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Exhibit 10.15
PREFERRED STOCK PURCHASE AGREEMENT ("Agreement") entered into as of June
20, 2000, between DOV Pharmaceutical, Inc., a New Jersey corporation (the
"Company"), and the entities with executed and accepted signature pages attached
hereto (each an "Investor," collectively "Investors").
Whereas, Investors desire to subscribe for and the Company desires to
issue to Investors up to 1,750,000 shares of the Company's series C convertible
preferred stock (the "Shares") in a private placement ("Private Placement");
Whereas, each Share is convertible into the number of shares of common
stock, $.0001 par value, of the Company ("Common Stock"), set forth opposite the
name of Investor issued such Share on EXHIBIT A, at a conversion price of $4.04
per share, subject to adjustment as provided in the Certificate of Designation
(as defined below);
Whereas, the group of Investors set forth on SCHEDULE 1 ("First Closing
Investors ") have closed and paid the purchase price for, and the Company has
issued to the First Closing Investors, 1,250,000 Shares pursuant to a preferred
stock purchase agreement dated May 31, 2000 (First Closing Agreement");
Whereas, the Company desires to admit the additional Investors set forth
on SCHEDULE 2 ("Second Closing Investors") and amend and restate the purchase
agreement for all Investors;
Whereas, upon the Closing (as hereinafter defined) the First Closing
Agreement shall be superceded by this Agreement and of no further effect;
Now therefore, the Company and Investors agree as follows:
1. PURCHASE OF SHARES.
1.1 ISSUANCE. The Company shall sell and issue to Investors, and
Investors shall purchase from the Company up to 1,750,000 Shares at the per
Share purchase price of $4.04 (the "Purchase Price"). The Shares shall have and
be subject to the rights, preferences, privileges and restrictions with respect
thereto as set forth in and upon the filing of the certificate of designation
("Certificate of Designation") to the Company's Restated Certificate of
Incorporation, as amended, in the form attached hereto as Exhibit B (as amended
by Certificate of Designation and otherwise, the "Restated Certificate").
1.2 PURCHASE; ACCEPTANCE OR REJECTION.
(a) Each Investor hereby tenders a certified or bank check made
payable to the order of "DOV Pharmaceutical, Inc." in the amount set forth on
such Investor's accepted signature page hereto, or provides such funds by wire
transfer pursuant to the following wire transfer instructions:
F/B/O DOV Pharmaceutical, Inc.
Citibank,, F.S.B. New Jersey
2071 Lemoine Avenue
Fort Lee, N.J. 07024
Attn: Ms. Linda Bonaparte
ABA Transit No.: 021272655
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Acct. No.: 383804195
(b) Each Investor delivers herewith (i) a completed and executed
qualification questionnaire in the form attached hereto as EXHIBIT C
("Qualification Questionnaire"), (ii) an executed registration rights
agreement in the form attached hereto as EXHIBIT D ("Registration Rights
Agreement") and (iii) an executed stockholder agreement in the form
attached hereto as Exhibit E ("Stockholder Agreement") (this Agreement,
the Certificate of Designation, the Registration Rights Agreement, the
Stockholder Agreement and all other certificates, instruments, agreements
and other documents delivered in connection herewith being collectively
referred to as the "Transaction Documents").
(c) The First Closing Agreement is superceded by this Agreement,
effective, for the First Closing Investors, as of the Closing for the
Shares purchased thereby on May 31, 2000.
2. CLOSING.
The closing ("Closing") of the issuance of the Shares and payment of the
Purchase Price shall be held on the date and at the location agreed upon by the
Company and Investors.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY TO INVESTORS.
Except as set forth in the Schedules attached hereto, the Company hereby
represents and warrants to Investors as of the date hereof and the Closing as
follows:
3.1 CORPORATE ORGANIZATION AND AUTHORITY. The Company (a) is a
corporation duly organized, validly existing, authorized to exercise all
its corporate powers, rights and privileges and in good standing in New
Jersey and (b) has the corporate power and authority to (i) own and
operate its properties, (ii) carry on its business as now conducted, (iii)
execute and deliver the Transaction Documents executed by it, (iv) issue
and sell the Shares, (v) issue the shares of Common Stock issuable upon
conversion of the Shares as provided in the Restated Certificate
("Conversion Shares") and (vi) carry out the provisions of the Transaction
Documents. The Company is duly qualified to transact business as a foreign
corporation in each jurisdiction set forth on SCHEDULE 3.1, which
jurisdictions are the only ones in which the conduct of the Company's
business requires such qualification. The Company has made available to
Investors a copy of the Restated Certificate and bylaws, as amended to
date. The Company is in compliance with the covenants set forth in Section
2(d) of the convertible exchangeable promissory note dated January 21,
1999, issued by the Company to Elan International Services, Ltd.
3.2 CAPITALIZATION. The Company's capitalization as of the date
hereof is as follows
(a) The Company is authorized to issue two classes of shares of
capital stock, designated respectively Common Stock and preferred stock
with ten million total
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authorized shares of Common Stock and five million authorized shares of
preferred stock, of which 440,000 are designated "Series A Preferred
Stock" and 354,643 are designated "Series B Preferred Stock." Upon filing
the Certificate of Designation 1,750,000 shares of preferred stock shall
be designated Series C Convertible Preferred Stock.
(b) Immediately prior to the Closing, the number of issued and
outstanding shares of Common Stock and shares of each series of preferred
stock shall be as set forth in SCHEDULE 3.2, and, except as contemplated
herein and in SCHEDULE 3.2, and as provided in the Transaction Documents,
there are no other shares reserved for future issuance or outstanding
options, warrants, rights (including conversion or preemptive rights and
rights of first refusal) (collectively, "Stock Equivalents"), proxy or
shareholder agreements, or agreements of any kind, oral or in writing, for
the issuance, purchase or acquisition of any shares of capital stock or
Stock Equivalents of the Company either by the Company or by the
securities holders of the Company.
(c) All issued and outstanding shares of the Company's capital stock
have been duly authorized and validly issued and are fully paid and
nonassessable.
3.3 SUBSIDIARIES: JOINT VENTURE. Except as set forth in SCHEDULE
3.3, the Company does not own, nor does it control, directly or
indirectly, any interest in any other corporation, association or other
business entity and is not a participant in any joint venture, partnership
or similar arrangement.
3.4 AUTHORIZATION. All action on the part of the Company, its
officers, directors and shareholders necessary for the authorization,
execution, delivery and performance of all obligations under the
Transaction Documents and for the authorization, sale, issuance and
delivery of the Shares, and the Conversion Shares issuable upon the
conversion of the Shares, has been taken. The Transaction Documents, when
executed and delivered, shall each constitute valid and binding
obligations of the Company enforceable against the Company in accordance
with its terms, except to the extent that such enforcement may be subject
to applicable state or federal bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent conveyance or other laws or court
decisions relating to or affecting the rights of creditors generally, and
such enforcement may be limited by equitable principles of general
applicability.
