As filed with the Securities and Exchange Commission on September 9, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Scios Inc.
(Exact name of registrant as specified in its charter)
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Delaware 95-3701481
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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2450 Bayshore Parkway
Mountain View, CA 94043
(Address of Principal Executive Offices)
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Scios Inc. 1996 Non-Officer Stock Option Plan
Scios Inc. 1992 Equity Incentive Plan
(Full title of the plans)
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John H. Newman, Esq.
Vice President, General Counsel and Secretary
Scios Inc.
2450 Bayshore Parkway
Mountain View, CA 94043
(650) 966-1550
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed
Title of Proposed Maximum
Securities to be Maximum Amount to Offering Price Aggregate Amount of
Registered be Registered Per Share(1) Offering Price(1) Registration Fee(2)
======================== ====================== ====================== ====================== ======================
<S> <C> <C> <C> <C>
Common Stock
(par value $.001) 2,200,000 $7.09375 $15,606,250 $4,729.17
======================== ====================== ====================== ====================== ======================
<FN>
(1) Pursuant to Rule 457(h) under the Securities Act of 1933, the offering
price per share and aggregate offering price are based upon the average of
the high and low prices of the Registrant's Common Stock as reported on the
Nasdaq National Market for September 5, 1997 for shares reserved for future
grant pursuant to the 1992 Equity Incentive Plan (1,500,000 shares) and the
1996 Non-Officer Stock Option Plan (700,000 shares).
(2) Estimated solely for the purpose of calculating the amount of the
Registration Fee based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq National Market for
September 5, 1997.
</FN>
</TABLE>
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Scios Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
1. The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
2. All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
3. The description of the Company's Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Company's Bylaws require the Company to indemnify its directors and
executive officers and may indemnify its other officers to the full extent
permitted by law. The Company believes that indemnification under its Bylaws
covers at least negligence and gross negligence by officers and directors, and
requires the Company to advance litigation expenses in the case of stockholder
derivative actions or other actions, against an undertaking by the officer or
director to repay such advances if it is ultimately determined that the officer
or director is not entitled to indemnification. The Bylaws further provide that
rights conferred under such Bylaws shall not be deemed to be exclusive of any
other right such persons may have or acquire under any statute, provision of any
Certificate of Incorporation, Bylaw, agreement, vote of stockholders,
disinterested directors or otherwise.
In addition, the Company's Restated Certificate of Incorporation
provides that, pursuant to Delaware law, its directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty of care to the
Company and its stockholders. This provision in the Certificate of Incorporation
does not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Company, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of
stock repurchases or redemptions that are unlawful under Delaware law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
The Company has entered into indemnity agreements with each of its
directors and executive officers. The Company currently has a policy providing
directors and officers liability insurance which insures directors and officers
of the Company in certain circumstances. The policy also insures the Company
against losses as to which its directors and officers are entitled to
indemnification.
EXHIBITS
Exhibit
Number
4.1 Restated Certificate of Incorporation of Scios Inc.. (Filed as
an exhibit to Annual Report on Form 10-K for fiscal year 1994 and
incorporated herein by reference.)
4.2 Restated Bylaws of Scios Inc.. (Filed as an exhibit to Form S-4
Registration Statement (File No. 33-49846) filed on July 22, 1992
and incorporated herein by reference.)
5.1 Opinion of John H. Newman, Vice President, General Counsel and
Secretary of the Registrant, as to the legality of shares being
registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of John H. Newman. Reference is made to Exhibit 5.1 of this
Registration Statement.
24.1 Power of Attorney. Reference is made to page 5 of this Registration
Statement.
99.1 1992 Equity Incentive Plan, as amended. (Filed as Exhibit 10.11 to
Quarterly Report on Form 10-Q for the quarter ended June 10, 1997,
filed August 14, 1997, and incorporated herein by reference.)
99.2 1996 Non-Officer Stock Option Plan.
99.3 Forms of option agreements for 1992 Equity Incentive Plan (Filed
as an Exhibit to the Registration Statement on Form S-8 (Reg. No.
33-51590) and incorporated herein by reference).
99.4 Form of option agreement for 1996 Non-Officer Stock Option Plan.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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) ('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 the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs 1(a)(i) and 1(a)(ii) do not apply if
the 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 issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(b) 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.
(c) 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.
2. 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. 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.
<PAGE>
SIGNATURES
The Registrant. 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 Mountain View, State of
California, on September 9, 1997.
SCIOS INC.
/s/ Richard L. Casey
By ___________________________
Richard L. Casey
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John H. Newman and Richard L. Casey, and
each or any one 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 attorneys-in-fact and agents, or any of
them, or their 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.
