As filed with the Securities and Exchange Commission on February 3, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Bone Care International, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Wisconsin 39-1527471
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
One Science Court
Madison, Wisconsin 53711
Telephone: (608) 236-2500
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
Charles W. Bishop, Ph.D.
One Science Court
Madison, Wisconsin 53711
Telephone: (608) 236-2500
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent For Service)
Copy to:
Jim L. Kaput
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. /X/
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. / /___________
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
/ /_______________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount Maximum Maximum Amount of
Shares To Be To Be Aggregate Aggregate Registration
Registered Registered Price Per Offering Fee
(1) Unit (2) Price (2)
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Common
Stock,
no par value 50,000 --------- --------- ---------
Rights (3) N/A N/A N/A(3)
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(1) Also registered hereby are such additional and indeterminate
number of shares of Common Stock and Rights (as defined below)
as may become issuable in accordance with the provisions of the
Bone Care International, Inc. 1996 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration
fee and, pursuant to Rule 457(h) under the Securities Act of
1933, based upon the exercise price of $2.11 per share for 6,400
shares subject to outstanding options and the average of the
high and low sale prices of Common Stock of the Registrant on
The Nasdaq National Market on February 1, 1999 for all other
shares.
(3) Each share includes an associated preferred stock purchase right
(collectively, the "Rights") to purchase 1/200 of a share of
Series A Junior Participating Preferred Stock, par value $.001
per share. Rights initially are attached to and trade with the
Common Stock of the Registrant. The value attributable to such
Rights, if any, is reflected in the market price for the Common
Stock.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
SUBJECT TO COMPLETION, DATED FEBRUARY 3, 1999
PROSPECTUS
BONE CARE INTERNATIONAL, INC.
50,000 Shares of Common Stock
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This prospectus relates to up to 50,000 shares of Common Stock of Bone
Care International, Inc. which we may offer and sell to you and to other
holders of options to purchase our Common Stock. Our Common Stock is quoted on
the Nasdaq National Market under the symbol "BCII." On February 1, 1999, the
last reported sale price of our Common Stock was $12.50 per share.
Each share of our Common Stock includes one Right to purchase 1/200 of a
share of our Series A Junior Participating Preferred Stock.
Our principal executive offices are located at One Science Court, Madison,
Wisconsin 53711. Our telephone number is (608) 236-2500.
__________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
__________________
The purchase price for the shares of Common Stock you are entitled to
receive upon exercise of each of your stock options is set forth in a stock
option agreement. We set the price for each of your stock options at the fair
market value of a share of Common Stock on the date we granted the stock
option.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
The date of this Prospectus is February 3, 1999
TABLE OF CONTENTS
Page
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About This Prospectus . . . . . . . . . . . . . . . . . . . . 2
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 3
Description of the Plan and the Stock Options. . . . . . . . . 3
Certain Federal Income Tax Consequences. . . . . . . . . . . . 6
Description of Capital Stock . . . . . . . . . . . . . . . . . 7
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . 10
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Where You Can Find More information. . . . . . . . . . . . . 10
ABOUT THIS PROSPECTUS
This prospectus relates to up to 50,000 shares of Common Stock, no par value,
including the associated preferred stock purchase rights ("Common Stock"), of
Bone Care International, Inc., a Wisconsin corporation (the "Company" or "Bone
Care"), which may be offered and sold to permitted transferees of participants
("Participants") in the Bone Care International, Inc. 1996 Stock Option Plan
(the "Plan"), pursuant to nonqualified stock options ("Stock Options") granted
to such Participants under the Plan. Upon the approval of the committee of two
or more directors of the Company (the "Committee") responsible for
administration of the Plan, some or all of a Participant's Stock Options may be
transferred by such Participant pursuant to a domestic relations order. Each
transfer must be made in accordance with the grant documents specifying the
terms and conditions for transferring such Stock Options. This prospectus also
relates to the offer and sale of Common Stock pursuant to such Stock Options to
the beneficiaries of such permitted transferees, or the executors or
administrators of their estates, or other persons duly authorized by law to
administer the estate or assets of such persons. As set forth in the Assignment
of Option to Purchase Common Stock and agreed to by each person who acquires a
Participant's Stock Options pursuant to a domestic relations order, the Company
reserves the right to suspend this offering at any time if, in the Company's
judgment, a sale of Common Stock may violate federal securities laws.
THE COMPANY
Bone Care is a leader in the discovery and development of improved vitamin
D-hormone ("D-hormone") therapies. D-hormones have a key role in secondary
hyperparathyroidism leading to metabolic bone diseases in several patient
populations, including end stage renal disease ("ESRD"), pre-dialysis and
osteoporosis patients. D-hormones also have a role in certain
hyperproliferative diseases, including prostate, breast and colon cancers, and
psoriasis. In March 1998, the Company filed a New Drug Application ("NDA") with
the United States Food and Drug Administration ("FDA") for an oral formulation
of its lead product candidate, one-alpha D2 (Hectorol ), a synthetic D-
hormone analog for the treatment of secondary hyperparathyroidism associated
with ESRD. In February 1999, the Company submitted a NDA with the FDA for an
intravenous formulation of Hectorol for the same indication.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the
Common Stock for general corporate purposes.
DESCRIPTION OF THE PLAN AND THE STOCK OPTIONS
The Plan
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The purpose of the Plan is to provide incentives to officers, key
employees and consultants of the Company and its subsidiaries and members of
the Board of Directors to contribute to the success and prosperity of the
Company by granting Stock Options to such persons. The Plan was initially
adopted as of February 1, 1996. Under the Plan, a total of 1,000,000 shares of
Common Stock were made available for grant.
Only nonqualified stock options may be granted under the Plan. The option
price per share of Common Stock purchasable upon exercise of an option is 100%
of the fair market value of a share of Common Stock on the date of grant of
such stock option. The Plan is administered by the Committee, which has the
authority, subject to the terms of the Plan, to establish eligibility
guidelines, select officers, key employees, consultants, and non-employee
directors for participation in the Plan and determine the number of shares of
Common Stock subject to a stock option, the exercise price for such shares of
Common Stock, the time and conditions of vesting or exercise, and all other
terms and conditions of the stock options. To the extent required under Section
162(m) of the Internal Revenue Code of 1986, and the rules and regulations
thereunder, the maximum number of shares of Common Stock with respect to which
options may be granted during any calendar year to any person is 200,000,
subject to adjustment for changes in the Company's capitalization.
