<PAGE>
As filed with the Securities and Exchange Commission on December 20, 1995
Registration No. 33-
-----------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CHIRON CORPORATION
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
Delaware 94-2754624
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4560 Horton St., Emeryville, California 94608
(510) 655-8730
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------
Viagene, Inc. Employee Stock Purchase Plan
(Full title of the plan)
------------------------
EDWARD E. PENHOET, PH.D.
President and Chief Executive Officer
CHIRON CORPORATION
4560 Horton Street, Emeryville, California 94608
(510) 655-8730
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
Title of Securities Proposed Maximum Proposed Maximum Amount of
to be Registered Amount to be Registered Offering Price Per Share Aggregate Offering Price Registration Fee
---------------- ----------------------- ------------------------ ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par 7,200 (1) $98.25 (2) $707,400 (2) $244
value (Viagene, Inc.
Employee Stock Purchase
Plan)
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Viagene, Inc. Employee Stock
Purchase Plan, by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) Calculated solely for the purposes of this offering under Rule 457(h) of
the Securities Act of 1933 on the basis of the average of the high and low
selling prices per share of Common Stock of Chiron Corporation on December
18, 1995, as reported by the NASDAQ National Market System.
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Chiron Corporation (the "Registrant") files this Registration Statement
with the Securities and Exchange Commission (the "Commission") on Form S-8 to
register 7,200 shares of Chiron Common Stock authorized for issuance pursuant
to outstanding rights under the Viagene, Inc. Employee Stock Purchase Plan,
assumed by the Registrant at the effective time of the merger of Viagene, Inc.
with and into a wholly-owned subsidiary of the Registrant, following which
Viagene, Inc. became a wholly-owned subsidiary of the Registrant.
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Commission:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994 filed pursuant to Section 13(a) of the Securities Exchange Act
of 1934 (the "1934 Act");
(b) Amendment Number 1 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 1994, dated April 24, 1995;
(c) Amendment Number 2 to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1994, dated December 11, 1995;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
April 2, 1995 filed pursuant to Section 13 of the 1934 Act;
(e) Amendment Number 1 to Registrant's Quarterly Report on Form 10-Q for
the quarter ended April 2, 1995, dated July 28, 1995;
(f) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
July 2, 1995 filed pursuant to Section 13 of the 1934 Act;
(g) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
October 2, 1995 filed pursuant to Section 13 of the 1934 Act;
(h) The Registrant's Current Reports on Form 8-K and 8-K/A dated January
4, 1995 as amended on March 17, 1995;
(i) The Registrant's Current Report on Form 8-K dated March 6, 1995;
(j) The Registrant's Current Report on Form 8-K dated March 10, 1995;
(k) The Registrant's Current Report on Form 8-K dated April 24, 1995;
II-1
<PAGE>
(l) The Registrant's Current Report on Form 8-K dated May 5, 1995;
(m) The Registrant's Current Report on Form 8-K and 8-K/A dated September
29, 1995, as amended on November 13, 1995; and
(n) The description of Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on August 28, 1984.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
William G. Green, who has provided an opinion to the Registrant on the
validity of the securities being registered which is Exhibit 5 to this
registration statement, is Senior Vice President, General Counsel and Secretary
of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware and the
Bylaws of the Registrant contain provisions covering indemnification of
corporate directors, officers and employees under certain conditions and subject
to certain limitations.
