<PAGE>
As filed with the Securities and Exchange Commission on November 21, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
CN Biosciences, Inc.
(Exact name of registrant as specified in its charter)
Delaware 33-0509785
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
---------------------
10394 Pacific Center Court
San Diego, California 92121
(619) 450-5500
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
---------------------
CN Biosciences, Inc. Amended and Restated 1992 Stock Option Plan
(Full title of the plan)
---------------------
James G. Stewart
Vice President, Chief Financial Officer and Secretary
CN Biosciences, Inc.
10394 Pacific Center Court
San Diego, California 92121
(619) 450-5500
(Name, address, including zip code and telephone number
including area code, of agent for service)
---------------------
with copies to:
Peter H. Jakes, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
(212) 821-8000
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
==========================================================================================================
Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered(1) Registered(1) Offering Price Aggregate Offering Registration
per Share (2) Price (2) Fee
<S> <C> <C> <C> <C>
==========================================================================================================
Common Stock, $.01 par value 753,473 $17.875 $13,468,329.87 $4,081.31
==========================================================================================================
</TABLE>
(1) Represents the shares of Common Stock issuable pursuant to the CN
Biosciences, Inc. Amended and Restated 1992 Stock Option Plan.
(2) Calculated pursuant to Rule 457(c) and (h) on the basis of the average of
the high and low prices of the Common Stock as reported on the Nasdaq Stock
Market on November 19, 1996.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by CN Biosciences, Inc., a Delaware corporation
(the "Company"), are incorporated by reference into this Registration Statement:
(a) the Prospectus that was part of the Company's Registration Statement on Form
S-1 (Registration No. 333-8335), which Prospectus was filed with the Commission
on October 2, 1996 pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Securities Act"); (b) the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1996; and (c) the description of the
Company's Common Stock contained in the Company's Registration Statement on Form
8-A filed with the Commission, and any amendment or report filed for the purpose
of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date of this Registration Statement and prior to the termination of this
offering of securities shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of the filing of such reports and
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") provides that the Company shall indemnify each
person who is or was a director or officer of the Company to the fullest extent
permitted under the Delaware General Corporation Law. Section 145 of the
Delaware General Corporation Law empowers a Delaware corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. A corporation may indemnify such person
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A corporation may, in
advance of the final disposition of any civil, criminal, administrative or
investigative action, suit or proceeding, pay the expenses (including attorneys'
fees) incurred by any officer or director in defending such action, provided
that the director or officer undertakes to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation.
<PAGE>
A Delaware corporation may also indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys' fees) which he actually
and reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's by-laws, agreements, vote of
stockholders or disinterested directors or otherwise.
The Certificate of Incorporation provides that a director of the
Company will not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, which concerns unlawful payments of
dividends, stock purchases or redemptions or (iv) for any transaction from which
the director derived an improper personal benefit.
While the Certificate of Incorporation provides directors with
protection from awards for monetary damages for breaches of their duty of care,
it does not eliminate such duty. Accordingly, the Certificate of Incorporation
will have no effect on the availability of equitable remedies such as an
injunction or rescission based on a director's breach of his or her duty of
care. The provisions of the Certificate of Incorporation described above apply
to an officer of the Company only if he or she is a director of the Company and
is acting in his or her capacity as director, and do not apply to officers of
the Company who are not directors.
The Company's Amended and Restated By-Laws provide that the Company
shall indemnify any and all of its directors or officers, who shall serve as an
officer or director of the Company or of any other corporation at the request of
the Company, to the fullest extent permitted under and in accordance with the
laws of the State of Delaware.
The Company has entered into indemnification agreements with certain of
its directors and officers pursuant to which the Company provides
indemnification and contribution against expenses and losses incurred for claims
brought against them by reason of their being an officer or director of the
Company. Members of the Stock Option Committee of the Board of Directors are
also indemnified by the Company in connection with their administration of the
Amended and Restated 1992 Stock Option Plan. The Company maintains a directors'
and officers' liability insurance policy.
