<PAGE> 1
As filed with the Securities and Exchange Commission on December 4, 1995
Registration No. ________
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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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ONCOGENE SCIENCE, INC.
(Exact name of registrant as specified in its charter)
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Delaware 13-3159796
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
106 Charles Lindbergh Blvd.
Uniondale, NY 11553
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(Address of principal executive (Zip Code)
offices)
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ONCOGENE SCIENCE, INC.
1993 INCENTIVE AND NON-QUALIFIED
STOCK OPTION PLAN
(Full title of the plan)
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ROBERT L. VAN NOSTRAND
ONCOGENE SCIENCE, INC.
106 CHARLES LINDBERGH BLVD.
UNIONDALE, NEW YORK 11553
(516) 222-0023
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
SPENCER W. FRANCK, JR., ESQUIRE
SAUL, EWING, REMICK & SAUL
3800 CENTRE SQUARE WEST
PHILADELPHIA, PENNSYLVANIA 19102
(215) 972-1955
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See next page for calculation of registration fee.
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The prospectus included in this registration statement also relates to
securities covered by the Registrant's registration statement on Form S-8 (File
No. 33-8980) initially filed on September 24, 1986 and amended on December 21,
1990, and its registration statement on Form S-8 (File No. 33-38443) initially
filed on December 21, 1990.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
Proposed Proposed
Title of Amount to Maximum Maximum Amount of Registration Fee(4)
Securities to be be Offering Price Aggregate
Registered Registered(1) Per Share Offering
Price(4)
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<S> <C> <C> <C> <C>
Common Stock, Par 142,875(2) $3.50 $ 500,062.50
Value $.01 Per 413,500(2) 4.00 1,654,000.00
Share 321,500(2) 4.125 1,326,187.50
167,000(2) 4.375 730,625.00
555,125(3) 5.938 3,296,322.25
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1,600,000 $7,507,207.25 $2,588.69
========= ============
==========================================================================================================
</TABLE>
(1) Pursuant to Rule 429 under the Securities Act of 1933, as amended, in
addition to the shares reflected in the above table, the prospectus
included as a part of this registration statement covers an aggregate
of 1,800,000 shares of the Registrant's Common Stock (the "Previously
Registered Shares") issuable pursuant to the Registrant's 1985 Stock
Option Plan and 1989 Incentive and Non-Qualified Stock Option Plan,
which were registered under the Registrant's registration statements
on Form S-8 filed on September 24, 1986 (File No. 33-8980) and
December 21, 1990 (File No. 33-38443). The Previously Registered
Shares are not reflected in the above table, and no registration fee
is being paid with respect thereto upon the filing of this
registration statement.
(2) Represents shares issuable upon exercise of options previously granted
under the 1993 Incentive and Non-Qualified Stock Option Plan (the
"Plan").
(3) Represents shares issuable in connection with options available for
grant under the Plan.
(4) The registration fee with respect to these shares has been computed
in accordance with paragraph (c) and (h) of Rule 457, based upon, in
the case of options previously granted, the stated exercise price of
such options, and, in the case of options still available for grant,
the average of the reported high and low sale prices of shares of
the Common Stock on November 28, 1995.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.(1)
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION.(1)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in clauses (a), (b) and (c) below are
incorporated herein by this reference thereto, and all documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, 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 this reference in this registration statement and to be a part
hereof from the date of filing of such documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended September 30, 1994.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended December 30, 1994, and March 31 and June 30, 1995, and the
Registrant's Current Reports on Form 8-K dated April 19, 1995 and August 2,
1995.
(c) The description of the Common Stock contained in the
registration statement filed by the Registrant to register such securities
under Section 12 of the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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(1) The information called for by Part I of Form S-8 is currently included in
the description of the Registrant's 1993 Incentive and Non-Qualified
Stock Option Plan (the "Plan") delivered to eligible persons under the
Plan. Pursuant to the Note to Part I of Form S-8, this information is not
being filed with or included in this Form S-8.
Pursuant to General Instruction C of Form S-8, this Registration Statement
contains a prospectus prepared in accordance with the requirements of
Part I of Form S-3 relating to reofferings and resales of shares of the
Registrant's common stock acquired pursuant to the Plan by persons who
may be deemed to be "affiliates" of the Registrant.
