<CAPTION>
=============================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO OFFERING PRICE PER AGGREGATE OFFERING
BE REGISTERED AMOUNT TO BE SHARE (1) PRICE (1) AMOUNT OF
REGISTERED REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.001) 1,598,446 $5.69 $4,960,231 $1,711
=============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The price per share and aggregate offering price are based
upon (a) the weighted average price for options previously granted pursuant
to the Registrant's (i) 1993 Stock Option Plan and (ii) for options granted
outside the Registrant's option plans in accordance with Rule 457(h) and (b)
the average of the high and low prices of Registrant's Common Stock on
September 9, 1996 as reported on the NASDAQ National Market System in
accordance with Rule 457(c) for shares available for issuance under (i) the
1996 Equity Incentive Plan and (ii) the 1996 Non-Employee Directors' Stock
Option Plan.
(2) As of the date of this Registration Statement, no shares have been issued
pursuant to the 1996 Equity Incentive Plan or the 1996 Non-Employee
Director's; Stock Option Plan and no options have been granted or are
outstanding under either plan.
ii
<PAGE> 3
The chart below details the calculations of the registration fee.
<TABLE>
<CAPTION>
==============================================================================================
NUMBER OF OFFERING PRICE PER AGGREGATE
SECURITIES SHARES SHARE OFFERING PRICE
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant to
outstanding options under
the 1993 Stock Option Plan 283,198 $0.55 $ 155,759
- ----------------------------------------------------------------------------------------------
Shares issuable pursuant to
outstanding options granted
outside the 1993 Stock
Option Plan. 515,248 $0.49 $ 252,472
- ----------------------------------------------------------------------------------------------
Shares available for
additional grants under the
1996 Equity Incentive Plan 600,000 $5.69 $3,414,000
- ----------------------------------------------------------------------------------------------
Shares available for
additional grants under the
1996 Non-Employee
Directors' Stock Option
Plan 200,000 $5.69 $1,138,000
- ----------------------------------------------------------------------------------------------
Proposed Maximum
Offering Price $4,960,231
- ----------------------------------------------------------------------------------------------
x .000344827
- ----------------------------------------------------------------------------------------------
Registration Fee $ 1,711
==============================================================================================
</TABLE>
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
iii
<PAGE> 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Avigen, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's prospectus filed on May 22, 1996, pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Act").
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
the Company's Registration Statement on Form 8-A filed on April 23, 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.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware Law, the Company's Amended and 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 omission 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 distribution 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 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 extent permitted by the
Delaware Law.
The Company has entered into indemnification agreements with each of
its directors and officers under which the Company has indemnified each of them
against expenses and losses incurred for claims brought against them by reason
of their being a director or officer of the Company, and the Company maintains
directors' and officers' liability insurance.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
1.
<PAGE> 5
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
5 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Ernst & Young, LLP, Independent Auditors
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in Exhibit 5 to this Registration
Statement
24 Power of Attorney is contained on the signature pages.
99.1+ 1993 Stock Option Plan
99.2+ 1996 Equity Incentive Plan
99.3+ Form of Incentive Stock Option Grant
99.4+ Form of Nonstatutory Stock Option Grant
99.5+ 1996 Non-Employee Directors' Stock Option Plan
99.6 Nonstatutory Stock Option Grant outside the Plans
</TABLE>
- ----------------------------
+ Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(No. 333-3220), as amended through the date hereof, and incorporated herein
by reference.
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.
2.
<PAGE> 6
(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) 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 herein, 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. 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 herein, 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> 7
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 Alameda, State of California, on September 12,
1996.
AVIGEN, INC.
By /s/ John Monahan
--------------------------------------
John Monahan, Ph.D.
President and Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints John Monahan and Philip J.
Whitcome, and each or any one of them, 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, 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 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 substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
4.
<PAGE> 8
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ John Monahan, Ph.D. President, Chief Executive Officer September 12, 1996
- ----------------------------- and Director (Principal Executive
(John Monahan, Ph.D.) Officer)
/s/ Philip J. Whitcome, Ph.D. Chairman of the Board and Acting September 12, 1996
- ----------------------------- Chief Financial Officer (Principal
(Philip J. Whitcome, Ph.D.) Financial Officer)
/s/ Glenn Bauer Controller (Principal Accounting September 12, 1996
- ----------------------------- Officer)
(Glenn Bauer)
/s/ Zola Horovitz, Ph.D.
- ----------------------------- Director September 12, 1996
(Zola Horovitz, Ph.D.)
/s/ Yuichi Iwaki, M.D., Ph.D. Director September 12, 1996
- ----------------------------
(Yuichi Iwaki, M.D., Ph.D.)
/s/ Richard T. Pratt
- ----------------------------- Director September 12, 1996
(Richard T. Pratt)
/s/ John Prendergast, Ph.D.
- ----------------------------- Director September 12, 1996
(John Prendergast, Ph.D.)
- ----------------------------- Director September , 1996
(Lindsay A. Rosenwald, M.D.)
/s/ Leonard P. Shaykin
- ----------------------------- Director September 12, 1996
(Leonard P. Shaykin)
</TABLE>
5.
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBER
<S> <C> <C>
5 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Ernst & Young, LLP, Independent Auditors
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in
Exhibit 5 to this Registration Statement
24 Power of Attorney is contained on the signature pages.
99.1+ 1993 Stock Option Plan
99.2+ 1996 Equity Incentive Plan
99.3+ Form of Incentive Stock Option Grant
99.4+ Form of Nonstatutory Option Grant
99.5+ 1996 Non-Employee Directors' Stock Option Plan
99.6 Nonstatutory Stock Option Grant outside of the Plans
</TABLE>
- ----------------------------
+ Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(No. 333-3220), as amended through the date hereof, and incorporated herein
by reference.
6.
<PAGE> 1
Exhibit 5
[Cooley Godward Letterhead]
September 12, 1996
Avigen, Inc.
1201 Harbor Bay Parkway, #1000 ALAN C. MENDELSON
Alameda, CA 94502 Direct: (415) 843-5010
Internet: [email protected]
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Avigen, 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 1,083,198 shares of the Company's
Common Stock, $.001 par value, pursuant to its 1996 Equity Incentive Plan, 1996
Non-Employee Directors' Stock Option Plan and 1993 Stock Option Plan
(collectively, the "Plans") and up to 515,248 shares of the Company's Common
Stock, $0.001 par value, pursuant to a nonstatutory stock option granted outside
of the Company's option plans (the "Shares").
