<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 25, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
CYPRESS BIOSCIENCE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 22-2389839
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4350 EXECUTIVE DRIVE, SUITE 325
SAN DIEGO, CALIFORNIA 92121
(619) 452-2323
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
--------------
1996 EQUITY INCENTIVE PLAN
INCENTIVE STOCK OPTION AND APPRECIATION PLAN
1988 NONQUALIFIED STOCK OPTION PLAN
NON-PLAN STOCK OPTIONS
(Full title of the plans)
--------------
JAY D. KRANZLER
CHIEF EXECUTIVE OFFICER, CHIEF SCIENTIFIC OFFICER
AND VICE CHAIRMAN OF THE BOARD OF DIRECTORS
CYPRESS BIOSCIENCE, INC.
4350 EXECUTIVE DRIVE, SUITE 325
SAN DIEGO, CALIFORNIA 92121
(619) 452-2323
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies to:
FREDERICK T. MUTO, ESQ.
CARL R. SANCHEZ, ESQ.
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CA 92121
(619) 550-6000
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.02 par value 8,806,335 $1.500 - $3.875 $17,027,707.74 $5,871.62
=========================================================================================================================
</TABLE>
<PAGE> 2
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares subject
to outstanding stock options previously granted (i) under Registrant's 1996
Equity Incentive Plan (the "1996 Plan"), (ii) under Registrant's Incentive Stock
Option and Appreciation Plan, as amended, (the "ISO Plan"), (iii) under
Registrant's Amended and Restated 1988 Nonqualified Stock Option Plan (the "1988
Plan") and (iv) outside of Registrant's 1988 Plan, ISO Plan and 1996 Plan
pursuant to Nonqualified Stock Option Agreements (the "Non-Plan Options"), and
(b) for shares issuable under the Registrant's (i) 1996 Plan and (ii) 1988 Plan
calculated on the basis of the average of the high and low sales price of
Registrant's Common Stock on June 19, 1996. The following chart shows the
calculation of the registration fee.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Aggregate
Type of Shares Number of Shares Offering Price Per Share Offering Price
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to 4,450,824 $1.500 $6,676,236.00
outstanding options under the 1996 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 118,333 $1.875 $221,874.38
outstanding options under the 1996 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 125,000 $2.019 $252,375.00
outstanding options under the 1996 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 30,000 $2.125 $63,750.00
outstanding options under the 1996 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 60,000 $2.250 $135,000.00
outstanding options under the 1996 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 75,000 $2.438 $182,850.00
outstanding options under the 1996 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 100,000 $2.500 $250,000.00
outstanding options under the 1996 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 154,500 $1.750 $270,375.00
outstanding options under the 1988 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 40,000 $2.000 $80,000.00
outstanding options under the 1988 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 225,000 $2.125 $478,125.00
outstanding options under the 1988 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 35,000 $2.625 $91,875.00
outstanding options under the 1988 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 10,000 $3.375 $33,750.00
outstanding options under the 1988 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 30,000 $2.4375 $73,125.00
outstanding options under the 1988 Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 4,000 $2.000 $8,000.00
outstanding options under the ISO Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 10,500 $2.625 $27,562.50
outstanding options under the ISO Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 16,500 $3.250 $53,625.00
outstanding options under the ISO Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 12,000 $3.750 $45,000.00
outstanding options under the ISO Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 18,000 $3.875 $69,750.00
outstanding options under the ISO Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 60,000 $1.500 $90,000.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 20,000 $1.750 $35,000.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 38,000 $1.875 $71,250.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 122,000 $1.938 $236,436.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
<TABLE>
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to 8,500 $2.000 $17,000.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 705,000 $2.250 $1,586,250.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 65,000 $2.125 $138,125.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 50,000 $2.625 $131,250.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 18,605 $2.688 $50,010.24
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 7,500 $3.250 $24,375.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 26,230 $3.813 $100,014.99
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 30,000 $3.875 $116,250.00
outstanding Non-Plan Options
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1996 2,040,843 $2.531 $5,165,373.63
Plan
- --------------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1988 100,000 $2.531 $253,100.00
Plan
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1995, the Company's Proxy Statement for the 1996 Annual Meeting of
Stockholders filed on March 11, 1996 pursuant to Rule 14a-6 of the Exchange Act,
the Company's Current Report on Form 8-K dated as of January 29, 1996, the
Company's Current Report on Form 8-K dated as of March 8, 1996, the Company's
Current report on Form 8-K dated as of April 1, 1996, the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996, and the Company's
Registration Statement on Form S-3/A (No. 333-01071) dated May 2, 1996 filed by
the Company with the Commission are hereby incorporated by reference in this
Registration Statement except as superseded or modified herein. All documents
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Registration Statement and
prior to the time a post-effective amendment which indicates that securities
offered 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. Any statement
contained in any 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 modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation and Bylaws include
provisions to (i) eliminate the personal liability of its directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") and
(ii) require the Registrant to indemnify its directors and officers to the
fullest extent permitted by applicable law, including circumstances in which
indemnification is otherwise discretionary. Pursuant to Section 145 of the DGCL,
a corporation generally has the power to indemnify its present and former
directors, officers, employees and
4.
<PAGE> 5
agents against expenses incurred by them in connection with any suit to which
they are or are threatened to be made, a party by reason of their serving in
such positions so long as they acted in good faith and in a manner they
reasonably believed to be in or not opposed to, the best interests of the
corporation and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. The Registrant believes that these
provisions are necessary to attract and retain qualified persons as directors
and officers. These provisions do not eliminate the directors' or officers' duty
of care, and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under the
DGCL. In addition, each director will continue to be subject to liability
pursuant to Section 174 of the DGCL, for breach of the director's duty of
loyalty to the Registrant, for acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for acts or omissions
that the director believes to be contrary to the best interests of the
Registrant or its stockholders, for any transaction from which the director
derived an improper personal benefit, for acts or omissions involving a reckless
disregard for the director's duty to the Registrant or its stockholders when the
director was aware or should have been aware of a risk of serious injury to the
Registrant or its stockholders, for acts or omission that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Registrant or its stockholders, for improper transactions between
the director and the Registrant and for improper loans to directors and
officers. The provision also does not affect a director's responsibilities under
any other law, such as the federal securities law or state or federal
environmental laws.
The Registrant has entered into a letter agreement with a certain former
executive officer whereby the Registrant has agreed to pay for expenses
(including attorney's fees) incurred by such executive officer in connection
with an ongoing SEC inquiry in advance of any final disposition of such inquiry.
In the event it is ultimately determined that such executive officer is not
entitled to indemnification under the terms of the Registrant's Bylaws or other
applicable laws or regulations such executive officer is obligated to repay all
amounts advanced by the Registrant on such executive officer's behalf.
The Registrant has an insurance policy covering the officers and directors of
the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
5.
<PAGE> 6
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Registrant's Amended and Restated Certificate of Incorporation.(1)
4.2 Registrant's Amended and Restated Bylaws.(2)
4.3 Specimen Stock Certificate.(3)
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
23.3 Consent of Cooley Godward Castro Huddleson & Tatum. Reference
is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 9.
99.1 1996 Equity Incentive Plan (the "1996 Plan").(1)
99.2 Form of Incentive Stock Option Agreement under the 1996 Plan.(1)
99.3 Form of Nonstatutory Stock Option Agreement under the 1996 Plan.(1)
99.4 Incentive Stock Option and Appreciation Plan, as amended June 29, 1992.
99.5 Form of Incentive Stock Option Agreement under the ISO Plan.
99.6 Amended and Restated 1988 Nonqualified Stock Option Plan.
99.7 Form of Nonqualified Stock Option Agreement under the 1988 Plan.
99.8 Form of Stock Option Agreement for issuances of all Non-Plan Options.
</TABLE>
- -------------------
(1) Filed as an exhibit to the Registrant's Form 10-Q for the quarter ended
March 31, 1996 filed on May 15, 1996, and incorporated herein by
reference.
(2) Filed as an exhibit to the Registrant's Form 10-K for the year ended
December 31, 1995 filed on February 19, 1996, and incorporated herein by
reference.
