DURA PHARMACEUTICALS, INC.
NOTICE OF GRANT OF STOCK OPTION
Notice is hereby given of the following stock option grant (the "Option")
to purchase shares of Common Stock of Dura Pharmaceuticals, Inc. (the
"Company"):
OPTIONEE: Robert S. Whitehead
GRANT DATE: July 10, 1998
OPTION PRICE: $21.94 per share
NUMBER OF OPTION SHARES: 250,000 shares
TYPE OF OPTION: Non-Qualified Stock Option
EXPIRATION DATE: July 10, 2008
EXERCISE SCHEDULE. The Option shall become exercisable for the Option
Shares in a series of installments as follows: the Option will become
exercisable for twenty-five percent (25%) of the Option Shares upon completion
of one year of service measured from the Grant Date, and the balance of the
Option Shares shall become exercisable in equal daily installments over a
period of three years measured from the first anniversary of the Grant Date.
In no event shall any additional Option Shares vest after Optionee ceases to be
employed by the Company.
OTHER PROVISIONS. Optionee agrees to be bound by the terms and conditions
set forth in the Stock Option Agreement attached hereto as EXHIBIT A.
NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this Notice of Grant or in
the attached Stock Option Agreement shall confer upon Optionee any right to
continued employment for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Company (or any parent or
subsidiary employing Optionee) or Optionee, which rights are hereby expressly
reserved by each, to terminate Optionee's employment at any time for any reason
whatsoever, with or without cause.
DURA PHARMACEUTICALS, INC.
By: /s/ Cam L. Garner /s/ Robert S. Whitehead
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Cam L. Garner OPTIONEE
Chairman & CEO Robert S. Whitehead
EXHIBIT A
STOCK OPTION AGREEMENT
DURA PHARMACEUTICALS, INC.
RECITALS
A. The Board of Directors of Dura Pharmaceuticals, Inc. (the
"Corporation") grants stock options to selected individuals for the purpose of
attracting and retaining the services of persons who contribute to the growth
and financial success of the Corporation.
B. Optionee is a person who the Corporation believes has and will
contribute to the growth and financial success of the Corporation.
AGREEMENT
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT. Corporation hereby grants Optionee an option ("Option") to
purchase shares of Common Stock of the Corporation ("Option shares") as
specified in the attached Notice of Grant of Stock Option (the "Grant Notice")
at an exercise price specified in the Grant Notice (the "Exercise Price")
subject to the terms and conditions of this Agreement and the Grant Notice.
2. VESTING OR EXERCISE PERIOD. Subject to the terms and conditions of
this Agreement and that certain letter agreement dated July 1, 1998 between the
Corporation and Optionee, this Option will vest as set forth in the Grant
Notice. Provided, however, that this Option will expire at midnight on the
expiration date shown in the Grant Notice, which date is 10 years after the
Grant Date set in the Grant Notice (the "Expiration Date"), and this Option
must be exercised, if at all, on or before the Expiration Date.
3. DESIGNATION OF OPTION TYPE. Optionee understands that the Option is a
non-qualified stock option.
4. TERMINATION.
(a) If Optionee ceases to be an employee of the Corporation or a
subsidiary or parent of the Corporation for any reason except death or
disability, this Option may be exercised (for shares vested on the date
Optionee ceased to be an employee) within THREE (3) MONTHS after the date
Optionee ceased to be an employee, but in no event later than the Expiration
Date.
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(b) If Optionee ceases to be an employee of the Corporation or a
subsidiary or parent of the Corporation because of disability or death, this
Option may be exercised (for shares vested on the date Optionee ceased to be an
employee) within TWELVE (12) MONTHS after Optionee ceased to be an employee,
but in no event later than the Expiration Date.
For purposes of this section, Optionee will be deemed an "employee" if Optionee
is providing services as an independent contractor or consultant to the
Corporation or a subsidiary or parent of the Corporation.
5. EXERCISE.
(a) This Option is exercisable by delivery of an executed Notice of
Exercise, in a form satisfactory to the Corporation. The Notice of Exercise
will set forth the Optionee's election to exercise this Option and the number
of Option Shares being purchased.