Joseph P. Landy and S. Joshua Lewis, nominees of Warburg, Pincus
Investors, L.P. ("Warburg") to the Company's Board of Directors, are entitled to
indemnification by Warburg for liabilities incurred as a result of their service
as directors of the Company.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
<PAGE>
Item 8. EXHIBITS
Exhibit Number Description of Document
- -------------- -----------------------
5 Opinion of Willkie Farr & Gallagher
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Willkie Farr & Gallagher (included
in their opinion filed as Exhibit 5 hereto)
24 Powers of Attorney (included on the signature
page hereto)
99 CN Biosciences, Inc. Amended and Restated
1992 Stock Option Plan
Item 9. 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.
(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 (1)(i) and (1)(ii) above do not
apply if 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 such registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provision, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on November 21, 1996.
CN BIOSCIENCES, INC.
By: /s/ James G. Stewart
--------------------------------------
Name: James G. Stewart
Title: Vice President, Chief Financial
Officer and Secretary
POWER OF ATTORNEY
Each of the undersigned officers and directors of CN Biosciences, Inc.
hereby severally constitutes and appoints Stelios B. Papadopoulos and James G.
Stewart, and each of them as the attorneys-in-fact for the undersigned, in any
and all capacities, with full power of substitution, to sign any and all
amendments to this Registration Statement, and to file the same with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in 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 each said attorney-in-fact, or either of them, 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 and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stelios B. Papadopoulos Chairman of the Board of Directors, November 21, 1996
- --------------------------- Chief Executive Officer and
Stelios B. Papadopoulos President
(Principal executive officer)
/s/ James G. Stewart Vice President, Chief Financial November 21, 1996
- --------------------------- Officer and Secretary
James G. Stewart (Principal financial and
accounting officer)
/s/ Frederick L. Bryant Director November 21, 1996
- ---------------------------
Frederick L. Bryant
<PAGE>
/s/ Joseph P. Landy Director November 21, 1996
- ---------------------------
Joseph P. Landy
/s/ S. Joshua Lewis Director November 21, 1996
- ---------------------------
S. Joshua Lewis
/s/ Robert E. McGill, III Director November 21, 1996
- ---------------------------
Robert E. McGill, III
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description of Document
- -------------- -----------------------
5 Opinion of Willkie Farr & Gallagher
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Willkie Farr & Gallagher
(included in their opinion filed as Exhibit 5
hereto)
24 Powers of Attorney (included on the signature
page hereto)
99 CN Biosciences, Inc. Amended and Restated 1992
Stock Option Plan
<PAGE>
Exhibit 5
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
November 21, 1996
CN Biosciences, Inc.
10394 Pacific Center Court
San Diego, CA 92121
Ladies and Gentlemen:
We are delivering this opinion in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by CN Biosciences, Inc. (the
"Company") on November 21, 1996, with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), with respect to
753,473 shares (the "Shares"), par value $.01 per share, of common stock of the
Company (the "Common Stock"). The Shares are issuable upon the exercise of stock
options granted and to be granted to participants (the "Participants") under the
CN Biosciences, Inc. Amended and Restated 1992 Stock Option Plan (the "Plan").
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments, and have made such investigations of law, as we have
deemed necessary and advisable. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to authentic originals of all documents
submitted to us as copies.
Based upon the foregoing, we are of the opinion that:
The Shares have been duly authorized and, when issued, delivered and sold
by the Company and paid for by the Participants pursuant to the terms of
the Plan for consideration in excess of $.01 per share, will be validly
issued, fully paid and non-assessable shares of Common Stock of the
Company.
<PAGE>
CN Biosciences, Inc.
November 21, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above. We do not admit by giving this consent
that we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Amended and Restated 1992 Stock Option Plan of CN
Biosciences, Inc. of our reports dated July 16, 1996, with respect to the
consolidated financial statements and schedule of CN Biosciences, Inc. included
in its Registration Statement on Form S-1, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
November 18, 1996
<PAGE>
Exhibit 99
CN BIOSCIENCES, INC.
