<PAGE>
As filed with the Securities and Exchange Commission on May 3, 1995
REGISTRATION NO. 33-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IMMUNEX CORPORATION
(Exact name of Registrant as specified in its charter)
Washington 51-0346580
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
51 University Street
Seattle, Washington 98101
(Address of Principal Executive Offices)(Zip Code)
IMMUNEX CORPORATION
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
(Full title of the plan)
SCOTT G. HALLQUIST
Senior Vice President and General Counsel
IMMUNEX CORPORATION
51 University Street
Seattle, Washington 98101
(206) 587-0430
(Name, address and telephone number of agent for service)
-------------------
Copy to:
STEPHEN M. GRAHAM
PERKINS COIE
1201 Third Avenue, 40th Floor
Seattle, Washington 98101-3099
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CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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Title of Securities Number to Be Proposed Maximum Proposed Maximum Amount of
to Be Registered Registered Offering Price Per Share(1) Aggregate Offering Price(1) Registration Fee
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Common Stock, par value
$.01 per share. . . . . . . . . 5,000,000(2) $11.875 $59,375,000 $20,474
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<FN>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
amount of the registration fee. The price per share is estimated to be
$11.875 based on the average of the high and low price for the Common Stock
in the over-the-counter market on April 28, 1995, as reported by the Nasdaq
National Market.
(2) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Immunex Corporation Amended and Restated 1993 Stock Option Plan as the
result of any future stock split, stock dividend or similar adjustment of
the outstanding Common Stock of the Company.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1994, which contains audited financial statements for the
most recent year for which such statements have been filed;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the Annual Report
referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed with the Commission on May 12,
1983, under Section 12 of the Exchange Act, including any amendments or reports
filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities covered hereby then
remaining unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Under the WBCA, a corporation has the power to indemnify a
director or officer made a party to a proceeding, or advance or reimburse
expenses incurred in a proceeding, under any circumstances, except that no such
indemnification shall be allowed on account of: (i) acts or omissions of a
director or officer finally adjudged to be intentional misconduct or a knowing
violation of the law; (ii) conduct of a director or officer finally adjudged to
be an unlawful distribution; or (iii) any transaction with respect to which it
was finally adjudged that such director or officer personally received a benefit
in money, property or services to which the director or officer was not legally
entitled. Article XII of Immunex Corporation's Articles of Incorporation
provide for indemnification of Immunex's directors and officers to the maximum
extent permitted by Washington law.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, self dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article XI of Immunex Corporation's Articles of Incorporation
contains provisions implementing, to the fullest extent permitted by Washington
law, such limitations on a director's liability to Immunex and its shareholders.
Any amendment or repeal of such Article XI may not adversely affect any right or
protection of a director of Immunex for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal. The affirmative
vote of 80% of the voting stock of Immunex is required to amend, or to adopt any
provision inconsistent with, such Article XI.
II-1
<PAGE>
IMMUNEX HAS ENTERED INTO SEPARATE INDEMNIFICATION AGREEMENTS WITH EACH OF
ITS DIRECTORS AND OFFICERS CONTAINING PROVISIONS THAT ARE IN SOME RESPECTS
BROADER THAN THE SPECIFIC INDEMNIFICATION PROVISIONS CONTAINED IN THE WBCA.
THESE AGREEMENTS REQUIRE IMMUNEX, AMONG OTHER THINGS, TO INDEMNIFY SUCH
DIRECTORS AND OFFICERS AGAINST CERTAIN LIABILITIES THAT MAY ARISE BY REASON OF
THEIR STATUS OR SERVICE AS DIRECTORS OR OFFICERS, AND TO ADVANCE THEIR EXPENSES
INCURRED AS A RESULT OF ANY PROCEEDING AGAINST THEM AS TO WHICH THEY COULD BE
INDEMNIFIED.
Directors and officers of Immunex are covered by insurance (with certain
exceptions and limitations) which indemnifies them against losses and
liabilities arising from certain alleged "wrongful acts," including alleged
errors or misstatements or misleading statements, or certain other alleged
wrongful acts or omission constituting neglect or breach of duty.