(3) Filed as an exhibit to the Registration Statement on Form S-1 (No.
33-41225) and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
6.
<PAGE> 7
(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) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% 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 this 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 this Registration Statement is on Form S-3 or Form S-8 and 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 Exchange Act that are incorporated by
reference in this 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
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.
7.
<PAGE> 8
(c) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
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 provisions 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.
8.
<PAGE> 9
SIGNATURES
The Registrant. 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 San Diego, State of California, on June 21,
1996.
CYPRESS BIOSCIENCE, INC.
By /s/ JAY D. KRANZLER
-------------------------------------------
Jay D. Kranzler, M.D., Ph.D.
Chief Executive Officer and Chief
Scientific Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jay D. Kranzler and Susan E. Feiner 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 attorneys-in-fact and
agents, 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 connection therewith,
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 any of
them, or his substitutes or 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 and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ JAY D. KRANZLER Chief Executive Officer, Chief June 21, 1996
- -------------------------------- Scientific Officer and Vice
Jay D. Kranzler, M.D., Ph.D. Chairman of the Board
(Principal Executive Officer)
/s/ SUSAN E. FEINER Director of Finance/Controller, June 21, 1996
- -------------------------------- Secretary and Treasurer
Susan E. Feiner (Principal Financial and Accounting Officer)
/s/ DEBBY JO BLANK President, Chief Operating
- -------------------------------- Officer and Director June 21, 1996
Debby Jo Blank, M.D.
/s/ RICHARD M. CROOKS Chairman of the Board June 21, 1996
- --------------------------------
Richard M. Crooks, Jr.
/s/ PHILIP J. O'REILLY Director June 21, 1996
- --------------------------------
Philip J. O'Reilly
/s/ JACK H. VAUGHN Director June 20, 1996
- ---------------------------------
Jack H. Vaughn
</TABLE>
9.
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LETTERHEAD]
June 24, 1996
Cypress Bioscience, Inc.
4350 Executive Drive, Suite 325
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Cypress Bioscience, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission, covering the registration of up to 8,806,335 shares of the
Company's Common Stock, $.02 par value (the "Shares"), for issuance upon
exercise of options granted (i) under the 1996 Equity Incentive Plan (the "1996
Plan"), (ii) under the Incentive Stock Option and Appreciation Plan, as amended,
(the "ISO Plan"), (iii) under the Amended and Restated 1988 Nonqualified Stock
Option Plan (the "1988 Plan") (the 1996 Plan, ISO Plan and 1988 Plan are
collectively referred to herein as, the "Plans") and (iv) pursuant to certain
Nonqualified Stock Option Agreements (the "Non-Plan Options").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plans, the Non-Plan Options, the Company's Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws, and
the originals or copies certified to our satisfaction of such records,
documents, certificates, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below. We
have assumed the genuineness and authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement and the Plans or Non-Plan Options, as applicable, will be validly
issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
/s/ Frederick T. Muto
- -------------------------
Frederick T. Muto
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1996 Equity Incentive Plan, Stock Options Issued
Outside the 1988 Nonqualified Stock Option Plan and 1996 Equity Incentive Plan,
Incentive Stock Option and Appreciation Plan, and the 1988 Nonqualified Stock
Option Plan of Cypress Bioscience, Inc., formerly IMRE Corporation, of our
report dated January 23, 1996, with respect to the consolidated financial
statements of IMRE Corporation included in its Annual Report (Form 10-K/A) for
the year ended December 31, 1995, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
--------------------------
ERNST & YOUNG LLP
Seattle, Washington
June 20, 1996
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Cypress Bioscience, Inc. (formerly LMRE Corporation) (the "Company") on Form
S-8 dated June 21, 1996 registering shares of Common Stock issuable pursuant to
the Company's 1996 Equity Incentive Plan, stock options issued outside the 1988
Nonqualified Stock Option Plan and 1996 Equity Incentive Plan, Incentive Stock
Option and Appreciation Plan, and the 1988 Nonqualified Stock Option Plan, of
our report dated March 15, 1994, on our audit of the consolidated statements of
operations, cash flows and stockholders' equity of Cypress Bioscience, Inc. for
the year ended December 31, 1993 included in its Annual Report on Form 10-K/A
for the year ended December 31, 1995, filed with the Securities and Exchange
Commission.
/s/ Coopers & Lybrand L.L.P
Seattle, Washington
June 21, 1996
<PAGE> 1
EXHIBIT 99.4
IMRE CORPORATION
INCENTIVE STOCK OPTION AND APPRECIATION PLAN
(AS AMENDED JUNE 26, 1992)
1. PURPOSE OF THE PLAN
This Incentive Stock Option and Appreciation Plan ("Plan") is intended
to further the interests of IMRE Corporation (the "Company") by providing
certain incentives to key employees of the company, including where appropriate
part-time employees, who are largely responsible for the management, growth and
protection of the business, and who are making and can continue to make
substantial contributions to the success of its business. The Company intends,
from time to time during the effective period of this Plan, to grant to such
employees as may be selected in the manner provide below, options to purchase
shares of the Common Stock, $.02 par value, of the Company and/or stock
appreciation rights as hereinafter provided, subject to the conditions specified
in this Plan.
2. ADMINISTRATION OF THE PLAN
This Plan shall be administered by the Board of Directors or, of so
designated, by a Stock Option Committee of the Company or by such other
Committee composed of members of the Board of Directors of the Company as may be
designated by the Board of Directors (the Board of Directors or such Committee
is hereinafter termed the "Committee"). If such a committee is designated, all
of its members shall be disinterested persons within the meaning of Rule 16b-3
promulgated under the Securities Exchange Act of 1934. A majority of the
Committee shall constitute a quorum, and the acts of a majority of the members
present at any meeting at which a quorum is present, or acts approved in writing
by all of the members, shall be the acts of the Committee.
Subject to the provisions of this Plan, the Committee shall have full
and final authority in its discretion, among other things, (a) to determine the
employees to be granted options and/or stock appreciation rights and whether a
stock appreciation right shall be related to an option (whenever granted), (b)
to determine the number of shares with respect to which options and/or stock
appreciation rights are to be granted, provided that for options granted prior
to January 1, 1987, the aggregate fair market value (determined as of the time
the option is granted) of the stock for which any employee may be granted
options in any calendar year (under all option plans of the Company, its parent
corporation and its subsidiaries) shall not exceed $100,000 plus any unused
limit carryover for such year as defined and determined in accordance with
Section 422A of the Internal Revenue Code of 1986, as amended (the "Code"), and
provided further, that for options granted hereunder after December 31, 1986 the
aggregate fair market value (determined as of the time the option is granted) of
the stock with respect to which options under this plan (and all option plans of
the Company, its parent corporation and
1.
<PAGE> 2
its subsidiaries) are exercisable for the first time by the optionee during the
calendar year shall not exceed $100,000, (c) to determine the time or times at
which options and stock appreciation rights will be granted, (d) to determine
the option price of the shares subject to each option and the exercise price of
each stock appreciation right, which prices shall not be less than the minimum
prices specified in Section 6 of this Plan, (e) to determine the time or times
at which each option and each stock appreciation right becomes exercisable and
the duration of the exercise period, provided that no option or stock
appreciation right shall be exercisable during the initial twelve-month period
after grant, (f) to determine whether upon exercise of a stock appreciation
right the holder thereof shall receive stock, cash, or a combination thereof,
(g) to require, if the Committee shall so determine, the surrender for
cancellation to the Company or other options or stock appreciation rights held
by the optionee or holder in connection with the grant or continued
effectiveness of options or stock appreciation rights granted hereunder, (h) to
determine the provisions and forms of the instruments evidencing any options and
stock appreciation rights granted under this Plan (which shall not be
inconsistent with this Plan but need not be identical), (i) to adopt, amend and
rescind such rules and regulations as, in its option, may be advisable in the
administration of this Plan, including such rules and regulations as may be
advisable to qualify options granted hereunder as "incentive stock options" as
defined in Section 422A of the Code.