3.5 VALIDITY OF SHARES. The Shares have been duly authorized and,
when issued, sold and delivered in accordance with the terms of and for
the consideration expressed in this Agreement, shall be duly and validly
issued (including issued in compliance with applicable state and federal
securities laws subject to post-Closing filings), fully-paid and
non-assessable and shall be free and clear of all preemptive rights,
rights of first refusal, liens, charges, restrictions, claims and
encumbrances imposed by or through the Company, except as set forth in the
Transaction Documents. The Conversion Shares have been duly authorized and
reserved and when issued, sold and delivered in accordance with the terms
of the Shares shall be duly and validly issued (including issued in
compliance with applicable state and federal securities laws subject to
post-Closing
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filings), fully-paid and non-assessable and shall be free and clear of all
preemptive rights, rights of first refusal, liens, charges, restrictions,
claims and encumbrances imposed by or through the Company, except as set
forth in SCHEDULE 3.5 or in the Transaction Documents. Except as set forth
in SCHEDULE 3.5 or in the Transaction Documents, the Company has not
granted registration rights relating to the Company's capital stock to any
person or entity.
3.6 NO CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery and
performance of the Transaction Documents and the consummation of the
transactions contemplated thereby shall not result in any violation of, be
in conflict with, or constitute, with or without the passage of time
required by any notice, a default or an event that results in the creation
of any lien or other encumbrance upon, or a material restriction on the
use of, any assets of the Company or the termination of any material
permit, license, authorization or approval applicable to the Company, its
business or operations or any of its assets or properties under (a) any
provision of the Restated Certificate or the Company's bylaws; (b) any
provision of any judgment, decree or order to which the Company has
received written notice that it is a party or bound; (c) any mortgage,
indenture, license, contract, obligation or commitment to which the
Company is a party or by which it is bound; or (d) any law or regulation,
order or judgment applicable to the Company.
3.7 LITIGATION. No action, proceeding or investigation is pending or
to the Company's knowledge threatened against the Company and to the
Company's knowledge there is no basis therefor. The Company (a) is not a
party to or subject to any order or judgment of any court or government
agency or instrumentality and (b) does not intend to initiate any action
or proceeding.
3.8 TITLE TO PROPERTIES; LIENS AND ENCUMBRANCES. Except as set forth
in SCHEDULE 3.8, the Company has good and marketable title to all its
properties and assets, both real and personal, tangible and intangible
(collectively, the "Assets"), subject to no mortgage, pledge, lien,
security interest, conditional sale agreement, encumbrance or charge. The
Assets are sufficient for the Company to conduct its business as currently
conducted. With respect to the properties and assets leased by the
Company, the Company is in compliance with each such lease, and, except as
set forth on SCHEDULE 3.8, holds a valid leasehold interest free of any
liens or other encumbrances. All facilities, machinery, equipment,
fixtures, vehicles and other properties owned, leased or used by the
Company are in commercially reasonable operating condition and repair and
are reasonably fit and usable for the purposes for which they are being
used.
3.9 EMPLOYEE AGREEMENTS. Each employee and officer of the Company
has executed an agreement with the Company regarding confidentiality and
proprietary information in substantially the form made available to
Investors ("Proprietary Information and Inventions Agreements"). To its
knowledge, no employee, officer or consultant of the Company is in
violation thereof, and the Company shall use reasonable efforts to prevent
any such violation.
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3.10 PATENTS, COPYRIGHTS AND TRADEMARKS.
(a) SCHEDULE 3.10(a) contains a list and brief description of:
(i) all United States and foreign patents and patent
applications, all United States, state and foreign trademarks,
service marks, trade names and copyrights for which registrations
have been issued or applied for, and all other United States, state
and foreign trademarks, service marks, trade names and copyrights
owned or used by the Company or in which the Company holds any
right, license or interest, showing in each case the product,
device, process, service business or publication covered thereby,
the registered or other owner, the registration or application date,
as applicable, the expiration date and the number, if any;
(ii) all agreements, contracts, licenses, commitments,
assignments and indemnities relating or pertaining to any asset,
property or right of the character described in the preceding clause
(i) to which the Company is a party;
(iii) all licenses or agreements pertaining to mailing lists,
know-how, trade secrets, inventions, disclosures or uses of ideas to
which the Company is a party; and
(iv) all registered, assumed or fictitious names under which
the Company is conducting business or has within the previous three
years conducted business.
(b) To the Company's knowledge, except as set forth in SCHEDULE
3.10(b), all patents owned, controlled or used by the Company are valid
and in force, all patent applications of the Company listed therein are in
good standing and the Company owns the entire right, title and interest in
and to such patents and patent applications free and clear of
encumbrances. All registrations for trade names, trademarks, service marks
and copyrights listed in SCHEDULE 3.10(a), as being owned, controlled or
used by the Company are to its knowledge valid and in force and all
applications for such registrations are in good standing and except as set
forth therein the right, title and interest in and to each such trade
name, trademark, service mark and copyright so listed as well as the
registration and application for registration therefor is owned by the
Company free and clear of encumbrances. Each of the listed trademarks is
presently in use and has not in the past been abandoned. Copies of the
patents and patent applications and the trademarks, trade names, service
marks and copyrights and registrations, applications or deposits therefor
and all the licenses listed in SCHEDULE 3.10(a), have heretofore been
delivered by the Company to Investors.
(c) Except as set forth in SCHEDULE 3.10(c), the Company owns or has
the perpetual royalty-free right to use all patents, trademarks, service
marks, copyrights, trade names inventions, improvements, processes,
formulae, trade secrets, mailing list, knowhow and proprietary or
confidential information used by it in conducting activities related
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to the Company's business. Except as disclosed in SCHEDULE 3.10(c), the
Company has not received written notice of any claim or threat of any such
infringement and to the Company's knowledge no infringement of any patent,
patent right, trademark or service mark, trade name or copyright or
registration thereof has occurred as a result of the operation of the
Company's business. No proceeding is pending or to the Company's knowledge
threatened against the Company that challenges the validity or ownership
of any patent, patent application, trademark, trade name, service mark or
copyright or the ownership of any other right or property described in
SCHEDULE 3.10(a), and to the Company's knowledge there exists no basis
therefor.