Signature Title Date
/s/ Richard L. Casey Chairman of the Board and September 9, 1997
(Richard L. Casey) Chief Executive Officer (Acting
Chief Financial Officer)
/s/ David Southern Controller September 9, 1997
(David Southern) (Acting Principal
Accounting Officer)
/s/ Samuel H. Armacost Director September 9, 1997
(Samuel H. Armacost)
/s/ Myron Du Bain Director September 9, 1997
(Myron Du Bain)
Director September _, 1997
(Donald B. Rice, Ph.D.)
/s/ Robert W. Schrier, M.D. Director September 9, 1997
(Robert W. Schrier, M.D.)
/s/ Solomon H. Snyder, M.D. Director September 9, 1997
(Solomon H. Snyder, M.D.)
/s/ Burton E. Sobel, M.D. Director September 9, 1997
(Burton E. Sobel, M.D.)
/s/ Eugene L. Step Director September 9, 1997
(Eugene L. Step)
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Restated Certificate of Incorporation of Scios Inc. (Filed as
an exhibit to Annual Report on Form 10-K for fiscal year 1994
and incorporated herein by reference.)
4.2 Restated Bylaws of Scios Inc. (Filed as an exhibit to Form S-4
Registration Statement (File No. 33-49846) filed on July 22,
1992 and incorporated herein by reference.)
5.1 Opinion of John H. Newman, Vice President, General Counsel and
Secretary of the Registrant, as to the legality of shares being
registered.
23.1 Consent of Coopers & Lybrand L.L.P..
23.2 Consent of John H. Newman. Reference is made to Exhibit 5.1 of
this Registration Statement.
24.1 Power of Attorney. Reference is made to page 6 of this
Registration Statement.
99.1 1992 Equity Incentive Plan, as amended. (Filed as Exhibit 10.11
to Form 10-Q (File No. 0-11749) on August 14, 1997 and
incorporated herein by reference.)
99.2 1996 Non-Officer Stock Option Plan.
99.3 Form of option agreement for 1992 Equity Incentive Plan (Filed
as an exhibit to the Registration Statement on Form S-8 (Reg.
No. 33-51590) and incorporated herein by reference.)
99.4 Form of option agreement for 1996 Non-Officer Stock Option
Plan.
September 9, 1997
Scios Inc.
2450 Bayshore Parkway
Mountain View, CA 94043-1173
Ladies and Gentlemen:
You have requested my opinion with respect to certain matters in connection with
the filing by Scios Inc. (the "Company") of a Registration Statement on Form S-8
(the "Registration Statement") with the Securities and Exchange Commission
covering the offering of 2,200,000 shares the Company's Common Stock, $.001 par
value (the "Shares"), with respect to (a) 1,500,000 of the Shares issuable
pursuant to its 1992 Equity Incentive Plan, as amended, and (b) 700,000 of the
shares issuable pursuant to its 1996 Non-Officer Stock Option Plan
(collectively, the "Plans").
In connection with this opinion, I have examined the Registration Statement and
related prospectuses, the Restated Certificate of Incorporation and Bylaws, as
amended, and such other documents, records, certificates, memoranda and other
instruments as I deem necessary as a basis for this opinion. I have assumed the
genuineness and authenticity of all documents submitted to me as originals, the
conformity to originals of all documents submitted to me 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, I am of the opinion that
the Shares, when sold and issued in accordance with the Plans, the Registration
Statement and related prospectuses, will be validly issued, fully paid, and
nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ John H. Newman
John H. Newman, Esq.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement and
the Registration Statements of Scios Inc. on Form S-8 (File No. 2-90477, File
No. 2-97606, File No. 33-39878 and File No. 33-51590) and Form S-3 (File No.
33-18958) of our report dated January 28, 1997, on our audits of the
consolidated financial statements of Scios Inc. and subsidiaries as of December
31, 1996 and 1995, and for each of three years in the period ended December 31,
1996, which report is included in the Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
San Jose, California
September 8, 1997
SCIOS INC.
1996 NON-OFFICER STOCK OPTION PLAN
Adopted November 11, 1996
Amended February 3, 1997
PURPOSES.
The purpose of the Plan is to provide a means by which selected Employees
of and Consultants to the Company, and its Affiliates, may be given an
opportunity to benefit from increases in value of the stock of the Company
through the granting of (i) Nonstatutory Stock Options, (ii) stock bonuses, and
(iii) rights to purchase restricted stock, all as defined below.
The Company, by means of the Plan, seeks to retain the services of persons
(other than Directors and Employees serving as Officers of the Company or its
Affiliates) who are now Employees of or Consultants to the Company or its
Affiliates, to secure and retain the services of new Employees and Consultants,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company and its Affiliates. The Company intends that the Stock
Awards issued under the Plan shall, in the discretion of the Board or any
Committee to which responsibility for administration of the Plan has been
delegated pursuant to subsection 3(c), be either (i) Nonstatutory Stock Options
granted pursuant to Section 6 hereof, or (ii) stock bonuses or rights to
purchase restricted stock granted pursuant to Section 7 hereof.