In addition, the Registrant has entered into supplemental indemnification
agreements with its directors which broaden the scope of indemnity beyond that
expressly provided by the Bylaws or the Delaware General Corporation Law. These
supplemental contracts are permissible under the Delaware General Corporation
Law and have been approved by the Registrant's stockholders. Accordingly, the
indemnification agreements with directors (i) confirm the present indemnity
provided to them by the Registrant's Bylaws and give them assurance that this
indemnity will continue to be provided despite future changes in the Bylaws, and
(ii) provide that, in addition, the directors shall be indemnified to the
fullest possible extent permitted by law against all expenses (including
attorneys' fees), judgments, fines and settlement amounts, incurred or paid by
them in any action or proceeding, including any action by or in the right of the
Registrant, on
II-2
<PAGE>
account of their service as a director or officer of the Registrant, or as a
director or officer of any subsidiary of the Registrant, or as a director,
officer or similar official of any other company or enterprise when they are
serving in such capacities at the request of the Registrant. The
indemnification agreements further provide that expenses incurred by a director
in such cases shall be paid in advance, subject to the director's obligation to
reimburse the Registrant in the event it ultimately determines that the director
is not entitled to be indemnified for such expenses under any of the provisions
of the indemnification agreement. However, no indemnity will be provided to any
director under the agreements as described in clause (ii) of the third sentence
of this paragraph on account of conduct which is finally adjudged to be
knowingly fraudulent, deliberately dishonest or to constitute willful
misconduct. In addition, no indemnification will be provided if a final court
adjudication shall determine that such indemnification is not lawful, or in
respect to any suit in which judgment is rendered against a director for an
accounting of profits made from a purchase or sale of securities of the
Registrant in violation of Section 16(b) of the 1934 Act, as amended, or of any
similar statutory provision, or on account of any remuneration paid to a
director which is finally adjudged to have been paid in violation of law. The
indemnification agreements also contain provisions designed to protect the
Registrant from unreasonable settlements or redundant legal expenditures.
The Registrant maintains liability insurance for each of its directors and
officers which provides for coverage for certain liabilities for which
indemnification by the Registrant may not be permissible under applicable law
and public policy, including liabilities under the Securities Act of 1933, as
amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER EXHIBIT
- -------------- -------
4.01 Rights Agreement, dated as of August 25, 1994, between the
Company and Continental Stock Transfer & Trust Company,
which includes the Certificate of Designations for the
Series A Junior Participating Preferred Stock as Exhibit A,
the form of Right Certificate as Exhibit B and the Summary
of Rights to Purchase Preferred Shares as Exhibit C,
incorporated by reference to Exhibit 4.04 of the
Registrant's current report on Form 8-K dated August 25,
1994.
4.02 Amendment No. 1 to Rights Agreement dated as of November 20,
1994, between Chiron Corporation and Continental Stock
Transfer &
II-3
<PAGE>
Trust Company, incorporated by reference to Exhibit 4.05 of
the Registrant's current report on Form 8-K, dated November
20, 1994.
5 Opinion of William G. Green.
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors,
relating to the 1994 consolidated financial statements of
Chiron Corporation and subsidiaries.
23.2 Consent of Ernst & Young LLP, Independent Auditors, relating
to the 1993 and 1992 consolidated financial statements of
Chiron Corporation.
23.3 Consent of Ernst & Young LLP, Independent Auditors, relating
to the consolidated financial statements of Ciba Corning
Diagnostics Corp.
23.4 Consent of KPMG Peat Marwick LLP, Independent Auditors,
relating to the financial statements of The Biocine Company.
23.5 Consent of Reconta Ernst & Young, Independent Auditors,
relating to the consolidated financial statements of JV Vax
B.V.
23.6 Consent of Ernst & Young LLP, Independent Auditors,
relating to the financial statements of Viagene, Inc.
23.7 Consent of William G. Green is contained in Exhibit 5.
24 Power of Attorney. Reference is made to pages II-6 and II-7
of this Registration Statement.
99.1 Viagene, Inc. Employee Stock Purchase 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 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, and (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 clauses (1)(i) and (1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into the registration statement; and (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 that is incorporated by
II-4
<PAGE>
reference into 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 or controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 1933 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 1933 Act and
will be governed by the final adjudication of such issue.
II-5
<PAGE>
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Emeryville, State of California, on the 19th day of
December, 1995.