(d) To the Company's knowledge (i) it has not violated nor will the
conduct of its business as now or proposed to be conducted violate any
intellectual property rights of any other person or entity; (ii) no third
party is infringing or violating any intellectual property of the Company;
(iii) no employee of the Company is obligated under any agreement or
subject to any judgment or order of any court or administrative agency
that would interfere with the employee's duties to the Company or that
would conflict with the business of the Company; and (iv) neither the
execution nor delivery of the Transaction Documents, nor the carrying on
of the Company's business by any of its employees or the conduct of the
Company's business as proposed conflicts with or results in a breach of
the terms of, or constitutes a default under, any agreement under which
any employee is now obligated. The Company does not believe it necessary
to utilize any intellectual property rights of any of its employees made
prior to their employment by the Company, except for inventions, trade
secrets or proprietary information that have been assigned or licensed to
the Company.
3.11 AGREEMENTS; ACTIONS; OBLIGATIONS TO RELATED PARTIES. All
material contracts to which the Company is a party are listed in SCHEDULE
3.11. All such contracts and agreements are binding, valid and in full
force and effect, except to the extent that enforcement of such contracts
may be subject to applicable state or federal bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent conveyance or other
laws or court decisions relating to or affecting the rights of creditors
generally, and such enforcement may be limited by equitable principles of
general applicability. The Company is not in material default under any
such contract and to its knowledge no event has occurred that upon notice
and lapse of cure period if any or with the passage of time would become
an event of default under such contract.
3.12 FINANCIAL STATEMENTS. The Company has delivered to Investors
its unaudited and in the case of 1999 audited balance sheets and
statements of income as of and for the periods ending December 31, 1997,
1998 and 1999 (the "Financial Statements"). The Financial Statements
fairly present the financial condition and operating results of the
Company, as of the dates and for the periods indicated therein and except
for footnotes relating to such unaudited Financial Statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied. Except as set forth in the balance sheet ("Balance
Sheet") dated December 31, 1999 (the "Balance Sheet Date"), or on SCHEDULE
3.12, the Company has no liabilities, contingent or otherwise, other than
liabilities incurred in the ordinary course of business that
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individually or in the aggregate are not material to the financial
condition or operating results of the Company. Except as set forth in
SCHEDULE 3.12, the Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation.
3.13 CHANGES. Since the Balance Sheet Date, there has not been any
material adverse change in the assets, liabilities, financial condition,
operating results or business prospects of the Company from that reflected
on the Financial Statements for 1999.
3.14 NO DEFAULTS, VIOLATIONS OF CONFLICTS. The Company is not in
violation or default of its Restated Certificate, bylaws or any
instrument, judgment, order, writ, decree, license, permit or contract to
which it is a party, by which it is bound or to which its property is
subject, or any provision of state or federal statute, rule or regulation
applicable to the Company that has or is likely to result in a material
adverse effect on the Company's business. The Company has not performed or
failed to perform any act, the occurrence or non-occurrence of which has
or is likely to result in the Company's loss of any material right granted
under any agreement, the lack of which would have a material adverse
effect on the business, properties, prospects, or financial condition of
the Company.
3.15 EMPLOYEE COMPENSATION PLANS. Except as set forth in SCHEDULE
3.15, the Company is not a party to or bound by any currently effective
multiemployer plans, deferred compensation agreements, bonus plans,
incentive plans, profit sharing plans, retirement agreements or other
employee compensation or severance agreements, including without
limitation any Employee Benefit Plan as defined in the Employee Retirement
Income Security Act of 1974.
3.16 EMPLOYEE RELATIONS. The Company's relations with its employees
are satisfactory and to the Company's knowledge no employee is in material
breach of his or her employment contract, proprietary information and
inventions agreement or any other agreement with the Company. To the
Company's knowledge no officer or key employee of the Company intends to
terminate his or her employment with the Company, nor does the Company
have a present intention to terminate the employment of any thereof. The
Company has complied with all applicable state and federal equal
employment opportunity laws and with other laws related to employment.
3.17 ENVIRONMENTAL AND SAFETY LAWS. The Company is not in violation
of any applicable statute, law or regulation relating to the environment
or occupational health and safety, and no material expenditures are
required in order to comply with any such existing statute, law or
regulation.
3.18 GOVERNMENTAL CONSENTS. Subject to the accuracy of the
representations and warranties of Investors as set forth in Section 4, no
consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any local, state
or federal governmental authority on the part of the Company is required
in connection with the Company's valid execution and delivery of the
Transaction Documents, or the offer, sale or issuance of the Shares and
the Conversion Shares
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issuable upon the conversion of the Shares or the consummation of any
other transaction contemplated hereby, except for the filing of a Form D
notice under Regulation D under the Securities Act of 1933, as amended
(the "Securities Act"), and any other filings required by applicable state
securities laws and the acceptance for filing by the appropriate agency of
New Jersey of the Certificate of Designation to the Restated Certificate.
3.19 BROKER. Except as set forth on SCHEDULE 3.19, the Company has
not retained any broker or finder or incurred any liability or obligation
for any brokerage fees, commissions or finder's fees with respect to this
Agreement or the transactions contemplated hereby.
3.20 TAX MATTERS. All federal, state, local and other tax returns,
reports and declarations required to be filed by or on behalf of the
Company prior to the Closing have been timely filed, and such returns,
reports and declarations as so filed are complete and accurate and
disclose all taxes required to be paid for the periods covered thereby.
The Company has not been advised by any governmental agency of any issue
or question relating to any return, report or declaration that would
result in the assertion of any deficiency for any tax.
3.21 LEGAL COMPLIANCE. The Company is in compliance in all material
respects with all federal, state and local laws, rules and regulations,
domestic and foreign, affecting its business.
3.22 ABSENCE OF CERTAIN TRANSACTIONS. Except as set forth in
SCHEDULE 3.22, no affiliate of the Company has any interest (other than as
a non-controlling holder of securities of a publicly-traded company),
either directly or indirectly, in any person or entity (whether as an
employee, officer, director, shareholder, agent, independent contractor,
security holder, creditor, consultant or otherwise) that presently (i)
provides any services or designs, produces and/or sells any products or
product lines, or engages in any activity that is the same, similar to or
directly competes with any activity or business in which the Company is
now engaged; (ii) is a supplier of, customer of, creditor of or has an
existing or contractual relationship with, the Company; or (iii) has any
direct of indirect interest in any asset or property used by the Company.
3.23 DISCLOSURE. The representations and warranties set forth herein
and in the other Transaction Documents, when viewed collectively, do not
contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements contained herein and
therein not misleading in light of the circumstances in which they are
made. The Company has disclosed herein, in the other Transaction
Documents, in the due diligence materials delivered to the Investors and
in the Schedules attached hereto all information possessed by it material
to the Company and any contemplated investment in the Company of the type
contemplated hereby.