AMENDED AND RESTATED 1992 STOCK OPTION PLAN
* * *
ARTICLE I
Purpose
-------
The CN Biosciences, Inc. Amended and Restated 1992 Stock Option Plan
(the "Plan") is intended as an incentive to improve the performance, encourage
the continued employment, and increase the proprietary interest of certain
directors, officers, key employees and consultants of CN Biosciences, Inc. (the
"Company") and its subsidiaries who shall participate in the Plan. The Plan is
designed to grant such directors, officers, key employees and consultants the
opportunity to share in the Company's long-term success through stock ownership
and to afford them the opportunity for additional compensation related to the
value of the Company's stock.
The word "Employer", when used in the Plan, shall include the Company
or one of its subsidiaries, whichever one employs the Participant. The word
"subsidiary", when used in the Plan, shall mean any subsidiary corporation of
the Company within the meaning of Section 424(f) of the Internal Revenue Code of
1986, as amended (the "Code").
It is intended that certain options granted under the Plan and
designated as incentive stock options in the option agreements qualify as
"incentive stock options" under Section 422 of the Code.
For purposes of the Plan, the term "Effective Date" shall mean April 1,
1992.
ARTICLE II
Administration
--------------
The Plan shall be administered by a Stock Option Committee (the
"Committee") appointed by the Board of Directors of the Company (the "Board")
from among its members and shall consist of not less than two members thereof.
Unless otherwise determined by the Board, the membership of the Committee shall
be structured so as to qualify option grants for the exemption from Section
16(b) of the Securities Exchange Act of 1934 (the "Exchange Act") provided by
Rule 16b-3, promulgated by the Securities and Exchange Commission under the
Exchange Act, as in effect from time to time.
<PAGE> 2
Subject to the provisions of the Plan, the Committee shall have sole
authority, in its absolute discretion: (a) to determine which of the eligible
Participants (as hereinafter defined) shall be granted options; (b) to authorize
the granting of both incentive stock options and non-qualified stock options;
(c) to determine the times when options shall be granted and the number of
shares to be subject to options; (d) to determine the option price of the shares
subject to each option, which price shall be not less than the minimum specified
in ARTICLE V; (e) to determine the time or times when each option becomes
exercisable, the duration of the exercise period and any other restrictions on
the exercise of options issued hereunder; (f) to accelerate the exercisability
of any outstanding option; (g) to prescribe the form or forms of the option
agreements under the Plan (which forms shall be consistent with the terms of the
Plan but need not be identical and may contain such terms as the Committee may
deem appropriate to carry out the purposes of the Plan); (h) to determine the
nature of any rights and restrictions to be imposed on shares subject to options
issued hereunder; (i) to adopt, amend and rescind such rules and regulations as,
in its opinion, may be advisable in the administration of the Plan; (j) to
construe and interpret the Plan, the option agreements under the Plan and the
rules and regulations adopted from time to time, if any; and (k) to make all
other determinations deemed necessary or advisable for the administration of the
Plan. All decisions, determinations and interpretations of the Committee shall
be final and binding on all optionees.
ARTICLE III
Stock
-----
The stock to be subject to options granted under the Plan shall be
shares of authorized but unissued common stock, par value $0.01 (the "Stock"),
of the Company, or previously issued shares of such Stock reacquired by the
Company and held in its treasury, as determined by the Board. Under the Plan,
the total number of shares of Stock which may be purchased pursuant to options
granted hereunder shall not exceed, in the aggregate, 835,000 shares, except as
such number of shares shall be adjusted in accordance with the provisions of
ARTICLE X hereof.
Each option granted under the Plan shall be evidenced by an option
agreement between the Company and the optionee containing such provisions as may
be determined by the Committee, but shall be subject to the following terms and
conditions:
(a) Each share of Stock purchased through the exercise of an option
shall be paid for in full at the time of the exercise; and
(b) Each option shall become exercisable by the optionee in accordance
with any vesting schedule established by the Committee pursuant to ARTICLE VI of
the Plan.
<PAGE> 3
The number of shares of Stock available for grant of options under the
Plan shall be decreased by the sum of the number of shares with respect to which
options have been issued and are then outstanding and the number of shares
issued upon exercise of options. In the event that any outstanding option for
any reason expires, lapses, or is canceled prior to the end of the period during
which options may be granted, the shares of Stock called for by the unexercised
portion of such option may again be subject to an option under the Plan.