In connection with this opinion, we have examined the Registration Statement,
the Company's Certificate of Incorporation and Bylaws, as amended, 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
agreement 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 CASTRO
HUDDLESON & TATUM
By: /s/ Alan C. Mendelson
------------------------------
Alan C. Mendelson
<PAGE> 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 1993 Stock Option Plan, Nonstatutory Stock Option
1996 Equity Incentive Plan, and the 1996 Non-Employee Directors' Stock Option
Plan of Avigen, Inc. of our report dated September 8, 1995 (except Note 10 as to
which the date is May 7, 1996), with respect to the financial statements of
Avigen, Inc. included in Amendment No. 2 to the Registration Statement (Form
S-1, 333-3220) and the related Prospectus of Avigen, Inc., filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Walnut Creek, California
September 10, 1996
<PAGE> 1
EXHIBIT 99.6
NONSTATUTORY STOCK OPTION
THE SECURITIES REPRESENTED BY THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO DISTRUBUTION OR RESALE, AND MAY NOT BE SOLD, OFFERED FOR
SALE, ASSIGNED, TRANSFERRED OR PLEDGED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933 OR AN
OPINION OF COUNSEL SATISFACTORY IN FORM AND CONTENT TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
Philip J. Whitcome, Optionee:
AVIGEN, INC. (the "Company"), hereby grants to you, the optionee named
above, an option (the "Option") to purchase shares of the Class A Common Stock
of the Company ("Common Stock"). This option is not intended to qualify as 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 intended to comply with the provisions of Rule
701 promulgated by the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the "Act"). The grant of this option and the issuance
of shares upon the exercise of this option are also intended to be exempt from
the securities qualification requirements of the California Corporations Code
pursuant to Section 25102(f) of that code.
The details of Option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of
shares of Common Stock subject to this option is two million two hundred
eighty-two thousand five hundred forty-nine (2,282,549).
2. VESTING. Subject to the limitations contained herein, one
thirty-sixth (1/36) of the shares will vest (become exercisable) in a series of
equal successive monthly installments upon Optionee's completion of each of the
thirty-six months of service ending after July 15, 1995 (the "Effective Date")
until either (i) you cease to provide services to the Company for any reason, or
(ii) this option becomes fully vested. Notwithstanding the foregoing, in the
event that the Director's Engagement Agreement between you and the Company,
dated July 15, 1995 is terminated by the Company during the first year following
the Effective Date, one-third (1/3) of the shares subject to this option shall
vest immediately.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
1.
<PAGE> 2
(a) EXERCISE PRICE. The exercise price of Option is eleven
cents ($.11) per share.
(b) METHOD OF PAYMENT. Payment of the exercise price per share
is due in full upon exercise of all or any part of each installment which has
accrued to you. You may elect, to the extent permitted by applicable statutes
and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in
cash (including check) at the time of exercise;
(ii) Provided that at the time of exercise the
Company's Common Stock is publicly traded and quoted regularly in the Wall
Street Journal, payment by delivery of already-owned shares of Common Stock,
held for the period required to avoid a charge to the Company's reported
earnings, and owned free and clear of any liens, claims, encumbrances or
security interests, which Common Stock shall be valued at its fair market value
on the date of exercise;
(iii) Payment pursuant to the deferred payment
alternative as described in paragraph 3(c) hereof; or
(iv) Payment by a combination of the methods
of payment permitted by subparagraph 3(b)(i) through 3(b)(iii) above.
(c) CONDITIONS OF DEFERRED PAYMENT. In the event that you
elect to make payment of the exercise price pursuant to the deferred payment
alternative:
(i) Not less than one percent (1%) of the
aggregate exercise price shall be due at the time of exercise, not less than
twenty percent (20%) of said exercise price, plus accrued interest, shall be due
each year after the date of exercise, and final payment of the remainder of the
exercise price, plus accrued interest, shall be due five (5) years from date of
exercise or, at the Company's election, upon termination of your service with
the Company;
(ii) Interest shall be payable at least
annually and shall be charged at the minimum rate of interest necessary to avoid
the treatment as interest, under any applicable provisions of the Code, of any
portion of any amounts other than amounts stated to be interest under the
deferred payment arrangement; and
(iii) In order to elect the deferred payment
alternative, you must, as a part of your written notice of exercise, give notice
of the election of this payment alternative and, in order to secure the payment
of the deferred exercise price to the Company hereunder, if the Company so
requests, you must tender to the Company a promissory note and a security
agreement covering the purchased shares, both in form and substance satisfactory
to the Company, or such other or additional documentation as the Company may
request.
2.
<PAGE> 3
4. EXERCISE PRIOR TO VESTING PERMITTED.
(a) CONDITIONS OF EARLY EXERCISE. Subject to the provisions of
this option, you may elect at any time while you are providing services to the
Company to exercise the option as to any part or all of those shares subject to
this option which have not yet vested as stated in paragraph 2 hereof; provided,
however, that:
(i) a partial exercise of this option shall be
deemed to cover first vested shares and then the earliest vesting installment of
unvested shares;
(ii) any shares so purchased from installments
which have not vested as of the date of exercise shall be subject to the
purchase option in favor of the Company as described in the Early Exercise Stock
Purchase Agreement attached hereto; and
(iii) you shall enter into an Early Exercise
Stock Purchase Agreement in the form attached hereto as Exhibit I with a vesting
schedule that will result in the same vesting as if no early exercise had
occurred.
(b) EXPIRATION OF EARLY EXERCISE ELECTION. The election
provided in this paragraph 4 to purchase shares upon the exercise of this option
prior to the vesting dates shall cease upon termination of your service with the
Company and may not be exercised after the date thereof.
5. INTERPRETATION OF THE OPTION TERMS. To the extent not inconsistent
with the terms hereof, the Company shall interpret the terms of the Option in
accordance with its interpretation of provisions of the Avigen, Inc. 1993 Stock
Option Plan (the "Plan").
6. WHOLE SHARES; MINIMUM SHARES EXERCISABLE. This option may not
issuance of anything other than whole shares. The minimum number of shares with
respect to which this option may be exercised at any one time is one hundred
(100), except with respect to the final exercise of this option this minimum
shall not apply.
7. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Act or, if such
Shares are not then so registered, the Company has determined that such exercise
and issuance would be exempt from the registration requirements of the Act.