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<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or another enterprise if serving at the request of the
corporation. Depending on the character of the proceeding, a corporation may
indemnify against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In the case of an action by or in the right of the corporation, no
indemnification may be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine that despite the adjudication
of liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses that the court
shall deem proper. Section 145 further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to above, or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him or her in connection
therewith.
The Registrant's Certificate of Incorporation provides that
the Registrant shall, to the fullest extent permitted by law, indemnify all
directors, officers, employees and agents of the Company. The Certificate of
Incorporation also contains a provision eliminating the liability of directors
of the Registrant to the Registrant or its stockholders for monetary damages,
except under certain circumstances. The Certificate of Incorporation also
permits the Registrant to maintain insurance to protect itself and any
director, officer, employee or agent against any liability with respect to
which the Corporation would have the power to indemnify such persons under the
Delaware General Corporation Law. The Registrant maintains an insurance policy
insuring its directors and officers against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of the
Registration Statement:
5 Opinion of Saul, Ewing, Remick & Saul.
10 1993 Incentive and Non-Qualified Stock Option Plan.
23.1 Consent of KPMG Peat Marwick LLP, independent public
accountants.
23.2 Consent of Saul, Ewing, Remick & Saul (contained in
Exhibit No. 5).
24 Power of Attorney (included on signature page of the
registration statement).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement;
(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;
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof;
(3) to remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liability (other than 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 Act and will be governed by the final
adjudication of such issue.
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PROSPECTUS
1,204,500 SHARES
ONCOGENE SCIENCE, INC.
COMMON STOCK
----------------------
This Prospectus relates to the offer and sale by certain stockholders
(the "Selling Stockholders") of Oncogene Science, Inc., a Delaware corporation
(the "Company"), of up to 1,204,500 shares (the "Shares") of common stock, par
value $.01 per share ("Common Stock"), of the Company, which may be acquired
from time to time by the Selling Stockholders upon their exercise of options
under the Company's 1985 Stock Option Plan, 1989 Incentive and Non-Qualified
Stock Option Plan and 1993 Incentive and Non-Qualified Stock Option Plan (the
"Option Plans"). The distribution of the Shares may be effected in one or more
transactions through one or more brokers or dealers, through privately
negotiated transactions or otherwise, at market prices prevailing at the time
of sale or at prices otherwise negotiated. None of the proceeds from the
resale of the Shares will be received by the Company.
The Company's Common Stock is included for quotation on the NASDAQ
National Market System (the "NMS") under the symbol "ONCS." On November 28,
1995, the closing sales price of the Company's Common Stock as quoted on the
NMS was $5.875 per share.
----------------------
INVESTMENT IN THE COMMON STOCK OFFERED HEREBY INVOLVES CERTAIN RISKS.
SEE "RISK FACTORS" ON PAGE 2 HEREOF.
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------
The date of this Prospectus is December 4, 1995
<PAGE> 7
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). The reports, proxy and information
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission located
at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the
public reference facilities in the regional offices of the Commission located
at 7 World Trade Center, Suite 1300, New York, New York 10048, and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
can be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
This Prospectus is part of a registration statement that the
Registrant has filed with the Commission covering securities issuable pursuant
to the Registrant's 1993 Incentive and Non-Qualified Stock Option Plan. This
Prospectus also relates to securities issuable pursuant to the Registrant's
1985 Stock Option Plan and 1989 Incentive and Non-Qualified Stock Option Plan,
which securities were covered by the Registrant's registration statements
initially filed on September 24, 1986 (File No. 33-8980) and December 21, 1990
(File No. 33-38443), respectively. A copy of any document (but not exhibits
thereto) incorporated by reference in the registration statement of which this
Prospectus forms a part (or the registration statements covering the securities
issuable pursuant to the Registrant's 1985 Stock Option Plan or 1989 Incentive
and Non-Qualified Stock Option Plan), but which is not delivered with this
Prospectus, will be provided by the Company without charge to any person to
whom this Prospectus has been delivered, upon the oral or written request of
such person. Such requests should be directed to Robert L. Van Nostrand, Vice
President, Finance and Administration, Oncogene Science, Inc., 106 Charles
Lindbergh Boulevard, Uniondale, New York 11553; telephone (516) 222-0023.
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, THE
FOLLOWING RISK FACTORS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING THE COMPANY
AND ITS BUSINESS BEFORE PURCHASING SHARES OF THE COMMON STOCK OFFERED HEREBY.