DEFINITIONS.
"Affiliate" means any parent corporation or subsidiary corporation, whether
now or hereafter existing, as those terms are defined in Sections 424(e) and
(f), respectively, of the Code.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means a Committee appointed by the Board in accordance with
subsection 3(c) of the Plan.
"Company" means Scios Inc., a Delaware corporation.
"Consultant" means any person, including an advisor, engaged by the Company
or an Affiliate to render consulting services and who is compensated for such
services, provided that the term "Consultant" shall not include Directors who
are paid only a director's fee by the Company or who are not compensated by the
Company for their services as Directors.
"Continuous Status as an Employee or Consultant" means that the service of
an individual to the Company, whether as an Employee or Consultant, is not
interrupted or terminated. The Board, in its sole discretion, may determine
whether Continuous Status as an Employee or Consultant shall be considered
interrupted in the case of: (i) any leave of absence approved by the Board,
including sick leave, military leave, or any other personal leave; or (ii)
transfers between locations of the Company or between the Company, Affiliates or
their successors.
"Employee" means any person, including Officers, employed by the Company or
any Affiliate of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the value of the common stock of the Company as
determined in good faith by the Board.
"Nonstatutory Stock Option" means an Option not intended to qualify as an
incentive stock option pursuant to Section 422 of the Code and the regulations
promulgated thereunder.
"Officer" means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
"Option" means a stock option granted pursuant to the Plan.
"Option Agreement" means a written agreement between the Company and an
Optionee evidencing the terms and conditions of an individual Option grant. Each
Option Agreement shall be subject to the terms and conditions of the Plan.
"Optionee" means a person who holds an outstanding Option.
"Plan" means this 1996 Non-Officer Stock Option Plan.
"Stock Award" means any right granted under the Plan, including any Option,
any stock bonus and any right to purchase restricted stock.
"Stock Award Agreement" means a written agreement between the Company and a
holder of a Stock Award evidencing the terms and conditions of an individual
Stock Award grant. Each Stock Award Agreement shall be subject to the terms and
conditions of the Plan.
ADMINISTRATION.
The Plan shall be administered by the Board unless and until the Board
delegates administration to a Committee, as provided in subsection 3(c).
The Board shall have the power, subject to, and within the limitations of,
the express provisions of the Plan:
To determine from time to time which of the persons eligible under the Plan
shall be granted Stock Awards; when and how each Stock Award shall be granted;
whether a Stock Award will be a Nonstatutory Stock Option, a stock bonus, a
right to purchase restricted stock, or a combination of the foregoing; the
provisions of each Stock Award granted (which need not be identical), including
the time or times when a person shall be permitted to receive stock pursuant to
a Stock Award; and the number of shares with respect to which a Stock Award
shall be granted to each such person.
To construe and interpret the Plan and Stock Awards granted under it, and
to establish, amend and revoke rules and regulations for its administration. The
Board, in the exercise of this power, may correct any defect, omission or
inconsistency in the Plan or in any Stock Award Agreement, in a manner and to
the extent it shall deem necessary or expedient to make the Plan fully
effective.
To amend the Plan or a Stock Award as provided in Section 12.
Generally, to exercise such powers and to perform such acts as the Board
deems necessary or expedient to promote the best interests of the Company which
are not in conflict with the provisions of the Plan.
The Board may delegate administration of the Plan to a committee composed
of one or more members of the Board (the "Committee"). If administration is
delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board (and
references in this Plan to the Board shall thereafter be to the Committee),
subject, however, to such resolutions, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. The Board may
abolish the Committee at any time and revest in the Board the administration of
the Plan.
SHARES SUBJECT TO THE PLAN.
Subject to the provisions of Section 11 relating to adjustments upon
changes in stock, the stock that may be issued pursuant to Stock Awards shall
not exceed in the aggregate seven hundred thousand (700,000) shares of the
Company's common stock. If any Stock Award shall for any reason expire or
otherwise terminate, in whole or in part, without having been exercised in full,
the stock not acquired under such Stock Award shall revert to and again become
available for issuance under the Plan.
The stock subject to the Plan may be unissued shares or reacquired shares,
bought on the market or otherwise.
ELIGIBILITY.
Stock Awards may be granted only to Employees or Consultants who (i) are
not Officers and (ii) are not then subject to Section 16 of the Exchange Act.
OPTION PROVISIONS.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of separate
Options need not be identical, but each Option shall include (through
incorporation of provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:
Term. No Option shall be exercisable after the expiration of ten (10) years
from the date it was granted.
Price. The exercise price of each Nonstatutory Stock Option shall be not
less than the Fair Market Value of the stock subject to the Option on the date
the Option is granted.