8. TERM. The term of this option commences on July 27, 1995 the date of
grant of this option, and expires on July 27, 2005 (the "Expiration Date"),
(which date shall be no more than ten (10) years from the date this option is
granted), unless this option expires sooner as set forth below. In no event may
this option be exercised on or after the Expiration Date. This option shall
terminate prior to the Expiration Date as follows: three (3) months after the
termination of your service with the Company for any reason or for no reason
unless:
3.
<PAGE> 4
(a) such termination of your service is due to your disability
(defined as your inability, due to illness or injury, to engage in any gainful
occupation for which you are suited by education, training or experience, which
condition continues for at least six (6) months) in which event the option shall
expire on the earlier of the Expiration Date set forth above or twelve (12)
months following such termination of your service; or
(b) such termination of your service is due to your death, in
which event the option shall expire on the earlier of the Expiration Date set
forth above or twelve (12) months after your death; or
(c) during any part of such three (3) month period the option
is not exercisable solely because of the condition set forth in paragraph 6
above, in which event the option shall not expire until the earlier of the
Expiration Date set forth above or until it shall have been exercisable for an
aggregate period of three (3) months after the termination of your service; or
(d) exercise of the option within three (3) months after
termination of your service with the Company would result in liability under
section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act), in
which case the option will expire on the earlier of (i) the Expiration Date set
forth above, (ii) the tenth (10th) day after the last date upon which exercise
would result in such liability or (iii) six (6) months and ten (10) days after
the termination of your service with the Company.
However, this option may be exercised following termination of your
service only as to that number of shares as to which it was exercisable on the
date of termination of your service under the provisions of paragraph 2 of this
option.
9. REPRESENTATIONS. By executing this option agreement, you hereby
warrant and represent that you are acquiring this option for your own account
and that you have no intention of distributing, transferring or selling all or
any part of this option except in accordance with the terms of this option
agreement and Section 25102(f) of the California Corporations Code. You also
hereby warrant and represent that you have either (i) preexisting personal or
business relationships with the Company or any of its officers, directors or
controlling persons, or (ii) the capacity to protect your own interests in
connection with the grant of this option by virtue of the business or financial
expertise of any of your professional advisors who are unaffiliated with and who
are not compensated by the Company or any of its affiliates, directly or
indirectly.
10. EXERCISE.
(a) This option may be exercised, to the extent specified
above, by delivering a notice of exercise (substantially in the form attached
hereto as Exhibit II, or 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 reasonably require.
(b) By exercising this option you agree that:
4.
<PAGE> 5
(i) as a precondition to the completion of any
exercise of this option, 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: (1) the exercise of this option;
(2) the lapse of any substantial risk of forfeiture to which the shares are
subject at the time of exercise; or (3) the disposition of shares acquired upon
such exercise; and
(ii) 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 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 (the "Effective Date") of the
registration statement of the Company filed under the Act as may be requested by
the Company or the representative of the underwriters.
11. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to this option
(through merger, consolidation, reorganization, recapitalization, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by the
Company), this option will be appropriately adjusted in the class(es) and
maximum number of shares subject to the option, and exercise price per share
thereof. Such adjustments shall be made by the Board, the determination of which
shall be final, binding and conclusive. (The conversion of any convertible
securities of the Company shall not be treated as a "transaction not involving
the receipt of consideration by the Company.")
(b) In the event of: (1) a dissolution, liquidation, or sale of all or
substantially all of the assets of the Company; (2) a merger or consolidation in
which the Company is not the surviving corporation; (3) a reverse merger in
which the Company is the surviving corporation but the shares of the Company's
common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise; or (4) the acquisition by any person, entity or group within
the meaning of Section 13(d) or 14(d) of the Exchange Act, or any comparable
successor provisions (excluding any employee benefit plan, or related trust,
sponsored or maintained by the Company) of the beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable
successor rule) of securities of the Company representing at least fifty percent
(50%) of the combined voting power entitled to vote in the election of
directors, then to the extent permitted by applicable law: (i) any surviving or
acquiring corporation shall assume this option or shall substitute a similar
option (if this option is still outstanding), or (ii) this option shall continue
in full force and effect. In the event any surviving or acquiring corporation
refuses to assume or continue this option, or to substitute a similar option for
this option (if still outstanding), the time during which this option may be
exercised shall be accelerated prior to such event and the option terminated if
not exercised after such acceleration and at or prior to such event.
5.
<PAGE> 6
12. TRANSFERABILITY. This option is not transferable, except by will or
by the laws of descent and distribution or pursuant to a qualified domestic
relations order (a "QDRO"), and shall be exercisable during your lifetime only
by you or any transferee pursuant to a QDRO. Notwithstanding the foregoing, by
delivering written notice to the Company, in a form satisfactory to the Company,
you may designate a third party who, in the event of your death, shall
thereafter be entitled to exercise this option. Neither you nor any person to
whom this option is transferred pursuant to this paragraph 12 shall be deemed to
be the holder of, or to have any of the rights of a holder with respect to, any
shares subject to this option unless and until such person has satisfied all
requirements for exercise of this option pursuant to its terms.
13. OPTION NOT A SERVICE CONTRACT. Nothing in this option shall confer
upon you any right to (i) continue in the employ of the Company, or (ii)
continue acting as a director or consultant of the Company, or shall affect the
right of the Company to terminate the employment of any employee, with or
without cause, to remove any director as provided in the Company's By-Laws and
the provisions of the General Corporation Law of the State of Delaware, or to
terminate the relationship of any consultant in accordance with the terms of
that consultant's agreement with the Company.
14. NOTICES. Any notices provided for in this option 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.
15. GOVERNING AUTHORITY. This option is subject to all interpretations,
amendments, rules and regulations which may from time to time be promulgated and
adopted by the Company. This authority shall be exercised by the Board, or by a
committee of one or more members of the Board in the event that the Board
delegates its authority to a committee. The Board, in exercise of this
authority, may correct any defect, omission or inconsistency in this option in a
manner and to the extent the Board shall deem necessary or desirable to make
this option fully effective. References to the Board shall mean the committee if
a committee has been appointed by the Board. Any interpretations, amendments,
rules and regulations promulgated by the Board shall be final and binding upon
the Company and its successors in interest as well as you and your heirs,
assigns, and other successors in interest.
6.
<PAGE> 7
16. During the term of this option, the Company shall keep available at
all times the number of shares of stock required to satisfy the exercise of such
option.