3.24 JOINT DEVELOPMENT AND OPERATING AGREEMENT. The Company has no
reason to believe that the DOV 220,075 and DOV 273,547 compounds are not
being
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developed in accordance with the Joint Development and Operating Agreement
dated as of January 21, 1998, by and among Elan Corporation, plc, Elan
International Services, Ltd., the Company, DOV Newco, Ltd. and Nascime
Limited, any agreements entered into in connection therewith and the
Business Plan (as defined therein).
3.25 INDEMNITY.
(a) During the Survival Period (as defined in Section 3.25(b)), the
Company shall hold each Investor and its directors, officers, affiliates,
shareholders and controlling persons and their respective heirs,
representatives, successors and assigns harmless and indemnify them
against all liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by them as a result of any breach of a
representation, warranty or covenant made by the Company contained herein
or in the other Transaction Documents; provided that Investors shall be
entitled to indemnification hereunder only when the amount by which the
aggregate value of all such liabilities, costs and expenses exceeds
$50,000; and provided further that such indemnification shall be limited
as to each Investor to the Purchase Price paid by each such Investor.
(b) A claim for indemnification hereunder against the Company shall
be forever barred unless made by notifying the Company as set forth in
Section 3.25(c): (a) in the case of a claim based on a tax liability of
the Company, within the statutory period of limitations under the
applicable tax statute; (b) in the case of a claim based on a breach of
the representations and warranties contained in Sections 3.1, 3.2 and 3.5,
within the statutory period of limitations under applicable law; (c) in
the case of covenants and agreements set forth herein, in accordance with
their respective terms; and (d) in all other cases, within 18 months after
the date of purchase of the Shares by the Investor claiming
indemnification (the period in which a claim may properly be brought shall
be referred to as the "Survival Period").
(c) An Investor seeking indemnification shall give written notice to
the Company of such claim together with any information with respect
thereto as the Company may request. A claim for indemnity for which notice
was provided during the Survival Period but determined payable following
expiration of the Survival Period shall not be deemed barred due to such
expiration.
4. REPRESENTATIONS AND WARRANTIES OF INVESTORS.
Each Investor hereby represents and warrants solely as to itself or
himself to the Company as of the date hereof and the Closing as follows:
4.1 AUTHORIZATION. When executed and delivered by Investor, and
assuming due execution and delivery by the Company, this Agreement shall
constitute a valid obligation of Investor, enforceable in accordance with
its terms, except to the extent that such enforcement may be subject to
applicable state, federal or foreign bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent conveyance or other
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laws or court decisions relating to or affecting the rights of creditors
generally, and that such enforcement may be limited by equitable
principles of general applicability.
4.2 SECURITIES LAW AND OTHER REPRESENTATIONS AND STIPULATIONS OF
INVESTOR.
(a) Investor stipulates that the Company is entering into this
Agreement with Investor in reliance upon (i) the accuracy of the
information supplied to the Company by Investor in the Qualification
Questionnaire completed by Investor and delivered to the Company, and (ii)
Investor's representation to the Company, which Investor's execution of
this Agreement hereby confirms, that the Shares to be issued by the
Company and the Conversion Shares issuable upon the conversion thereof are
currently intended to be acquired for investment for Investor's own
account, not as a nominee or agent, and not with a view to the sale or
distribution of any part thereof.
(b) Investor understands that neither the Shares nor the Conversion
Shares can be resold, pledged, assigned or otherwise transferred and must
be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available.
(c) Investor represents that (i) Investor is an "accredited
investor" within the meaning of Rule 501 of Regulation D promulgated under
the Securities Act, (ii) Investor has previously invested in securities of
companies in the development stage and acknowledges that it is able to
fend for itself, and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of
the investment in the Shares and Conversion Shares; (iii) Investor has the
ability to bear the economic risks of its investment therein; (iv)
Investor is able, without materially impairing its financial condition, to
hold the Shares and Conversion Shares for an indefinite period of time and
to suffer complete loss of its investment; (v) Investor is organized under
the laws and has a principal office in the state or states indicated for
it on the signature page hereto; (vi) Investor has fully considered the
risks of this investment and stipulates that (1) this investment is
suitable only for an investor who is able to bear the economic
consequences of a total loss thereof, (2) the Shares and Conversion Shares
represent an extremely speculative investment that involves a high degree
of risk of loss and (3) there are substantial restrictions on the
transferability of, and there may be no public market for, either the
Shares or the Conversion Shares and that, accordingly, it may not be
possible for Investor to liquidate its investment in either or in case of
emergency; and (vii) there has been no representation by the Company as to
the possible future value of the Shares or Conversion Shares.
(d) Investor shall not sell or otherwise transfer the Shares or any
Conversion Shares without registration under the Securities Act or
pursuant to an opinion of counsel reasonably satisfactory to the Company's
counsel that an exemption from registration is available.
(e) Investor is authorized to purchase the Shares and Conversion
Shares and the person signing this Agreement on its behalf has been duly
authorized to do so.
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(f) Except as set forth in this Agreement no representations or
warranties have been made to Investor by or on behalf of the Company and
except as set forth in Section 3.23 no representation or warranty is made
with respect to due diligence material furnished to Investor except that
the documents included therein are or are intended to be true and complete
copies of such documents taken from the Company's files.
(g) Investor acknowledges its understanding that no person other
than the Company, its officers and directors is authorized to give any
information regarding the Company. In making an investment in the Shares
and Conversion Shares, Investor has relied only on the information
contained in this Agreement and its own due diligence.
(h) Investor represents that it has been advised that the books and
records of the Company are available to Investor upon reasonable notice,
for inspection during reasonable business hours at its principal place of
business.
(i) Investor shall give written notice and description to the
Company of any proposed transfer of the Shares or Conversion Shares.
(j) Investor understands the tax consequences of this investment and
it has consulted its own legal, accounting, tax, investment and other
advisors with respect to the tax treatment of the investment contained
herein by Investor.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO INVESTORS' OBLIGATIONS. The obligations of an
Investor to consummate the purchase of the Shares are subject to the
fulfillment at or before the Closing of each of the following conditions,
any of which may be waived in writing by an Investor:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company set forth in Section 3 shall be true, correct
and complete on and as of the Closing with the same effect as if made on
and as of the Closing.
(b) PERFORMANCE. The Company shall have performed or fulfilled all
agreements, obligations and conditions set forth herein required to be
performed or fulfilled by the Company at or before the Closing.
(c) CONSENTS, PERMITS AND WAIVERS. The Company shall have obtained
any and all consents, permits and waivers, and made all filings, necessary
or appropriate for consummation of the transactions contemplated by the
Transaction Documents (except for those contemplated therein to be
obtained subsequent to the Closing).
(d) RESERVATION OF SHARES. The Conversion Shares shall have been
duly authorized and reserved for issuance upon conversion of the Shares.