(b) Full payment of the Exercise Price must be made in one or more
of the following forms:
(1) check made payable to the Corporation;
(2) promissory note;
(3) shares of Common Stock of the Corporation held for the
requisite period to avoid a charge to the Corporation's earnings and valued as
of the Exercise Date; or
(4) delivery of a properly executed Notice of Exercise,
together with irrevocable instructions to a broker to promptly deliver to the
Corporation the amount of sale or loan proceeds to pay the Exercise Price.
For purposes of subparagraphs (2) and (4) immediately above, the effective date
of the exercise (the "Exercise Date") will be the date the Notice of Exercise
is delivered to the Corporation. In all other cases, the Exercise Date will be
the date on which the Notice of Exercise and actual payment are received by the
Corporation.
6. TRANSFERABILITY. This Option may be assigned in whole or in part
during the Optionee's lifetime. The assigned portion may only be exercised by
the person or persons who acquire a proprietary interest in the Option pursuant
to the assignment. The terms applicable to the assigned portion shall be the
same as those in effect for the Option immediately prior to such assignment and
shall be set forth in such documents issued to the assignee as the Corporation
may deem appropriate. This Option may, after Optionee's death, be transferred
by Will or state law of descent and distribution.
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The terms of this Option are binding upon the executors, administrators,
successors and assigns of Optionee.
7. WITHHOLDING. Optionee agrees, as a condition to the exercise of this
Option, to make appropriate arrangements with the Corporation or a subsidiary
or parent of the Corporation employing Optionee for the satisfaction of any
federal, state or local income or employment tax requirements applicable to the
exercise of this Option or to the sale of shares acquired under this Option.
8. ADJUSTMENTS. If any change is made to the Option Shares (whether by
reason of merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, combination of shares, exchange of shares or other
change in corporate or capital structure of the Corporation) then the
Corporation will make appropriate adjustments to the kind, price per share and
maximum number of shares subject to this Option. Adjustments made by the
Corporation will be final, binding and conclusive. No adjustment will be made
if such change results in the acceleration and termination of all outstanding
options in accordance with the Acceleration and Termination of Options
provisions of the following paragraph.
9. ACCELERATION AND TERMINATION OF OPTIONS. In the event of one or more
of the following transactions ("Corporate Transactions"):
(a) a merger or consolidation in which the Corporation is not the
surviving entity, except for a transaction the principal purpose of which is to
change the State of the Corporation's incorporation,
(b) the sale, transfer or other disposition of all or substantially
all of the assets of the Corporation,
(c) any reverse merger in which the corporation is the surviving
entity but in which 50% or more of the Corporation's outstanding voting stock
is transferred to holders different from those who held such securities
immediately before the merger, or,
(d) an acquisition by any person or related group of persons (other
than the Corporation or a person that directly or indirectly controls, is
controlled by or is under common control with, the Corporation) of ownership of
more than 50% of the Corporation's outstanding Common Stock, pursuant to a
tender or exchange offer
then the Option holder may exercise this Option for all of the Option Shares,
including shares previously unvested, provided the Option is exercised
immediately before the consummation of the Corporate Transaction and before the
Expiration Date. Upon consummation of the Corporate Transaction, this Option,
to the extent not previously exercised, will terminate and cease to be
exercisable.
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10. NOTICES. Any notice required to be given to the Corporation under
this Agreement will be in writing and addressed to the Corporation and its
corporate offices. Any notice required to be given to Optionee under this
Agreement will be in writing and addressed to Optionee at the address specified
in Optionee's employment file maintained by the Corporation. All notices will
be deemed to have been given or delivered upon personal delivery or upon
deposit in the United State mail, postage prepaid and properly addressed to the
party to be notified.
11. NO EMPLOYMENT CONTRACT. This Option shall not confer upon Optionee
any right to continue in the employ of or to provide services to the
Corporation or a subsidiary or parent of the Corporation or constitute any
contract or agreement of employment or services or interfere in any way with
the right of the Corporation or a subsidiary or parent of the Corporation to
reduce such Optionee's compensation or to terminate Optionee's employment or
services at any time, with or without cause.
12. COMPLIANCE. This Option may not be exercised unless the exercise is
in compliance with all applicable requirements of federal and state law and
with the requirements of any stock exchange on which the Corporation's Common
Stock may be listed at the time of exercise.
13. SHAREHOLDER RIGHTS. Optionee will have no shareholder rights with
respect to any Option Shares prior to the Exercise Date of the option.
14. CORPORATION RIGHTS. The grant this Option shall in no way affect the
right of the Corporation to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
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