Dated as of the 29th day of July, 1995.
Very truly yours,
AVIGEN, INC.
By /s/ John Monahan
---------------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
I Early Exercise stock Purchase Agreement
II Notice of Exercise
7.
<PAGE> 8
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, to the extent not inconsistent
with the option, the Plan; and
(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
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 Option to
acquire the securities of the Company, and (ii) the following agreements only:
NONE
---------------
(Initial)
OTHER
--------------------------------
--------------------------------
--------------------------------
/s/ Philip J. Whitcome
-----------------------------------------
DR. PHILIP J. WHITCOME
Address:
------------------------------
------------------------------
8.
<PAGE> 9
EXHIBIT A
VESTING SCHEDULE
NUMBER OF SHARES
SUBJECT TO
IF CESSATION OF EMPLOYMENT OCCURS: PURCHASE OPTION:
Before , 19 shares
-------------- -- -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
After , 19
------------- --
but before , 19 shares
------------ -------------------
1.
<PAGE> 10
EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Early Exercise Stock
Purchase Agreement dated as of , 19 , (the "Agreement"), Philip J.
Whitcome hereby sells, assigns and transfers unto
_____________________________________________ (_________) shares of common stock
of Avigen, Inc., a Delaware corporation, standing in the undersigned's name on
the books of said corporation represented by Certificate No. _____, and does
hereby irrevocably constitute and appoint __________________________ attorney to
transfer the said stock on the books of the said corporation with full power of
substitution in the premises. This Assignment may be used only in accordance
with and subject to the terms and conditions of the Agreement, in connection
with the repurchase of shares of common stock issued to the undersigned pursuant
to the Agreement, and only to the extent that such shares remain subject to the
Company's Purchase Option under the Agreement.
Dated:
-----------------------
Signature
--------------------------------
1.
<PAGE> 11
EXHIBIT C
FORM OF JOINT ESCROW INSTRUCTIONS
Avigen, Inc.
1201 Harbor Bay Parkway
Suite 1000
Alameda, CA 94502
Dear Sir or Madam:
As Escrow Agent for both Avigen, Inc., a Delaware corporation
("Corporation"), and the undersigned purchaser of stock of the Corporation
("Purchaser"), you are hereby authorized and directed to hold the documents
delivered to you pursuant to the terms of that certain Early Exercise Stock
Purchase Agreement ("Agreement"), dated ____________________, to which a copy of
these Joint Escrow Instructions is attached as Exhibit C, in accordance with the
following instructions:
1. In the event the Corporation or an assignee shall elect to exercise
the Purchase Option set forth in the Agreement, the Corporation or its assignee
will give to Purchaser and you a written notice specifying the number of shares
of stock to be purchased, the purchase price, and the time for a closing
hereunder at the principal office of the Corporation. Purchaser and the
Corporation hereby irrevocably authorize and direct you to close the transaction
contemplated by such notice in accordance with the terms of said notice.
2. At the closing you are directed (a) to date any stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Corporation against the
simultaneous delivery to you of the purchase price (which may include suitable
acknowledgment of cancellation of indebtedness) of the number of shares of stock
being purchased pursuant to the exercise of the Purchase Option.
3. Purchaser irrevocably authorizes the Corporation to deposit with you
any certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as specified in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as his
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities and other property all documents of assignment and/or
transfer and all stock certificates necessary or appropriate to make all
securities negotiable and complete any transaction herein contemplated.
1.
<PAGE> 12
4. This escrow shall terminate upon expiration or exercise in full of
the Purchase Option, whichever occurs first.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of same to Purchaser and shall be discharged of all
further obligations hereunder; provided, however, that if at the time of
termination of this escrow you are advised by the Corporation that the property
subject to this escrow is the subject of a pledge or other security agreement,
you shall deliver all such property to the pledgeholder or other person
designated by the Corporation.
6. Except at otherwise provided in these Joint Escrow Instructions,
your duties hereunder may be altered, amended, modified or revoked only by a
writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties or
their assignees. You shall not be personally liable for any act you may do or
omit to do hereunder as Escrow Agent or as attorney-in-fact for Purchaser while
acting in good faith and any act done or omitted by you pursuant to the advice
of your own attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law, and are hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case you obey or comply with any such order, judgment or decree of any
court, you shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed, modified, annulled,
set aside, vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
10. You shall not be liable for the outlawing of any rights under any
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel (including
without limitation the firm of Cooley Godward Castro Huddleson & Tatum) and
other experts as you may deem necessary properly to advise you in connection
with your obligations hereunder, may rely upon the advice of such counsel, and
may pay such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be Secretary of the Corporation or if you shall resign by
written notice to each party. In the
2.
<PAGE> 13
event of any such termination, the Corporation may appoint any officer or
assistant officer of the Corporation as successor Escrow Agent and Purchaser
hereby confirms the appointment of such successor or successors as his
attorney-in-fact and agent to the full extent of your appointment.
13. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities, you may (but are not obligated to) retain in your possession without
liability to anyone all or any part of said securities until such dispute shall
have been settled either by mutual written agreement of the parties concerned or
by a final order, decree or judgment of a court of competent jurisdiction after
the time for appeal has expired and no appeal has been perfected, but you shall
be under no duty whatsoever to institute or defend any such proceedings.
15. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in any United States Post Box, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties hereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten days' written notice to each of the other parties hereto:
CORPORATION: Avigen, Inc.
1201 Harbor Bay Parkway
Suite 1000
Alameda, CA 94502
PURCHASER: Dr. Philip J. Whitcome
99 Field Brook Road
Madison, CT 06443
SECRETARY: Secretary
Avigen, Inc.
1201 Harbor Bay Parkway
Suite 1000
Alameda, CA 94502
16. By signing these Joint Escrow Instructions you become a party
hereto only for the purpose of said Joint Escrow Instructions; you do not become
a party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. It is
understood and agreed that references to "you" or "your" herein refer to the
original Escrow Agent and to any and all
3.
<PAGE> 14
successor Escrow Agents. It is understood and agreed that the Corporation may at
any time or from time to time assign its rights under the Agreement and these
Joint Escrow Instructions in whole or in part.
Very truly yours,
AVIGEN, INC.
By
--------------------------------------
PURCHASER:
-----------------------------------------
ESCROW AGENT:
- ---------------------------------------
Secretary
AVIGEN, INC.
4.