The Plan may be amended by the Board of Directors in any respect, except that
no amendment may be made without shareholder approval if such amendment would
increase the maximum number of shares of Common Stock available under the Plan
(other than certain adjustments for changes in the Company's capitalization) or
would otherwise require shareholder approval. The Plan will terminate on
February 1, 2006, unless earlier terminated by the Board of Directors.
The Stock Options
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At the time of grant, the Committee establishes the exercise price, the
expiration date and the times and installments in which the Stock Options may
be exercised. As of the date of this prospectus, all Stock Options granted
under the Plan have had expiration dates ten years from the date of grant with
an exercise price equal to 100% of the fair market value of a share of Common
Stock on the date of grant. Such grants generally have provided that the
Stock Options become exercisable in equal annual installments over the
three-year or five-year period following the date of grant. If any change
shall occur in or affect shares of Common Stock or Stock Options on account of
a merger, reorganization, stock dividend, stock split or similar changes, the
Committee shall make adjustments in, among other things, (i) the number of
shares exercisable under each Stock Option and (ii) the exercise price of the
unexercised portion of each Stock Option.
Transferability
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The Plan provides that Stock Options are generally not transferable by a
Participant except by will or the laws of descent and distribution or pursuant
to beneficiary designation procedures approved by the Company and are
exercisable during the Participant's lifetime only by the Participant.
Notwithstanding the foregoing, under certain circumstances, the Committee may
consent to the transfer or transferability of any particular Stock Option in
the manner approved by the Committee. The Committee has determined to allow
the transfer of certain Stock Options pursuant to a domestic relations order.
Any such permitted transferee of a Participant's Stock Options shall be
referred to herein as a "Stock Option Transferee" and such Participant shall
be referred to herein as a "Participant Transferor."
This prospectus relates to up to 50,000 shares of Common Stock which may
be offered and sold to Stock Option Transferees pursuant to Stock Options that
may be transferred as described in the immediately preceding paragraph. This
prospectus also relates to the offer and sale of Common Stock pursuant to such
Stock Options to the beneficiaries of such Stock Option Transferees or the
executors or administrators of their estates, or other persons duly authorized
by law to administer the estate or assets of such persons. Upon transfer to a
Stock Option Transferee, a Stock Option is governed by and subject to the terms
and limitations of the Plan and the relevant grant, as such grant may be
amended by the Committee in consenting to a transfer of the Stock Option, and,
subject to any such amendment, the Stock Option Transferee is entitled to the
same rights as the Participant Transferor, as if no transfer had taken place.
ACCORDINGLY, THE RIGHTS OF THE STOCK OPTION TRANSFEREE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF THE ORIGINAL GRANT TO THE PARTICIPANT TRANSFEROR, AS AMENDED,
INCLUDING PROVISIONS RELATING TO EXPIRATION DATE, EXERCISABILITY, EXERCISE
PRICE AND FORTEITURE. FOR INFORMATION REGARDING THE TERMS OF A PARTICULAR
STOCK OPTION GRANT, STOCK OPTION TRANSFEREES MAY CONTACT THE CORPORATE
SECRETARY AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICES. Once a Stock Option
has been transferred to a Stock Option Transferee, it may not be subsequently
transferred by the Stock Option Transferee except with the consent of the
Committee or by will or the laws of descent and distribution or pursuant to
beneficiary designation procedures approved by the Company.
Exercise of Stock Options by Stock Option Transferees
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A Stock Option that has been validly transferred may be exercised by the
Stock Option Transferee at any time from the time first set by the Committee in
the original grant to the Participant Transferor until the close of business on
the expiration date of the Stock Option, or the earlier date on which the Stock
Option terminates due to the Participant Transferor's termination of employment
or service as director, as discussed below. Stock Options generally become
exercisable in equal annual installments over the three-year or five-year
period following the date of grant. The exercise price of the shares as to
which Stock Options are exercised shall be paid to the Company at the time of
exercise in cash.
A Stock Option will be deemed exercised on the date the Company's
Corporate Secretary's office has received written notice of exercise of the
Stock Option signed by the Stock Option Transferee specifying the number of
shares of Common Stock being purchased pursuant to the Stock Option exercise
(accompanied by a check in satisfaction of the exercise price). The Stock
Option shares will generally be registered in the name of the Stock Option
Transferee as of the first business day following the date the Company receives
a properly completed notice of exercise and payment of the exercise price and
an amount necessary to satisfy all income tax withholding obligations. Any
required income tax withholding must be satisfied by the Stock Option
Transferee as discussed below under the heading "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES." Once the exercise is completed as described above, stock
certificates for the appropriate number of shares will be delivered as soon as
practicable to the Stock Option Transferee or his or her estate or
beneficiaries, or such shares shall otherwise be delivered in such manner as
the person(s) entitled thereto may direct.
Effect of Termination of Employment or Service
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Because Stock Options transferred to Stock Option Transferees continue to be
governed by the terms of the Plan and the original grant, their exercisability
continues to be affected by the Participant Transferor's employment or service
status. If a Participant Transferor terminates employment or service with the
Company for any reason other than retirement after age 60 or death, all out-
standing unexercised Stock Options granted to such Participant Transferor,
including those transferred to a Stock Option Transferee, may be exercised
during the 30-day period following the date of termination of employment or
service, but only to the extent exercisable on the date of termination and in
no event after the expiration dates of such Stock Options. If a Participant
Transferor terminates employment or service by reason of retirement after age
60 or death, all outstanding unexercised Stock Options granted to such
Participant Transferor, including those transferred to a Stock Option
Transferee, may be exercised during the one-year period following the date of
death or date of termination of employment or service, but only to the extent
exercisable on the date of termination or death, and in no event after the
expiration dates of such Stock Options. If a Participant Transferor dies
during the 30-day period following termination of employment or service for any
reason other than retirement after age 60, or if a Participant Transferor dies
during the one-year period following termination of employment or service by
reason of retirement after age 60, all outstanding unexercised Stock Options
granted to such Participant Transferor, including those transferred to a Stock
Option Transferee, may be exercised during the one-year period following the
date of death, but only to the extent exercisable on the date of death, and in
no event after the expiration dates of such Stock Options. The Company has no
obligation to notify any Stock Option Transferee of the termination of
employment or service of the Participant Transferor.