ITEM 8. EXHIBITS
Exhibit
Number Description
- ------------- -----------------------------------------------------------------
4.1 Immunex Corporation Amended and Restated 1993 Stock Option Plan
5.1 Opinion of Perkins Coie regarding legality of the Common Stock
being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Perkins Coie (included in opinion filed as Exhibit 5.1)
24.1 Powers of Attorney (see Signature Page)
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement; and
(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 this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Seattle, State of Washington, on the 26th day of
April, 1995.
IMMUNEX CORPORATION
By SCOTT G. HALLQUIST
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Scott G. Hallquist, Senior Vice President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Douglas G. Southern and Scott G. Hallquist, or either of them, his or her
attorneys-in-fact, with the power of substitution, for him or her in any and all
capacities, to sign any amendments to this Registration Statement, and to file
the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact, or their substitute or substitutes, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
the 26th day of April, 1995 in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
EDWARD V. FRITZKY Chairman and Chief Executive Officer (Principal
- ------------------------------------------ Executive Officer)
Edward V. Fritzky
DOUGLAS G. SOUTHERN Senior Vice President and Chief Financial Officer
- ------------------------------------------ (Principal Financial and Accounting Officer)
Douglas G. Southern
JOSEPH J. CARR Director
- ------------------------------------------
Joseph J. Carr
KIRBY L. CRAMER, SR. Director
- ------------------------------------------
Kirby L. Cramer, Sr.
Director
- ------------------------------------------
Robert A. Essner
STEVEN GILLIS Director
- ------------------------------------------
Steven Gillis
MICHAEL L. KRANDA Director
- ------------------------------------------
Michael L. Kranda
JOHN E. LYONS Director
- ------------------------------------------
John E. Lyons
EDITH W. MARTIN Director
- ------------------------------------------
Edith W. Martin
</TABLE>
II-4
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the Immunex Corporation Amended and Restated 1993
Stock Option Plan of our report dated January 20, 1995, with respect to the
consolidated financial statements and schedule of Immunex Corporation included
in its Annual Report (Form 10-K) for the year ended December 31, 1994, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Seattle, Washington
May 1, 1995
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
-------------- ----------------------------------------------------------------
<S> <C>
4.1 Immunex Corporation Amended and Restated 1993 Stock Option Plan
5.1 Opinion of Perkins Coie regarding legality of the Common Stock
being registered . . . . . . . . . . . . . . . . . . . . . . . .
23.1 Consent of Ernst & Young LLP (see Page II-5) . . . . . . . . . .
23.2 Consent of Perkins Coie (included in Exhibit 5.1). . . . . . . .
24.1 Power of Attorney (see Signature Page) . . . . . . . . . . . . .
</TABLE>
<PAGE>
EXHIBIT 4.1
<PAGE>
IMMUNEX CORPORATION
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purpose of the Amended and Restated 1993 Stock Option Plan (this
"Plan") is to provide a means whereby selected employees, directors and officers
of Immunex Corporation (the "Company"), or of any parent or subsidiary (as
defined in subsection 5.8 and referred to hereinafter as "related corporations")
thereof, may be granted incentive stock options and/or nonqualified stock
options to purchase the Common Stock (as defined in Section 3) of the Company,
in order to attract and retain the services or advice of such employees,
directors and officers and to provide added incentive to such persons by
encouraging stock ownership in the Company.
SECTION 2. ADMINISTRATION
This Plan shall be administered by a Stock Option Plan Administration
Committee (the "Committee") appointed by the Board of Directors of the Company
(the "Board"). The Committee shall be composed of two or more members of the
Board who are "disinterested persons" as defined in Rule 16b-3(d) of the
Securities Exchange Act of 1934, as amended from time to time (the "Exchange
Act"). The administrator of this Plan shall hereinafter be referred to as the
"Plan Administrator."
2.1 PROCEDURES
The Board shall designate one of the members of the Plan Administrator as
chairman. The Plan Administrator may hold meetings at such times and places as
it shall determine. The acts of a majority of the members of the Plan
Administrator present at meetings at which a quorum exists, or acts reduced to
or approved in writing by all Plan Administrator members, shall be valid acts of
the Plan Administrator.