<PAGE> 15
EXHIBIT D
FORM OF PROMISSORY NOTE
$ , California
----------------- ------------------
, 199_
------------------
FOR VALUE RECEIVED, the undersigned hereby unconditionally promises to
pay to the order of AVIGEN, INC. a Delaware corporation (the "Company"), at
Alameda, California, or at such other place as the holder hereof may designate
in writing, in lawful money of the United States of America and in immediately
available funds, the principal sum of Dollars ($ )
---------------- ---------
together with interest accrued from the date hereof on the unpaid principal at
the rate of % per annum, or the maximum rate permissible by law (which
------
under the laws of the State of California shall be deemed to be the laws
relating to permissible rates of interest on commercial loans), whichever is
less, as follows:
PRINCIPAL REPAYMENT. The outstanding principal amount
hereunder shall be subject to scheduled amortized repayments on the
dates and in the amounts listed below.
PRINCIPAL REPAYMENT DATE REPAYMENT AMOUNT
INTEREST PAYMENTS. Interest shall be payable in arrears on
each Principal Repayment Date and shall be calculated on the basis of a
360-day year for the actual number of days elapsed;
provided, however, that in the event that the undersigned's employment by or
association with the Company is terminated for any reason prior to payment in
full of this Note, this Note shall be accelerated and all remaining unpaid
principal and interest shall become due and payable immediately after such
termination.
If the undersigned fails to pay any of the principal and accrued
interest when due, the Company, at its sole option, shall have the right to
accelerate this Note, in which event the entire principal balance and all
accrued interest shall become immediately due and payable, and immediately
collectible by the Company pursuant to applicable law.
1.
<PAGE> 16
This Note may be prepaid at any time without penalty. All money paid
toward the satisfaction of this Note shall be applied first to the payment of
interest as required hereunder and then to the retirement of the principal.
The full amount of this Note is secured by a pledge of shares of Common
Stock of the Company, and is subject to all of the terms and provisions of the
Early Exercise Stock Purchase Agreement and the Pledge Agreement, each of even
date herewith between the undersigned and the Company.
The undersigned hereby represents and agrees that the amounts due under
this Note are not consumer debt, and are not incurred primarily for personal,
family or household purposes, but are for business and commercial purposes only.
The undersigned hereby waives presentment, protest and notice of
protest, demand for payment, notice of dishonor and all other notices or demands
in connection with the delivery, acceptance, performance, default or endorsement
of this Note.
The holder hereof shall be entitled to recover, and the undersigned
agrees to pay when incurred, all costs and expenses of collection of this Note,
including without limitation, reasonable attorneys' fees.
This Note shall be governed by, and construed, enforced and interpreted
in accordance with, the laws of the State of California, excluding conflict of
laws principles that would cause the application of laws of any other
jurisdiction.
Signed
---------------------------------
2.
<PAGE> 17
EXHIBIT E
FORM OF PLEDGE AGREEMENT
1. As collateral security for the payment of that certain
$______________ promissory note issued this date to _____________________
("Pledgee") by the undersigned (hereinafter called "indebtedness"), the
undersigned hereby assigns, transfers to and pledges with the Pledgee the
securities listed on Schedule 1 hereto which were this day delivered to be
deposited with Pledgee, together with any stock rights, rights to subscribe,
dividends paid in cash or other property in connection with the complete or
partial liquidation of Pledgee, stock dividends, dividends paid in stock, new
securities or other property except cash dividends other than liquidating
dividends to which the undersigned is or may hereafter become entitled to
receive on account of such property, and in the event that the undersigned
receives any such, the undersigned will immediately deliver it to Pledgee to be
held by Pledgee hereunder in the same manner as the property originally pledged
hereunder. All property assigned, transferred to and pledged with Pledgee under
this paragraph is hereinafter called "collateral."
2. At any time, without notice, and at the expense of the undersigned,
Pledgee in its name or in the name of its nominee or of the undersigned may, but
shall not be obligated to: (1) collect by legal proceedings or otherwise all
dividends (except cash dividends other than liquidating dividends), interest,
principal payments and other sums now or hereafter payable upon or on account of
said collateral; (2) enter into any extension, reorganization, deposit, merger,
or consolidation agreement, or any agreement in any wise relating to or
affecting the collateral, and in connection therewith may deposit or surrender
control of such collateral thereunder, accept other property in exchange for
such collateral and do and perform such acts and things as it may deem proper,
and any money or property received in exchange for such collateral shall be
applied to the indebtedness or thereafter held by it pursuant to the provisions
hereof; (3) insure, process and preserve the collateral; (4) cause the
collateral to be transferred to its name or to the name of its nominee; (5)
exercise as to such collateral all the rights, powers, and remedies of an owner,
except that so long as the indebtedness is not in default the undersigned shall
retain all voting rights as to the collateral.
3. The undersigned agrees to pay prior to delinquency all taxes,
charges, liens and assessments against the collateral, and upon the failure of
the undersigned to do so Pledgee at its option may pay any of them and shall be
the sole judge of the legality or validity thereof and the amount necessary to
discharge the same.
4. All advances, charges, costs and expenses, including reasonable
attorneys' fees, incurred or paid by Pledgee in exercising any right, power or
remedy conferred by this agreement, or in the enforcement thereof, shall become
a part of the indebtedness secured hereunder and shall be paid to Pledgee by the
undersigned immediately and without demand.
1.
<PAGE> 18
5. At the option of Pledgee and without necessity of demand or notice,
all or any part of the indebtedness of the undersigned shall immediately become
due and payable irrespective of any agreed maturity, upon the happening of any
of the following events: (1) failure to keep or perform any of the terms or
provisions of this agreement; (2) default in the payment of principal or
interest when due; (3) the levy of any attachment, execution or other process
against the collateral; or (4) the insolvency, commission of an act of
bankruptcy, general assignment for the benefit of creditors, filing of any
petition in bankruptcy or for relief under the provisions of Title 11, United
States Code, Bankruptcy, of, by, or against the undersigned.