Change in Control
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In the event of a change in control of the Company, any stock option not
previously exercisable in full will become fully exercisable. A change in
control generally is the acquisition, subject to certain exceptions, by any
person of beneficial ownership of 50% or more of the outstanding shares of
Common Stock, a change in the majority of the Board of Directors and approval
by the shareholders of a reorganization, merger, consolidation, or sale of all
or substantially all of the assets of the Company unless certain conditions are
satisfied.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
Prior to making a transfer of a Stock Option, a Participant should
consult with his or her personal tax advisors concerning the possible federal,
state and local income and other tax consequences of such a transfer. A Stock
Option Transferee should consult with his or her personal tax advisors
concerning the possible federal, state and local income and other tax
consequences of the exercise of a Stock Option. The federal income tax
consequences of a transfer to a former spouse of a Stock Option pursuant to a
domestic relations order and of the exercise of the Stock Option are summarized
below. State and local income tax consequences are not addressed herein.
Income Tax Consequences for Participant Transferor
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A Participant who transfers a Stock Option to a Stock Option Transferee
pursuant to a domestic relations order will not recognize income at the time of
the transfer. As discussed in the following paragraph, where the Participant
Transferor and the Stock Option Transferee both are domiciled in a community
property state, such as Wisconsin, the Stock Option Transferee and not the
Participant Transferor will recognize ordinary income at the time the Stock
Option Transferee exercises the Stock Option.
Income Tax Consequences for Stock Option Transferee
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A Stock Option Transferee will not recognize income at the time a Stock
Option is transferred to the Stock Option Transferee pursuant to a domestic
relations order. Where the Participant Transferor and the Stock Option
Transferee are both domiciled in a community property state, such as Wisconsin,
upon exercise of a Stock Option that was transferred pursuant to a domestic
relations order, the Stock Option Transferee will recognize ordinary income in
an amount equal to the excess of the fair market value of the shares purchased
on the date of exercise (which will not necessarily be equal to the price at
which such shares are sold, even if sold on the same day as exercise) over the
exercise price. If either the Participant Transferor or the Stock Option
Transferee is not domiciled in a community property state, the Participant
Transferor and Stock Option Transferee should consult their personal tax
advisors. The Company will generally be entitled to claim a federal income tax
deduction at such time and in the same amount that the Stock Option Transferee
recognizes ordinary income. The Internal Revenue Service has ruled in private
letter rulings that the amount required to be included in income by the Stock
Option Transferee is subject to income tax withholding.
Income Tax Consequences upon the Subsequent Sale of Stock
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If shares acquired upon exercise of a Stock Option that was transferred
pursuant to a domestic relations order are later sold or exchanged, then the
difference between the sale price and the Stock Option Transferee's tax basis
for the shares will generally be taxable as long-term or short-term capital
gain or loss (assuming that the stock is a capital asset of the taxpayer)
depending upon whether the stock has been held for more than 12 months after
the exercise date. The tax basis for the shares in the hands of the Stock
Option Transferee would be the exercise price for the Stock Option plus the
amount of income recognized by the Stock Option Transferee at the time of
exercise.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 28,000,000 shares of
Common Stock, no par value, and 2,000,000 shares of Preferred Stock, par value
$.001 per share. The Board of Directors of the Company has designated 140,000
shares of the Preferred Stock as Series A Junior Participating Preferred Stock
in connection with the Rights described below. The following summary
description of the capital stock of the Company is qualified in its entirety by
reference to the Articles of Incorporation and the By-Laws of the Company,
which are filed as exhibits to the Registration Statement on Form S-3 (the
"Registration Statement") filed by the Company with the Securities and
Exchange Commission (the "SEC").
Common Stock
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Holders of Common Stock are entitled to one vote for each share held on all
matters submitted to a vote of shareholders. Holders of Common Stock do not
have cumulative voting rights in the election of directors and have no
preemptive, subscription or redemption rights. All outstanding shares
of Common Stock are validly issued, fully paid and nonassessable, except for
certain statutory liabilities which may be imposed by Section 180.0622 of the
WBCL for unpaid employee wages. Section 180.0622 of the WBCL provides that
shareholders of every corporation are personally liable to an amount equal to
the par value of the shares owned by them and to the consideration for which
their shares without par value were issued, for all debts owing to employees
for services performed for such corporation, but not exceeding six months'
service in the case of any individual employee. The Common Stock has no par
value. Holders of Common Stock are entitled to such dividends as may be
declared by the Board of Directors out of funds legally available therefor.
Upon liquidation, dissolution or winding-up of the Company, the assets legally
available for distribution to shareholders are distributable ratably among the
holders of Common Stock at that time outstanding subject to prior distribution
rights of creditors of the Company.
Preferred Stock
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The Articles of Incorporation provide that the Board of Directors of the
Company is authorized, subject to certain limitations prescribed by law or the
rules of The Nasdaq Stock Market, to issue, without further shareholder
approval, up to 2,000,000 shares of Preferred Stock of the Company, to
determine with respect to the Preferred Stock the preferences, limitations and
relative rights, in whole or in part, before the issuance of any shares of
Preferred Stock, to create one or more series of Preferred Stock, and, with
respect to any series, to determine the number of shares of the series, the
distinguishing designation and the preferences, limitations and relative
rights, in whole or in part, before the issuance of any shares of that series.
In connection with the adoption of the Company's shareholders rights plan, the
Board of Directors of the Company designated 140,000 shares as the Series A
Junior Participating Preferred Stock.
Rights Agreement
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The Board of Directors has adopted a shareholders rights plan. Under the
shareholders rights plan, each share of Common Stock has associated with it one
preferred share purchase right (a "Right"). The terms of the Preferred Rights
are set forth in a Rights Agreement (the "Rights Agreement") between the
Company and Norwest Bank Minnesota, N.A. The following summary description of
the Rights and the Rights Agreement is qualified in its entirety by reference
to the Rights Agreement, which is filed as an exhibit to the Registration
Statement.
Under certain circumstances described below, each Right would entitle the
holder thereof to purchase one two-hundredth of a share of Series A Junior
Participating Preferred Stock for a price of $12.50 per one two-hundredth of a
share, subject to adjustment. The Rights are not presently exercisable and are
transferable only with the related shares of Common Stock. The Rights will not
become exercisable or be evidenced by separate certificates or trade separately
from the Common Stock prior to the occurrence of certain triggering events
described below. In such an event, separate Rights certificates would be issued
and distributed representing one Right for each share of Common Stock. There is
no present market for the Rights separate from the Common Stock and the Company
cannot predict whether a trading market would develop with respect to the
Rights if the Rights ever become exercisable.