2.2 RESPONSIBILITIES
Except for the terms and conditions explicitly set forth in this Plan, the
Plan Administrator shall have the authority, in its discretion, to determine all
matters relating to the options to be granted under this Plan, including
selection of the individuals to be granted options, the number of shares to be
subject to each option, the exercise price, and all other terms and conditions
of the options. Grants under this Plan need not be identical in any respect,
even when made simultaneously. The interpretation and construction by the
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<PAGE>
Plan Administrator of any terms or provisions of this Plan or any option issued
hereunder, or of any rule or regulation promulgated in connection herewith,
shall be conclusive and binding on all interested parties, so long as such
interpretation and construction with respect to incentive stock options
correspond to the requirements of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), the regulations thereunder and any amendments
thereto.
2.3 SECTION 16(B) COMPLIANCE AND BIFURCATION OF PLAN
It is the intention of the Company that, if any of the Company's equity
securities are registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, this Plan shall comply in all respects with Rule 16b-3 under the Exchange
Act and, if any Plan provision is later found not to be in compliance with such
Section, the provision shall be deemed null and void, and in all events this
Plan shall be construed in favor of its meeting the requirements of Rule 16b-3.
Notwithstanding anything in this Plan to the contrary, the Board, in its
absolute discretion, may bifurcate this Plan so as to restrict, limit or
condition the use of any provision of this Plan to participants who are officers
and directors subject to Section 16 of the Exchange Act without so restricting,
limiting or conditioning this Plan with respect to other participants.
SECTION 3. STOCK SUBJECT TO THIS PLAN
The stock subject to this Plan shall be the Company's Common Stock, par
value $.01 per share (the "Common Stock"), presently authorized but unissued
or now held or subsequently acquired by the Company as treasury shares. Subject
to adjustment as provided in Section 7, the aggregate amount of Common Stock to
be delivered upon the exercise of all options granted under this Plan shall not
exceed 6,225,267 shares. If any option granted under this Plan shall expire or
be surrendered, exchanged for another option, cancelled or terminated for any
reason without having been exercised in full, the unpurchased shares subject
thereto shall thereupon again be available for purposes of this Plan, including
for replacement options which may be granted in exchange for such expired,
surrendered, exchanged, cancelled or terminated options.
SECTION 4. ELIGIBILITY
An incentive stock option may be granted only to any individual who, at the
time the option is granted, is an employee of the Company or any related
corporation. A nonqualified stock option may be granted to any employee,
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<PAGE>
director or officer of the Company or any related corporation, whether an
individual or an entity. Any party to whom an option is granted under this Plan
shall be referred to hereinafter as an "Optionee."
SECTION 5. TERMS AND CONDITIONS OF OPTIONS
Options granted under this Plan shall be evidenced by written agreements
which shall contain such terms, conditions, limitations and restrictions as the
Plan Administrator shall deem advisable and which are not inconsistent with this
Plan. Notwithstanding the foregoing, options shall include or incorporate by
reference the following terms and conditions:
5.1 NUMBER OF SHARES AND PRICE
The maximum number of shares that may be purchased pursuant to the exercise
of each option and the price per share at which such option is exercisable (the
"exercise price") shall be as established by the Plan Administrator, provided
that the Plan Administrator shall act in good faith to establish the exercise
price which shall be not less than the fair market value per share of the Common
Stock at the time the option is granted with respect to incentive stock options
and not less than the par value per share of the Common Stock at the time the
option is granted with respect to nonqualified stock options and also provided
that, with respect to incentive stock options granted to greater than 10%
stockholders, the exercise price shall be as required by subsection 6.1.
5.2 TERM AND MATURITY
Subject to the restrictions contained in Section 6 with respect to granting
incentive stock options to greater than 10% stockholders, the term of each
incentive stock option shall be as established by the Plan Administrator and, if
not so established, shall be 10 years from the date it is granted but in no
event shall it exceed 10 years. The term of each nonqualified stock option
shall be as established by the Plan Administrator and, if not so established,
shall be 10 years. To ensure that the Company or related corporation will
achieve the purpose and receive the benefits contemplated in this Plan, any
option granted to any Optionee hereunder shall, unless the condition of this
sentence is waived or modified in the agreement evidencing the option or by
resolution adopted at any time by the Plan Administrator, be exercisable
according to the following schedule:
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<PAGE>
Period of Optionee's
Continuous Relationship
With the Company or Related
Corporation From the Date Portion of Total Option
the Option Is Granted Which Is Exercisable
- ---------------------------- ---------------------------------
after one year 20%
after two years 40%
after three years 60%
after four years 80%
after five years 100%
5.3 EXERCISE
Subject to the vesting schedule described in subsection 5.2, each option
may be exercised in whole or in part at any time and from time to time;
provided, however, that no fewer than 20% of the shares purchasable under the
option (or the remaining shares then purchasable under the option, if less than
20%) may be purchased upon any exercise of option rights hereunder and that only
whole shares will be issued pursuant to the exercise of any option and that the
exercise price shall not be less than the par value per share of the Common
Stock at the time the option is exercised. During an Optionee's lifetime, any
options granted under this Plan are personal to him or her and are exercisable
solely by such Optionee. Options shall be exercised by delivery to the Company
of notice of the number of shares with respect to which the option is exercised,
together with payment of the exercise price.