3. SHARES AVAILABLE FOR OPTIONS AND STOCK APPRECIATION RIGHTS
Subject to the provisions of Section 11 of this Plan the aggregate
number of shares of Common Stock with respect to which options and/or stock
appreciation rights may be granted under the Plan shall not exceed 750,000
shares.
The shares to be delivered upon exercise of options and stock
appreciation rights under this plan shall be made available either from the
authorized but unissued shares of Common Stock of the Company or from shares of
Common Stock held by the Company as treasury shares, including shares purchased
in the open market.
If an option or stock appreciation right granted under this plan shall
expire or terminate unexercised as to an shares covered thereby (other than an
option or stock appreciation right surrendered for cancellation upon exercise of
the related right or option), such shares shall thereafter be available for the
granting or other options or stock appreciation rights under this Plan.
4. ELIGIBILITY
Options and stock appreciation rights will be granted only to persons
who are employees of the Company, any parent corporation or of any subsidiary of
the Company. The term "parent corporation" shall have the meaning given in
Section 425 of the Code
2.
<PAGE> 3
and the term "subsidiary" shall have the same meaning as the term "subsidiary
corporation" as defined in that section of the Code, as the same may be amended
from time to time. The term "employees" shall include officers as well as other
employees of the Company or of any parent corporation or any subsidiary of the
Company and shall include directors who are also employees of the Company, any
parent corporation or of a subsidiary of the Company. Neither the members of the
Committee nor any member of the Board of Directors who is not an employee of the
Company (or of any subsidiary or parent corporation of the Company) shall be
eligible to receive an option or stock appreciation right under this Plan.
In selecting the individual to whom options or stock appreciation
rights shall be granted, as well as in determining the number of shares subject
to and the terms and provisions of each option and stock appreciation right, the
Committee shall weigh such factors as it shall deem relevant to accomplish the
purpose of this Plan.
An individual who has been granted an option or stock appreciation
right may, if he is otherwise eligible, be granted an additional option or
options or an additional stock appreciation right or rights, if the Committee
shall so determine. No option shall be granted to any employee who owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or its parent corporation or subsidiary, except as
permitted by Section 422A(c)(8) of the Code.
5. TERM OF OPTIONS AND STOCK APPRECIATION RIGHTS
The full term of each option and stock appreciation right granted
hereunder shall be for such period as the Committee shall determine, but for not
more than ten years from the date of grant thereof. Each option and stock
appreciation right shall be subject to earlier termination as provided in
Paragraphs (d) and (e) of Section 10 hereof.
6. OPTION PRICE AND EXERCISE PRICE OF STOCK APPRECIATION RIGHTS
The option price shall be determined by the Committee at the time an
option is granted, and shall not be less than 100 percent of the fair market
value (but in no event less than par value) of the shares covered thereby at the
time the option is granted, such fair market value to be determined in
accordance with the procedures to be established by the Committee. The exercise
price of a stock appreciation right related to an option shall be the option
price of the related option. The exercise price of a stock appreciation right
not related to an option shall be determined by the Committee at the time the
stock appreciation right is granted and shall not be less than 100% of the fair
market value of the shares with respect to which a stock appreciation right is
granted, such fair market value to be determined in accordance with the
procedures to be established by the Committee.
3.
<PAGE> 4
7. STOCK APPRECIATION RIGHTS
Subject to and in accordance with the provisions of this Plan and the
relevant instrument, (a) upon exercise of stock appreciation rights related to
an option, the holder will be entitled to receive an amount equal to the excess
of the fair market value of the shares covered by the related option
surrendered, or portion thereof, over the aggregate option price of such shares,
and (b) upon exercise of stock appreciation rights not related to an option, the
holder will be entitled to receive an amount equal to the excess of the fair
market value of the shares covered by the stock appreciation rights over the
aggregate exercise price of such stock appreciation rights. Such payment may be
made in shares of Common Stock (valued at fair market value at the date of
exercise, determined in accordance with the procedures to be established by the
Committee), in cash, or a combination thereof, as the Committee deems advisable
in the exercise of its discretion. The Company's obligation to deliver Common
Stock, cash or a combination thereof upon the exercise of any stock appreciation
rights shall be subject to applicable federal, state and local tax withholding
requirements.
8. NON-TRANSFERABILITY OF OPTIONS AND STOCK APPRECIATION RIGHTS
No option or stock appreciation right granted under this Plan shall be
transferable by the grantee otherwise than by will or the laws of descent and
distribution, and such option or stock appreciation right may be exercised
during his lifetime only by him.
9. PRIVILEGES OF STOCK OWNERSHIP; PURCHASE FOR INVESTMENT
An optionee or holder of a stock appreciation right shall not be
entitled to any privileges incident to stock ownership as to any shares of stock
until certificates representing shares have actually been issued and delivered
to him. Upon the exercise of an option or receipt of shares upon exercise of a
stock appreciation right, unless there is in effect at that time a registration
statement under the Securities Act of 1933 covering the exercise of the option
or the stock appreciation right and permitting the resale to the public of
shares acquired under this Plan (and, if required, there is available for
delivery a prospectus meeting the requirements of Section 10(a)(3) of said Act),
the optionee or holder of a stock appreciation right shall, unless otherwise
determined by the Committee, (i) represent and warrant in writing to the Company
that the shares acquired are being acquired for investment and not with a view
to the distribution thereof, (ii) acknowledge that the shares acquired may not
be sold unless registered for sale under said Act or pursuant to an exemption
from such registration, and (iii) agree that the certificates evidencing such
shares shall bear a legend to the effect of clauses (i) and (ii). If, subsequent
to any such acquisition for investment, there should become effective under the
Securities Act of 1933 a registration statement permitting the resale to the
public of shares so acquired and, if required, there is available for delivery
by the optionee or
4.
<PAGE> 5
holder of a stock appreciation right a prospectus meeting the requirements of
Section 10(a)(3) of said Act, then any representations and warranties previously
made that such shares were being acquired for investment and not with a view to
the distribution thereof shall not preclude the optionee or holder of a stock
appreciation right from selling such shares pursuant to the registration
statement and in the event of any such sale the holders of such shares shall be
released from such representations and warranties with respect to shares sold by
them pursuant to such registration statement. No shares shall be required to be
sold or issued upon the exercise of any option or stock appreciation right
unless and until any then applicable requirements of the Securities and Exchange
Commission, other regulatory agencies having jurisdiction and each stock
exchange upon which securities of the Company may then be listed shall have been
fully complied with.
10. EXERCISE OF OPTION AND STOCK APPRECIATION RIGHTS
(A) Each option granted under this Plan shall be exercisable on such
date or dates and during such period and for such number of shares as shall be
determined pursuant to the provisions of the instrument evidencing such option,
provided, that for options granted hereunder prior to January 1, 1987, no such
option shall be exercisable when there is outstanding any incentive stock option
granted to any employee prior to the grant of the option, granted to an employee
prior to the grant of the option, provided, further, that no option granted
under this Plan shall be exercisable prior to twelve months following the date
of grant of such option.
(B) A person electing to exercise an option shall give written notice
to the Company of such election and of the number of shares he has elected to
purchase, and shall at the time of exercise (i) tender in cash the full purchase
price of the shares he has elected to purchase, provided that the Committee in
its discretion may permit payment of the purchase price to be made by delivery
to the Company of shares of Common Stock owned by him, which shares shall be
valued in accordance with procedures established by the Committee; and (ii)
surrender for cancellation the related stock appreciation right, if any.
(C) Stock appreciation rights shall be exercisable on such date or
dates and during such period as shall be determined pursuant to the provisions
of the instrument evidencing such stock appreciation rights, provided that not
stock appreciation right and no related option contemporaneously granted shall
be exercisable prior to twelve months following the grant of such right or
option, except that this limitation shall not apply in the event of the death or
disability of the holder prior to the expiration of such period. Stock
appreciation rights shall be exercised by the holder giving written notice
thereof on the prescribed form and surrendering for cancellation the related
option, if any.
5.