The Rights would become exercisable at the specified exercise price upon
the earliest to occur of (i) 10 business days after the first public
announcement that any person or group (other than an Exempt Person, as defined
below) has acquired beneficial ownership of 15% or more of the Company's
outstanding shares of Common Stock (an "Acquiring Person") and (ii) 10 business
days (unless delayed by the Board of Directors) after any person or group
(other than an Exempt Person) has commenced, or announced the intention to
commence, a tender or exchange offer which would, upon its consummation, result
in such person or group being the beneficial owner of 15% or more of the
outstanding shares of Common Stock (the earliest of such date is the
"Distribution Date"). Rights certificates will be distributed as soon as
practicable after the Distribution Date. Notwithstanding the foregoing, Rights
may not be exercised following the occurrence of an event described below under
the caption "Flip-In" prior to the expiration of the Company's right to redeem
the Rights. An "Exempt Person" includes the Company, Dr. Mazess and certain
persons and entities related to or affiliated with the Company or Dr. Mazess.
FLIP-IN. After the Rights become exercisable and a person or group has
become an Acquiring Person, the holders of the Rights (other than an Acquiring
Person and certain transferees therefrom) would be entitled to purchase shares
of Common Stock at a 50% discount. After the occurrence of a "Flip-In" event,
the Rights of an Acquiring Person and such transferees become void.
FLIP-OVER. In the event that, on or after the date on which an Acquiring
Person has become such: (i) the Company merges into or consolidates with an
Interested Shareholder (as defined below) or, unless all holders of the
outstanding shares of Common Stock are treated the same, any other person (with
limited designated exceptions), (ii) an Interested Shareholder or, unless all
holders of the outstanding shares of Common Stock are treated the same, any
other person (with limited designated exceptions) merges into the Company or
(iii) the Company sells or transfers 50% or more of its consolidated assets or
earning power to an Interested Shareholder or, unless all holders of the
outstanding shares of Common Stock are treated the same, any other person (with
limited designated exceptions), the holders of the Rights (other than Rights
which have become void) would be entitled to purchase common shares of the
acquiror (or a person affiliated therewith) at a 50% discount. In general, an
"Interested Shareholder" is an Acquiring Person and certain persons affiliated,
associated or acting on behalf of or in concert therewith.
REDEMPTION OF RIGHTS. The Rights may be redeemed, in whole but not in part,
at a redemption price of $.005 per Right, subject to adjustment, at the
direction of the Board, at any time prior to the earliest of (i) 10 business
days after the first public announcement that any person or group has become
an Acquiring Person, (ii) the occurrence of any transaction described under the
caption "Flip-Over" and (iii) April 13, 2006. Under certain circumstances set
forth in the Rights Agreement, redemption requires that disinterested directors
be in office and that the decision to redeem the Rights have the concurrence of
at least a majority of the disinterested directors after the occurrence of an
event. Such circumstances include redeeming the Rights (i) at a time at which
there is an Acquiring Person or (ii) after the first public announcement that a
person or group has become an Acquiring Person but prior to the occurrence of a
transaction described under the caption "Flip-Over," but only (i) if the person
who is the Acquiring Person shall have reduced its beneficial ownership of the
then outstanding shares of Common Stock to less than 10% or (ii) in connection
with any transaction described under the caption "Flip-Over" which does not
involve an Interested Shareholder and in which all holders of the Common
Stock are treated the same.
EXCHANGE OF SHARES FOR RIGHTS. At any time after any person or group shall
have become an Acquiring Person and before any person (other than an Exempt
Person), together with its affiliates and associates, shall have become the
beneficial owner of 50% or more of the outstanding shares of Common Stock, the
Board of Directors may, at its option, exchange all or any part of the Rights
(other than Rights which have become void) for shares of Common Stock at the
exchange rate of one share of Common Stock (or one two-hundredth of a Preferred
Share) per Right, subject to adjustment.
Terms of Series A Junior Participating Preferred Stock
- ------------------------------------------------------
The Series A Junior Participating Preferred Stock (the "Preferred Shares")
which would be issuable upon exercise of the Rights (should the Rights become
exercisable) would not be redeemable. Each Preferred Share would entitle the
holder thereof to receive a preferential quarterly dividend equal to 200 times
the aggregate per share amount of all cash dividends, plus 200 times the
aggregate per share amount (payable in kind) of all non-cash dividends and
other distributions (other than in shares of Common Stock), declared on the
Common Stock during such quarter, adjusted to give effect to any dividend on
the Common Stock payable in shares of Common Stock or any subdivision,
combination or reclassification of the Common Stock (a "Dilution Event"). Each
Preferred Share would entitle the holder thereof to 200 votes on all matters
submitted to a vote of the shareholders of the Company, voting together as a
single class with the holders of the Common Stock and the holders of any other
class of capital stock having general voting rights, adjusted to give effect to
any Dilution Event. In the event of liquidation of the Company, the holder of
each Preferred Share would be entitled to receive a preferential liquidation
payment equal to 200 times the aggregate per share amount to be distributed to
the holders of the Common Stock, adjusted to give effect to any Dilution Event,
plus an amount equal to accrued and unpaid dividends and distributions on such
Preferred Share, whether or not declared, to the date of such payment. In the
event of any merger, consolidation or other transaction in which the
outstanding shares of Common Stock are exchanged for or converted into other
capital stock, securities, cash and/or other property, each Preferred Share
would be similarly exchanged or converted into 200 times the per share amount
applicable to the Common Stock, adjusted to give effect to any Dilution Event.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Michael, Best & Friedrich, Milwaukee, Wisconsin.
EXPERTS
The consolidated financial statements of the Company as of June 30, 1998
and 1997 and for each of the years in the three-year period ended June 30, 1998
have been incorporated by reference herein and in the registration statement in
reliance upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements, and other
information with the SEC. You may read and copy any document we file with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may obtain further information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also
available to the public over the Internet at the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, unless
we update or supersede that information by the information contained in this
prospectus or a prospectus supplement or by information that we file
subsequently that is incorporated by reference into this prospectus. We
incorporate by reference the following documents that we have filed with the
SEC and our future filings with the SEC under Sections 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") until our
offering of the Common Stock is completed:
- Annual Report on Form 10-K for the year ended June 30, 1998;
Quarterly Reports on Form 10-Q for the quarters ended September
30, 1998 and December 31, 1998
Description of the Common Stock contained in the Company's
Registration Statement on Form 10 filed under the Exchange Act,
including any amendment or report filed for the purpose of
updating such description; and Description of the Rights
contained in the Company's Registration Statement on Form 10
filed under the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
This prospectus is part of a registration statement we have filed with the
SEC relating to the Common Stock. As permitted by SEC rules, this prospectus
does not contain all of the information included in the registration statement
and accompanying exhibits and schedules we file with the SEC. You may refer to
the registration statement, the exhibits and schedules for more information
about us and our Common Stock. The registration statement, exhibits and
schedules are also available at the SEC's Public Reference Room or through its
web site.