CHIRON CORPORATION
By /s/ Edward E. Penhoet
----------------------------------
Edward E. Penhoet
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and
directors of Chiron Corporation, a Delaware corporation, do hereby constitute
and appoint Edward E. Penhoet and William J. Rutter, and each of them, the
lawful attorneys and agents or attorney and agent with full power and authority
to do any and all acts and things and to execute any and all instruments which
said attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and
authority, the powers granted include the power and authority to sign the names
of the undersigned officers and directors in the capacities indicated below this
Registration Statement, to any and all amendments, both pre-effective and post-
effective, and supplements to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms all that said attorneys and agents, or
any one of them shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Edward E. Penhoet, Ph.D. President, Chief Executive December 19, 1995
- -------------------------------- Officer and Director (Principal
(Edward E. Penhoet, Ph.D.) Executive Officer)
/s/ William J. Rutter, Ph.D. Chairman of the Board December 19, 1995
- --------------------------------
(William J. Rutter, Ph.D.)
/s/ Dennis L. Winger Senior Vice President, Finance December 19, 1995
- -------------------------------- and Administration, Chief
(Dennis L. Winger) Financial Officer (Principal
Financial and Accounting
Officer)
/s/ Gilbert F. Amelio, Ph.D. Director December 19, 1995
- --------------------------------
(Gilbert F. Amelio, Ph.D.)
/s/ Lewis W. Coleman Director
- --------------------------------
(Lewis W. Coleman)
/s/ Pierre E. Douaze Director December 19, 1995
- --------------------------------
(Pierre E. Douaze)
/s/ Donald A. Glaser, Ph.D. Director December 19, 1995
- --------------------------------
(Donald A. Glaser, Ph.D.)
/s/ Alex Krauer, Ph.D. Director December 19, 1995
- --------------------------------
(Alex Krauer, Ph.D.)
/s/ Francois L'Eplattenier, Ph.D Director December 19, 1995
- --------------------------------
(Francois L'Eplattenier, Ph.D.)
/s/ Henri Schramek, Ph.D. Director December 19, 1995
- --------------------------------
(Henri Schramek, Ph.D.)
/s/ Jack W. Schuler Director December 19, 1995
- --------------------------------
(Jack W. Schuler)
/s/ Pieter J. Strijkert, Ph.D. Director December 19, 1995
- --------------------------------
(Pieter J. Strijkert, Ph.D.)
</TABLE>
II-7
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
CHIRON CORPORATION
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT
- -------------- -------
4.01 Rights Agreement, dated as of August 25, 1994, between the
Company and Continental Stock Transfer & Trust Company,
which includes the Certificate of Designations for the
Series A Junior Participating Preferred Stock as Exhibit A,
the form of Right Certificate as Exhibit B and the Summary
of Rights to Purchase Preferred Shares as Exhibit C,
incorporated by reference to Exhibit 4.04 of the
Registrant's current report on Form 8-K dated August 25,
1994.
4.02 Amendment No. 1 to Rights Agreement dated as of November 20,
1994, between Chiron Corporation and Continental Stock
Transfer & Trust Company, incorporated by reference to
Exhibit 4.05 of the Registrant's current report on Form 8-K,
dated November 20, 1994.
5 Opinion of William G. Green.
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors,
relating to the 1994 consolidated financial statements of
Chiron Corporation and subsidiaries.
23.2 Consent of Ernst & Young LLP, Independent Auditors, relating
to the 1993 and 1992 consolidated financial statements of
Chiron Corporation.
23.3 Consent of Ernst & Young LLP, Independent Auditors, relating
to the consolidated financial statements of Ciba Corning
Diagnostics Corp.
23.4 Consent of KPMG Peat Marwick LLP, Independent Auditors,
relating to the financial statements of The Biocine Company.
23.5 Consent of Reconta Ernst & Young, Independent Auditors,
relating to the consolidated financial statements of JV Vax
B.V.
23.6 Consent of Ernst & Young LLP, Independent Auditors,
relating to the financial statements of Viagene, Inc.
23.7 Consent of William G. Green is contained in Exhibit 5.
24 Power of Attorney. Reference is made to pages II-6 and II-7
of this Registration Statement.