<PAGE> 6
(D) No option or stock appreciation right shall be affected by any
change of duties or position of the optionee or holder (including transfer to or
from a subsidiary), so long as he continues to be an employee of the Company or
one of its subsidiaries. If an optionee or holder shall cease to be such an
employee for any reason other than death, such option or stock appreciation
right shall thereafter be exercisable only to the extent of the exercise rights,
if any, which had accrued as of the date of such cessation, provided that upon
any such cessation of employment, the right to exercise shall terminate upon the
expiration of thirty days from the date of such cessation of employment. The
instruments evidencing options and stock appreciation rights granted under this
Plan may contain such provisions as the Committee shall approve with reference
to the effect of approved leaves of absence. Nothing in this Plan or in any
option or stock appreciation right granted hereunder shall confer upon any
optionee or holder any right to continue in the employ of the Company or any of
its subsidiaries, or to interfere in any way with the right of the Company or
any of its subsidiaries to terminate his employment at any time.
(E) Should an optionee or holder of a stock appreciation right die
while in the employ of the Company or any subsidiary of the Company, such
persons as shall have acquired, by will or by the laws of descent and
distribution, the right to exercise any option or stock appreciation right
theretofore granted such optionee or holder may, in either case, exercise such
option or stock appreciation right at any time prior to expiration of its full
term or of three months from the date of death of the optionee or holder,
whichever is earlier, provided that any such exercise shall be limited to the
exercise rights which had accrued as of the date of death of the employee;
provided further, however, that the Committee may provide in the instrument
evidencing any option or stock appreciation right that such option or such stock
appreciation right shall become exercisable as to all shares covered thereby
immediately upon the date of the optionee or holder.
11. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
The instruments evidencing options and stock appreciation rights,
respectively, granted hereunder shall contain such provisions as the Committee
shall determine for (among other things) adjustment of the total number and
classes of shares covered thereby, or of the option or exercise prices, or both,
and for the adjustment of stock appreciation rights to whatever extent that it
is determined that any change described below equitably requires adjustment, in
the event of changes in the outstanding Common Stock of the Company by reason of
stock dividends, stock split-ups, recapitalizations, reorganizations, mergers,
consolidations, combinations, or exchanges of shares or the like, of or by the
Company. In the event of any such change, the aggregate number of and classes of
shares for which options may thereafter be granted under the Plan and the
aggregate number and terms of stock appreciation rights which may thereafter be
granted,
6.
<PAGE> 7
may be appropriately adjusted as determined by the Committee so as to reflect
such change.
12. AMENDMENT, SUSPENSION OR TERMINATION OF PLAN
The Board of Directors may at any time terminate or from time to time
amend or suspend this Plan; provided, however, that no such amendment shall,
without approval of the shareholders of the Company, except as provided in
Section 11 hereof, (a) increase the aggregate number of shares as to which
options or stock appreciation rights may be granted under this Plan either to
all individuals or to any one individual, (b) change the minimum option price of
options or the exercise price of stock appreciation rights, (c) increase the
maximum period during which options or stock appreciation rights may be
exercised, or (d) extend the effective period of this Plan. No option or stock
appreciation right may be granted during any suspension of this Plan or after
this Plan has been terminated and no amendment, suspension or termination shall,
without the optionee's or holder's consent, alter or impair any of the rights or
obligations under any option or stock appreciation right theretofore granted to
him under this Plan.
13. EFFECTIVE DATE AND DURATION OF PLAN
This Plan shall become effective upon its approval by the shareholders
of the Company. No options and no stock appreciation rights may be granted under
this Plan subsequent to June 6, 1995.
7.
<PAGE> 1
EXHIBIT 99.5
IMRE CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of [D] by and between IMRE Corporation, a
Delaware corporation (the "Company"), and [GRANTEE], (the "Grantee");
WHEREAS, the Board of Directors of the Company has determined to grant
to Grantee the stock options provided for in this Agreement, on the terms and
conditions set forth below:
NOW, THEREFORE, the parties agree as follows:
1. The company hereby grants to Grantee an option (the "Option") to
purchase all or part of [SHARES] shares (the "Shares") of Common Stock of the
Company, $.02 par value (the "Common Stock"), for cash at a price of [PRICE] per
Share.
The Option shall be exercisable with respect to the number of
Shares set forth below on and after the respective date(s) indicated:
<TABLE>
<CAPTION>
Number of Shares Date
---------------- ----
<S> <C>
[NUM] [DT]
</TABLE>
The Option shall remain exercisable (except as provided in Paragraphs 4 and 5)
as to all of such Shares until and including the [ANN] anniversary of the date
of this Agreement, provided that Grantee is then and has continuously been an
employee of the Company subject, however, to the provisions of Paragraphs 4 and
5. The Option may be exercised at any time after the above exercise date(s)
until the expiration or termination of the Option, except that any Grantee who
is subject to Section 16(b) of the Securities Exchange Act of 1934 (the "1934
Act") may not exercise at any time except during the period beginning on the
third business day following the date of release of the Company's quarterly or
annual financial statements and ending on the twelfth business day following
such date in accordance with Rule 16b-3 under the 1934 Act.
2. The term of the Option shall expire on [EXPIRE], the [ANN]
anniversary of the date of this Agreement, unless such Option had been
previously terminated in accordance with the provisions set forth in this
document.
3. The Option may be exercised by written notice delivered to the
Company (Attention: Corporate Secretary) stating the number of shares with
respect to which the Option is then being exercised, together with cash in the
amount of the purchase price of such Shares, and the written statement provided
for the Paragraph 7, if required by said
1.
<PAGE> 2
Paragraph 7. The Option may not be exercised to purchase fractional Shares or
less than ten whole Shares.
4. If Grantee shall cease to be employed by the Company for any
reason other than his/her death, Grantee shall have the right, at any time
within 30 (thirty) days after such cessation of such retention, to exercise the
Option only to the extent of the exercisable rights, if any, which had accrued
as of the date of such cessation; provided, that all rights under this Option
Agreement shall expire in any event on the day specified in Paragraph 2.
5. The Option shall not be assignable or transferable except by will
or by the laws of descent and distribution and shall, during Grantee's lifetime,
be exercisable only by Grantee. If Grantee should die while employed by the
Company or during the 30-day period referred to in Paragraph 4, the person or
persons to whom Grantee's rights under the Option shall have passed by will or
by the laws of descent and distribution shall have the right, at any time within
3 (three) months after the date of Grantee's death, to exercise the Option to
the same extent as Grantee might have done on the date of his/her death;
provided that all rights under this Option shall expire in any event on the day
specified in Paragraph 2.
6. Grantee shall have no rights or privileges incident to stock
ownership as to any Shares covered by the Option until the date of issuance to
him/her of a stock certificate or certificates covering such Shares. No
dividends will be paid or other rights distributed to Grantee as to which the
record date is prior to the date such stock certificate or certificates are
issued.
7. Grantee represents and agrees that if he/she exercises the Option
in whole or in part, at a time when (i) there is not in effect a registration
statement under the Securities Act of 1933 (the "Act"), as amended, covering the
exercise of the Option and permitting the resale to the public of the Shares
purchased or received thereby or (ii) if required, there is not available for
delivery a prospectus meeting the requirements of Section 10(a)(3) of the Act,
(a) that the Shares acquired are being acquired for investment and not with a
view to the distribution thereof, (b) that such Shares acquired may not be sold
unless registered for sale under the Act or pursuant to an exemption from such
registration, and (c) that the certificates evidencing such Shares will bear a
legend to the effect of clauses (a) and (b). Grantee further agrees that upon
such exercise of the Option if requested by the Company, he/she will furnish to
the Company a signed Certificate of Investment Intent to the effect set forth in
clauses (a) through (c) of this paragraph, in such form as may be satisfactory
to the Company. Any person or persons entitled to exercise the Option under the
provisions of Paragraph 5 shall, upon each exercise of the Option, furnish to
the Company a written statement to the same effect, satisfactory to the Company
in form and substance.
2.