Copies of the above documents (other than exhibits to such documents
unless such exhibits are specifically incorporated by reference into such
documents) may be obtained upon written or oral request without charge from the
Company, 313 West Beltline Highway, Madison, Wisconsin 53713 (telephone number
(608) 236-2500), Attention: Vice President - Finance.
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the cover of the
document. We are not making an offer of the Common Stock in any state in which
the offer or sale is not permitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
- ------------------------------------------------------
The following table sets forth the expenses in connection with the
issuance and distribution of the securities being registered. All of the
amounts shown are estimated, except the SEC registration fee.
SEC registration fee. . . . . . . . . . . . $ 155
Legal fees and expenses . . . . . . . . . . 5,000
Fees of accountants . . . . . . . . . . . . 1,500
Miscellaneous . . . . . . . . . . . . . . . 845
-----
Total expenses. . . . . . . . . . . . . . . $ 7,500
=====
Item 15. Indemnification of Directors and Officers.
- ----------------------------------------------------
Under the Company's By-Laws, directors and officers of the Company
are entitled to mandatory indemnification from the Company against certain
liabilities and expenses (a) to the extent such officers or directors are
successful in the defense of a proceeding and (b) in proceedings in which the
director or officer is not successful in the defense thereof, unless it is
determined the director or officer breached or failed to perform such person's
duties to the Company and such breach or failure constituted: (i) a willful
failure to deal fairly with the Company or its shareholders in connection with
a matter in which the director or officer had a material conflict of interest,
(ii) a violation of criminal law, unless the director or officer had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful, (iii) a transaction from
which the director or officer derived an improper personal profit, or (iv)
willful misconduct. The Company's By-Laws provide that the Company may
purchase and maintain insurance on behalf of an individual who is a director or
officer of the Company against liability asserted against or incurred by such
individual in his or her capacity as a director or officer regardless of
whether the Company is required or authorized to indemnify or allow expenses to
the individual against the same liability under the By-Laws.
The Wisconsin Business Corporation Law contains provisions for
mandatory indemnification of directors and officers against certain liabilities
and expenses that are similar to those contained in the Company's By-Laws.
Under Section 180.0828 of the Wisconsin Business Corporation Law, directors of
the Company are not subject to personal liability to the Company, its
shareholders or any person asserting rights on behalf thereof for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from
breaches or failures to perform any duty resulting solely from their status as
such directors, except in circumstances paralleling those in clauses (i)
through (iv) in the preceding paragraph. These provisions pertain only to
breaches of duty by directors as directors and not in any other corporate
capacity, such as officers. As a result of such provisions, shareholders may
be unable to recover monetary damages against directors for actions taken by
them which constitute negligence or gross negligence or which are in violation
of their fiduciary duties, although it may be possible to obtain injunctive or
other equitable relief with respect to such actions. If equitable remedies are
found not to be available to shareholders in any particular case, shareholders
may not have any effective remedy against the challenged conduct.
The Company has purchased directors and officers liability insurance,
which would provide coverage against certain liabilities including liabilities
under the Securities Act of 1933, as amended (the "Securities Act").
Item 16. Exhibits.
- -------------------
A list of exhibits included as part of this Registration Statements
is set forth in the Exhibit Index appearing elsewhere herein and is
incorporated herein by reference.
Item 17. Undertakings.
- -----------------------
(a) The undersigned registrant hereby undertakes:
(1) 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 of 1933;
(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)
if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-
3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
(3) 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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 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 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 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Madison, State of Wisconsin, on this 3rd day of
February, 1999.
BONE CARE INTERNATIONAL, INC.
By: /s/ Charles W. Bishop
_____________________________________
Charles W. Bishop, Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles W. Bishop and Dale W. Gutman,
and each 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
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
Name Title
- ---- -----
/s/ Charles W. Bishop President, Chief Executive Officer
_______________________________ and Director
Charles W. Bishop, Ph.D. (Principal Executive Officer)
/s/ Dale W. Gutman Vice President of Finance
_______________________________ (Principal Financial and
Dale W. Gutman Accounting Officer)
/s/ Richard B. Mazess Chairman of the Board
_______________________________
Richard B. Mazess
/s/ Martin Barkin, M.D. Director
_______________________________
Martin Barkin, M.D.
/s/ Robert A. Beckman Director
_______________________________
Robert A. Beckman
EXHIBIT INDEX
Exhibit
Number
- ------
4.1(a) Restated Articles of Incorporation of Registrant (1) (Exhibit 3.1)
4.1(b) Articles of Amendment of Registrant (2) (Exhibit 3.1(b))
4.2 By-laws of Bone Care Corporation (3) (Exhibit 3.2)
4.3 Shareholder Rights Agreement between Bone Care and Norwest Bank,
Minnesota, N.A. (1) (Exhibit 4.1, Amendment No. 3 to Form 10/A
*5 Opinion of Michael, Best & Friedrich regarding the legality of
the securities being registered
*23.1 Consent of KPMG LLP
*23.2 Consent of Michael, Best & Friedrich (included in Exhibit 5)
*24 Powers of Attorney (included on the signature page)
*99.1 Bone Care International, Inc. 1996 Stock Option Plan
99.2 Form of Stock Option Agreements (2) (Exhibit 10.7)
*99.3 Form of Amendment to Stock Option Agreement
*filed herewith
(1) Incorporated by reference to exhibits filed with Registrant's Form 10
Registration Statement (Registration Number 02-27854) filed under the
Securities Exchange Act of 1934. Parenthetical references to exhibit numbers
are to the exhibit numbers in the Form 10 or, if applicable, the Amendment to
the Form 10.
(2) Incorporated by reference to exhibits filed with Registrant's
Registration Statement on Form S-1 (Registration Number 333-43923) filed under
the Securities Act of 1933. Parenthetical references to exhibit numbers are to
the exhibit numbers in the Form S-1.
(3) Incorporated by reference to exhibits filed with Registrant's
Form 10-Q for the quarter ended December 31, 1996 (File No. 0-18643).
Parenthetical references to exhibit numbers are to the exhibit numbers
on the Form 10-Q.