UNCERTAINTIES RELATED TO CLINICAL TRIALS. Before obtaining regulatory
approvals for the commercial sale of any of its products under development, the
Company must demonstrate through preclinical studies and clinical trials that
the product is safe and effective for use in each target indication. The
results from preclinical studies and early clinical trials may not be
predictive of results that will be obtained in large-scale testing, and there
can be no assurance that the Company's clinical trials will demonstrate
sufficient safety and efficacy to obtain the requisite regulatory approvals or
will result in marketable products. In addition, clinical trials are often
conducted with patients having the most advanced stages of the disease. During
the course of treatment, these patients can die or suffer other adverse medical
effects for reasons that may not be related to the pharmaceutical agent being
tested but which can nevertheless affect clinical trial results. A number of
companies in the pharmaceutical industry have suffered significant setbacks in
advanced clinical trials, even after promising results in earlier trials.
The rate of completion of the Company's clinical trials is dependent
upon, among other factors, the rate of patient enrollment. Patient enrollment
is a function of many factors, including the size of the patient population,
the nature of the protocol, the proximity of patients to clinical sites and the
eligibility
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criteria for the study. Delays in planned patient enrollment may result in
increased costs and delays, which could have a material adverse effect on the
Company. There can be no assurance that any proposed clinical trial schedules
will be met or that any of the Company's products in development will receive
marketing approval in any country on a timely basis, or at all. If the Company
is unable to complete clinical trials or demonstrate the safety and efficacy of
any particular product it is seeking to develop, the Company's business,
financial condition and results of operation could be materially and adversely
affected. See "Business -- Government Regulation."
UNCERTAINTIES RELATED TO THE EARLY STAGE OF DEVELOPMENT; TECHNOLOGICAL
UNCERTAINTIES. Nearly all of the Company's product candidates are in the
research or development stage and only one proposed product has progressed to
the clinical trial stage. There can be no assurance that product revenues will
be realized on a timely basis, if ever.
The development of new pharmaceutical products is highly uncertain and
subject to a number of significant risks. Potential products that appear to be
promising at early stages of development may not reach the market for a number
of reasons. Potential products may be found ineffective or cause harmful side
effects during preclinical testing or clinical trials, fail to receive
necessary regulatory approvals, be difficult to manufacture on a large scale,
be uneconomical, fail to achieve market acceptance or be precluded from
commercialization by proprietary rights of third parties. There can be no
assurance that the Company's product development efforts will be successfully
completed, that required regulatory approvals can be obtained or that any
products, if introduced, will be successfully marketed or achieve customer
acceptance. Commercial availability of any of the Company's products, is not
expected for a number of years, if at all.
HISTORY OF LOSSES. The Company has sustained net losses from
operations in each fiscal year since its inception, and anticipates that such
losses will continue for some time. The Company has been, and will continue to
be, dependent upon collaborative research revenues, government research grants,
interest income and cash balances until products developed from its technology
are commercially marketed. While the Company currently is involved in certain
collaborative research programs with major pharmaceutical companies, there can
be no assurance that such programs will not be terminated, that such programs
will lead to the development of marketable or profitable products, that the
Company will be able to secure additional collaborative research contracts in
the future or that any future contracts, if any, will be profitable or will
lead to the development of marketable or profitable products.
NEED FOR FUTURE FUNDING; UNCERTAINTY OF ACCESS TO CAPITAL. The
Company will require substantial additional funding in order to continue its
research, product development, preclinical testing and clinical trials of its
product candidates. The Company will also require additional funding for
operating expenses and the pursuit of regulatory approvals for its product
candidates. The Company's future capital requirements will depend on many
factors, including continued scientific progress in its research and
development programs, the size and complexity of these programs, progress with
preclinical testing and clinical trials, the time and costs involved in
obtaining regulatory approvals, the costs involved in filing, prosecuting and
enforcing patent claims, competing technological and market developments, the
establishment of additional collaborative arrangements, the cost of
manufacturing arrangements, commercialization activities, and the cost of
product in-licensing and strategic acquisitions, if any. There can be no
assurance that the Company's cash reserves and other liquid assets, including
the net proceeds of this offering and funding that may be received from the
Company's commercial partners and interest income earned thereon, will be
adequate to satisfy its capital and operating requirements.