5.4 PAYMENT OF EXERCISE PRICE
Payment of the option exercise price shall be made in full at the time the
notice of exercise of the option is delivered to the Company and shall be in
cash, bank certified or cashier's check or personal check (unless at the time of
exercise the Plan Administrator in a particular case determines not to accept a
personal check) for the Common Stock being purchased.
The Plan Administrator can determine at any time before exercise that
additional forms of payment will be permitted. To the extent permitted by the
Plan Administrator and applicable laws and regulations (including, but not
limited to, federal tax and securities laws and regulations and state corporate
law), an option may be exercised by:
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<PAGE>
(a) delivery of shares of stock of the Company held by an Optionee
having a fair market value equal to the exercise price, such fair market value
to be determined in good faith by the Plan Administrator; provided, however,
that payment in stock held by an Optionee shall not be made unless the stock
shall have been owned by the Optionee for a period of at least six months;
(b) delivery of a full-recourse promissory note executed by the
Optionee in an amount which shall not exceed that portion of the exercise price
which is in excess of the amount determined to be stated capital pursuant to
Section 154 of the Delaware General Corporation Law; provided that (i) such note
delivered in connection with an incentive stock option shall, and such note
delivered in connection with a nonqualified stock option may, in the sole
discretion of the Plan Administrator, bear interest at a rate specified by the
Plan Administrator but in no case less than the rate required to avoid
imputation of interest (taking into account any exceptions to the imputed
interest rules) for federal income tax purposes, and (ii) the Plan Administrator
in its sole discretion shall specify the term and other provisions of such note
at the time an incentive stock option is granted or at any time prior to
exercise of a nonqualified stock option, and (iii) the Plan Administrator may
require that the Optionee pledge the Optionee's shares to the Company for the
purpose of securing the payment of such note and may require that the
certificate representing such shares be held in escrow in order to perfect the
Company's security interest, and (iv) the Plan Administrator in its sole
discretion may at any time restrict or rescind this right upon notification to
the Optionee;
(c) delivery of a properly executed exercise notice, together with
irrevocable instructions to a broker, all in accordance with the regulations of
the Federal Reserve Board, to promptly deliver to the Company the amount of sale
or loan proceeds to pay the exercise price and any federal, state or local
withholding tax obligations that may arise in connection with the exercise.
5.5 WITHHOLDING TAX REQUIREMENT
The Company or any related corporation shall have the right to retain and
withhold from any payment of cash or Common Stock under this Plan the amount of
taxes required by any government to be withheld or otherwise deducted and paid
with respect to such payment. At its discretion, the Company may require an
Optionee receiving shares of Common Stock to reimburse the Company for any such
taxes required to be withheld by the Company and withhold any distribution in
whole or in part until the Company is so reimbursed. In lieu
-5-
<PAGE>
thereof, the Company shall have the right to withhold from any other cash
amounts due or to become due from the Company to the Optionee an amount equal to
such taxes. The Company may also retain and withhold or the Optionee may elect,
subject to approval by the Company at its sole discretion, to have the Company
retain and withhold a number of shares having a market value not less than the
amount of such taxes required to be withheld by the Company to reimburse the
Company for any such taxes and cancel (in whole or in part) any such shares so
withheld. In order to qualify such election for exemption under Rule 16b-3
promulgated under Section 16(b) of the Exchange Act, any election made by an
officer or director who is subject to Section 16 of the Exchange Act must be an
irrevocable election made six months prior to the date the option exercise
becomes taxable or such irrevocable election must become effective during the
quarterly 10-day window period required under Section 16(b) of the Exchange Act
for exercises of stock appreciation rights.