99.1 Viagene, Inc. Employee Stock Purchase Plan.
<PAGE>
[CHIRON LETTERHEAD]
EXHIBIT 5
December 15, 1995
Chiron Corporation
4560 Horton Street
Emeryville, CA 94608
Re: Chiron Corporation
Registration Statement for Offering of
Shares of Common Stock
Ladies and Gentlemen:
In connection with your registration of 7,200 shares of the Common Stock of
Chiron Corporation (the "Company") on Form S-8 under the Securities Act of 1933,
as amended, I advise you that, in my opinion, when such shares have been issued
and sold pursuant to the provisions of the Viagene, Inc. Employee Stock Purchase
Plan, and in accordance with the Registration Statement, such shares will be
duly authorized, validly issued, fully paid and non-assessable shares of the
Company's Common Stock.
I hereby consent to filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ William G. Green
William G. Green
Senior Vice President and
General Counsel
WGG/cdb
<PAGE>
EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP, INDEPENDENT AUDITORS
We consent to incorporation by reference in the Registration Statement
(Form S-8) of Chiron Corporation pertaining to the Viagene, Inc. Employee Stock
Purchase Plan of our report dated February 17, 1995, relating to the
consolidated balance sheet of Chiron Corporation and subsidiaries as of
December 31, 1994 and the related consolidated statements of operations,
stockholders' equity and cash flows for the year then ended and the related
schedule.
KPMG PEAT MARWICK LLP
San Francisco, California
December 15, 1995
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Chiron Corporation pertaining to the Viagene, Inc. Employee
Stock Purchase Plan of our report dated February 25, 1994, with respect to
the 1993 and 1992 consolidated financial statements and schedule of Chiron
Corporation included in the Annual Report (Form 10-K) of Chiron Corporation for
the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
San Francisco, California
December 15, 1995
<PAGE>
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Chiron Corporation pertaining to the Viagene, Inc. Employee
Stock Purchase Plan of our report dated January 27, 1995, with respect to the
consolidated financial statements of Ciba Corning Diagnostics Corp. included
in the Current Report Form 8-K/A of Chiron Corporation dated January 4, 1995,
as amended on March 17, 1995, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
December 15, 1995
<PAGE>
EXHIBIT 23.4
CONSENT OF KPMG PEAT MARWICK LLP, INDEPENDENT AUDITORS
We consent to incorporation by reference in the Registration Statement
(Form S-8) of Chiron Corporation pertaining to the Viagene, Inc. Employee
Stock Purchase Plan of our report dated February 17, 1995, relating to the
balance sheets of The Biocine Company as of December 31, 1994 and 1993 and the
related statements of operations, partners' capital (deficit) and cash flows for
each of the years in the three year period ended December 31, 1994.
KPMG PEAT MARWICK LLP
San Francisco, California
December 15, 1995
<PAGE>
EXHIBIT 23.5
CONSENT OF RECONTA ERNST & YOUNG, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Chiron Corporation pertaining to the Viagene, Inc. Employee
Stock Purchase Plan of our report dated February 28, 1995, with respect to the
consolidated financial statements of JV Vax B.V. and subsidiaries included in
the Current Report Form 8-K/A of Chiron Corporation dated January 4, 1995, as
amended on March 17, 1995, filed with the Securities and Exchange Commission.
RECONTA ERNST & YOUNG
Milan, Italy
December 15, 1995
<PAGE>
EXHIBIT 23.6
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Chiron Corporation pertaining to the Viagene, Inc. Employee
Stock Purchase Plan of our report dated February 8, 1995, except for Note 7,
as to which the date is April 26, 1995, with respect to the financial statements
of Viagene, Inc. included in the Current Report Form 8-K/A of Chiron
Corporation dated September 29, 1995, as amended on November 13, 1995, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
December 15, 1995
<PAGE>
EXHIBIT 99.1
VIAGENE, INC.
EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE OF THE PLAN.
The Plan was adopted by the Company's Board of Directors on March 21, 1994.
The purpose of the Plan is to provide Eligible Employees with an
opportunity to increase their proprietary interest in the success of the Company
by purchasing Stock from the Company on favorable terms and to pay for such
purchases through payroll deductions. The Plan is intended to qualify under
section 423 of the Internal Revenue Code of 1986, as amended.
SECTION 2. ADMINISTRATION OF THE PLAN.