Consideration. The purchase price of stock acquired pursuant to an Option
shall be paid, to the extent permitted by applicable statutes and regulations,
either (i) in cash at the time the Option is exercised, or (ii) at the
discretion of the Board or the Committee, at the time of the grant of the
Option, (A) by delivery to the Company of other common stock of the Company, (B)
according to a deferred payment arrangement, except that payment of the common
stock's "par value" (as defined in the Delaware General Corporation Law) shall
not be made by deferred payment or other arrangement, (which may include,
without limiting the generality of the foregoing, the use of other common stock
of the Company) with the person to whom the Option is granted or to whom the
Option is transferred pursuant to subsection 6(d), or (C) in any other form of
legal consideration that may be acceptable to the Board.
In the case of any deferred payment arrangement, interest shall be
compounded at least annually and shall be charged at the minimum rate of
interest necessary to avoid the treatment as interest, under any applicable
provisions of the Code, of any amounts other than amounts stated to be interest
under the deferred payment arrangement.
Transferability. An Option shall not be transferable except by will or by
the laws of descent and distribution (and shall be exercisable during the
lifetime of the person to whom the Option is granted only by such person) unless
the applicable Option Agreement expressly provides for other transferability.
Notwithstanding the foregoing, the person to whom the Option is granted may, by
delivering written notice to the Company, in a form satisfactory to the Company,
designate a third party who, in the event of the death of the Optionee, shall
thereafter be entitled to exercise the Option.
Vesting. The total number of shares of stock subject to an Option may, but
need not, be allotted in periodic installments (which may, but need not, be
equal). The Option Agreement may provide that from time to time during each of
such installment periods, the Option may become exercisable ("vest") with
respect to some or all of the shares allotted to that period, and may be
exercised with respect to some or all of the shares allotted to such period
and/or any prior period as to which the Option became vested but was not fully
exercised. The Option may be subject to such other terms and conditions on the
time or times when it may be exercised (which may be based on performance or
other criteria) as the Board may deem appropriate. The provisions of this
subsection 6(e) are subject to any Option provisions governing the minimum
number of shares as to which an Option may be exercised.
Termination of Employment or Relationship as a Consultant. In the event an
Optionee's Continuous Status as an Employee or Consultant terminates (other than
upon the Optionee's death or disability), the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it as of the
date of termination) but only within such period of time ending on the earlier
of (i) the date three (3) months after the termination of the Optionee's
Continuous Status as an Employee or Consultant (or such longer or shorter period
specified in the Option Agreement), or (ii) the expiration of the term of the
Option as set forth in the Option Agreement. If, at the date of termination, the
Optionee is not entitled to exercise his or her entire Option, the shares
covered by the unexercisable portion of the Option shall revert to and again
become available for issuance under the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified in the
Option Agreement, the Option shall terminate, and the shares covered by such
Option shall revert to and again become available for issuance under the Plan.
An Optionee's Option Agreement may also provide that if the exercise of the
Option following the termination of the Optionee's Continuous Status as an
Employee or Consultant (other than upon the Optionee's death or disability)
would result in liability under Section 16(b) of the Exchange Act, then the
Option shall terminate on the earlier of (i) the expiration of the term of the
Option set forth in the Option Agreement, or (ii) the tenth (10th) day after the
last date on which such exercise would result in such liability under Section
16(b) of the Exchange Act. Finally, an Optionee's Option Agreement may also
provide that if the exercise of the Option following the termination of the
Optionee's Continuous Status as an Employee or Consultant (other than upon the
Optionee's death or disability) would be prohibited at any time solely because
the issuance of shares would violate the registration requirements under the
Act, then the Option shall terminate on the earlier of (i) the expiration of the
term of the Option set forth in the first paragraph of this subsection 6(f), or
(ii) the expiration of a period of thirty (30) days after the termination of the
Optionee's Continuous Status as an Employee or Consultant during which the
exercise of the Option would not be in violation of such registration
requirements.
Disability of Optionee. In the event an Optionee's Continuous Status as an
Employee or Consultant terminates as a result of the Optionee's disability, the
Optionee may exercise his or her Option (to the extent that the Optionee was
entitled to exercise it as of the date of termination), but only within such
period of time ending on the earlier of (i) the date twelve (12) months
following such termination (or such longer or shorter period specified in the
Option Agreement), or (ii) the expiration of the term of the Option as set forth
in the Option Agreement. If, at the date of termination, the Optionee is not
entitled to exercise his or her entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become available
for issuance under the Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified herein, the Option shall
terminate, and the shares covered by such Option shall revert to and again
become available for issuance under the Plan.