[Letterhead of Michael Best & Friedrich]
February 3, 1999
Bone Care International, Inc.
313 West Beltline Highway
Madison, Wisconsin 53713
Ladies and Gentlemen:
We have acted as special Wisconsin counsel to Bone Care International,
Inc., a Wisconsin corporation (the "Company") in connection with the
Registration Statement on Form S-3 (the "Registration Statement") filed by the
Company with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relative to the registration of 50,000 shares of Common
Stock, no par value (the "Shares"), of the Company to be offered by the
Company.
We are familiar with the Articles of Amendment and Restated Articles of
Incorporation, as amended, and the By-Laws of the Company and the proceedings
to date with respect to the proposed offering and sale of the Shares. In this
connection, we have examined originals or copies of originals certified to our
satisfaction, of such documents, certificates and records, have examined such
questions of law and have satisfied ourselves as to such matters of fact as we
have considered relevant and necessary as a basis for the opinions set forth
herein. We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all natural
persons and the conformity with the original documents of any copies thereof
submitted to us for our examination.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Wisconsin.
2. The Shares will, when certificates representing the Shares shall have
been duly executed, countersigned and registered and delivered
against receipt by the Company of the consideration therefor, be
legally issued, fully paid and nonassessable, except to the extent
that such Shares are assessable as provided in Section 180.0622 of
the Wisconsin Business Corporation Law and judicial interpretations
thereof.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Very truly yours,
MICHAEL BEST & FRIEDRICH LLP
GRM/mkb
Consent of KPMG LLP
The Board of Directors
Bone Care International, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-3 of Bone Care International, Inc. of our report dated July 31, 1998 relating
to the consolidated balance sheets of Bone Care International, Inc. and
subsidiary as of June 30, 1998 and 1997, and related consolidated statements of
operations, shareholders' equity, and cash flows for each of the years in the
three-year period ended June 30, 1998 which report appears in the June 30, 1998
annual report on Form 10-K of Bone Care International, Inc. and to the
reference to our firm under the heading "Experts" in the registration
statement.
Chicago, Illinois
February 3, 1999
BONE CARE INTERNATIONAL, INC.
1996 STOCK OPTION PLAN
(As Amended Through February 4, 1999 and
Reflecting the 2-for-1 Stock Split Distributed November 14, 1997)
1. PLAN. To provide incentives to officers, key employees and
consultants of Bone Care International, Inc. (the "Company") and its
subsidiaries from time to time, and members of the Board of Directors of the
Company (the "Board") to contribute to the success and prosperity of the
Company, based upon the ownership of the common stock, no par value, of the
Company ("Common Stock"), the Committee hereinafter designated, may grant
nonqualified stock options to officers, key employees, consultants and eligible
members of the Board on the terms and subject to the conditions stated in this
Plan.
2. ELIGIBILITY. Officers, key employees and consultants of the Company
and its subsidiaries and members of the Board who are not employees of the
Company ("non-employee directors") shall be eligible, upon selection by the
Committee, to receive stock options as the Committee, in its discretion, shall
determine.
3. SHARES ISSUABLE. The maximum number of shares of Common Stock to be
available under this Plan pursuant to all grants of stock options hereunder
shall be 1,000,000, subject to adjustment in accordance with Section 5. Shares
of Common Stock subject to a stock option granted hereunder, which are not
issued by reason of the expiration, cancellation or other termination of such
stock option, shall again be available for future grants of stock options under
this Plan.
Shares of Common Stock to be issued may be authorized and unissued shares
of Common Stock, treasury stock, or a combination thereof.
To the extent required by Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"), and the rules and regulations thereunder, the
maximum number of shares of Common Stock with respect to which options may be
granted during any calendar year to any person shall be 200,000, subject to
adjustment as provided in Section 5.
4. ADMINISTRATION OF THE PLAN. The Plan shall be administered by a
committee designated by the Board, which may be the whole Board (the
"Committee"), or may consist of two or more members of the Board, each of whom
may be a "Non-Employee Director," within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and an
"outside director" within the meaning of Section 162(m) under the Code.
The Committee shall, subject to the terms of this Plan, establish
eligibility guidelines, select officers, key employees, consultants and
non-employee directors for participation in this Plan and determine the number
of shares of Common Stock subject to a stock option granted hereunder, the
exercise price for such shares of Common Stock, the time and conditions of
vesting or exercise and all other terms and conditions of the stock option,
including, without limitation, the form of the option agreement. The Committee
may establish rules and regulations for the administration of the Plan,
interpret the Plan and impose, incidental to the grant of a stock option,
conditions with respect to the grant or award of stock options or competitive
employment or other activities not inconsistent with or conflicting with this
Plan. All such rules, regulations and interpretations relating to this Plan
adopted by the Committee shall be conclusive and binding on all parties. All
grants of stock options under this Plan shall be evidenced by written
agreements between the Company and the optionees, and no such grant shall
be valid until so evidenced.
5. CHANGES IN CAPITALIZATION. Appropriate adjustments shall be made by
the Committee in the maximum number of shares to be issued under the Plan and
the maximum number of shares which are subject to any stock option granted
hereunder, and the exercise price therefor, to give effect to any stock splits,
stock dividends and other relevant changes in the capitalization of the Company
occurring after the effective date of this Plan (which shall not include the
sale by the Company of shares of Common Stock or securities convertible into
shares of Common Stock).
6. EFFECTIVE DATE AND TERM OF PLAN. This Plan shall be submitted to the
shareholders of the Company for approval and, if approved, shall become
effective on the date thereof; provided, however, that this Plan and any
options granted hereunder shall be null and void in the event the Company's
registration statement under Section 12 of the Exchange Act does not become
effective on or prior to December 31, 1996. This Plan shall terminate ten
years after it becomes effective unless terminated prior thereto by action of
the Board. No further grants shall be made under this Plan after termination,
but termination shall not affect the rights of any optionee under any grants
made prior to termination.
7. AMENDMENTS. This Plan may be amended by the Board in any respect,
except that no amendment may be made without shareholder approval if such
amendment would (a) increase the maximum number of shares of Common Stock
available for issuance under this Plan (other than as provided in Section 5) or
(b) otherwise require shareholder approval.
8. GRANTS OF STOCK OPTIONS. Options to purchase shares of Common Stock
may be granted hereunder to such eligible officers, key employees, consultants,
and non-employee directors as may be selected by the Committee.