6. In the event of the nonpayment of any indebtedness when due, whether
by acceleration or otherwise, or upon the happening of any of the events
specified in the last preceding paragraph, Pledgee may then, or at any time
thereafter, at its election, apply, set off, collect or sell in one or more
sales, or take such steps as may be necessary to liquidate and reduce to cash in
the hands of Pledgee in whole or in part, with or without any previous demands
or demand of performance or notice or advertisement, the whole or any part of
the collateral in such order as Pledgee may elect, and any such sale may be made
either at public or private sale at its place of business or elsewhere, or at
any broker's board or securities exchange, either for cash or upon credit or for
future delivery; provided, however, that if such disposition is at private sale,
then the purchase price of the collateral shall be equal to the public market
price then in effect, or, if at the time of sale no public market for the
collateral exists, then, in recognition of the fact that the sale of the
collateral would have to be registered under the Securities Act of 1933 and that
the expenses of such registration are commercially unreasonable for the type and
amount of collateral pledged hereunder, Pledgee and the undersigned hereby agree
that such private sale shall be at a purchase price mutually agreed to by
Pledgee and the undersigned or, if the parties cannot agree upon a purchase
price, then at a purchase price established by a majority of three independent
appraisers knowledgeable of the value of such collateral, one named by the
undersigned within 10 days after written request by the Pledgee to do so, one
named by Pledgee within such 10 day period, and the third named by the two
appraisers so selected, with the appraisal to be rendered by such body within 30
days of the appointment of the third appraiser. The cost of such appraisal,
including all appraiser's fees, shall be charged against the proceeds of sale as
an expense of such sale. Pledgee may be the purchaser of any or all collateral
so sold and hold the same thereafter in its own right free from any claim of the
undersigned or right of redemption. Demands of performance, notices of sale,
advertisements and presence of property at sale are hereby waived, and Pledgee
is hereby authorized to sell hereunder any evidence of debt pledged to it. Any
sale hereunder may be conducted by any officer or agent of Pledgee.
7. The proceeds of the sale of any of the collateral and all sums
received or collected by Pledgee from or on account of such collateral shall be
applied by Pledgee to the payment of expenses incurred or paid by Pledgee in
connection with any sale, transfer or delivery of the collateral, to the payment
of any other costs, charges, attorneys' fees or expenses mentioned herein, and
to the payment of the indebtedness or any part hereof, all in such order and
manner as Pledgee in its discretion may determine. Pledgee shall pay any balance
to the undersigned.
2.
<PAGE> 19
8. Pledgee shall be under no duty or obligation whatsoever to make or
give any presentments, demands for performance, notices of non-performance,
protests, notices of protest or notices of dishonor in connection with any
obligations or evidences of indebtedness held by Pledgee as collateral, or in
connection with any obligations or evidences of indebtedness which constitute in
whole or in part the indebtedness secured hereunder.
9. Pledgee may at any time deliver the collateral or any part thereof
to the undersigned and the receipt of the undersigned shall be a complete and
full acquittance for the collateral so delivered, and Pledgee shall thereafter
be discharged from any liability or responsibility therefor.
10. Upon the transfer of all or any part of the indebtedness Pledgee
may transfer all or any part of the collateral and shall be fully discharged
thereafter from all liability and responsibility with respect to such collateral
so transferred, and the transferee shall be vested with all the rights and
powers of Pledgee hereunder with respect to such collateral so transferred; but
with respect to any collateral not so transferred Pledgee shall retain all
rights and powers hereby given.
11. Until all indebtedness shall have been paid in full the power of
sale and all other rights, powers and remedies granted to Pledgee hereunder
shall continue to exist and may be exercised by Pledgee at any time and from
time to time irrespective of the fact that the indebtedness or any part thereof
may have become barred by any statute of limitations, or that the personal
liability of the undersigned may have ceased.
12. Pledgee agrees that so long as the indebtedness is not in default,
shares of Avigen, Inc. Common Stock held hereunder as collateral for the
indebtedness shall be released from pledge as the indebtedness is paid. Such
releases shall be at the rate of one share for each $____ of principal amount of
indebtedness paid. Release from pledge, however, shall not result in release
from the provisions of those certain Joint Escrow Instructions, if any, of even
date herewith among the parties to this Pledge Agreement and the Escrow Agent
named therein or from the Purchase Option of Avigen, Inc., set forth in the
Early Exercise Stock Purchase Agreement dated __________________, 19__, if any,
between the parties to this Pledge Agreement.
13. The rights, powers and remedies given to Pledgee by this agreement
shall be in addition to all rights, powers and remedies given to Pledgee by
virtue of any statute or rule of law. Pledgee may exercise its Pledgee's lien or
right of setoff with respect to the indebtedness in the same manner as if the
indebtedness were unsecured. Any forbearance or failure or delay by Pledgee in
exercising any right, power or remedy hereunder shall not be deemed to be a
waiver of such right, power or remedy, and any single or partial exercise of any
right, power or remedy hereunder shall not preclude the further exercise
thereof; and every right, power and
3.
<PAGE> 20
remedy of Pledgee shall continue in full force and effect until such right,
power or remedy is specifically waived by an instrument in writing executed by
Pledgee.
Dated: , 19
` ------------------------------- --
ATTACHMENT:
Schedule 1
1.
<PAGE> 21
EXHIBIT I
EARLY EXERCISE STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made by and between AVIGEN, INC. a California
corporation (the "Corporation"), and DR. PHILIP J. WHITCOME ("Purchaser").
WITNESSETH:
WHEREAS, Purchaser holds a nonstatutory stock option to purchase shares
of common stock of the Corporation that Purchaser desires to exercise; and
WHEREAS, Purchaser wishes to take advantage of the early exercise
provision of his option and therefore to enter into this Agreement;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Purchaser hereby agrees to purchase from the Corporation, and the
Corporation hereby agrees to sell to Purchaser, the number of share of the
Corporation's common stock (the "Stock") for the price and method of payment
described in the Notice of Exercise delivered to the Corporation with this
document.
The closing hereunder shall occur at the offices of the Corporation on
the date of this Agreement or at such other time and place as the parties may
mutually agree upon in writing.
At the closing, Purchaser shall deliver three (3) stock assignments in
the form of Exhibit B, duly endorsed (with date and number of shares left
blank), joint escrow instructions (the "Joint Escrow Instructions") in the form
of Exhibit C, duly executed by Purchaser, and the total exercise price
(including an executed Note in the form of Exhibit E if a portion of the total
exercise price is to be paid by promissory note, and an executed pledge
agreement in the form of Exhibit F (the "Pledge Agreement"), under which all
shares of the Stock acquired by Note shall be pledged as collateral security for
the payment of the indebtedness represented by the Note); and including endorsed
certificates representing the appropriate number of shares of the Corporation's
common stock if a portion of the total Exercise price is to be paid by common
stock.