Death of Optionee. In the event of the death of an Optionee during, or
within a period specified in the Option Agreement after the termination of, the
Optionee's Continuous Status as an Employee or Consultant, the Option may be
exercised (to the extent the Optionee was entitled to exercise the Option as of
the date of death) by the Optionee's estate, by a person who acquired the right
to exercise the Option by bequest or inheritance, but only within the period
ending on the earlier of (i) the date eighteen (18) months following the date of
death (or such longer or shorter period specified in the Option Agreement), or
(ii) the expiration of the term of such Option as set forth in the Option
Agreement. If, at the time of death, the Optionee was not entitled to exercise
his or her entire Option, the shares covered by the unexercisable portion of the
Option shall revert to and again become available for issuance under the Plan.
If, after death, the Option is not exercised within the time specified herein,
the Option shall terminate, and the shares covered by such Option shall revert
to and again become available for issuance under the Plan.
TERMS OF STOCK BONUSES AND PURCHASES OF RESTRICTED STOCK.
Each stock bonus or restricted stock purchase agreement shall be in such
form and shall contain such terms and conditions as the Board or the Committee
shall deem appropriate. The terms and conditions of stock bonus or restricted
stock purchase agreements may change from time to time, and the terms and
conditions of separate agreements need not be identical, but each stock bonus or
restricted stock purchase agreement shall include (through incorporation of
provisions hereof by reference in the agreement or otherwise) the substance of
each of the following provisions as appropriate:
Purchase Price. The purchase price under each restricted stock purchase
agreement shall be such amount as the Board or Committee shall determine and
designate in such agreement, but in no event shall the purchase price be less
than the stock's Fair Market Value on the date such award is made.
Notwithstanding the foregoing, the Board or the Committee may determine that
eligible participants in the Plan may be awarded stock pursuant to a stock bonus
agreement in consideration for past services actually rendered to the Company or
for its benefit.
Transferability. No rights under a stock bonus or restricted stock purchase
agreement shall be transferable except by will or the laws of descent and
distribution, unless the applicable Stock Award Agreement expressly provides for
other transferability.
Consideration. The purchase price of stock acquired pursuant to a stock
purchase agreement shall be paid either: (i) in cash at the time of purchase;
(ii) at the discretion of the Board or the Committee, according to a deferred
payment or other arrangement, except that payment of the common stock's "par
value" (as defined in the Delaware General Corporation Law) shall not be made by
deferred payment or other arrangement, (which may include, without limiting the
generality of the foregoing, the use of other common stock of the Company) with
the person to whom the stock is sold; or (iii) in any other form of legal
consideration that may be acceptable to the Board or the Committee in its
discretion. Notwithstanding the foregoing, the Board or the Committee to which
administration of the Plan has been delegated may award stock pursuant to a
stock bonus agreement in consideration for past services actually rendered to
the Company or for its benefit. In any event, the purchase price of stock
acquired pursuant to either a stock purchase agreement or a stock bonus
agreement shall equal or exceed the par value of the stock acquired pursuant to
such agreement.
Vesting. Shares of stock sold or awarded under the Plan may, but need not,
be subject to a repurchase option in favor of the Company in accordance with a
vesting schedule to be determined by the Board or the Committee.
Termination of Employment or Relationship as a Consultant. In the event a
Participant's Continuous Status as an Employee or Consultant terminates, the
Company may repurchase or otherwise reacquire, subject to the limitations
described in subsection 7(d), any or all of the shares of stock held by that
person which have not vested as of the date of termination under the terms of
the stock bonus or restricted stock purchase agreement between the Company and
such person.
COVENANTS OF THE COMPANY.
During the terms of the Stock Awards, the Company shall keep available at
all times the number of shares of stock required to satisfy such Stock Awards.
The Company shall seek to obtain from each regulatory commission or agency
having jurisdiction over the Plan such authority as may be required to issue and
sell shares of stock upon exercise of the Stock Award; provided, however, that
this undertaking shall not require the Company to register under the Securities
Act of 1933, as amended (the "Securities Act") either the Plan, any Stock Award
or any stock issued or issuable pursuant to any such Stock Award. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority which counsel for the Company deems necessary
for the lawful issuance and sale of stock under the Plan, the Company shall be
relieved from any liability for failure to issue and sell stock upon exercise of
such Stock Awards unless and until such authority is obtained.
USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Stock Awards shall constitute
general funds of the Company.
MISCELLANEOUS.
The Board shall have the power to accelerate the time at which a Stock
Award may first be exercised or the time during which a Stock Award or any part
thereof will vest pursuant to subsection 6(e) or 7(d), notwithstanding the
provisions in the Stock Award stating the time at which it may first be
exercised or the time during which it will vest.
Neither an Employee or Consultant nor any person to whom a Stock Award is
transferred under subsection 6(d) or 7(b) shall be deemed to be the holder of,
or to have any of the rights of a holder with respect to, any shares subject to
such Stock Award unless and until such person has satisfied all requirements for
exercise of the Stock Award pursuant to its terms.