<PAGE> 3
8. In the event of any changes in the outstanding Common Stock by
reason of a stock dividend, recapitalization, merger, consolidation, split-up,
combination, exchange of shares, or the like, the number and class of shares
subject to the Option and/or the exercise price thereof shall be appropriately
adjusted by the Board of Directors of the Company, whose determination shall be
conclusive, and if, in connection with any merger, consolidation, or sale or
transfer by the Company of substantially all of its assets, the Option is not
assumed by the surviving corporation or the purchaser, the date of termination
of the Option, and the date on which any portion of the Option not then
exercisable may be exercised, shall be advanced to a date to be fixed by the
Board of Directors, which date shall be not more than 15 (fifteen) days prior
date to such merger, consolidation, or sale or transfer.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as
of the date first above written
IMRE CORPORATION
By:
---------------------------------
Chief Executive Officer
GRANTEE
------------------------------------
Signature of Grantee
------------------------------------
Name of Grantee
------------------------------------
Address of Grantee
------------------------------------
3.
<PAGE> 1
EXHIBIT 99.6
IMRE CORPORATION
AMENDED AND RESTATED
1988 NONQUALIFIED STOCK OPTION PLAN
1. PURPOSE. The purpose of this 1988 Nonqualified Stock Option Plan
(the "Plan") is to enable IMRE Corporation, a Delaware corporation (the
"Company"), to attract and retain outstanding directors, officers and other key
employees and consultants of the Company and such other persons selected in
accordance with Section 5 below, and to motivate such persons by giving them an
opportunity to participate in the ownership of the Company.
2. SHARES SUBJECT TO THE PLAN. Except as provided in Section 13, the
total number of shares covered by all options granted under the Plan shall not
exceed two million seven hundred fifty thousand (2,750,000) shares of the
Company's authorized but unissued or reacquired Common Stock with par value of
$.02 per share. In the event any option under the Plan expires or is cancelled
or terminated and is unexercised in whole or in part, the shares allocable to
the unexercised portion may again be subject to an option under the Plan.
3. DURATION OF THE PLAN. The Plan shall be effective as of the date
of its adoption by the Company's Board of Directors and nonqualified stock
options may be granted thereafter, but any such option so granted shall be null
and void unless and until the Plan shall have been approved by the vote of the
holders of a majority of the then outstanding shares of Common Stock at the
annual meeting of shareholders next following adoption of the Plan. The Plan
shall continue in effect until options have been exercised with respect to all
of the shares reserved under the Plan (subject to any adjustments under Section
13 hereof), provided, however, that unless sooner terminated by action of the
Board of Directors, this Plan shall terminate on, and no option may be granted
hereunder after ten (10) years from the date of adoption of the Plan. The Board
of Directors shall have the right to suspend or terminate the Plan at any time
except with respect to any options then outstanding under the Plan.
4. ADMINISTRATION. This Plan may be administered by the Board of
Directors or, if so designated, by a Stock Option Committee of the Company or by
such other committee composed of members of the Board of Directors as may be
designated by the Board of Directors (the Board of Directors or such committee
is hereinafter termed the "Committee"). All of the members of the Committee
shall be disinterested persons within the meaning of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members present at any
meeting at which a quorum is present, or acts approved in writing by all
members, shall be the acts of the Committee. The Committee shall
1.
<PAGE> 2
determine and designate from time to time the persons to whom options shall be
granted, the number of shares to be covered by each option, the option price and
the period of each such option. Subject to the provisions contained in the Plan,
the Committee may from time to time adopt rules and regulations relating to the
administration of the Plan, and the interpretation and construction by the
Committee of the provisions of the Plan shall be final and conclusive.
5. ELIGIBILITY. Options may be granted under the Plan to such
directors, officers and other key employees and consultants of the Company or
its subsidiaries who, in the judgment of the Committee, will perform services of
special importance to the Company in the management, operation and development
of its business or the business of one or more of its subsidiaries.
6. EXERCISE PRICE. The exercise price per share under each option
granted under the Plan shall be determined by the Committee.
7. DURATION OF OPTIONS. Each option granted under the Plan shall
continue in effect for the period fixed by the Committee, except that no option
will be exercisable after the expiration of ten years from the date it is
granted.
8. EXERCISE OF OPTIONS. Except as provided in Sections 9 and 11,
options may be exercised from time to time over the period stated in each option
in such amounts and at such times as shall be prescribed by the Committee in
granting the option, but in all such cases if the optionee does not exercise in
any year the full number of shares to which the optionee is entitled, the
optionee's rights shall be cumulative and the optionee may acquire those shares
in any subsequent year during the term of the option.
9. LIMITATIONS ON RIGHTS TO EXERCISE.
(a) Except as provided in Section 11, no option may be exercised
unless at the time of such exercise the optionee is in the employ of or has a
contractual relationship with the Company or a subsidiary or is a member of the
Company's Board of Directors and shall have been so employed or contractually
related or a member continuously since the date such option was granted. Absence
on leave or on account of illnesses or disability under rules established by the
Committee shall not, however, be deemed an interruption of employment,
contractual relationship or membership on the Board for purposes of the Plan.
(b) An option issued pursuant to the Plan shall be exercisable at
any time pursuant to the terms established by the Committee, subject to the
optionee's making satisfactory arrangements for income tax withholding and
subject to the other restrictions of the Plan.
2.
<PAGE> 3
10. TRANSFERABILITY. Options granted under the Plan and the rights and
privileges conferred by the Plan may not be transferred, assigned, pledged or
hypothecated in any manner (whether by operation of law or otherwise) other than
by will or by applicable laws of descent and distribution, or pursuant to a
qualified domestic relations order as defined by the Internal Revenue Code of
1986, as amended or Title I of the Employment Retirement Income Security Act, or
the rules thereunder, and, except as so provided, shall not be subject to
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of any option or any right or privilege
conferred by the Plan contrary to the provisions hereof, or upon the sale, levy
or any attachment or similar process upon the rights and privileges conferred by
the Plan, such option shall thereupon terminate and become null and void.
11. TERMINATION OF EMPLOYMENT, CONTRACTUAL RELATIONSHIP OR MEMBERSHIP
ON BOARD.
(a) In the event the employment or contractual relationship of
the optionee or his membership on the Board of Directors shall terminate by
retirement or for any reason other than because of death, physical disability or
cause as hereinafter provided, the option may be exercised by the optionee at
any time prior to the expiration date of the option or the expiration of three
months after the date of such termination of employment, contractual
relationship or membership, whichever is the shorter period, but only if and to
the extent the optionee was entitled to exercise the option at the date of such
termination.
(b) In the event of the termination of the optionee's employment
or contractual relationship or membership on the Board of Directors because of
disability, the option may be exercised by the optionee at any time prior to the
expiration date of the option or the expiration of one year after the date of
such termination, whichever is the shorter period, but only if and to the extent
the optionee was entitled to exercise the option at the date of such
termination. For purposes of this Section 11, an optionee will be deemed to be
disabled if the optionee is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or medical impairment which can
be expected to result in death or which has lasted or which can be expected to
last for a continuous period of not less than 12 months.
(c) In the event of the death of an optionee while a member of
the Board of Directors or in the employ of or contractual relationship with the
Company or a subsidiary, the option shall be exercisable on or prior to the
expiration date of the option or the expiration of one year after the date of
such death, whichever is the shorter period, but only if and to the extent the
optionee was entitled to exercise the option at the date of such termination and
only by the person or persons to whom such optionee's rights under
3.
<PAGE> 4
the option shall pass by the optionee's will or by the laws of descent and
distribution of the state or country of the optionee's domicile at the time of
death.
(d) In the event of termination of employment of or contractual
relationship with the optionee for cause, any option granted hereunder shall
automatically terminate as of the first advice or discussion thereof, and such
optionee shall thereupon have no right to purchase any shares pursuant to any
such option. "Termination for cause" shall mean dismissal or termination for
dishonesty, conviction or confession of a crime punishable by law (except minor
violations), intoxication while at work, fraud, misconduct or disclosure of
confidential information.