ARTICLE IV
Eligibility of Participants
---------------------------
Subject to ARTICLE VII, directors, officers, key employees and
consultants of the Company and its subsidiaries who have been selected by the
Committee as participants (collectively referred to as "Participants" and
individually as a "Participant") shall be eligible to receive grants of options
under the Plan; provided, however, that notwithstanding any other provision of
the Plan to the contrary, only employees of the Company or any of its
subsidiaries shall be eligible to receive incentive stock options. Participation
in the Plan shall be limited to eligible Participants who have entered into
option agreements with the Company. No Participant, however, shall at any time
have a right to be selected for participation in the Plan.
ARTICLE V
Option Price
------------
The option price of each option granted under the Plan shall be
determined by the Committee; provided, however, that in the case of each
incentive stock option granted under the Plan, the option price shall not be
less than the fair market value at the time the option is granted. In no event
shall the option price of any option be less than the par value per share of
Stock on the date an option is granted.
At any time when the Stock is quoted on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ"), the fair market value
shall be deemed to be the mean between the last quoted bid and asked prices on
NASDAQ on the date immediately preceding the date on which the option is
granted, or, if not quoted on that day, then on the last preceding date on which
such stock is quoted. If the Stock is listed on one or more national securities
exchanges, the fair market value shall be deemed to be the mean between the
highest and lowest sale prices reported on the principal national
securities exchange on which such stock is listed and traded on the date
immediately preceding the date on which the option is granted, or, if there is
no such sale on that date, then on the last preceding date on which such a sale
was reported. If the
<PAGE> 4
Stock is not quoted on NASDAQ or listed on an exchange, or representative quotes
are not otherwise available, the fair market value of the Stock shall mean the
amount determined by the Committee to be the fair market value based upon a good
faith attempt to value the Stock accurately and computed in accordance with
applicable regulations of the Internal Revenue Service.
ARTICLE VI
Terms and Conditions of Options
-------------------------------
Options granted under the Plan shall vest and become exercisable in
such installments as the Committee shall determine at the time of grant. Options
may be exercisable in whole or in part and if an option is exercisable in part,
the portion thereof which is exercisable and not exercised shall remain
exercisable.
Any other provision of the Plan notwithstanding and subject to ARTICLE
VII, (i) no option shall be granted after the date which is ten years from the
Effective Date, (ii) no option may be exercised after the date which is ten
years after the date that the option was granted (the "Termination Date"), and
(iii) in the event the Company files a registration statement under the
Securities Act of 1933 (the "Securities Act") for the initial public offering of
its equity securities (an "IPO"), the Company may restrict the exercisability of
options granted under the Plan during the 180-day period (or such longer period
required by the underwriter of such initial public offering) immediately
following the effective date of such registration statement.
Options granted hereunder may provide that if prior to the Termination
Date an optionee shall cease to be employed by the Employer for any reason other
than death, disability or for cause, the option will remain exercisable by the
optionee for a period not extending beyond three months after the date of
cessation of employment, but in no event later than the Termination Date, to the
extent it was exercisable at the time of cessation of employment. Options
granted hereunder may provide that if prior to the Termination Date an optionee
shall cease to be employed by the Employer for reasons of death or disability,
the option will remain exercisable by the optionee or, in the event of his
death, by the person or persons to whom the optionee's rights under the option
would pass by will or the applicable laws of descent and distribution for a
period not extending beyond one year after the date of death or disability, but
in no event later than the Termination Date, to the extent it was exercisable at
the time of death or disability. Options granted hereunder may provide that if
prior to the Termination Date an optionee shall cease to be employed by the
Employer by reason of termination of employment by the Employer for cause, or by
voluntary termination at a time when the Employer is entitled to terminate such
optionee's employment for cause, the option shall terminate immediately. For
purposes of the Plan, the Employer shall have "cause" to terminate an optionee's
employment
<PAGE> 5
hereunder upon (i) the commission by the optionee of a proven act of fraud or
embezzlement against the Employer, (ii) the engaging by the optionee in willful
misconduct or gross negligence which is demonstrably and materially injurious to
the Employer, monetarily or otherwise, (iii) failure of the optionee to render
services to the Employer in accordance with such optionee's duties as an
employee of the Employer or (iv) the optionee being convicted of a misdemeanor
involving an act of moral turpitude or a felony. Alternatively, options granted
hereunder may provide that "cause" has the meaning set forth in an employment
agreement between the optionee and the Employer.