(a) THE COMMITTEE. The Plan shall be administered by the Committee.
The interpretation and construction by the Committee of any provision of the
Plan or of any right to purchase Stock granted under the Plan shall be
conclusive and binding on all persons.
(b) RULES AND FORMS. The Committee may adopt such rules and forms under
the Plan as it considers appropriate.
SECTION 3. ENROLLMENT AND PARTICIPATION.
(a) OFFERING PERIODS. While the Plan is in effect, two overlapping
Offering Periods shall commence in each calendar year. The Offering Periods
shall consist of the 24-month periods commencing on each January 1 and July 1.
The first Offering Period shall commence on July 1, 1994, and end on June 30,
1996.
(b) ACCUMULATION PERIODS. While the Plan is in effect, two Accumulation
Periods shall commence in each calendar year. The Accumulation Periods shall
consist of the six-month periods commencing on each January 1 and July 1. The
first Accumulation Period shall commence on July 1, 1994, and end on December
31, 1994.
(c) ENROLLMENT. Any individual who, on the day preceding the first day of
an Offering Period, qualifies as an Eligible Employee may elect to become a
Participant in the Plan for such Offering Period by executing the enrollment
form prescribed for this purpose by the Committee. The enrollment form shall be
filed with the Company not later than one week prior to the last working day
prior to the commencement of such Offering Period.
<PAGE>
(d) DURATION OF PARTICIPATION. Once enrolled in the Plan, a Participant
shall continue to participate until he or she ceases to be an Eligible Employee,
withdraws from the Plan or reaches the end of the Accumulation Period in which
he or she discontinued contributions. A Participant who discontinued
contributions under Section 4(d) or withdrew from the Plan under Section 5(a)
may again become a Participant, if he or she then is an Eligible Employee, by
following the procedure described in Subsection (c) above.
(e) APPLICABLE OFFERING PERIOD. For purposes of calculating the Purchase
Price under Section 7(b), the applicable Offering Period shall be determined as
follows:
(i) Once a Participant is enrolled in the Plan for an Offering
Period, such Offering Period shall continue to apply to him or her until
the earliest of (A) the end of such Offering Period, (B) the end of his or
her participation under Subsection (d) above or (C) re-enrollment in a
subsequent Offering Period under Paragraph (ii) below.
(ii) In the event that the Fair Market Value of Stock on the last
trading day before the commencement of the Offering Period in which the
Participant is enrolled is higher than on the last trading day before the
commencement of any subsequent Offering Period, the Participant shall
automatically be re-enrolled for such subsequent Offering Period.
(iii) When a Participant reaches the end of an Offering Period but
his or her participation is to continue, then such Participant shall
automatically be re-enrolled for the Offering Period that commences
immediately after the end of the prior Offering Period.
(f) SPECIAL RULE FOR DIRECTORS AND OFFICERS. Any other provision of the
Plan notwithstanding, an Eligible Employee who is considered a director or
officer of the Company for purposes of section 16 of the Securities Exchange Act
of 1934 shall not resume contributions under the Plan for a period of at least
six months after discontinuing his or her contributions.
SECTION 4. EMPLOYEE CONTRIBUTIONS.
(a) FREQUENCY OF PAYROLL DEDUCTIONS. A Participant may purchase shares of
Stock under the Plan solely by means of payroll deductions. Payroll deductions,
as designated by the Participant pursuant to Subsection (b) below, shall occur
on each payday during participation in the Plan.
(b) AMOUNT OF PAYROLL DEDUCTIONS. An Eligible Employee shall designate on
the enrollment form the portion of his or
-2-
<PAGE>
her Compensation that he or she elects to have withheld for the purchase of
Stock. Such portion shall be a whole percentage of the Eligible Employee's
Compensation, but not less than 1% nor more than 12%.
(c) CHANGING WITHHOLDING RATE. If a Participant wishes to change the rate
of payroll withholding, he or she may do so by filing a new enrollment form with
the Company not later than one week prior to the last working day prior to the
commencement of the Accumulation Period for which such change is to be
effective.