9. OPTION PRICE. The option price per share of Common Stock purchasable
upon exercise of an option granted hereunder shall be determined by the
Committee; provided, however, that the option price per share of Common Stock
purchasable upon exercise of an option grant under this Plan shall be 100% of
the fair market value of a share of Common Stock on the date of grant of such
option. For purposes hereof, "fair market value" shall be determined by the
Committee.
10. STOCK OPTION PERIOD. Each stock option granted hereunder may be
granted at any time on or after the effective date, and prior to the
termination, of this Plan. The Committee shall determine whether such stock
option shall become exercisable in cumulative or non-cumulative installments or
in full at any time. An exercisable stock option may be exercised in whole or
in part with respect to whole shares of Common Stock only. The period for the
exercise of each stock option shall be determined by the Committee.
11. EXERCISE OF STOCK OPTIONS. (a) Upon exercise, the option price may
be paid in cash, in previously owned shares of Common Stock (which the optionee
has held for at least six months or acquired on the open market and which the
optionee owns free and clear from all encumbrances) having a fair market value
on the date of exercise equal to the option price, or in a combination thereof.
The Company may arrange or approve of a cashless option exercise procedure
which complies with the provisions of Section 16 of the Exchange Act and the
rules and regulations thereunder.
(b) Unless otherwise specified in the agreement relating to an option, an
option may be exercised during an optionee's continued employment with the
Company or one of its subsidiaries, or service on the Board, as the case may
be, within the 30-day period following termination of such employment or
service, but only to the extent exercisable and within the term of such option
at the time of the termination of such employment or service; PROVIDED,
HOWEVER, that, unless otherwise specified in the agreement relating to an
option, if employment of the optionee by the Company or one of its subsidiaries
or service on the Board shall have terminated by reason of retirement after
age 60 or death, then the option may be exercised within the one-year period
following such termination of employment or service on the Board by the
optionee or the executor, administrator, personal representative, beneficiary
or heir of the optionee, but only to the extent exercisable and within the term
of such option at the time of such termination of employment or service.
(c) Unless otherwise specified in the agreement relating to an option, if
an optionee dies during the 30-day period or one-year period set forth in
Section 11(b) (or other period set forth in the agreement relating to an
option), each option held by the optionee shall be exercisable only to the
extent exercisable and within the term of such option at the date of the
optionee's death and may thereafter be exercised by the executor,
administrator, personal representative, beneficiary or heir of the optionee
within the one-year period following the date of the optionee's death.
(d) Unless otherwise specified in the agreement relating to an option, no
option shall be transferable other than by will or the laws of descent and
distribution or pursuant to beneficiary designation procedures approved by the
Company. Except to the extent permitted by the foregoing sentence, each option
may be exercised during the optionee's lifetime only by the optionee or the
optionee's legal representative or similar person. Except as permitted by the
second preceding sentence, no option hereunder shall be sold, transferred,
assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether
by operation of law or otherwise) or be subject to execution, attachment or
similar process. Upon any attempt to so sell, transfer, assign, pledge,
hypothecate, encumber or otherwise dispose of any option hereunder, such option
and all rights thereunder shall immediately become null and void.
12. ACCELERATION OF OPTIONS UPON A CHANGE IN CONTROL. The following
provisions shall apply in the event of a "Change in Control":
(a) In the event of a Change in Control, any stock options not previously
exercisable in full shall become fully exercisable.
(b) For purposes hereof, "Change in Control" means:
(1) The acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act, of beneficial ownership within the meaning of Rule 13d-3
promulgated under the Exchange Act, of 50% or more of the then outstanding
shares of Common Stock (the "Outstanding Common Stock"); PROVIDED, HOWEVER,
that the following acquisitions shall not constitute a Change in Control: (A)
any acquisition by the Company, (B) any acquisition by an employee benefit plan
(or related trust)sponsored or maintained by the Company or any corporation
controlled by the Company, (C) any acquisition by an underwriter or
underwriters as part of a BONA FIDE public distribution of securities of the
Company or (D) any acquisition by any Person which beneficially owned as of the
effective date of this Plan, 30% or more of the outstanding Common Stock; and
PROVIDED FURTHER that, for purposes of clause (A), if any Person (other than
the Company or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company) shall
become the beneficial owner of 50% or more of the outstanding Common Stock by
reason of an acquisition by the Company and such Person shall, after such
acquisition by the Company, become the beneficial owner of any additional
shares of the Outstanding Common Stock and such beneficial ownership is
publicly announced, such additional beneficial ownership shall constitute a
Change in Control;
(2) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of
such Board; PROVIDED, HOWEVER, that any individual who becomes a director of
the Company subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board shall be deemed
to have been a member of the Incumbent Board; and PROVIDED FURTHER, that no
individual who was initially elected as a director of the Company as a result
of an actual or threatened election contest, as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act, or any other
actual or threatened solicitation of proxies or consents by or on behalf of any
Person other than the Board shall be deemed to have been a member of the
Incumbent Board;
(3) Approval by the shareholders of the Company of a reorganization,
merger or consolidation unless, in any such case, immediately after such
reorganization, merger or consolidation, (i) more than 50% of the then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and more than 50% of the combined
voting power of the then outstanding securities of such corporation entitled to
vote generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals or
entities who were the beneficial owners, respectively, of the Outstanding
Common Stock immediately prior to such reorganization, merger or consolidation
and in substantially the same proportions relative to each other as their
ownership, immediately prior to such reorganization, merger or consolidation,
of the Outstanding Common Stock, (ii) no Person (other than the Company, any
employee plan (or related trust) sponsored or maintained by the Company or the
corporation resulting from such reorganization, merger or consolidation (or any
corporation controlled by the Company) and any Person which beneficially owned,
immediately prior to such reorganization, merger or consolidation, directly or
indirectly, 30% or more of the Outstanding Common Stock) beneficially owns,
directly or indirectly, 50% or more of the then outstanding shares of common
stock of such corporation or 50% or more of the combined voting power of the
then outstanding securities of such corporation entitled to vote generally in
the election of directors and (iii) at least a majority of the members of the
board of directors of the corporation resulting from such reorganization,
merger or consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board providing for such
reorganization, merger or consolidation; or
(4) Approval by the shareholders of the Company of (i) a plan of complete
liquidation or dissolution of the Company or (ii) the sale or other disposition
of all or substantially all of the assets of the Company other than to a
corporation with respect to which, immediately after such sale or other
disposition, (A) more than 50% of the then outstanding shares of common stock
thereof and more than 50% of the combined voting power of the then outstanding
securities thereof entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Common Stock immediately prior to such sale or other
disposition and in substantially the same proportions relative to each other as
their ownership, immediately prior to such sale or other disposition, of the
Outstanding Common Stock, (B) no Person (other than the Company, any employee
benefit plan (or related trust) sponsored or maintained by the Company or such
corporation (or any corporation controlled by the Company) and any Person which
beneficially owned, immediately prior to such sale or other disposition,
directly or indirectly, 30% or more of the Outstanding Common Stock)
beneficially owns, directly or indirectly, 50% or more of the then outstanding
shares of common stock thereof or 50% or more of the combined voting power of
the then outstanding securities thereof entitled to vote generally in the
election of directors and (C) at least a majority of the members of the board
of directors thereof were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board providing for such
sale or other disposition.