For purposes of the Plan, in the case of a Participant who is a
director, references to employment herein shall be deemed to refer to such
director's service to the Employer in such capacity.
Notwithstanding the foregoing, stock options granted hereunder shall
provide that no option shall be exercisable after the optionee's cessation of
employment with the Employer if at the time of exercise the By-Laws of the
Company limit the ownership of common stock of the Company to selected persons,
including employees of the Company and its wholly-owned subsidiaries.
ARTICLE VII
Special Provisions Applicable
Only to Incentive Stock Options
-------------------------------
To the extent the aggregate fair market value (determined at the time
the option is granted) of the Stock with respect to which incentive stock
options may be exercisable for the first time by an optionee during any calendar
year (under this Plan and any other stock option plan of the Company and any
parent or subsidiary thereof) exceeds $100,000, such incentive stock options
shall be treated as options which are non-qualified stock options.
No incentive stock option may be granted to an individual who, at the
time the option is granted, owns directly, or indirectly within the meaning of
Section 424(d) of the Code, stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or of any parent or
subsidiary thereof, unless such option (i) has an option price of at least 110%
of the fair market value of the Stock on the date of the grant of such option;
and (ii) such option by its terms cannot be exercised more than five years after
the date it is granted.
Each optionee who receives an incentive stock option must agree to
notify the Company in writing immediately after the optionee makes a
disqualifying disposition of any Stock acquired pursuant to the exercise of an
incentive stock option. A
<PAGE> 6
disqualifying disposition is any disposition (including any sale) of such Stock
before the later of (a) two years after the date the optionee was granted the
incentive stock option or (b) one year after the date the optionee acquired
Stock by exercising the incentive stock option.
ARTICLE VIII
Payment for Shares
------------------
Payment for shares of Stock acquired pursuant to an option granted
hereunder shall be made in full, upon exercise of the option, in immediately
available funds in United States dollars, by certified or bank cashier's check.
Payment may also be made by any other method established by the Committee
including, without limitation, the tendering of previously owned shares of Stock
which have been held for at least six months, or pursuant to procedures for
cashless "broker-assisted" exercises approved by the Committee. Payment in full
shall include payment of any amounts required under paragraph (b) of ARTICLE
XIX.
ARTICLE IX
Non-Transferability of Option Rights and Stock
----------------------------------------------
During the lifetime of the optionee, the option shall be exercisable
only by the optionee. No option shall be transferable, except by will or the
laws of descent and distribution.
ARTICLE X
Adjustment for Recapitalization, Merger, Etc.
---------------------------------------------
The aggregate number of shares of Stock which may be purchased or
acquired pursuant to options granted hereunder, the number of shares of Stock
covered by each outstanding option and the price per share thereof in each such
option shall be appropriately adjusted for any increase or decrease in the
number of outstanding shares of Stock resulting from a stock split or other
subdivision or consolidation of shares of Stock or for other capital adjustments
or payments of stock dividends or distributions or other increases or decreases
in the outstanding shares of Stock effected without receipt of consideration by
the Company. Any adjustment shall be conclusively determined by the Committee.
If the Company shall be the surviving corporation in any merger or
reorganization or other business combination, any option granted hereunder shall
cover the securities or other property to which a holder of the number of shares
of Stock covered by the unexercised portion of the option would have been
entitled pursuant to the terms of the merger. Upon any merger or reorganization
or other business combination in which the Company
<PAGE> 7
shall not be the surviving corporation, or a dissolution or liquidation of the
Company, or a sale of all or substantially all of the Company's assets, all
outstanding options shall terminate; provided, however, that the Company shall
cause either (i) the optionees to be paid an amount equal to the difference
between (A) the aggregate fair market value (determined in accordance with
ARTICLE V of the Plan) of the Stock subject to options held by the optionees at
the time of such transaction and (B) the aggregate exercise price of such
options, or (ii) the surviving or resulting corporation to grant the optionees
substitute options to purchase its shares on such terms and conditions, both as
to the number of shares and otherwise, which the Committee shall deem
appropriate.