(d) DISCONTINUING PAYROLL DEDUCTIONS. If a Participant wishes to
discontinue employee contributions entirely, he or she may do so by filing a new
enrollment form at any time. Payroll withholding shall cease as soon as
reasonably practicable after such form has been received by the Company.
SECTION 5. WITHDRAWAL FROM THE PLAN.
(a) WITHDRAWAL. A Participant may elect to withdraw from the Plan by
filing the prescribed form with the Company at any time before the last day of
an Accumulation Period. As soon as reasonably practicable thereafter, payroll
deductions shall cease and the entire amount credited to the Participant's Plan
Account shall be refunded to him or her in cash, without interest. No partial
withdrawals shall be permitted.
(b) RE-ENROLLMENT AFTER WITHDRAWAL. A former Participant who has
withdrawn from the Plan shall not be a Participant until he or she re-enrolls in
the Plan under Section 3(b).
SECTION 6. TERMINATION OF EMPLOYMENT OR DEATH.
(a) TERMINATION OF EMPLOYMENT. Termination of employment as an Eligible
Employee for any reason, including death, shall be treated as an automatic
withdrawal from the Plan under Section 5(a). (A transfer from one Participating
Company to another shall not be treated as a termination of employment.)
(b) DEATH. In the event of the Participant's death, the amount credited
to his or her Plan Account shall be paid to a beneficiary designated by him or
her for this purpose on the prescribed form or, if none, to the Participant's
estate. Such form shall be valid only if it was filed with the Company before
the Participant's death.
SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES.
(a) PLAN ACCOUNTS. The Company shall maintain a Plan Account on its books
in the name of each Participant. Whenever an amount is deducted from the
Participant's Compensation
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under the Plan, such amount shall be credited to the Participant's Plan Account.
No interest shall be credited to Plan Accounts.
(b) PURCHASE PRICE. The Purchase Price for each share of Stock purchased
at the close of an Accumulation Period shall be the lower of:
(i) 85% of the Fair Market Value of such share on the last trading
day before the commencement of the applicable Offering Period (as
determined under Section 3(e)); or
(ii) 85% of the Fair Market Value of such share on the last trading
day in such Accumulation Period.
(c) NUMBER OF SHARES PURCHASED. As of the last day of each Accumulation
Period, each Participant shall be deemed to have elected to purchase the number
of shares of Stock calculated in accordance with this Subsection (c), unless the
Participant has previously elected to withdraw from the Plan in accordance with
Section 5(a). The amount then in the Participant's Plan Account shall be
divided by the Purchase Price, and the number of shares that results shall be
purchased from the Company with the funds in the Participant's Plan Account.
The foregoing notwithstanding, no Participant shall purchase more than a maximum
of 1,500 shares of Stock with respect to any Accumulation Period nor shares of
Stock in excess of the amounts set forth in Sections 8 and 12(a). The Committee
may determine with respect to all Participants that any fractional share, as
calculated under this Subsection (c), shall be rounded down to the next lower
whole share.
(d) AVAILABLE SHARES INSUFFICIENT. In the event that the aggregate number
of shares that all Participants elect to purchase during an Accumulation Period
exceeds the maximum number of shares remaining available for issuance under
Section 12(a), then the number of shares to which each Participant is entitled
shall be determined by multiplying the number of shares available for issuance
by a fraction, the numerator of which is the number of shares that such
Participant has elected to purchase and the denominator of which is the number
of shares that all Participants have elected to purchase.
(e) ISSUANCE OF STOCK. Certificates representing the shares of Stock
purchased by a Participant under the Plan shall be issued to him or her as soon
as reasonably practicable after the close of the applicable Accumulation Period,
except that the Committee may determine that such shares shall be held for each
Participant's benefit by a broker designated by the Committee (unless the
Participant has elected that certificates be issued to him or her). Shares may
be registered in the name of the Participant or jointly in the name of
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the Participant and his or her spouse as joint tenants with right of
survivorship or as community property.
(f) UNUSED CASH BALANCES. An amount remaining in the Participant's Plan
Account that represents the Purchase Price for any fractional share shall be
carried over in the Participant's Plan Account to the next Accumulation Period.