5.6 HOLDING PERIODS
5.6.1 SECURITIES EXCHANGE ACT SECTION 16
No director or officer subject to Section 16(b) of the Exchange Act may
sell shares of Common Stock obtained upon the exercise of a stock option within
six months after the date the option was granted.
5.6.2 TAXATION OF STOCK OPTIONS
The Plan Administrator may require an Optionee to give the Company prompt
notice of any disposition of shares of Common Stock acquired by the exercise of
an incentive stock option prior to the expiration of two years after the date of
grant of the option and one year from the date of exercise.
5.7 NONTRANSFERABILITY OF OPTIONS
Options granted under this Plan and the rights and privileges conferred
hereby may not be transferred, assigned, pledged or hypothecated in any manner
(whether by operation of law or otherwise) other than by will or by the
applicable laws of descent and distribution and shall not be subject to
execution, attachment or similar process. Any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of any option under this Plan or of any
right or privilege conferred hereby, contrary to the Code or to the provisions
of this Plan, or the sale or levy or any attachment or similar process upon the
rights and privileges conferred hereby shall be null and void. Notwithstanding
the foregoing, if the Company permits, an Optionee may, during the Optionee's
lifetime, designate a person who may exercise the option after
-6-
<PAGE>
the Optionee's death by giving written notice of such designation to the Plan
Administrator. Such designation may be changed from time to time by the
Optionee by giving written notice to the Plan Administrator revoking any earlier
designation and making a new designation.
5.8 TERMINATION OF RELATIONSHIP
If the Optionee's relationship with the Company or any related corporation
ceases for any reason other than termination for cause, death or total
disability, and unless by its terms the option sooner terminates or expires,
then the Optionee may exercise, for a three-month period, that portion of the
Optionee's option which is exercisable at the time of such cessation, but the
Optionee's option shall terminate at the end of such period following such
cessation as to all shares for which it has not theretofore been exercised,
unless such provision is waived in the agreement evidencing the option. If, in
the case of an incentive stock option, an Optionee's relationship with the
Company or any related corporation changes (I.E., from employee to nonemployee,
such as a consultant), such change shall constitute a termination of an
Optionee's employment with the Company or any related corporation and the
Optionee's incentive stock option shall terminate in accordance with this
subsection 5.8. Upon the expiration of the three-month period following
cessation of employment in the case of an incentive stock option, or at any time
prior to the expiration of the option in the case of a nonqualified stock
option, the Plan Administrator shall have sole discretion in a particular
circumstance to extend the exercise period following such cessation to any date
up to the termination or expiration of the option. If, however, in the case of
an incentive stock option, the Optionee does not exercise the Optionee's option
within three months after cessation of employment, the option will no longer
qualify as an incentive stock option under the Code.
If an Optionee is terminated for cause, any option granted hereunder shall
automatically terminate as of the first discovery by the Company of any reason
for termination for cause, and such Optionee shall thereupon have no right to
purchase any shares pursuant to such option. "Termination for cause" shall mean
dismissal for dishonesty, conviction or confession of a crime punishable by law
(except minor violations), fraud, misconduct or disclosure of confidential
information.
If an Optionee's relationship with the Company or any related corporation
is suspended pending an investigation of whether or not the Optionee shall be
terminated for cause, all the Optionee's rights under any option granted
hereunder
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<PAGE>
likewise shall be suspended during the period of investigation.
If an Optionee's relationship with the Company or any related corporation
ceases because of a total disability, the Optionee's option shall not terminate
or, in the case of an incentive stock option, cease to be treated as an
incentive stock option until the end of the 12-month period following such
cessation (unless by its terms it sooner terminates and expires). As used in
this Plan, the term "total disability" refers to a mental or physical impairment
of the Optionee which is expected to result in death or which has lasted or is
expected to last for a continuous period of 12 months or more and which causes
the Optionee to be unable, in the opinion of the Company and two independent
physicians, to perform his or her duties for the Company and to be engaged in
any substantial gainful activity. Total disability shall be deemed to have
occurred on the first day after the Company and the two independent physicians
have furnished their opinion of total disability to the Plan Administrator.