To the extent that the option of any deceased optionee or of any optionee whose
employment, contractual relationship or membership on the Board is terminated
shall not have been exercised within the limited period above provided, all
further rights to purchase shares pursuant to such option shall cease and
terminate at the expiration of such period.
12. PURCHASE OF SHARES. Shares may be purchased or acquired pursuant
to an option granted hereunder only upon receipt by the Company of notice in
writing from the optionee of the optionee's intention, specifying the number of
shares as to which the optionee desires to exercise the option and the date on
which the optionee desires to complete the transaction, and, unless in the
opinion of counsel for the Company such a representation is not required in
order to comply with the Securities Act of 1933, as amended, containing a
representation that it is the optionee's present intention to acquire the shares
for investment and not with a view to, or in connection with, any distribution
thereof. On or before the date specified for completion of the purchase of
shares pursuant to an option, the optionee must have paid the Company therefor
the full purchase price of said shares in cash or in previously acquired stock
of the Company. No shares shall be issued until full payment therefor has been
made and an optionee shall have none of the rights of a shareholder until shares
are issued to such optionee. Each optionee who has exercised an option shall,
upon notification of the amount due and prior to or concurrently with delivery
of the certificate representing the shares, pay to the Company amounts necessary
to satisfy applicable federal, state and local withholding tax requirements.
13. CHANGES IN CAPITAL STRUCTURE.
(a) Except as provided in subsection (b) below, in the event that
the outstanding shares of Common Stock of the Company are hereafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another corporation, by reason of any
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, combination of shares, or dividend payable in shares, appropriate
adjustment shall be made by the
4.
<PAGE> 5
Committee in the number and kind of shares for the purchase of which options may
be granted under the Plan. In addition, the Committee shall make appropriate
adjustment in the number and kind of shares as to which outstanding options, or
portions thereof then unexercised, shall be exercisable, to the end that the
optionee's proportionate interest shall be maintained as before the occurrence
of such event; such adjustment in outstanding options shall be made without
change in the total price applicable to the unexercised portion of the option
and with a corresponding adjustment in the exercise price per share. Any such
adjustment made by the Committee shall be conclusive.
(b) In the event of dissolution or liquidation of the Company or
a reorganization, merger or consolidation with one or more corporations, in lieu
of providing for options as provided for above in this Section 13, the Committee
of the Company may, in its sole discretion, provide a 30-day period immediately
prior to such event during which optionees shall have the right to exercise
options in whole or in part without any limitations on exercisability, after
which such options shall terminate.
14. AMENDMENT OF PLAN. The Committee may at any time and from time to
time modify or amend this Plan in such respect as it shall deem advisable
because of changes in the law while the Plan is in effect or for any other
reason, provided, however, that except as provided in Section 13 hereof no
change in an option already granted to an optionee shall be made without the
written consent of such optionee, and provided, further, that unless approved
within 12 months after adoption by the Committee, by a vote of shareholders
owning not less than a majority of all shares entitled to vote and represented
at an annual meeting or a special meeting called for the purpose of such
approval, no amendment or change shall be effective in the Plan (a) increasing
the maximum number of shares which may be issued under the Plan, (b) materially
increasing the benefits accruing to participants under the Plan, (c) changing
the class of employees eligible to participate in the Plan, or (d) materially
modifying the eligibility requirements for participation in the Plan.
15. APPROVALS. The obligation of the Company under this Plan shall be
subject to the approval of such state or federal authorities or agencies, if
any, as may have jurisdiction in the matter. Shares shall not be issued with
respect to an option unless the exercise and the issuance and delivery of the
shares shall comply with all relevant provisions of law, including, without
limitation, any applicable state securities laws, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, the Internal Revenue
Code of 1986, as amended, the respective rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. Inability of the Company to obtain from
any regulatory body having jurisdictional authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any shares hereunder
shall relieve the
5.
<PAGE> 6
Company of any liability for the nonissuance or sale of such shares. The Board
may require any action or agreement by an optionee as may from time to time be
necessary to comply with applicable federal and state securities laws. The
Company shall not be obligated to register options or stock granted or purchased
under the Plan.
16. EMPLOYMENT AND CONTRACTUAL RIGHTS. Nothing in this Plan or any
option granted pursuant thereto shall confer upon any optionee any right to be
continued as a member of the Board of Directors or in the employment of or
contractual relationship with the Company or any subsidiary of the Company, or
to interfere in any way with the right of the Company, in its sole discretion,
to terminate such optionee's employment or contractual relationship at any time.
17. ISSUE AND TRANSFER TAXES. The Committee may agree to require
either optionees or the Company to pay issuance or transfer taxes on shares
issued pursuant to the exercise of an option under the Plan.
18. OPTION GRANTS TO NON-EMPLOYEE DIRECTORS.
(a) Each director who is not an employee of the Company (a
"Non-Employee Director") shall, upon becoming a director of the Company (or,
with respect to Non-Employee Directors who do not otherwise hold options to
acquire Common Stock, upon the adoption by the Board of Directors of this
amendment to the Plan) be granted an option to purchase 10,000 shares of the
Company's Common Stock (an "Initial Option") and thereafter, as long as he or
she continues to serve as a director of the Company, shall automatically receive
an annual option to purchase 10,000 shares of Common Stock (an "Annual Option").
The number of shares of Common Stock to be covered by options to be granted
pursuant to this Section 18 shall be subject to adjustment pursuant to Section
13 hereof.
(b) The Date of Grant for each Initial Option shall be the date
of such Director's election or appointment to the Board of Directors of the
Company (or, with respect to Non-Employee Directors who do not otherwise hold
options to acquire Common Stock, upon the adoption by the Board of Directors of
this amendment to the Plan), and the Date of Grant for each Annual Option shall
be the first business day following the date of each annual shareholder meeting
thereafter as long as such Non-Employee Director is then serving as a director
of the Company.
(c) The exercise price of options granted pursuant to this
Section 18 shall be the fair market value of the Common Stock on the Date of
Grant. For the purposes of this Section "fair market value" shall mean (i) if
the Common Stock is listed on a National Securities Exchange, the average of the
high and low prices of the Common Stock on such exchange or such other National
Securities Exchange as shall be
6.
<PAGE> 7
designated by the Committee; or (ii) if the Common Stock is traded in the over
the counter securities market, the last sale price of the Common Stock as quoted
by the Nasdaq National Market, or if the Common Stock is not quoted on the
Nasdaq National Market, the closing bid price of the Common Stock as quoted by
Nasdaq.
(d) Each option granted to a Non-Employee Director pursuant to
this Section 18 shall expire, unless otherwise terminated pursuant to Section
11, ten years from the Date of Grant.
(e) Each option granted pursuant to this Section 18 shall be
fully vested upon the Date of Grant.
(f) The provisions of this Section 18 shall not be amended more
than once every six months, other than to comport with changes in the Internal
Revenue Code of 1986, as amended, the Employee Retirement Income Security Act
("ERISA") or the rules thereunder.
(g) The amendment to the Plan to add this Section 18 shall be
effective immediately, subject to stockholder approval of the amendment at the
next annual meeting of the stockholders of the Company. Any options granted
pursuant to this Section 18 prior to stockholder approval shall be made subject
to such approval.
7.
<PAGE> 1
EXHIBIT 99.7
IMRE CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated [D] is between IMRE Corporation ("Company"), a
Delaware corporation, and [NAME] ("Optionee"). Optionee is a director, officer,
key employee or consultant of the Company and/or its subsidiaries, or such other
person selected by the Company's Board of Directors or the Company's Stock
Option Committee and wishes to have the opportunity to purchase stock of the
Company, and Company wishes to make such stock available as an inducement to
initial and continuing participation of Optionee in the business and affairs of
the Company. Company and Optionee agree:
1. GRANT OF OPTION. The Company on [D] granted to Optionee the right
and option to purchase [SHARES] shares of Common Stock of the Company for a
price of [PRICE] per share, pursuant to the terms and conditions of this
Agreement (the "Option"). This Option is intended to be a nonqualified stock
option.
2. Term of Option. Subject to Section 9, this Option shall expire
on EXPIRE.