At the closing or as soon thereafter as practicable, the Corporation
shall deliver to the Escrow Agent (as defined in paragraph 8 below) share
certificates for all of the Stock that is to be subject to the Purchase Option
(as defined in paragraph 2 below), and shall deliver share certificates to
Purchaser for all of the Stock, if any, that is not to be subject to the
Purchase Option or the Pledge Agreement. The certificates for all of the Stock
that is subject to the Pledge Agreement but not the Purchase Option shall be
retained by the Corporation as security pursuant to the Pledge Agreement.
1.
<PAGE> 22
2. In accordance with the provisions of section 408(b) of the
California General Corporation Law, the Stock to be purchased by Purchaser
pursuant to this Agreement shall be subject to the following option ("Purchase
Option"):
(a) In the event that Purchaser shall cease to be an employee
of the Corporation for any reason (including his death), or no reason, with or
without cause, the Purchase Option may be exercised. The Corporation shall have
the right at any time within sixty (60) days after such cessation of employment
to purchase from Purchaser or his personal representative, as the case may be,
at the price per share paid by Purchaser pursuant to this Agreement ("Option
Price"), up to but not exceeding the number of shares of the Stock set forth on
Exhibit A hereto which is incorporated herein by this reference. Notwithstanding
the foregoing, however, if the Corporation's exercise of the Purchase Option
during the aforesaid sixty (60) day period would cause any shareholder,
including the Purchaser, to lose the treatment of some or all of the
Corporation's stock held by such shareholder as "Qualified Small Business Stock"
under section 1202 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations promulgated thereunder, then the Corporation in its
sole discretion shall be entitled to extend the period during which it shall be
entitled to exercise such option to such date that is twelve (12) months
following the date of Purchaser's separation from service with the Corporation
upon written notice to the Purchaser or his personal representative, as the case
may be, prior to the expiration of the aforesaid sixty (60) day period. The
Purchaser and the Corporation may mutually agree to extend the period during
which the Corporation shall be entitled to exercise the Purchase Option beyond
the period specified in the preceding sentence.
(b) In addition, and without limiting the foregoing Purchase
Option, if at any time during the term of the Purchase Option, there occurs: (a)
a dissolution or liquidation of the Corporation; (b) a merger or consolidation
involving the Corporation in which the Corporation is not the surviving
corporation; (c) a reverse merger in which the Corporation is the surviving
corporation but the shares of the Corporation's common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of other securities, cash or otherwise; or
(d) any other capital reorganization in which more than fifty percent (50%) of
the shares of the Corporation entitled to vote are exchanged, then: (i) if there
is no successor to the Corporation, the Corporation shall have the right to
exercise its Purchase Option as to all or any portion of the Stock then subject
to the Purchase Option set forth above to the same extent as if Purchaser's
employment by the Corporation had ceased on the date preceding the date of
consummation of said event or transaction or (ii) the Purchase Option may be
assigned to any successor of the Corporation, and the Purchase Option shall
apply if Purchaser shall cease for any reason to be an employee of such
successor on the same basis as set forth above. In that case, references herein
to the "Corporation" shall be deemed to refer to such successor.
(c) The Corporation shall be entitled to pay for any shares
purchased pursuant to its Purchase Option at the Corporation's option in cash,
by offset against any indebtedness given in payment for the Stock, or a
combination of both.
2.
<PAGE> 23
(d) As used herein, employment with the Corporation shall
include employment with an affiliate of the Corporation.
(e) This Agreement is not an employment contract and nothing
in this Agreement shall be deemed to create in any way whatsoever any obligation
on the part of Purchaser to continue in the employ of the Corporation, or of the
Corporation to continue Purchaser in the employ of the Corporation.
(f) In the event that the Stock's fair market value, as
determined in good faith by the Board of Directors of the Corporation in a
manner consistent with Section 260.140.50 of Title 10 of the California Code of
Regulations (the "Stock's Fair Market Value"), is equal to or exceeds the Option
Price on the date that the Purchaser ceases to be employed, the Company shall
exercise its purchase option to the extent permitted by law.
3. The Purchase Option may be exercised by giving written notice of
exercise delivered or mailed as provided in paragraph 13. Upon providing of such
notice and payment or tender of the purchase price, the Corporation shall become
the legal and beneficial owner of the Stock being purchased and all rights and
interests therein or related thereto.
4. If from time to time during the term of the Purchase Option there is
any stock dividend or liquidating dividend or distribution of cash and/or
property, stock split or other change in the character or amount of any of the
outstanding securities of the Corporation, then, in such event, any and all new,
substituted or additional securities or other property to which Purchaser is
entitled by reason of his ownership of Stock will be immediately subject to the
Purchase Option and be included in the word "Stock" for all purposes of the
Purchase Option with the same force and effect as the shares of Stock then
subject to the Purchase Option. While the total Option Price shall remain the
same after each such event, the Option Price per share of Stock upon exercise of
the Purchase Option shall be appropriately adjusted.
5. All certificates representing any shares of Stock of the Corporation
subject to the provisions of this Agreement shall have endorsed thereon legends
in substantially the following form:
(i) "The shares represented by this certificate are
subject to an option set forth in an agreement between the corporation and the
registered holder, or his predecessor in interest, a copy of which is on file at
the principal office of this corporation. Any transfer or attempted transfer of
any shares subject to such option is void without the prior express written
consent of the issuer of these shares."
(ii) "These securities have not been registered under
the Securities Act of 1933. They may not be sold, offered for sale, pledged or
hypothecated in the absence of an effective registration statement as to the
securities under said Act or an opinion of counsel satisfactory to the
corporation that such registration is not required."
3.
<PAGE> 24
(iii) Any legend required to be placed thereon pursuant
to any State Securities law.
6. Purchaser acknowledges that he is aware that the Stock to be issued
to him by the Corporation pursuant to this Agreement has not been registered
under the Securities Act of 1933, as amended (the "Act"), on the basis that no
distribution or public offering of the Stock is to be effected, and in this
connection acknowledges that the Corporation is relying on the following
representations. In this connection, Purchaser warrants and represents to the
Corporation that he is acquiring the Stock for investment and not with a view to
or for sale in connection with any distribution of the Stock or with any present
intention of distributing or selling the Stock and he does not presently have
reason to anticipate any change in circumstances or any particular occasion or
event which would cause him to sell the Stock. Purchaser recognizes that the
Stock must be held indefinitely unless it is subsequently registered under the
Act or an exemption from such registration is available and, further, recognizes
that the Corporation is under no obligation to register the Stock or to comply
with any exemption from such registration.