Any amount remaining in the Participant's Plan Account that represents the
Purchase Price for whole shares that could not be purchased by reason of
Subsection (c) above or Section 12(a) shall be refunded to the Participant in
cash, without interest.
(g) FAILURE OF SHAREHOLDERS TO APPROVE PLAN.
In the event shareholders of the Company do not approve this Plan, the
Participant's Plan Account shall be repaid to the Participant in cash and no
Company shares will be purchased for the Participant under this Plan.
SECTION 8. LIMITATIONS ON STOCK OWNERSHIP.
Any other provision of the Plan notwithstanding, no Participant shall be
granted a right to purchase Stock under the Plan if:
(a) Such Participant, immediately after his or her election to
purchase such Stock, would own stock possessing more than 5% of the total
combined voting power or value of all classes of stock of the Company or
any parent or Subsidiary of the Company; or
(b) Under the terms of the Plan, such Participant's rights to
purchase stock under this and all other qualified employee stock purchase
plans of the Company or any parent or Subsidiary of the Company would
accrue at a rate that exceeds $25,000 of the fair market value of such
stock (determined at the time when such right is granted) for each calendar
year for which such right or option is outstanding at any time.
Ownership of stock shall be determined after applying the attribution rules of
section 424(d) of the Internal Revenue Code of 1986, as amended. For purposes of
this Section 8, each Participant shall be considered to own any stock that he or
she has a right or option to purchase under this or any other plan, and each
Participant shall be considered to have the right to purchase 1,500 shares of
Stock under this Plan with respect to each Accumulation Period.
SECTION 9. RIGHTS NOT TRANSFERABLE.
The rights of any Participant under the Plan, or any Participant's interest
in any Stock or moneys to which he or
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she may be entitled under the Plan, shall not be transferable by voluntary or
involuntary assignment or by operation of law, or in any other manner other than
by beneficiary designation or the laws of descent and distribution. If a
Participant in any manner attempts to transfer, assign or otherwise encumber his
or her rights or interest under the Plan, other than by beneficiary designation
or the laws of descent and distribution, then such act shall be treated as an
election by the Participant to withdraw from the Plan under Section 5(a).
SECTION 10. NO RIGHTS AS AN EMPLOYEE.
Nothing in the Plan shall be construed to give any person the right to
remain in the employ of a Participating Company. Each Participating Company
reserves the right to terminate the employment of any person at any time, with
or without cause.
SECTION 11. NO RIGHTS AS A STOCKHOLDER.
A Participant shall have no rights as a stockholder with respect to any
shares that he or she has purchased, or may have a right to purchase, under the
Plan until the date of issuance of a stock certificate for such shares.
SECTION 12. STOCK OFFERED UNDER THE PLAN.
(a) AUTHORIZED SHARES. The aggregate number of shares of Stock available
for purchase under the Plan shall be 150,000, subject to adjustment pursuant to
this Section 12.
(b) ANTI-DILUTION ADJUSTMENTS. The aggregate number of shares of Stock
offered under the Plan, the 1,500-share limitation described in Section 7(c) and
the price of shares that any Participant has elected to purchase shall be
adjusted proportionately by the Committee for any increase or decrease in the
number of outstanding shares of Stock resulting from a subdivision or
consolidation of shares, the payment of a stock dividend, any other increase or
decrease in such shares effected without receipt or payment of consideration by
the Company or the distribution of the shares of a Subsidiary to the Company's
stockholders.
(c) REORGANIZATIONS. In the event of a dissolution or liquidation of the
Company, or a merger or consolidation to which the Company is a constituent
corporation, the Plan shall terminate unless the plan of merger, consolidation
or reorganization provides otherwise, and all amounts that have been withheld
but not yet applied to purchase Stock hereunder shall be refunded, without
interest. The Plan shall in no event be construed to restrict in any way the
Company's right to undertake a dissolution, liquidation, merger, consolidation
or other reorganization.
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SECTION 13. AMENDMENT OR DISCONTINUANCE.