3. NON-TRANSFERABLE. This Option is not assignable or transferable
otherwise than by will or applicable laws of descent and distribution, or
pursuant to a qualified domestic relations order as defined by the Internal
Revenue Code of 1986, as amended, or Title 1 of the Employment Retirement Income
Security Act, or the rules thereunder, and except as so provided, shall not be
subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this Option
contrary to the provisions hereof, or upon the sale, levy or any attachment or
similar process upon the rights and privileges conferred hereby, this Option
shall terminate and become null and void.
4. TERMS OF EXERCISE. This Option shall be exercisable with respect
to the number of shares set forth below on and after the respective date(s)
indicated:
<TABLE>
<CAPTION>
Number of Shares Date
---------------- ----
<S> <C>
[NUM] [DT]
</TABLE>
If this Option is exercisable in installments, once exercisable with respect to
a portion of the shares covered by this Option as set forth above, this Option
shall remain exercisable thereafter with respect to such portion until
expiration or termination hereunder.
<PAGE> 2
5. EXERCISE. During Optionee's lifetime this Option may be exercised
only by Optionee. Subject to Sections 4 and 9, this Option may be exercised from
time to time in accordance with the terms of this Agreement by written notice
thereof signed and delivered by Optionee (or, in the case of exercise after
death of Optionee, by the executor, administrator, heir or legatee of Optionee,
as the case may be or, in the case of a qualified domestic relations order, by
the qualified person under the domestic relations order) to the Company at the
address set forth herein for notices to the Company. Such notice shall state the
number of shares as to which this Option is exercised, the date of exercise and
whether payment of the exercise price is to be in cash, by delivery or shares of
the Company's Common Stock owned by Optionee, or by a combination thereof. The
notice shall also state the place and time for completing the purchase of shares
covered by the notice, which time shall be not later than 15 days after the date
of notice. At the date designated for completion of the purchase, payment for
the full exercise price shall be made, in cash, by bank cashier's check, and if
in shares of Common Stock, by delivery of certificates of shares of Common Stock
duly endorsed for transfer. Any shares of Common Stock delivered by Optionee in
full or partial payment for all or part of the exercise price shall be valued at
the average of the publicly reported closing bid and asked price on the last
business day preceding the date the Company receives such notice, or, if there
are no publicly reported prices of the Company's Common Stock, at the fair
market value of such Common Stock, as determined in good faith by the Board of
Directors of the Company.
6. WITHHOLDING. Prior to the delivery of any shares purchased upon
exercise of this Option, the Company shall determine the amount of federal or
state income tax, if any, which is required to be withheld under applicable law
and shall collect from Optionee the amount of any such tax to the extent not
previously withheld.
7. RIGHTS AS SHAREHOLDER. Optionee shall not have any rights as a
shareholder with respect to any shares subject to this Option until the date
that a stock certificate for such shares as to which Optionee has exercised this
Option has been issued to Optionee. The Company shall issue such certificate as
expeditiously as possible.
8. RIGHTS OF OPTIONEE. The grant of this Option, execution of this
Agreement or exercise of any portion of this Option shall not confer upon
Optionee any right to, or guaranty of, continued membership on the Board of
Directors of the Company or the Board of Directors of any of the subsidiaries of
the Company, or employment by or contractual relationship with the Company or
any of its subsidiaries, or in any way limit the right of the Company or such
subsidiaries to terminate employment of or contractual relationship with
Optionee at any time.
2.
<PAGE> 3
9. TERMINATION OF EMPLOYMENT OR CONTRACTUAL RELATIONSHIP OR
MEMBERSHIP ON BOARD, DEATH AND DISABILITY.
(a) In the event the employment or contractual relationship of
the Optionee by or with the Company or a subsidiary or his membership on the
Board of Directors of the Company or on the Board of Directors of any of the
subsidiaries of the Company shall terminate by retirement or for any reason
other than because of death, physical disability or cause as hereinafter
provided, the Option may be exercised by the Optionee at any time prior to the
expiration date of this Option or the expiration of three months after the date
of such termination of employment, contractual relationship or membership,
whichever is the shorter period, but only if and to the extent the Optionee was
entitled to exercise this Option at the date of such termination.
(b) In the event of the termination of the Optionee's employment
or contractual relationship or membership of the Board of Directors of the
Company or on the Board of Directors of any of the subsidiaries of the Company
because of disability (as defined in the Amended and Restated 1988 Nonqualified
Stock Option Plan) this Option may be exercised by the Optionee at any time
prior to its expiration date or the expiration of one year after the date of
such termination, whichever is the shorter period, but only if and to the extent
the Optionee was entitled to exercise this Option at the date of such
termination.
(c) In the event of the death of the Optionee while in the employ
of or contractual relationship with the Company or a subsidiary or while a
member of the Board of Directors of the Company or a member of the Board of
Directors of any of the subsidiaries of the Company, this Option shall be
exercisable at any time prior to the expiration date of this Option or the
expiration of one year after the date of such death, whichever is the shorter
period, but only if and to the extent the Optionee was entitled to exercise this
Option at the date of such termination and only by the person or persons to whom
such Optionee's rights under this Option shall pass by the Optionee's will or by
the laws of descent and distribution of the date or country of the Optionee's
domicile at the time of death.
(d) In the event of termination of the Optionee's employment or
contractual relationship with the Company or any of the subsidiaries of the
Company for cause, this Option shall automatically terminate as of the first
advice or discussion thereof, and the Optionee shall thereupon have no right to
purchase any shares pursuant to this Option. "Termination for cause" shall mean
dismissal for dishonesty, conviction or confession of a crime punishable by law
(except minor violations), intoxication while at work, fraud, misconduct or
disclosure of confidential information.
3.
<PAGE> 4
To the extent that this Option shall not have been exercised within the limited
period above provided, all further rights to purchase shares pursuant to this
Option shall cease and terminate at the expiration of such period.
10. AGREEMENT FOR PURCHASE AND SALE. Upon receipt of notice of
exercise by the Company, this Agreement shall become a contract for the purchase
and sale of the shares specified therein which, except as provided herein, shall
not be subject to termination or rescission by either party. If any law or
regulation, whether relating to securities or otherwise, requires the Company to
take any action with respect to any shares prior to the transfer thereof, or
prohibits, limits or delays the issuance thereof, then the date for payment for
or delivery of such shares, or both, shall be extended for the period reasonably
necessary to take and conclude such action, or during the period of such
prohibition, limitation or delay.
11. SECURITIES LAWS. Upon exercise of the rights granted under this
Agreement, Optionee agrees that Optionee will acquire the shares for investment
only and will not transfer any shares acquired hereunder so as to result in a
distribution in violation of applicable federal and state securities laws.
Optionee understands and agrees that any shares which may be issued pursuant to
this Agreement may have such legends and restrictions thereon and be subject to
such stop-transfer instructions as the Company determines to be necessary or
appropriate, and further agrees to execute such agreements regarding transfer of
such shares as the Company or its counsel may deem advisable. Optionee agrees
that the Company shall not be required to register any shares acquired by
Optionee and that Optionee may be required to hold such shares indefinitely in
the absence of registration or an exemption from registration under the federal
and state securities laws.
12. CHANGES IN CAPITAL STRUCTURE. In the event that the outstanding
shares of Common Stock of the Company are hereafter increased or decreased or
changed into or exchanged for a different number or kind of shares or other
securities of the Company or of another corporation, by reason of any
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, combination of shares, or dividend payable in shares, appropriate
adjustment shall be made by the Board of Directors in the number and kind of
shares as to which this Option shall be exercisable, to the end that Optionee's
proportionate interest shall be maintained as before the occurrence of such
event. Such adjustment in this Option shall be made without change in total
price applicable to the unexercised portion of this Option and with a
corresponding adjustment in the Option price per share. Any such adjustment made
by the Board of Directors shall be conclusive. In the event of any dissolution
or liquidation of the Company, or any reorganization, merger or consolidation
with one or more corporations, in lieu of providing for options as provided for
above in this Section 12, the Company may, in its sole discretion, provide a
30-day period immediately prior to such
4.