Nothing in the Plan or any instrument executed or Stock Award granted
pursuant thereto shall confer upon any Employee, Consultant or other holder of
Stock Awards any right to continue in the employ of the Company or any Affiliate
(or to continue acting as a Consultant) or shall affect the right of the Company
or any Affiliate to terminate the employment of any Employee with or without
cause or to terminate the relationship of any Consultant subject to the terms of
that Consultant's agreement with the Company or Affiliate to which such
Consultant is providing services.
Securities Law Compliance. The Company may require any person to whom a
Stock Award is granted, or any person to whom a Stock Award is transferred
pursuant to subsection 6(d) or 7(b), as a condition of exercising or acquiring
stock under any Stock Award, (i) to give written assurances satisfactory to the
Company as to such person's knowledge and experience in financial and business
matters and/or to employ a purchaser representative reasonably satisfactory to
the Company who is knowledgeable and experienced in financial and business
matters, and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the Stock Award;
and (ii) to give written assurances satisfactory to the Company stating that
such person is acquiring the stock subject to the Stock Award for such person's
own account and not with any present intention of selling or otherwise
distributing the stock. The foregoing requirements, and any assurances given
pursuant to such requirements, shall be inoperative if (i) the issuance of the
shares upon the exercise or acquisition of stock under the Stock Award has been
registered under a then currently effective registration statement under the
Securities Act, or (ii) as to any particular requirement, a determination is
made by counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws. The Company may require
the holder of the Stock Award to provide such other representations, written
assurances or information which the Company shall determine is necessary,
desirable or appropriate to comply with applicable securities and other laws as
a condition of granting a Stock Award to such person or permitting the holder of
the Stock Award to exercise the Stock Award. The Company may, upon advice of
counsel to the Company, place legends on stock certificates issued under the
Plan as such counsel deems necessary or appropriate in order to comply with
applicable securities laws, including, but not limited to, legends restricting
the transfer of the stock.
Withholding. To the extent provided by the terms of a Stock Award
Agreement, the person to whom a Stock Award is granted may satisfy any federal,
state or local tax withholding obligation relating to the exercise or
acquisition of stock under a Stock Award by any of the following means or by a
combination of such means: (i) tendering a cash payment; (ii) authorizing the
Company to withhold shares from the shares of the common stock otherwise
issuable to the participant as a result of the exercise or acquisition of stock
under the Stock Award; or (iii) delivering to the Company owned and unencumbered
shares of the common stock of the Company.
ADJUSTMENTS UPON CHANGES IN STOCK.
If any change is made in the stock subject to the Plan, or subject to any
Stock Award, without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by the
Company), the Plan will be appropriately adjusted in the type(s) and the maximum
number of securities subject to the Plan pursuant to subsection 4(a), and the
outstanding Stock Awards will be appropriately adjusted in the type(s) and
number of securities and price per share of stock subject to such outstanding
Stock Awards. Such adjustments shall be made by the Board or the Committee, the
determination of which shall be final, binding and conclusive. (The conversion
of any convertible securities of the Company shall not be treated as a
"transaction not involving the receipt of consideration by the Company.")
In the event of: (i) a dissolution or liquidation of the Company; (ii) a
merger or consolidation in which the Company is not the surviving corporation;
(iii) a reverse merger in which the Company is the surviving corporation but the
shares of the Company's common stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise; or (iv) any other capital reorganization
in which more than fifty percent (50%) of the shares of the Company entitled to
vote are exchanged, then, at the sole discretion of the Board and to the extent
permitted by applicable law: (A) any surviving corporation shall assume any
Stock Awards outstanding under the Plan or shall substitute similar Stock Awards
for those outstanding under the Plan, (B) such Stock Awards shall continue in
full force and effect, or (C) any outstanding unexercised rights under any Stock
Awards shall be terminated if not exercised prior to such event, provided,
however, that with respect to Stock Awards then held by persons performing
services for the Company or an Affiliate, the time during which such Stock
Awards become vested or may be exercised shall be accelerated prior to such
termination.
In the event a change in control (as hereinafter defined) occurs at the
Company and, within one (1) year of such change in control, an Optionee's
employment with the Company and its Affiliates is terminated other than for
cause (as hereinafter defined) Options held by such terminated Employee may be
exercised in full following such termination without regard to the vesting
limitations to which such Options are otherwise subject. For the purposes of the
foregoing, a "change in control" shall have occurred if (i) any person (as
defined in Section 13 of the Exchange Act) acquires shares, other than directly
from the Company, and thereby becomes the owner of more than thirty percent
(30%) of the Company's outstanding shares (on a fully diluted basis) or (ii) the
Company enters into a merger (other than one in connection with a voluntary
change of corporate domicile or similar reorganization or recapitalization
transaction) in which the stockholders of the Company (determined immediately
prior to the merger) do not own at least fifty percent (50%) of the outstanding
shares of the surviving entity after the merger. For purposes of the foregoing,
a termination shall be deemed to have been made for "cause" in the event the
Optionee's employment is terminated for any of the following reasons: (A) the
Optionee's continued failure to substantially perform his duties with the
Company or its Affiliates, (B) the engaging by the Optionee in gross misconduct
materially and demonstrably injurious to the Company, its Affiliates or their
Employees, or (C) illicit drug use or habitual alcohol use, or (D) the
commission by the Optionee of any felony.