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(e) FILING OF CERTIFICATE OF DESIGNATION. The Certificate of
Designation shall have been accepted for filing by the appropriate office
in New Jersey.
(f) LEGAL INVESTMENT. The sale and issuance of the Shares to
Investor and the issuance of the Conversion Shares upon conversion of the
Shares shall be legally permitted by all laws and regulations to which
Investor and the Company are subject.
(g) TRANSACTION DOCUMENTS. At or prior to the Closing, the Company
shall have executed and delivered the Transaction Documents.
(h) PROCEEDINGS SATISFACTORY; COMPLIANCE CERTIFICATE. All corporate
and legal proceedings taken by the Company in connection with the
transactions contemplated by this Agreement and the other Transaction
Documents relating to such transactions shall be reasonably satisfactory
to Investor and its counsel, each of which shall have received all such
originals or certified copies or other copies of such documents as each
shall reasonably request. The Company shall have delivered to Investor a
certificate dated as of the Closing, signed by an officer of the Company,
certifying that the conditions set forth in Sections 5.1 (a)-(f) above
have been fulfilled.
(i) MINIMUM PURCHASE. Counting prior purchases if any as of the
Closing at least 1,250,000 Shares shall have been purchased.
(j) OPINION OF COUNSEL. Investors shall have received an opinion of
Goodwin, Procter & Hoar LLP, counsel to the Company, in the form attached
hereto as EXHIBIT E.
5.2 CONDITIONS TO COMPANY'S OBLIGATIONS. The obligations of the
Company to consummate the sale of the Shares to Investors are subject to
the fulfillment at or before the Closing of each of the following
conditions, any of which may be waived in writing by the Company:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
stipulations of Investors set forth in Section 4 shall be correct on and
as of the Closing with the same effect as though they had been made on and
as of such Closing.
(b) PERFORMANCE. Investors shall have performed or fulfilled all
agreements, obligations and conditions set forth herein required to be
performed or fulfilled by Investors at or before the Closing including
payment of the Purchase Price by Investors in the form of a certified
check or wire transfer.
(c) FILING OF CERTIFICATE OF DESIGNATION. The Certificate of
Designation shall have been accepted for filing by the appropriate office
in New Jersey.
(d) TRANSACTION DOCUMENTS. At or prior to the Closing each Investor
shall have executed and delivered to the Company the Transaction Documents
to be executed and delivered by such Investor.
12
<Page>
6. POST-CLOSING COVENANTS OF THE COMPANY.
6.1 SECURITIES LAWS COMPLIANCE. The Company shall accomplish all
necessary securities filings pursuant to the Securities Act and the
securities or blue sky laws of the applicable states.
6.2 USE OF PROCEEDS. The Company shall use the proceeds from the
Private Placement, net of legal, broker and other expenses incurred by the
Company in connection with this Agreement, for the purposes and in the
approximate amounts set forth on SCHEDULE 6.2.
6.3 FUTURE FINANCING. Prior to July 21, 2000, the Company shall not
consummate a financing using Common Stock or debt or equity securities
convertible into Common Stock at less than $3.68 per share so as to
require a reduction of the conversion prices set forth in those certain
promissory notes issued by the Company to Elan International Services,
Ltd. dated January 21, 1999, and/or an increase in Common Stock reserved
for conversion thereof by Elan International Services, Ltd.
6.4 COVENANTS. During the period commencing on the Closing and
ending upon the expiration of the Stockholders Agreement:
(a) AFFILIATED TRANSACTIONS. Neither the Company nor any
Subsidiary (as hereinafter defined) shall enter into an
agreement with any affiliated entity (other than a
wholly-owned Subsidiary thereof) other than at arms' length
and fair market value.
(b) REPORTING. The Company and each Subsidiary shall
deliver to the Investors copies of their unaudited financial
statements on a quarterly basis within 45 days after the end
of each calendar quarter and a copy of their audited financial
statements prepared in accordance with generally accepted
accounting principals on an annual basis within 90 days after
the end of each fiscal year, provided that such financial
statements may be presented on a consolidated basis. The
Company and each Subsidiary shall deliver the foregoing
financial statements promptly to the Investors following
completion by the preparers thereof.
(c) MAINTENANCE OF PROPERTIES. The Company and each
Subsidiary shall maintain its properties in reasonable
condition and repair, wear, tear and course of business
excluded.
(d) LEGAL COMPLIANCE. The Company and each Subsidiary
shall conduct its operations in compliance with applicable
federal, state and local laws.
(e) CHANGE IN BUSINESS. The Company and each Subsidiary
shall carry out its business as currently and contemplated to
be conducted.
13
<Page>
(f) INSURANCE. The Company and each Subsidiary shall
secure and maintain adequate insurance covering its business
and properties, consistent with the coverage of similarly
situated companies.
(g) STOCK OPTION PLAN. The Company has reserved
1,250,000 shares of Common Stock for issuance pursuant to it
stock option plan. The Company shall not increase this
authorized amount or adopt any additional stock option or
similar plans and no Subsidiary shall adopt such a stock
option or similar plan without the prior consent of a majority
in interest of the Shares.
(h) GOOD STANDING. The Company and each Subsidiary shall
maintain good standing status in the jurisdiction of its
formation.
(i) BOARD MEETINGS. The Company shall hold board of
director meetings at least four times per year.
(j) INSPECTION RIGHTS. Investors shall have the right to
inspect the books and records and have access to management of
the Company and each Subsidiary at the principal place of
business thereof during normal business hours on one week's
notice and at reasonable intervals of time.
(k) NOTICE OF DEFAULT. The Company shall promptly notify
Investors of any material default of the Company or any
Subsidiary of the covenants contained herein or any material
agreement following its knowledge of same.
(l) NOTICE OF MATERIAL LITIGATION. The Company shall
promptly notify Investors of any litigation relating to the
Company or any Subsidiary that could have a material adverse
affect on the business or financial condition thereof.
6.5 DEFINITION OF SUBSIDIARY. "Subsidiary" shall mean any entity in
which the Company has a majority controlling interest by virtue of equity
ownership or management control, provided that DOV Newco, Ltd. and Nascime
Limited shall be excluded from the definition.
6.6 COMPLIANCE CERTIFICATE. At a Investor's request, the Company
shall execute and deliver to Investors a certificate of an executive
officer of the Company as to compliance with Section 6.4.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement and the
other Transaction Documents constitute the entire agreement among the
Company and
14
<Page>
Investors relating to the subject matter hereof and thereof, and any prior
agreement among the Company and Investors regarding the subject matter of
this Agreement is superseded by execution and delivery of the Transaction
Documents. This Agreement may not be assigned without the prior written
consent of the Company and a majority in interest of the Investors,
provided however that the Investors may assign this Agreement to an
affiliate of an Investor. Subject to the exceptions set forth herein, this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
7.2 GOVERNING LAW. This Agreement shall be governed by the laws of
New York.