Options granted under the Plan shall not be affected by any change of
relationship with the Company so long as the Optionee continues to be an
employee, director, officer, agent, consultant, advisor or independent
contractor of the Company or of a related corporation; however, a change in an
Optionee's status from an employee to a nonemployee (e.g., consultant or
independent contractor) shall result in the termination of an outstanding
incentive stock option held by such Optionee. The Plan Administrator, in its
absolute discretion, may determine all questions of whether particular leaves of
absence constitute a termination of services; provided, however, that with
respect to incentive stock options, such determination shall be subject to any
requirements contained in the Code. The foregoing notwithstanding, with respect
to incentive stock options, employment shall not be deemed to continue beyond
the first 90 days of such leave, unless the Optionee's reemployment rights are
guaranteed by statute or by contract.
As used herein, the term "related corporation," when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in,
at the time of the granting of the option, an unbroken chain of corporations
ending with the Company, if stock possessing 50% or more of the total combined
voting power of all classes of stock of each of the corporations other than the
Company is owned by one of the other corporations in such chain. When referring
to a parent corporation, the term "related corporation" shall mean any
corporation in an unbroken chain of corporations ending with the Company if, at
the time of the granting of the option, each of the corporations other than the
Company owns
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stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
5.9 DEATH OF OPTIONEE
If an Optionee dies while he or she has a relationship with the Company or
any related corporation or within the three-month period (or 12-month period in
the case of totally disabled Optionees) following cessation of such
relationship, any option held by such Optionee to the extent that the Optionee
would have been entitled to exercise such option, may be exercised within one
year after his or her death by the personal representative of his or her estate
or by the person or persons to whom the Optionee's rights under the option shall
pass by will or by the applicable laws of descent and distribution.
5.10 NO STATUS AS STOCKHOLDER
Neither the Optionee nor any party to which the Optionee's rights and
privileges under the option may pass shall be, or have any of the rights or
privileges of, a stockholder of the Company with respect to any of the shares
issuable upon the exercise of any option granted under this Plan unless and
until such option has been exercised.
5.11 CONTINUATION OF RELATIONSHIP
Nothing in this Plan or in any option granted pursuant to this Plan shall
confer upon any Optionee any right to continue in the employ or other
relationship of the Company or of a related corporation, or to interfere in any
way with the right of the Company or of any such related corporation to
terminate his or her employment or other relationship with the Company at any
time.
5.12 MODIFICATION AND AMENDMENT OF OPTION
Subject to the requirements of Code Section 422 with respect to incentive
stock options and to the terms and conditions and within the limitations of this
Plan, the Plan Administrator may modify or amend outstanding options granted
under this Plan. The modification or amendment of an outstanding option shall
not, without the consent of the Optionee, impair or diminish any of his or her
rights or any of the obligations of the Company under such option. Except as
otherwise provided in this Plan, no outstanding option shall be terminated
without the consent of the Optionee. Unless the Optionee agrees otherwise, any
changes or adjustments made to outstanding incentive stock options granted under
this Plan shall be made in such a manner so as
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not to constitute a "modification" as defined in Code Section 424(h) and so as
not to cause any incentive stock option issued hereunder to fail to continue to
qualify as an incentive stock option as defined in Code Section 422(b).
5.13 LIMITATION ON VALUE FOR INCENTIVE STOCK OPTIONS
As to all incentive stock options granted under the terms of this Plan, to
the extent that the aggregate fair market value of the stock (determined at the
time the incentive stock option is granted) with respect to which incentive
stock options are exercisable for the first time by the Optionee during any
calendar year (under this Plan and all other incentive stock option plans of the
Company, a related corporation or a predecessor corporation) exceeds $100,000,
such options shall be treated as nonqualified stock options. The previous
sentence shall not apply if the Internal Revenue Service issues a public rule,
issues a private ruling to the Company, any Optionee or any legatee, personal
representative or distributee of an Optionee or issues regulations changing or
eliminating such annual limit.
SECTION 6. GREATER THAN 10% STOCKHOLDERS
6.1 EXERCISE PRICE AND TERM OF INCENTIVE STOCK OPTIONS
If incentive stock options are granted under this Plan to employees who own
more than 10% of the total combined voting power of all classes of stock of the
Company or any related corporation, the term of such incentive stock options
shall not exceed five years and the exercise price shall be not less than 110%
of the fair market value of the Common Stock at the time the incentive stock
option is granted. This provision shall control notwithstanding any contrary
terms contained in an option agreement or any other document.