AMENDMENT OF THE PLAN AND STOCK AWARDS.
The Board at any time, and from time to time, may amend the Plan.
The Board may, in its sole discretion, submit the Plan and/or any amendment
to the Plan for stockholder approval.
It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide those eligible with
the maximum benefits provided or to be provided under the provisions of the Code
and the regulations promulgated thereunder.
Rights and obligations under any Stock Award granted before amendment of
the Plan shall not be impaired by any amendment of the Plan unless (i) the
Company requests the consent of the person to whom the Stock Award was granted
and (ii) such person consents in writing.
The Board at any time, and from time to time, may amend the terms of any
one or more Stock Award; provided, however, that the rights and obligations
under any Stock Award shall not be impaired by any such amendment unless (i) the
Company requests the consent of the person to whom the Stock Award was granted
and (ii) such person consents in writing.
TERMINATION OR SUSPENSION OF THE PLAN.
The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on November 10, 2006, which shall be within
ten (10) years from the date the Plan is adopted by the Board. No Stock Awards
may be granted under the Plan while the Plan is suspended or after it is
terminated.
Rights and obligations under any Stock Award granted while the Plan is in
effect shall not be impaired by suspension or termination of the Plan, except
with the written consent of the person to whom the Stock Award was granted.
EFFECTIVE DATE OF PLAN.
The Plan shall become effective on November 11, 1996.
Notice of Grant of Stock Options Scios Inc.
and Option Agreement ID: 95-3701481
2450 Bayshore Parkway
Mountain View, CA 94043
Name Option Number:
Address Plan:
City, State, Zip ID:
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Effective ____________, you have been granted a(n) Non-Qualified Stock Option to
buy shares of Scios Inc. (the Company) stock at $_________ per share. The total
option price of the shares granted is $ .
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
- -------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Stock Option Plan as amended and the Option Agreement, all of
which are attached and made a part of this document.
- -------------------------------------------------------------------------------
- -------------------------- ----------------------------
Scios Inc. Date
- -------------------------- -----------------------------
Optionee Date
<PAGE>
NON-STATUTORY STOCK OPTION AGREEMENT UNDER
1996 NON-OFFICER STOCK OPTION PLAN
OF SCIOS INC.
The terms of this non-statutory (non-qualified) option are as set forth in the
preceding page and below:
1. Acceleration of Vesting. Notwithstanding the vesting schedule on the
preceding cover sheet, in the event a change in control (as hereinafter defined)
occurs at the Company after the date hereof, and within one (1) year of such
change in control your employment with the Company or an Affiliate (as such term
is defined in the Plan) is terminated other than for cause (as hereinafter
defined), this option may be exercised in full following such termination,
without regard to the vesting limitations set forth above. For the purposes of
the foregoing, a "change in control" shall have occurred if (i) any person (as
defined in Section 13 of the Securities Exchange Act of 1934, as amended)
acquires shares, other than directly from the Company, and thereby becomes the
owner of more than 30% of the Company's outstanding shares (on a fully diluted
basis) or (ii) the Company enters into a merger (other than one in connection
with a voluntary change of corporate domicile or similar reorganization or
recapitalization transaction) in which the stockholders of the Company
(determined immediately prior to the merger) do not own at least 50% of the
outstanding shares of the surviving entity after the merger. For the purposes of
the foregoing, a termination shall be deemed to have been made for "cause" in
the event you are terminated for any of the following reasons: (A) your
continued failure to substantially perform your duties with the Company, (B) the
engaging by you in gross misconduct materially and demonstrably injurious to the
Company or its employees, (C) illicit drug use or habitual alcohol use, or (D)
the commission by you of any felony.