7.3 HEADINGS. The captions and headings of the sections of this
Agreement have been inserted for convenience and shall not be used to
interpret this Agreement.
7.4 NOTICES. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given (a) upon personal
delivery, (b) five days after deposit in the United States mail, by
certified mail, postage prepaid, return receipt requested, (c) on the next
business day after deposit with a recognized overnight delivery service or
(d) upon written confirmation of facsimile transmission during regular
business hours followed by delivery of the document in one of the
foregoing manners, in each case addressed:
If to the Company: Continental Plaza
433 Hackensack Avenue
Hackensack, New Jersey 07601
Attn: Chief Executive Officer
Facsimile: 201-968-0986
With a copy to: Goodwin, Procter & Hoar LLP
599 Lexington Avenue-40th Floor
New York, NY 10022
Attn: J. Robert Horton
If to Investors at: the address and facsimile number set forth on the
Investor's signature page hereto
With a copy to: Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
Attn: Christopher Kelly
Facsimile: 216-579-0212
or at such other address as the Company or an Investor may designate by 10
days' advance written notice to the other.
15
<Page>
7.5 LEGEND. Investors and the Company acknowledge that a legend will
be placed on each certificate or other document evidencing the ownership
of the Shares and Conversion Shares stating that they have not been
registered under the Securities Act and setting forth or referring to the
restrictions on transferability and sale thereof. Each of the Investor's
and the Company shall make a notation in its records with respect to
restrictions on the transferability of the Share and Conversion Shares.
7.6 AMENDMENT OF AGREEMENT; WAIVER. This Agreement may be amended
and the observance of any term of this Agreement may be waived
(retroactively or prospectively) only with the written consent of the
Company and a majority in interest of the Investors. No delay by any party
to or beneficiary of this Agreement in the exercise of any of its rights
or remedies shall operate as a waiver thereof, and no single or partial
exercise by any party to or beneficiary of this Agreement of any such
right or remedy shall preclude the other or further exercise thereof. A
waiver of any right or remedy on any one occasion shall not be construed
as a bar to or waiver of any such right or remedy on any other occasion.
7.7 EXPENSES. Each party shall pay its own fees and expenses
(including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions
contemplated hereby are consummated provided that the Company shall pay
such fees and expenses (including reasonable attorneys' fees) of Investors
up to an aggregate amount of $75,000.
7.8A INVALID OR VOID PROVISIONS. If any provision of this Agreement
is determined to be invalid or unenforceable in any jurisdiction, such
provision shall be deemed amended to conform to applicable law so as to be
valid and enforceable in such jurisdiction, and the validity and
enforceability of such provision shall not be affected or impaired thereby
in any other jurisdiction provided that if such provision cannot be
amended without altering materially the intention of the parties, it shall
be stricken and the remainder of this Agreement shall remain in full force
and effect.
7.8B WAIVER OF JURY TRIAL. The parties hereby waive any and all
right to a trial by jury in any case or controversy arising out of this
Agreement or in connection with any transactions contemplated hereby.
16
<Page>
7.9 COOPERATION. Each party shall after the Closing upon the request
of the other party and without further consideration, execute, acknowledge
and deliver in proper form any further instruments and take such other
actions as such party may reasonably require in order to effectively carry
out the intent of this Agreement.
7.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
DOV Pharmaceutical, Inc.
By: /s/ Arnold Lippa
-------------------------------------
Arnold Lippa, Chief Executive Officer
17
<Page>
INDIVIDUAL INVESTOR SIGNATURE PAGE
The Investor has executed this Agreement on this 14TH day of June,
2000.
Matthew Perry
- ----------------------------------- ----------------------------------------
Name of Investor (Print) Name of Joint Investor, if any (Print)
/s/ Matthew Perry
- ----------------------------------- ----------------------------------------
Signature Signature
1223 Kearny Street--No. 4
- ----------------------------------- ----------------------------------------
Residence Address--Street Residence Address--Street
San Francisco, CA 94133
- ----------------------------------- ----------------------------------------
City State Zip Code City State Zip Code
Same
- ----------------------------------- ----------------------------------------
Mailing Address--Street Mailing Address--Street
- ----------------------------------- ----------------------------------------
City State Zip Code City State Zip Code
(w) 415-288-2397
- ----------------------------------- ----------------------------------------
Telephone Number Telephone Number
(w-f) 415-288-2394
- ----------------------------------- ----------------------------------------
Facsimile Number Facsimile Number
###-##-####
- ----------------------------------- ----------------------------------------
Social Security Number Social Security Number
<Page>
Entity Investor Signature Page
to Purchase Agreement
Biotechnology Value Fund, L.P.
- --------------------------------------------------------------------------------
Name of Entity
227 West Monroe Street--Suite 4800
- --------------------------------------------------------------------------------
Business Address--Street
Chicago, IL 60606
- --------------------------------------------------------------------------------
City State Zip Code
By: BVF Partners L.P., its General Partner
By: BVF Inc., its General Partner
By: /s/ Mark Lampert
----------------------------------------------------------------------------
Mark Lampert, President
- --------------------------------------------------------------------------------
Signature
Delaware
- --------------------------------------------------------------------------------
State of Formation
36-3924731
- --------------------------------------------------------------------------------
Tax Identification Number
- ------------------------------
Facsimile Number
- ------------------------------
Telephone Number
<Page>
Entity Investor Signature Page
to Purchase Agreement
Biotechnology Value Fund II, L.P.
- --------------------------------------------------------------------------------
Name of Entity
227 West Monroe Street--Suite 4800
- --------------------------------------------------------------------------------
Business Address--Street
Chicago, IL 60606
- --------------------------------------------------------------------------------
City State Zip Code
By: BVF Partners L.P., its General Partner
By: BVF Inc., its General Partner
By: /s/ Mark Lampert
----------------------------------------------------------------------------
Mark Lampert, President
- --------------------------------------------------------------------------------
Signature
Delaware
- --------------------------------------------------------------------------------
State of Formation
94-3341571
- --------------------------------------------------------------------------------
Tax Identification Number
- ------------------------------
Facsimile Number
- ------------------------------
Telephone Number
<Page>
Entity Investor Signature Page
to Purchase Agreement
Investment 10 LLC
- --------------------------------------------------------------------------------
Name of Entity
227 West Monroe Street--Suite 4800
- --------------------------------------------------------------------------------
Business Address--Street
Chicago, IL 60606
- --------------------------------------------------------------------------------
City State Zip Code
By: BVF Partners L.P., its Investment Advisor
By: BVF Inc., its General Partner
By: /s/ Mark Lampert
----------------------------------------------------------------------------
Mark Lampert, President
- --------------------------------------------------------------------------------
Signature
Illinois
- --------------------------------------------------------------------------------
State of Formation
36-3974481
- --------------------------------------------------------------------------------
Tax Identification Number
- ------------------------------
Facsimile Number
- ------------------------------
Telephone Number
<Page>
Entity Investor Signature Page
to Purchase Agreement
Reservoir Capital Master Fund, L.P.