Stock option agreements under the Plan may, at the discretion of the
Committee, provide that upon stockholder approval of a merger, reorganization or
other business combination, whether or not the Company is the surviving
corporation, or a sale of all or substantially all of the Company's assets, all
unmatured installments of the options shall vest and become immediately
exercisable in full.
The foregoing adjustments and the manner of application of the
foregoing provisions, including the issuance of any substitute options, shall be
determined by the Committee in its sole discretion. Any such adjustment may
provide for the elimination of any fractional share which might otherwise become
subject to an option.
ARTICLE XI
No Obligation to Exercise Option
--------------------------------
Granting of an option shall impose no obligation on the recipient to
exercise such option.
ARTICLE XII
Use of Proceeds
---------------
The proceeds received from the sale of Stock pursuant to the Plan shall
be used for general corporate purposes.
ARTICLE XIII
Rights as a Stockholder
-----------------------
An optionee shall have no rights as a stockholder with respect to any
share covered by his option until such person shall have become the holder of
record of such share, and such person shall not be entitled to any dividends or
distributions or other rights in respect of such share for which the record date
is prior to the date on which such person shall have become the
<PAGE> 8
holder of record thereof, except as otherwise provided in ARTICLE X.
ARTICLE XIV
Employment Rights
-----------------
No provision in the Plan or in any option granted hereunder shall
confer on any optionee any right to continue in the employ of the Company, or to
interfere in any way with the right of the Company to terminate the optionee's
employment at any time.
ARTICLE XV
Compliance with Law
-------------------
The Company is relieved from any liability for the non-issuance or
non-transfer or any delay in the issuance or transfer of any shares of Stock
subject to options under the Plan which results from the inability of the
Company to obtain, or from any delay in obtaining, from any regulatory body
having jurisdiction or authority, any requisite approval to issue or transfer
any such shares if counsel for the Company deems such approval necessary for
lawful issuance or transfer thereof.
Each option granted under the Plan is subject to the requirement that
if at any time the Board determines, in its discretion, that the listing,
registration or qualification of shares of Stock issuable upon exercise of
options is required by any securities exchange or under any state or Federal
law, or that the consent or approval of any governmental regulatory body is
necessary or desirable as a condition of, or in connection with, the grant of
options or the issuance of shares of Stock, no shares of Stock shall be issued,
in whole or in part, unless such listing, registration, qualification, consent
or approval has been effected or obtained free of any conditions or with such
conditions as are acceptable to the Board.
ARTICLE XVI
Cancellation of Options
-----------------------
The Committee, in its discretion, may, with the consent of any
optionee, cancel any outstanding option hereunder.
ARTICLE XVII
Effective Date; Expiration Date of Plan
---------------------------------------
The Plan shall become effective upon adoption by the Company's Board of
Directors and approval by the stockholders of the Company in a manner which
complies with both Rule 16b-3 under the Exchange Act and Section 422(b)(1) of
the Code and the
<PAGE> 9
Treasury Regulations thereunder. The expiration date of the Plan, after which no
option may be granted hereunder, shall be the tenth anniversary of the later of
(i) adoption of the Plan by the Board of Directors or (ii) the approval of the
Plan by the stockholders of the Company pursuant to the previous sentence.
ARTICLE XVIII
Amendment or Discontinuance of Plan
-----------------------------------
The Board may terminate, amend or modify the Plan in its sole
discretion at any time or from time to time after the Effective Date.
Notwithstanding the preceding provisions of this ARTICLE XVIII, no such action
shall, without shareholder approval, increase the number of shares as to which
options may be granted under the Plan.