7. Purchaser is aware that the Stock may not be sold pursuant to Rule
144 adopted under the Act unless certain conditions are met and until Purchaser
has held the Stock for at least two (2) years. Among the conditions for use of
Rule 144 is the availability of specified current public information about the
Corporation. Purchaser recognizes that the Corporation presently has no plans to
make such information available to the public.
Whether or not the Purchase Option is exercised or has lapsed,
Purchaser further agrees not to make any disposition of any of the Stock in any
event unless and until:
(a) There is then in effect a registration statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) Purchaser shall have notified the Corporation of the
proposed disposition and shall have furnished the Corporation with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii)
Purchaser shall have given the Corporation an opinion of counsel, which opinion
and counsel shall be satisfactory to the Corporation, to the effect that such
disposition will not require registration of the Stock under the Act.
8. As security for his faithful performance of the terms of this
Agreement and to insure the availability for delivery of Purchaser's Stock upon
exercise of the Purchase Option herein provided for, Purchaser agrees, at the
closing hereunder (or as soon thereafter as practicable), to deliver (or have
the Corporation deliver on the Purchaser's behalf) to and deposit with the
Secretary of the Corporation ("Escrow Agent"), as Escrow Agent in this
transaction, three (3) stock assignments duly endorsed (with date and number of
shares left blank) in the form attached hereto as Exhibit B, together with a
certificate or certificates evidencing all of the Stock subject to the Purchase
Option; said documents are to be held by the Escrow Agent and delivered by said
Escrow Agent pursuant to the Joint Escrow Instructions of the Corporation and
4.
<PAGE> 25
Purchaser set forth in Exhibit C attached hereto and incorporated herein by this
reference, which instructions shall also be delivered to the Escrow Agent at the
closing hereunder (or as soon thereafter as practicable). If a portion of the
total purchase price is paid by a promissory note, the Stock is also subject to
the Pledge Agreement, and possession of the certificates and stock assignments
by the Escrow Agent shall also constitute possession by the Corporation of such
instruments pursuant to the Pledge Agreement.
9. Purchaser shall not sell or transfer any of the Stock subject to the
Purchase Option or any interest therein so long as such Stock is subject to the
Purchase Option or the Pledge Agreement.
10. The Corporation shall not be required (i) to transfer on its books
any shares of Stock of the Corporation which shall have been sold or transferred
in violation of any of the provisions set forth in this Agreement or (ii) to
treat as owner of such shares or to accord the right to vote as such owner or to
pay dividends to any transferee to whom such shares shall have been so
transferred.
11. Subject to the provisions of paragraphs 9 and 10 above, Purchaser
(but not any unapproved transferee) shall, during the term of this Agreement,
exercise all rights and privileges of a stockholder of the Corporation with
respect to the Stock.
12. The parties agree to execute such further instruments and to take
such further action as reasonably may be necessary to carry out the intent of
this Agreement.
13. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in any United States Post Office Box, by registered or certified mail
with postage and fees prepaid, addressed to the other party hereto at his
address hereinafter shown below his signature or at such other address as such
party may designate by ten (10) days' advance written notice to the other party
hereto.
14. This Agreement shall bind and inure to the benefit of the
successors and assigns of the Corporation and, subject to the restrictions on
transfer herein set forth, inure to the benefit of and be binding upon
Purchaser, his heirs, executors, administrators, successors, and assigns.
Without limiting the generality of the foregoing, the Purchase Option of the
Corporation hereunder shall be assignable by the Corporation at any time or from
time to time, in whole or in part. Should the right of repurchase be assigned by
the Corporation, the assignee shall pay to the Corporation cash equal to the
excess, if any, of the Stock's Fair Market Value over the Option Price.
5.
<PAGE> 26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the ____ day of __________, 19__.
-----------------------------------------
By
--------------------------------------
Address:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Purchaser
Address:
-----------------------------------------
-----------------------------------------
ATTACHMENTS:
Exhibit A Vesting Schedule
Exhibit B Assignment Separate from Certificate
Exhibit C Joint Escrow Instructions
Exhibit D Promissory Note
Exhibit E Stock Pledge Agreement
6.
<PAGE> 27
EXHIBIT II
NOTICE OF EXERCISE
Avigen, Inc.
1201 Harbor Bay Parkway
Suite 1000 Date of Exercise:
Alameda, CA 94502 ---------
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.
Type of option (check one): Incentive [ ] Nonstatutory [ ]
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: $
----------------------
Promissory note delivered
herewith: $
----------------------
Value of ______ shares of
Avigen, Inc. common
stock delivered herewith(1): $
----------------------
- --------------------------
(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,
(continued...)
1.
<PAGE> 28
By this exercise, I agree to provide such additional documents as you
may reasonably require to complete the exercise of this option and the issuance
of shares of the Common Stock of the Company in accordance with all applicable
laws.
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 understand that under
Rule 144 I may not dispose of the shares for at least two years from the date I
exercise this option and I satisfy the other requirements of that rule. I
understand that among the conditions for use of Rule 144 is the availability of
specified current public information about the Company. I understand that the
Company currently has no plans to make such information available to the public.
I also understand that the Company is under no obligation to register any of its
securities, and that in the absence of registration of the Shares or the
availability of an exemption from the registration requirements, I may not be
able to sell or otherwise dispose of any of the Shares.
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 Certificate 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 (the "Effective Date") of the registration
statement of the Company filed under the Act as may be requested by the Company
or the representative of the underwriters. For purposes of this restriction I
will be deemed to own
- ----------------------
(1)(...continued)
claims, encumbrances or security
interests. Certificates must be endorsed or accompanied by an executed
assignment separate from certificate.
2.
<PAGE> 29
securities which (1) are owned directly or indirectly by me, including
securities held for my benefit by nominees, custodians, brokers or pledgees; (2)
may be acquired by me within sixty (60) days of the Effective Date; (3) are
owned directly or indirectly, by or for my brothers or sisters (whether by whole
or half blood) spouse, ancestors and lineal descendants; or (4) are owned,
directly or indirectly, by or for a corporation, partnership, estate or trust of
which I am a shareholder, partner or beneficiary, but only to the extent of your
proportionate interest therein as a shareholder, 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,
-------------------------------------
Dr. Philip J. Whitcome
3.