- --------------------------------------------------------------------------------
Name of Entity
650 Madison Avenue 26th Floor
- --------------------------------------------------------------------------------
Business Address--Street
New York, NY 10022
- --------------------------------------------------------------------------------
City State Zip Code
By: Reservoir Capital Group, L.L.C., General Partner
---------------------------------------------------------------------------
By: Gregg Zeitlin, Managing Director
---------------------------------------------------------------------------
Name and Title
/s/ Gregg Zeitlin
- --------------------------------------------------------------------------------
Signature
Cayman Islands
- --------------------------------------------------------------------------------
State of Formation
13-4032056
- --------------------------------------------------------------------------------
Tax Identification Number
212-610-9020
- ------------------------------
Facsimile Number
212-610-9000
- ------------------------------
Telephone Number
<Page>
Entity Investor Signature Page
to Purchase Agreement
Reservoir Capital Partners, L.P.
- --------------------------------------------------------------------------------
Name of Entity
650 Madison Avenue 26th Floor
- --------------------------------------------------------------------------------
Business Address--Street
New York, NY 10022
- --------------------------------------------------------------------------------
City State Zip Code
By: Reservoir Capital Group, L.L.C., General Partner
---------------------------------------------------------------------------
By: Gregg Zeitlin, Managing Director
---------------------------------------------------------------------------
Name and Title
/s/ Gregg Zeitlin
- --------------------------------------------------------------------------------
Signature
Delaware
- --------------------------------------------------------------------------------
State of Formation
13-4015473
- --------------------------------------------------------------------------------
Tax Identification Number
212-610-9020
- --------------------------------------------------------------------------------
Facsimile Number
212-610-9000
- --------------------------------------------------------------------------------
Telephone Number
<Page>
Entity Investor Signature Page
to Purchase Agreement
Reservoir Capital Associates, L.P.
- --------------------------------------------------------------------------------
Name of Entity
650 Madison Avenue 26th Floor
- --------------------------------------------------------------------------------
Business Address--Street
New York, NY 10022
- --------------------------------------------------------------------------------
City State Zip Code
By: Reservoir Capital Group, L.L.C., General Partner
---------------------------------------------------------------------------
By: Gregg Zeitlin, Managing Director
---------------------------------------------------------------------------
Name and Title
/s/ Gregg Zeitlin
- --------------------------------------------------------------------------------
Signature
Delaware
- --------------------------------------------------------------------------------
State of Formation
13-4019134
- --------------------------------------------------------------------------------
Tax Identification Number
212-610-9020
- ------------------------------
Facsimile Number
212-610-9000
- ------------------------------
Telephone Number
<Page>
Schedule 1
First Closing Investors
Biotechnology Value Fund, L.P.
Biotechnology Value Fund II, L.P.
Investment 10 LLC
Matthew Perry
<Page>
Schedule 2
Second Closing Investors
Reservoir Capital Partners, L.P.
Reservoir Capital Master Fund, L.P.
Reservoir Capital Associates, L.P.
<Page>
SCHEDULE 3.1
None
<Page>
SCHEDULE 3.2
See attached chart.
See also exchange rights granted to EIS pursuant to convertible promissory note
dated January 21, 1999.
<Page>
Dov Pharmaceutical, Inc.
Common Shares Outstanding and Potentially Outstanding v. Common Shares
Authorized
<Table>
Outstanding at 12/31/99 3,003,637 3,003,637
Elan Int'l Services Series B conversion 354,643 354,643
Conversion of Pfd Shares to be issued 5/2000
assumes $7 million of Pfd share 1,750,000 1,750,000
Stock plan 750,000 750,000
Aurora warrant designees earned for Elan transactions 67,873 67,873
Elan International Services Ltd. warrants 75,000 75,000
Aurora warrant designees earned re: convertible note financing:
3/2000 131,250 131,250
Aurora shares earned Dec 99 - April 2000 5,000 5,000
Warrants to advisor (Panem) 25,000 25,000
Elan conversion of Convertible Exchangeable Note
$8,010,000 principal plus 7% paid-in-kind interest compounded semi-
annually from January 21, 1999 through January 20, 2005
Total principal and interest converted assumed to total $12,103,660
Assumed to convert at $6.44 per share 1,879,450 1,879,450
Elan conversion of Convetible Promissory Note
$7,008,750 maximum principal amount plus 10% paid-in-kind
interest compounded semi-annually from January 21, 1999
through January 20, 2005. Assume $2.5 million drawn to date with
no further draw downs. Further assume interest accrues to maturity
Principal and interest would amount to approximately $3,975,039
Assumed to convert at $5.52 per share 720,116
Elan conversion of Convetible Promissory Note
$7,008,750 maximum principal amount plus 10% paid-in-kind
interest compounded semi-annually from January 21, 1999
through January 20, 2005. Assume $2.5 million drawn to date with one
add'l draw down at April 1, 2000 for the balance of the available note.
Further assumes interest accrues to maturity. Principal and
interest would amount to approximately $10,725,201
Assumed to convert at $5.52 per share 1,942,971
-----------------------
8,761,969 9,984,824
-----------------------
Total authorized shares 10,000,000
</Table>
<Page>
SCHEDULE 3.3
On January 21, 1999, the Company and Elan International Services, Ltd,
("EIS"), a wholly-owned subsidiary of Elan Corporation, PLC ("Elan"), formed DOV
Newco, Ltd., a Bermuda exempted limited company ("DOV Newco"), which owns 100%
of the issued and outstanding share capital of Nascime Limited, an Irish private
limited Company ("Nascime"). Newco was formed for the special and limited
purpose of holding all of the issued and outstanding shares of Nascime. The
Company is party to a joint development and operating agreement among Elan, EIS,
the Company, DOV Newco and Nascime dated January 21, 1999.
<Page>
SCHEDULE 3.5
1. Registration Rights Agreement dated January 21, 1999 between the Company
and Elan International Services, Ltd.
2. See Schedule 3.8.
<Page>
SCHEDULE 3.8
See attached UCC-1 financing statement filed with the New Jersey Secretary
of State on February 3, 1999, whereby Elan International Services Ltd. has a
lien on the 6,020 shares of DOV Newco, Ltd. voting common stock, $1.00 par
value, together with all certificates representing any shares of capital stock
issued as an addition to, in substitution or in exchange for, or on account of
any such shares.