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The Company intends to seek additional funding through arrangements
with corporate collaborators and through public or private sales of the
Company's securities, including equity securities. There can be no assurance,
however, that additional funding will be available on reasonable terms, if at
all. Any additional equity financings would be dilutive to the Company's
stockholders. If adequate funds are not available, the Company may be required
to curtail significantly one or more of its research and development programs
and/or obtain funds through arrangements with collaborative partners or others
that may require the Company to relinquish rights to certain of its
technologies or product candidates.
DEPENDENCE ON COLLABORATIVE RELATIONSHIPS. The Company has
established collaborative arrangements with various pharmaceutical companies
with respect to the discovery and development of drugs for various disease
targets. The Company will be dependent upon these outside partners to conduct
preclinical testing and clinical trials and to provide adequate funding for the
Company's development programs. Under certain of these arrangements, the
Company's commercial partners may have all or a significant portion of the
development and regulatory approval responsibilities. Failure of the
commercial partners to develop marketable products or to gain the appropriate
regulatory approvals would have a material adverse effect on the Company's
business, financial condition and results of operations.
In most cases, the Company cannot control the amount and timing of
resources its commercial partners devote to the Company's programs or potential
products. If any of the Company's commercial partners were to breach or
terminate its agreements with the Company or otherwise fail to conduct its
collaborative activities in a timely manner, the preclinical or clinical
development or commercialization of product candidates or research programs
would be delayed, and the Company would be required to devote additional
resources to product development and commercialization, or terminate certain
development programs. The termination of collaborative arrangements would have
a material adverse effect on the Company's business, financial condition and
results of operations. There can be no assurance that disputes will not arise
in the future with respect to the ownership of rights to any technology
developed with third parties. These and other possible disagreements between
collaborators and the Company could lead to delays in the result in the
collaborative research, development or commercialization of certain product
candidates or could require or result in litigation or arbitration, which would
be time-consuming and expensive, and would have a material adverse effect on
the Company's business, financial condition and results of operations.
NO ASSURANCE OF PROTECTION OF IMPORTANT PATENTS AND PROPRIETARY
TECHNOLOGY. The Company's success depends in part on its ability to obtain
patents, maintain trade secret protection and operate without infringing on the
proprietary rights of third parties. The Company has filed or acquired more
than 95 applications for United States patents and over 110 applications for
foreign patents. The Company currently owns 17 issued United States patents
and 23 granted foreign patents. There can be no assurance that any of the
Company's pending patent applications will be approved, that the Company will
develop additional proprietary technologies that are patentable, that any
patents issued to the Company or its licensors will provide a basis for
commercially viable products or will provide the Company with any competitive
advantages or will not be challenged by third parties, or that the patents of
others will not have an adverse effect on the ability of the Company to do
business. In addition, patent law relating to the scope of claims in which the
technology fields in which the Company operates is still evolving.
Consequently, the degree of future protection for the Company's proprietary
rights is uncertain. Furthermore, there can be no assurance that others will
not independently develop similar or alternative technologies, duplicate any of
the Company's technologies, or, if patents are issued to the Company, design
around the patented technologies developed by the Company. In addition, the
Company could
A-4
<PAGE> 10
incur substantial costs in litigation if it is required to defend itself in
patent suits brought by third parties or if it initiates such suits.
The Company is aware of patent applications filed by, or patents
issued to, other entities with respect to technology potentially useful to the
Company and, in some cases, related to the products and processes being used or
developed by the Company. The Company currently cannot assess the effect, if
any, that these applications and/or patents may have on its future operations.
The extent to which efforts by other researchers have resulted or will result
in patents and the extent to which the issuance of patents to others would have
a material adverse effect on the Company or would force the Company to obtain
licenses from others, if available, currently is unknown.
The Company is aware of several patents and patent applications owned
by others who may allege infringement by the Company with respect to products
the Company is seeking to develop. Although the Company does not believe that
its operations or technology infringes upon any valid claim contained in any
patent owned by any other person, there can be no assurance that the Company's
operations or technology will not infringe upon the rights of any third party.
The Company relies on secrecy to protect technology where patent
protection is not believed to be appropriate or obtainable. The Company has
entered, and will continue to enter, into confidentiality agreements with its
employees, consultants, licensors and collaborative partners. There can be no
assurance, however, that others will not independently develop substantially
equivalent proprietary information and techniques or otherwise gain access to
the Company's trade secrets, that such obligations of confidentiality will be
honored or that the Company will be able to effectively protect its rights to
proprietary information.