ARTICLE XIX
Miscellaneous
-------------
(a) Options shall be evidenced by option agreements (which need not be
identical) in such forms as the Committee may from time to time approve. Such
agreements shall conform to the terms and conditions of the Plan and may provide
that the grant of any option under the Plan and Stock acquired pursuant to the
Plan shall also be subject to such other conditions (whether or not applicable
to the option or Stock received by any other optionee) as the Committee
determines appropriate, including without limitation, provisions to assist the
optionee in financing the purchase of Stock through the exercise of options,
provisions for the forfeiture of, or restrictions on, resale or other
disposition of shares under the Plan, provisions giving the Company the right to
repurchase shares acquired under the Plan in the event the participant elects to
dispose of such shares, and provisions to comply with Federal and state
securities laws and Federal and state income tax withholding requirements.
(b) The Company may, in its discretion, require that an optionee pay to
the Company, at the time of exercise, such amount as the Company deems necessary
to satisfy its obligations to withhold Federal, state, or local income or other
taxes incurred by reason of the exercise or the transfer of shares thereupon.
(c) Each optionee shall file with the Committee a written designation
of one or more persons as beneficiary, who shall be entitled to exercise options
which are exercisable, if any, or to receive shares of Stock distributable, if
any, under the Plan upon the optionee's death. An optionee may, from time to
time, revoke or change his beneficiary designation without the consent of any
prior beneficiary by filing a new designation with the Committee. The last such
designation received by the Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective
<PAGE> 10
unless received by the Committee prior to the optionee's death, and in no event
shall it be effective as of a date prior to such receipt.
(d) If the Committee shall find that any person to whom any amount is
payable under the Plan is unable to care for his affairs because of illness or
accident, or is a minor, or has died, then any payment due to such person or his
estate (unless a prior claim therefor has been made by a duly appointed legal
representative), may, if the Committee so directs the Company, be paid to his
spouse, child, relative, an institution maintaining or having custody of such
person, or any other person deemed by the Committee to be a proper recipient on
behalf of such person otherwise entitled to payment. Any such payment shall be a
complete discharge of the liability of the Committee and the Company therefor.
(e) No member of the Committee shall be personally liable by reason of
any contract or other instrument executed by such member or on his behalf in his
capacity as a member of the Committee nor for any mistake of judgment made in
good faith, and the Company shall indemnify and hold harmless each member of the
Committee and each other employee, officer or director of the Company to whom
any duty or power relating to the administration or interpretation of the Plan
may be allocated or delegated, against any cost or expense (including counsel
fees) or liability (including any sum paid in settlement of a claim) arising out
of any act or omission to act in connection with the Plan unless arising out of
such person's own fraud or bad faith; provided, however, that approval of the
Board shall be required for the payment of any amount in settlement of a claim
against any such person. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be
entitled under the Company's Certificate of Incorporation or By-Laws, as a
matter of law, or otherwise, or any power that the Company may have to indemnify
them or hold them harmless.
(f) The Plan shall be governed by and construed in accordance with the
internal laws of the State of Delaware without reference to the principles of
conflicts of law thereof.
(g) No provision of the Plan shall require the Company, for the purpose
of satisfying any obligations under the Plan, to purchase assets or place any
assets in a trust or other entity to which contributions are made or otherwise
to segregate any assets, nor shall the Company maintain separate bank accounts,
books, records or other evidence of the existence of a segregated or separately
maintained or administered fund for such purposes. Optionees shall have no
rights under the Plan other than as unsecured general creditors of the Company,
except that insofar as they may have become entitled to payment of additional
compensation by performance of services, they shall have the same rights as
other employees under general law.
<PAGE> 11
(h) Each member of the Committee and each member of the Board shall be
fully justified in relying, acting or failing to act, and shall not be liable
for having so relied, acted or failed to act in good faith, upon any report made
by the independent public accountant of the Company and upon any other
information furnished in connection with the Plan by any person or persons other
than such member.
(i) Except as otherwise specifically provided in the relevant plan
document, no payment under the Plan shall be taken into account in determining
any benefits under any pension, retirement, profit-sharing, group insurance or
other benefit plan of the Company.
(j) The expenses of administering the Plan shall be borne by the
Company.
(k) Masculine pronouns and other words of masculine gender shall refer
to both men and women.
* * *
As Amended and Restated
by the Board of Directors
of CN Biosciences, Inc. on
November 13, 1996