<PAGE> 5
event during which the Optionees shall have the right to exercise this Option in
whole or in part without any limitations on exercisability.
13. RESERVATION OF SHARES. The Company shall set aside and reserve for
the term of this Option that number of shares of Common Stock of the Company (or
shares or other securities arising as a result of any adjustments set forth in
Section 12) which will permit the Company to perform its obligations under this
Option.
14. NOTICES. Any notice or demand which either party may give to
the other hereunder shall be in writing and shall be effective when delivered
personally or sent by registrated mail, postage prepaid, addressed, if to
Optionee, as follows:
{Name}
--------------------------
--------------------------
--------------------------
and, if to the Company, as follows:
IMRE Corporation
401 Queen Anne Avenue North
Seattle, Washington 98109-4517
Attention: Chief Executive Officer
Either party may, by notice in writing, direct that future notices or demands be
sent to a different address.
15. THE PLAN. This Agreement hereby incorporates by reference all of
the provisions of the IMRE Corporation Amended and Restated 1988 Nonqualified
Stock Option Plan (the "Plan"), and shall in all respects be interpreted and
construed in such manner as to effectuate the intent of the Plan. In the event
of a conflict between the terms of this Agreement and the Plan, the terms of the
Plan shall prevail. All matters of interpretation of the Plan and this
Agreement, including the terms and conditions thereof and hereof and the
definitions of the words used therein and herein, shall be the sole and final
discretion of the Board of Directors of the Company or designated committee of
the Board of Directors.
16. GOVERNING LAW. This Option shall be governed by the laws of the
State of Washington.
17. [CHANGE IN CONTROL. If at any time there is a Change in Control
(as defined below) of the Company, all Options shall accelerate and become fully
vested and immediately exercisable for the duration of the Option term. For
purposes of this
5.
<PAGE> 6
section 17, "Change in Control" shall mean either one of the following: (i) When
any "person," as such term is used in Section 13(d) and 14(d) of the Exchange
Act (other than a shareholder of the Company on the date of the grant of the
Option, the Company, a subsidiary of the Company, Allen & Company, Incorporated,
or an employee benefit plan of the Company, including any trustees of such plan
acting as trustees) becomes, after the date of the grant of the Option, the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing greater than fifty
percent (50%) or more of the combined voting power of the Company's then
outstanding securities; or (ii) the occurrence of a transaction requiring
shareholder approval, and involving the sale of all or substantially all of the
assets of the Company or the merger of the Company with or into another
corporation.]
IMRE CORPORATION
By:
---------------------------------
Its:
---------------------------
{OPTIONEE}
------------------------------------
------------------------------------
{Address of Optionee}
<PAGE> 1
EXHIBIT 99.8
IMRE CORPORATION
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of "D" by and between IMRE Corporation, a
Delaware corporation (the "Company"), and "GRANTEE" , (the "Grantee");
WHEREAS, the Board of Directors of the Company has determined to grant
to Grantee the stock options provided for in this Agreement, on the terms and
conditions set forth below:
NOW, THEREFORE, the parties agree as follows:
1. The company hereby grants to Grantee an option (the "Option") to
purchase all or part of "SHARES" shares (the "Shares") of Common Stock of the
Company, $.02 par value (the "Common Stock"), for cash at a price of "PRICE" per
Share.
The Option shall be exercisable with respect to the number of
Shares set forth below on and after the respective date(s) indicated:
<TABLE>
Number of Shares Date
---------------- ----
<C> <C>
"NUM" "DT"
</TABLE>
The Option shall remain exercisable (except as provided in Paragraphs 4 and 5)
as to all of such Shares until and including the "ANN" anniversary of the date
of this Agreement, provided that Grantee is then and has continuously been an
employee of the Company subject, however, to the provisions of Paragraphs 4 and
5. The Option may be exercised at any time after the above exercise date(s)
until the expiration or termination of the Option, except that any Grantee who
is subject to Section 16(b) of the Securities Exchange Act of 1934 (the "1934
Act") may not exercise at any time except during the period beginning on the
third business day following the date of release of the Company's quarterly or
annual financial statements and ending on the twelfth business day following
such date in accordance with Rule 16b-3 under the 1934 Act.
2. The term of the Option shall expire on "EXPIRE", the "ANN"
anniversary of the date of this Agreement, unless such Option had been
previously terminated in accordance with the provisions set forth in this
document.
3. The Option may be exercised by written notice delivered to the
Company (Attention: Corporate Secretary) stating the number of shares with
respect to which the Option is then being exercised, together with cash in the
amount of the purchase price of such Shares, and the written statement provided
for the Paragraph 7, if required by said
1.
<PAGE> 2
Paragraph 7. The Option may not be exercised to purchase fractional Shares or
less than ten whole Shares.
4. If Grantee shall cease to be employed by the Company for any reason
other than his/her death, Grantee shall have the right, at any time within 30
(thirty) days after such cessation of such retention, to exercise the Option
only to the extent of the exercisable rights, if any, which had accrued as of
the date of such cessation; provided, that all rights under this Option
Agreement shall expire in any event on the day specified in Paragraph 2.
5. The Option shall not be assignable or transferable except by will or
by the laws of descent and distribution and shall, during Grantee's lifetime, be
exercisable only by Grantee. If Grantee should die while employed by the Company
or during the 30-day period referred to in Paragraph 4, the person or persons to
whom Grantee's rights under the Option shall have passed by will or by the laws
of descent and distribution shall have the right, at any time within 3 (three)
months after the date of Grantee's death, to exercise the Option to the same
extent as Grantee might have done on the date of his/her death; provided that
all rights under this Option shall expire in any event on the day specified in
Paragraph 2.
6. Grantee shall have no rights or privileges incident to stock
ownership as to any Shares covered by the Option until the date of issuance to
him/her of a stock certificate or certificates covering such Shares. No
dividends will be paid or other rights distributed to Grantee as to which the
record date is prior to the date such stock certificate or certificates are
issued.
7. Grantee represents and agrees that if he/she exercises the Option in
whole or in part, at a time when (i) there is not in effect a registration
statement under the Securities Act of 1933 (the "Act"), as amended, covering the
exercise of the Option and permitting the resale to the public of the Shares
purchased or received thereby or (ii) if required, there is not available for
delivery a prospectus meeting the requirements of Section 10(a)(3) of the Act,
(a) that the Shares acquired are being acquired for investment and not with a
view to the distribution thereof, (b) that such Shares acquired may not be sold
unless registered for sale under the Act or pursuant to an exemption from such
registration, and (c) that the certificates evidencing such Shares will bear a
legend to the effect of clauses (a) and (b). Grantee further agrees that upon
such exercise of the Option if requested by the Company, he/she will furnish to
the Company a signed Certificate of Investment Intent to the effect set forth in
clauses (a) through (c) of this paragraph, in such form as may be satisfactory
to the Company. Any person or persons entitled to exercise the Option under the
provisions of Paragraph 5 shall, upon each exercise of the Option, furnish to
the Company a written statement to the same effect, satisfactory to the Company
in form and substance.
2.
<PAGE> 3
8. In the event of any changes in the outstanding Common Stock by
reason of a stock dividend, recapitalization, merger, consolidation, split-up,
combination, exchange of shares, or the like, the number and class of shares
subject to the Option and/or the exercise price thereof shall be appropriately
adjusted by the Board of Directors of the Company, whose determination shall be
conclusive, and if, in connection with any merger, consolidation, or sale or
transfer by the Company of substantially all of its assets, the Option is not
assumed by the surviving corporation or the purchaser, the date of termination
of the Option, and the date on which any portion of the Option not then
exercisable may be exercised, shall be advanced to a date to be fixed by the
Board of Directors, which date shall be not more than 15 (fifteen) days prior
date to such merger, consolidation, or sale or transfer.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as
of the date first above written
IMRE CORPORATION
By:
----------------------------
President
GRANTEE
----------------------------
Signature of Grantee
----------------------------
Name of Grantee
----------------------------
Address of Grantee
----------------------------
3.