2. Payment of Exercise Price. Payment of the exercise price per share
is due in full in cash (including check) when the option exercise price for the
vested shares being purchased is five hundred dollars ($500.00) or less;
provided, however, when the exercise price for the vested shares being purchased
exceeds five hundred dollars ($500.00), you may elect to make payment of the
exercise price under one of the following alternatives:
(i) Payment of the exercise price in cash (or check) at the time or
exercise (which shall include payment pursuant to a "cashless" exercise program
developed under Regulation T as promulgated by the Federal Reserve Board which
results in the receipt of cash (or check) by the Company prior to the issuance
of common stock to you);
(ii) (A) Payment of not less than twenty percent (20%) of the aggregate
exercise price due in cash at the time of exercise and the balance by your
promissory note under which not less than an additional twenty percent (20%) of
said exercise price, plus interest at the rate determined in part (B) below,
shall be due on each of the next four (4) anniversaries of the time of exercise,
with full payment of the promissory note for the remainder of the exercise
price, plus unpaid interest, due four (4) years from date of exercise or, at the
Company's election, upon termination of your employment with the Company or an
Affiliate; provided that as a part of your written notice of exercise you give
notice of the election of this deferred payment arrangement, and to secure the
payment of the deferred exercise price to the Company hereunder, if the Company
so requests, you tender, in forms satisfactory to the Company, a note, a
security agreement covering the purchased shares, or such other or additional
documentation as the Company may request;
(B) Interest shall be charged at the minimum rate of interest
necessary to avoid the recharacterization as interest, under any applicable
provisions of the Code, of any portion of any deferred payment of the exercise
price hereunder; or
(iii) Provided that if at the time of exercise the Company's common
stock is publicly traded and quoted regularly in the Wall Street Journal,
payment by delivery of already-owned shares of common stock owned by you for at
least six (6) months and owned free and clear of any liens, claims, encumbrances
or security interests, which common stock shall be valued (i) if listed on a
national securities exchange or quoted on the Nasdaq National Market, at the
closing price on the trading day immediately preceding the date of exercise or
(ii) otherwise at the average of the closing bid and ask quotations published in
the Wall Street Journal for the trading day immediately preceding the date of
exercise; or
(iv) Payment by a combination of the methods of payment specified
in subparagraphs 2(i) through 2(iii) above.
3. Adjustment and Minimum Exercise. In the event there occurs a change
in the structure of the Company or in its outstanding stock which affects the
rights and participation to which you would be entitled as of the date of such
event had you exercised this option prior to such date, there shall be made an
adjustment in the number of shares and the exercise price of this option as of
the date of such event which shall result in your receiving proportionate rights
and participation after the occurrence of such event. The minimum number of
shares with respect to which this option may be exercised at any one time is one
hundred (100), unless this option is then exercisable for less than one hundred
(100) shares, in which case, the number of shares then exercisable shall be the
minimum number of shares.
4. Securities Act of 1933. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Securities Act of
1933, as amended (the "Act"), or, if such shares are not then so registered, the
Company has determined that such exercise and issuance would be exempt from the
registration requirements of the Act.
5. Term. THE TERM OF THIS OPTION COMMENCES ON THE DATE HEREOF AND,
UNLESS SOONER TERMINATED AS SET FORTH BELOW OR IN THE PLAN, TERMINATES ON THE
DATE EXACTLY TEN (10) YEARS MINUS ONE (1) DAY FROM THE DATE OF THIS OPTION. This
option shall terminate prior to the expiration of its term as follows: three (3)
months after the termination of your employment with the Company or an Affiliate
for any reason or for no reason unless (a) such termination of employment is due
to your permanent and total disability (within the meaning of Section 422(c)(6)
of the Code), in which case the option shall terminate on the earlier of the
termination date set forth above or one twelve (12) months following such
termination of employment; or (b) such termination of employment is due to your
death, in which case the option shall terminate on the earlier of the
termination date set forth above or eighteen (18) months after your death.
However, in any and all circumstances, this option may be exercised following
termination of employment with the Company only as to that number of shares as
to which it was exercisable on the date of termination of employment with the
Company.
6. Manner of Exercise. This option may be exercised, to the extent
specified above, by delivering a notice of exercise together with the exercise
price to the Secretary of the Company, or to such other person as the Company
may designate, during regular business hours, together with such additional
documents as the Company may then require pursuant to subparagraph 10(d) of the
Plan.
7. Non-Transferable. This option is not transferable, except by will or
by the laws of descent and distribution, and is exercisable during your life
only by you. Notwithstanding the foregoing, you may, be delivering written
notice to the Company in a form satisfactory to the Company, designate a third
party who, in the event of your death, shall thereafter be entitled to exercise
the option.
8. Not an Employment Contract. This option is not an employment
contract and nothing in this option shall be deemed to modify your at-will
employment relationship with Scios to create in any way whatsoever any
obligation on your part to continue in the employ of the Company (or service as
a Consultant), or of the Company to continue your employment with the Company
(or service as a Consultant).
9. Notices. Any notices provided for in this option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt or, in
the case of notices delivered by the Company to you, five (5) days after deposit
in the United States mail, postage prepaid, addressed to you at the address
specified above or at such other address as you hereafter designate by written
notice to the Company.
10. Plan Terms. This option is subject to all the provisions of the
Plan and its provisions are hereby made a part of this option, including without
limitation the provisions of paragraph 6 of the Plan relating to option
provisions, and is further subject to all interpretations, amendments, rules and
regulations which may from time to time be promulgated and adopted pursuant to
the Plan. In the event of any conflict between the provisions of this option and
those of the Plan, the provisions of the Plan shall control.