<Page>
UNIFORM COMMERCIAL CODE- FINANCING STATEMENT - FORM UCC-1
This FINANCING STATEMENT is presented to a Filing Officer for filing pursuant to
the Uniform Commercial Code
<Table>
<Caption>
- ---------------------------------------------------------------------------------------
FOR OFFICE USE ONLY Debtor(s) Name (Last Name, First) Maturity Date (if any):
Complete Address
DOV Pharmaceutical, Inc.
One Parker Plaza -----------------------
Fort Lee, New Jersey 07024 FOR OFFICE USE
ONLY
1886757
---------------------------------------
Secured Party(ies) and Complete Address
Elan International Services, Ltd
102 St. James Court
Flatts, Smith Parish
Bermuda SL04
---------------------------------------
Assignee(s) of Secured Party and
Complete Address
- ---------------------------------------------------------------------------------------
</Table>
This financing statement covers the following types (or items) of property:
6,020 shares of DOV Newco, Ltd. voting common stock. $1.00 par value, together
with all certificates representing any shares of capital stock issued as an
addition to, in substitution or in exchange for, or on account of any such
shares.
- --------------------------------------------------------------------------------
When collateral is crops or fixtures complete this portion of form. NA
a. Description of real estate (Sufficient to identify the property).
b. Name and complete address of record owner.
- --------------------------------------------------------------------------------
a. ( ) Proceeds of Collateral are also covered. No. of additional sheets
presented. ( )
b. ( ) Products of Collateral are also covered.
- --------------------------------------------------------------------------------
( ) Filed with Register of Deeds and Mortgages of County. (X) Secretary of
State;
( ) Filed with the County Clerk of County.
- --------------------------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s)
DOV Pharmaceutical, Inc. Elan International Services, Ltd.
By:/s/ Arnold Lippa By:/s/ Kevin Insley
------------------------- ----------------------------------------------
Arnold Lippa-CEO Kevin Insley-President
FILING OFFICER COPY - This form of statement is approved by the Secretary of
State of New Jersey.
STANDARD FORM- UNIFORM COMMERCIAL CODE -FORM UCC-1. (Rev. 9/81)
<Page>
SCHEDULE 3.10(a)
1. Attached is a list of the Company's patents together with their expiration
dates.
2. License agreement between the Company and American Cyanamid Company dated
May 22, 1998.
3. Sublicense and development agreement dated June 30, 1998, between the
Company and Neurocrine Biosciences, Inc.
4. Joint development and operating agreement dated January 21, 1999, among
Elan, EIS, DOV Newco, Nascime and the Company.
5. License agreement between Nascime and the Company dated January 21, 1999.
<Page>
SCHEDULE 3.10(b)
The Company has not conducted a trademark or trade name search regarding and
makes no representation or warranty with respect to its corporate name DOV
Pharmaceutical, Inc. or any variation or derivative form thereof, other than its
right to use such name as a corporation in the State of New Jersey.
<Page>
SCHEDULE 3.10(c)
None
<Page>
SCHEDULE 3.11
1. License agreement between the Company and American Cyanamid Company dated
May 22, 1998.
2. The Company has an agreement with Summit Bank to provide a line of credit,
in the form of an overdraft allowance, up to $25,000.
3. Placement agency letter agreement dated January 15, 1999, as supplemented
by a letter agreement dated March 21, 2000, between Aurora Capital LLC and
the Company.
4. Sublicense and development agreement dated as of June 30, 1998, between
the Company and Neurocrine Biosciences, Inc.
5. Warrant agreement dated June 30, 1998 between the Company and Neurocrine
Biosciences, Inc.
6. Registration rights agreement among Neurocrine Biosciences, Inc. and
certain of its security holders, including the Company.
7. Employment agreement dated December 10, 1998, between the Company and
Arnold Lippa.
8. Employment agreement dated December 10, 1998, between the Company and
Bernard Beer.
9. Employment agreement dated July 1, 1999, between the Company and Stephen
Petti.
10. Employment agreement dated July 12, 1999, between the Company and Paul
Schiffrin.
11. Warrant by the Company in favor or EIS to purchase shares of common stock
of the Company.
12. Joint development and operating agreement dated January 21, 1999, among
the Company, Elan, EIS, DOV Newco and Nascime.
13. License agreement dated January 21, 1999, between Nascime and the Company.
14. Convertible exchangeable promissory note dated January 21, 1999, in the
amount of $8,010,000 by the Company in favor of EIS.
15. Convertible promissory note dated January 21, 1999, for $7,008,750 by the
Company in favor of EIS.
16. Registration rights agreement dated January 21, 1999, between the Company
and EIS.
<Page>
17. Registration rights agreement dated January 21, 1999, among the Company,
DOV Newco and EIS.
18. Letter agreement dated January 21, 1999, among the Company, DOV Newco,
Elan, EIS and Nascime.
19. The Company has issued 570,000 options to purchase common stock of the
Company pursuant to the Company's 1998 Stock Option Plan.
20. The Company is party to various office equipment lease agreements.
21. The Company has issued securities to Neurocrine and EIS pursuant to,
respectively, a preferred stock purchase agreement dated June 30, 1998,
and a securities purchase agreement dated January 21, 1999. While the
issuance of securities pursuant to these agreements has closed, certain
representations and warranties surviving the closing may be enforceable by
the purchasers against the Company.
<Page>
SCHEDULE 3.15
See employment agreements set forth on Schedule 3.11.
<Page>
SCHEDULE 3.12
On March 5, 2000, the Company drew down an additional $1,160,000 pursuant to the
convertible promissory note dated January 21, 1999, by the Company in favor of
EIS.
<Page>
SCHEDULE 3.19
The Company has retained Aurora Capital LLC in connection with this transaction
pursuant to a placement agency letter agreement dated January 15, 1999, as
supplemented by a letter agreement dated March 2, 2000.
<Page>
SCHEDULE 3.22
Drs. Arnold Lippa and Bernard Beer entered into consulting agreement dated June
30, 1998 with Neurocrine Biosciences, Inc.
Jeff Margolis, a shareholder of the Company and principal of broker Aurora
Capital LLC, is currently serving as interim chief financial officer of the
Company in addition to his investment banking services to Aurora Capital LLC in
connection with this transaction.
See Schedule 3.3.
<Page>
SCHEDULE 6.2
Net proceeds will be applied to (a) compound development both at the Company and
Nascime, (b) compound acquisition, acquisition of other development or discovery
programs, (c) support the costs associated with a possible merger or acquisition
and the additional programs that may result from such a transaction and (d)
digital data capture system development and web site development and (e)
general, administrative and working capital purposes