The Board of Directors shall have the right to amend, suspend or terminate
the Plan at any time and without notice. Except as provided in Section 12, any
increase in the aggregate number of shares of Stock to be issued under the Plan
shall be subject to approval by a vote of the stockholders of the Company. In
addition, any other amendment of the Plan shall be subject to approval by a vote
of the stockholders of the Company to the extent required by an applicable law
or regulation.
SECTION 14. DEFINITIONS.
(a) "ACCUMULATION PERIOD" means a six-month period during which
contributions may be made toward the purchase of Stock under the Plan, as
determined pursuant to Section 3(b).
(b) "BOARD OF DIRECTORS" means the Board of Directors of the Company, as
constituted from time to time.
(c) "COMMITTEE" means a committee of the Board of Directors, consisting of
one or more directors appointed by the Board of Directors.
(d) "COMPANY" means Viagene, Inc., a Delaware corporation.
(e) "COMPENSATION" means the total compensation paid in cash to a
Participant by a Participating Company, including salaries, wages, overtime pay
and commissions, but excluding bonuses, incentive compensation, moving or
relocation allowances, car allowances, imputed income attributable to cars or
life insurance, taxable fringe benefits and similar items, all as determined by
the Committee.
(f) "ELIGIBLE EMPLOYEE" means any employee of a Participating Company:
(i) Whose customary employment is for more than five months per
calendar year and for more than 20 hours per week; and
(ii) Who has been an employee of a Participating Company for not less
than one month.
(g) "FAIR MARKET VALUE" shall mean the market price of Stock, determined
by the Committee as follows:
(i) If Stock was traded over-the-counter on the date in question but
was not traded on the Nasdaq Stock Market or the Nasdaq National Market,
then the Fair Market Value shall be equal to the mean between the last
reported representative bid and asked prices quoted for
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such date by the principal automated inter-dealer quotation system on which
Stock is quoted or, if the Stock is not quoted on any such system, by the
"Pink Sheets" published by the National Quotation Bureau, Inc.;
(ii) If Stock was traded over-the-counter on the date in question and
was traded on the Nasdaq Stock Market or the Nasdaq National Market, then
the Fair Market Value shall be equal to the last-transaction price quoted
for such date by the Nasdaq Stock Market or the Nasdaq National Market;
(iii) If the Stock was traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing price
reported by the applicable composite transactions report for such date; and
(iv) If none of the foregoing provisions is applicable, then the Fair
Market Value shall be determined by the Committee in good faith on such
basis as it deems appropriate.
Whenever possible, the determination of Fair Market Value by the Committee shall
be based on the prices reported in the Western Edition of THE WALL STREET
JOURNAL or as reported directly to the Company by Nasdaq or a comparable
exchange. Such determination shall be conclusive and binding on all persons.
(h) "OFFERING PERIOD" means a 24-month period with respect to which the
right to purchase Stock may be granted under the Plan, as determined pursuant to
Section 3(a).
(i) "PARTICIPANT" means an Eligible Employee who elects to participate in
the Plan, as provided in Section 3(c).
(j) "PARTICIPATING COMPANY" means the Company and each present or future
Subsidiary, except Subsidiaries excluded by the Committee.
(k) "PLAN" means this Viagene, Inc. Employee Stock Purchase Plan, as
amended from time to time.
(l) "PLAN ACCOUNT" means the account established for each Participant
pursuant to Section 6(a).
(m) "PURCHASE PRICE" means the price at which Participants may purchase
Stock under the Plan, as determined pursuant to Section 7(b).
(n) "STOCK" means the Common Stock of the Company.
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(o) "SUBSIDIARY" means a corporation, 50% or more of the total combined
voting power of all classes of stock of which is owned by the Company or by
another Subsidiary.
SECTION 15. EXECUTION.
To record the adoption of the Plan by the Board of Directors, the Company
has caused its duly authorized officer to affix the corporate name and seal
hereto.
VIAGENE, INC.
By: /s/ Robert T. Abbott
-----------------------------------
Robert T. Abbott
President and
Chief Executive Officer
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