6.2 ATTRIBUTION RULE
For purposes of subsection 6.1, in determining stock ownership, an employee
shall be deemed to own the stock owned, directly or indirectly, by or for his or
her brothers, sisters, spouse, ancestors and lineal descendants. Stock owned,
directly or indirectly, by or for a corporation, partnership, estate or trust
shall be deemed to be owned proportionately by or for its stockholders, partners
or beneficiaries. If an employee or a person related to the employee owns an
unexercised option or warrant to purchase stock of the Company, the stock
subject to that portion of the option or warrant which is unexercised shall not
be counted in determining stock ownership. For purposes of this Section 6,
stock owned by an employee shall include all stock actually
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issued and outstanding immediately before the grant of the incentive stock
option to the employee.
SECTION 7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
The aggregate number and class of shares for which options may be granted
under this Plan, the number and class of shares covered by each outstanding
option and the exercise price per share thereof (but not the total price), and
each such option, shall all be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock of the Company resulting
from a split-up or consolidation of shares or any like capital adjustment, or
the payment of any stock dividend.
7.1 EFFECT OF LIQUIDATION OR REORGANIZATION
7.1.1 CASH, STOCK OR OTHER PROPERTY FOR STOCK
Except as provided in subsection 7.1.2, upon a merger (other than a merger
of the Company in which the holders of Common Stock immediately prior to the
merger have the same proportionate ownership of Common Stock in the surviving
corporation immediately after the merger), consolidation, acquisition of
property or stock, separation, reorganization (other than a mere reincorporation
or the creation of a holding company) or liquidation of the Company, as a result
of which the stockholders of the Company receive cash, stock or other property
in exchange for or in connection with their shares of Common Stock, any option
granted hereunder shall terminate, but the Optionee shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation to exercise such Optionee's
option in whole or in part whether or not the vesting requirements set forth in
the option agreement have been satisfied.
7.1.2 CONVERSION OF OPTIONS ON STOCK FOR STOCK EXCHANGE
If the stockholders of the Company receive capital stock of another
corporation ("Exchange Stock") in exchange for their shares of Common Stock in
any transaction involving a merger (other than a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation
or reorganization (other than a mere reincorporation or the creation of a
holding company), the Company and the corporation issuing the Exchange Stock, in
their sole discretion, may determine that all options granted hereunder
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shall be converted into options to purchase shares of Exchange Stock instead of
terminating in accordance with the provisions of subsection 7.1.1. The amount
and price of converted options shall be determined by adjusting the amount and
price of the options granted hereunder in the same proportion as used for
determining the number of shares of Exchange Stock the holders of the Common
Stock receive in such merger, consolidation, acquisition of property or stock,
separation or reorganization. Unless accelerated by the Board, the vesting
schedule set forth in the option agreement shall continue to apply to the
options granted for the Exchange Stock.
7.2 FRACTIONAL SHARES
In the event of any adjustment in the number of shares covered by any
option, any fractional shares resulting from such adjustment shall be
disregarded and each such option shall cover only the number of full shares
resulting from such adjustment.
7.3 DETERMINATION OF BOARD TO BE FINAL
All Section 7 adjustments shall be made by the Plan Administrator, and its
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. Unless an Optionee agrees otherwise,
any change or adjustment to an incentive stock option shall be made in such a
manner so as not to constitute a "modification" as defined in Code
Section 424(h) and so as not to cause his or her incentive stock option issued
hereunder to fail to continue to qualify as an incentive stock option as defined
in Code Section 422(b).
SECTION 8. SECURITIES REGULATION
Shares shall not be issued with respect to an option granted under this
Plan unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, any applicable state securities laws, the
Securities Act of 1933, as amended, the Exchange Act, the 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, including the
availability of an exemption from registration for the issuance and sale of any
shares hereunder. Inability of the Company to obtain from any regulatory body
having jurisdiction, the authority deemed by the Company's counsel to be
necessary for the lawful issuance and sale of any shares hereunder or the
unavailability of an exemption from registration for the issuance and sale of
any shares hereunder
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shall relieve the Company of any liability in respect of the nonissuance or sale
of such shares as to which such requisite authority shall not have been
obtained.