BONE CARE INTERNATIONAL, INC.
AMENDMENT TO
NON-QUALIFIED STOCK OPTION AGREEMENT(S)
Reference is made to the outstanding options to purchase shares of common stock
of Bone Care International, Inc. (the "Company") listed on the attached
SCHEDULE A (the "Options"). Each of the Options has been granted to __________
(the "Transferor") and is subject to the Bone Care International, Inc. 1996
Stock Option Plan, as amended (the "Plan"), and a related option agreement
(individually an "Option Agreement" and collectively the "Option Agreements").
This Amendment to Non-Qualified Stock Option Agreement(s) ("Amendment") is
entered into for the purpose of providing for the transferability of the
Options on the terms and conditions set forth below:
1. Each Option shall be transferable pursuant to a domestic relations order.
2. The transfer of one or more of (or a portion of one or more of) the Options
shall be effected only by delivering to the Corporate Secretary at the
Company's principal executive offices (i) a copy of the domestic relations
order requiring or otherwise providing for the transfer of one or more of (or a
portion of one or more of) the Options and (ii) a properly completed Assignment
of Option to Purchase Common Stock in the form attached as EXHIBIT A (an
"Assignment"); provided, however, that such transfer is to a person identified
in or identifiable pursuant to the applicable domestic relations order (a
"Transferee") and is made in accordance with the applicable domestic relations
order.
3. Prior to the exercise of an Option and as a condition to the Company's
obligation to deliver shares upon such exercise, the Transferee shall make
arrangements satisfactory to the Company for the payment of any applicable
federal or state withholding or other taxes payable as a result thereof.
4. A Transferee may exercise an Option that has been properly transferred to
such Transferee until the close of business of the expiration date of such
Option (or any earlier date on which such Option terminates due to the
Transferor's termination of Employment or service with the Company) only by
delivering to the Corporate Secretary or other designated employee of the
Company a written notice of exercise, specifying the number of shares of Common
Stock with respect to which the Option is then being exercised, and accompanied
by payment of the full purchase price of the shares being purchased in cash,
plus payment in cash of the full amount of any taxes which the Company believes
are required to be withheld and paid with respect to such exercise, and in the
event the Option is being exercised by a person or persons other than the
Transferee, such appropriate tax clearance, proof of the right of such person
or persons to exercise the Option,and other pertinent data as the Company may
deem necessary. By executing an Assignment, the Transferee agrees that the
amount required to be included in the Transferee's income is subject to income
tax withholding and FICA taxes and that the Company may require the Transferee
to satisfy any or all such tax obligations.
5. Except as otherwise specifically provided in this Amendment, each Option
shall be governed by and remain subject to the terms and conditions of the Plan
and the related Option Agreement, including provisions relating to the
expiration date, exercisability, exercise price and forfeiture of such Option,
and, except as set forth in this Amendment, a Transferee shall be entitled to
the same rights as the Transferor as if no transfer had taken place.
6. An Option shall not be transferable or transferred by any Transferee except
with the written consent of the Committee administering the Plan or by will or
the laws of descent and distribution.
7. For information regarding the terms of a particular Option, the Transferee
may contact the Corporate Secretary at the Company's principal executive
offices.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its
duly authorized officers as of the date below set forth.
________________________________________________
President and Date
Chief Executive Officer
Attest:
________________________________________________
Secretary Date
Transferor:
____________________________
Date
Address:
____________________________
____________________________
SCHEDULE A
Date of No. of Exercise Expiration
Grant Shares Price Date
----- ------ ----- ----
1.
2.
3.
(Exhibit A)
BONE CARE INTERNATIONAL, INC.
ASSIGNMENT OF OPTION TO PURCHASE COMMON STOCK
I, _____________________, hereby transfer unto _______________ (the
"Transferee") those option(s) (or portions thereof specified below) to purchase
shares of common stock of the Company ("Common Stock") standing in my name on
the books of the Company, and set forth as follows (the "Options"):
No. of
Shares Exercise
Date of being Price Expiration
Grant Transferred per Share Date
----- ----------- --------- ----
1.
2.
3.
4.
I hereby authorize the Secretary to transfer the Options (or portions thereof)
as set forth above on the books of the Company.
Date signed: ______________________ Signature _____________________________
Print Name:____________________________
NOTICE: The signature on this Assignment shall correspond to the name in which
the Option(s) is registered on the books and records of the Company; provided,
however, that if the person transferring the Option(s) is not such registered
owner, proof of such person's right to transfer the Option(s) is being
delivered with this Assignment. The Company shall have sole and final
authority to determine whether such proof is satisfactory.
To: Bone Care International, Inc.
The undersigned Transferee acknowledges that he or she has received and
reviewed a copy of the Bone Care International, Inc. 1996 Stock Option Plan, as
amended (the "Plan"), the agreement relating to each Option (including any
amendment to each such Option) and the Prospectus of the Company relating to
the shares of Common Stock subject to each such Option. The undersigned
Transferee further acknowledges that (i) the amount required to be included in
the Transferee's income is subject to income tax withholding and FICA taxes,
(ii) except as otherwise specifically provided in an amendment to an Option,
each Option shall be governed by and remain subject to the terms and conditions
of the Plan and related Option Agreement, as so amended, including provisions
relating to the expiration date, exercisibility, exercise price and
forfeiture of an Option, and, except as set forth in any such amendment, the
Transferee shall be entitled to the same rights as the person transferring the
Option as if no transfer had taken place and (iii) the Company reserves the
right to suspend, at any time, the offering of shares to the Transferee
pursuant to an Option if, in the Company's judgment, a sale of Common
Stock may violate federal securities laws.
TRANSFEREE
________________________________________________
Signature Date signed
________________________________________________
Print Name
________________________________________________
Street Address
________________________________________________
State Zip Code
________________________________________________
Social Security No.