As a condition to the exercise of an option, the Company may require the
Optionee to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required by any relevant provision of the
aforementioned laws. At the option of the Company, a stop-transfer order
against any shares of stock may be placed on the official stock books and
records of the Company, and a legend indicating that the stock may not be
pledged, sold or otherwise transferred unless an opinion of counsel is provided
(concurred in by counsel for the Company) stating that such transfer is not in
violation of any applicable law or regulation, may be stamped on stock
certificates in order to assure exemption from registration. The Plan
Administrator may also require such other action or agreement by the Optionees
as may from time to time be necessary to comply with the federal and state
securities laws. THIS PROVISION SHALL NOT OBLIGATE THE COMPANY TO UNDERTAKE
REGISTRATION OF THE OPTIONS OR STOCK HEREUNDER.
Should any of the Company's capital stock of the same class as the stock
subject to options granted hereunder be listed on a national securities
exchange, all stock issued hereunder if not previously listed on such exchange
shall be authorized by that exchange for listing thereon prior to the issuance
thereof.
SECTION 9. AMENDMENT AND TERMINATION
9.1 BOARD ACTION
The Board may at any time suspend, amend or terminate this Plan, provided
that except as set forth in Section 7, and to the extent required by any
applicable law or requirement, the approval of a majority of stock represented
by stockholders voting either in person or by proxy at a duly held stockholders'
meeting is necessary within 12 months before or after the adoption by the Board
of any amendment which will:
(a) increase the number of shares that may be issued under this Plan;
(b) with respect to nonqualified stock options, materially modify the
requirements as to eligibility for participation in this Plan or, with respect
to incentive stock
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options, change the designation of the participants or class of participants
eligible for participation in this Plan;
(c) materially increase the benefits accruing to the participants
under this Plan; or
(d) otherwise require stockholder approval under any applicable law
or regulation including but not limited to Section 16(b) of the Exchange Act.
Any amendment made to this Plan which would constitute a "modification" to
incentive stock options outstanding on the date of such amendment, shall not be
applicable to such outstanding incentive stock options, but shall have
prospective effect only, unless the Optionee agrees otherwise.
9.2 AUTOMATIC TERMINATION
Unless sooner terminated by the Board, this Plan shall terminate ten years
from the earlier of (a) the date on which this Plan is adopted by the Board or
(b) the date on which this Plan is approved by the stockholders of the Company.
No option may be granted after such termination or during any suspension of this
Plan. The amendment or termination of this Plan shall not, without the consent
of the option holder, alter or impair any rights or obligations under any option
theretofore granted under this Plan.
SECTION 10. EFFECTIVENESS OF THIS PLAN
This Amended and Restated Plan shall become effective upon adoption by the
Board so long as it is approved by a majority of stock represented by
stockholders voting either in person or by proxy at a duly held stockholders'
meeting any time within 12 months before or after the adoption of this Amended
and Restated Plan.
Plan adopted by the Board of Directors on March 11, 1993 and approved by the
sole stockholder on March 11, 1993. Ratified by the Board of Directors on
June 1, 1993. Amended on July 14, 1993. Amendment and Restatement to increase
number of shares issuable approved by the Board of Directors on February 2, 1995
and by stockholders on April 26, 1995.
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EXHIBIT 5.1
<PAGE>
May 2, 1995
PERKINS COIE
A Law Partnership including Professional Corporations
1201 Third Avenue, 40th Floor - Seattle, Washington 98101-3099
Telephone: (206)583-8888 - Facsimile: (206)583-8500
Immunex Corporation
51 University Street
Seattle, WA 98101
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen and Ladies:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), which you are filing with the
Securities and Exchange Commission with respect to 5,000,000 shares of Common
Stock, $.01 par value (the "Shares"), which may be issued upon the exercise of
stock options granted or to be granted pursuant to the Immunex Corporation
Amended and Restated 1993 Stock Option Plan (the "Plan"). We have examined the
Registration Statement and such documents and records of the Company and other
documents as we have deemed necessary for the purpose of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that may be issued upon the exercise of stock options granted or to be
granted pursuant to the Plan have been duly authorized and that, upon the due
execution by the Company and the registration by its registrar of the Shares and
sale thereof by the Company in accordance with the terms of the Plan, and the
receipt of the consideration therefor in accordance with the terms of the Plan,
the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
PERKINS COIE
CS:kje