GOVERNMENT REGULATION; NO ASSURANCE OF REGULATORY APPROVAL. The
Company's research, preclinical testing and clinical trials of its product
candidates are, and the manufacturing and marketing of its products will be,
subject to extensive and rigorous regulation by numerous governmental
authorities in the United States and in other countries where the Company
intends to test and market its product candidates.
Prior to marketing, any product developed by the Company must undergo
an extensive regulatory approval process. This regulatory process, which
includes preclinical testing and clinical trials, and may include
post-marketing surveillance, of each compound to establish its safety and
efficacy, can take many years and require the expenditure of substantial
resources. Data obtained from preclinical and clinical activities are
susceptible to varying interpretations which could delay, limit or prevent
regulatory approval. In addition, delays or rejections may be encountered
based upon changes in FDA policy for drug approval during the period of product
development and FDA regulatory review of each submitted new drug application
("NDA"). Similar delays may also be encountered in foreign countries. There
can be no assurance that regulatory approval will be obtained for any drugs
developed by the Company. Moreover, regulatory approval may entail limitations
on the indicated use of the drug. Further, even if regulatory approval is
obtained, a marketed drug and its manufacturer are subject to continuing
review. Discovery of previously unknown problems with a product or
manufacturer may have adverse effects on the Company's business, financial
condition and results of operations, including withdrawal of the product from
the market. Violations of regulatory requirements at any stage,including
preclinical testing and clinical trials, the approval process or post-approval,
may result in various adverse consequences including the FDA's delay in
approving or its refusal to approve a product, withdrawal of an approved
product from the market and the imposition of criminal penalties against the
manufacturer and NDA holder. The
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<PAGE> 11
Company has not submitted any Investigational New Drug application for any
product candidate, and no product candidate has been approved for
commercialization in the United States or elsewhere. No assurance can be given
that the Company will be able to obtain FDA approval for any products. Failure
to obtain requisite governmental approvals or failure to obtain approvals of
the scope requested will delay or preclude the Company or its licensees or
marketing partners from marketing the Company's products or limit the
commercial use of the products and will have a material adverse effect on the
Company's business, financial condition and results of operations.
COMPETITION AND RISK OF TECHNOLOGICAL OBSOLESCENCE. The Company
operates in a rapidly evolving field. New developments are expected to
continue at a rapid pace in both industry and in academia. Competition in
technology development from large pharmaceutical companies, biotechnology
companies, joint ventures, research and academic institutions and others is
intense and expected to increase. Many of these companies and institutions
have substantially greater capital resources, research and development staffs,
experience and facilities than the Company. These entities represent
significant long-term competition for the Company. In addition, the Company's
competitors might succeed in developing technologies that are more effective
than those that are being developed by the Company or that otherwise would
render the Company's technologies obsolete or noncompetitive.
UNCERTAINTIES RELATED TO PHARMACEUTICAL PRICING AND REIMBURSEMENT.
The Company's business, financial condition and results of operations may be
materially adversely affected by the continuing efforts of government and
third-party payors to contain or reduce the costs of health care through
various means. For example, in certain foreign markets, pricing and/or
profitability of prescription pharmaceuticals are subject to government
control. In the United States, the Company expects that there will continue to
be a number of federal and state proposals to implement similar government
control. In addition, increasing emphasis on managed care in the United States
will continue to put pressure on pharmaceutical pricing. Cost control
initiatives could decrease the price that the Company or any of its licensees
receives for any products it may develop and sell in the future and have a
material adverse effect on the Company's business, financial condition and
results of operations. Further, to the extent that cost control initiatives
have a material adverse effect on the Company's commercial partners, the
Company's ability to commercialize its products may be adversely affected.
The Company's ability to commercialize pharmaceutical products may
depend in part on the extent to which reimbursement for the products will be
available from government and health administration authorities, private health
insurers and other third-party payors. Significant uncertainty exists as to
the reimbursement status of newly approved health care products, and
third-party payors, including Medicare, are increasingly challenging the prices
charged for medical products and services. There can be no assurance that any
third-party insurance coverage will be available to patients for any products
developed by the Company. Government and other third-party payors are
increasingly attempting to contain health care costs by limiting both coverage
and the level of reimbursement for new therapeutic products and by refusing in
some cases to provide coverage for uses of approved products for disease
indications for which the FDA has not granted labeling approval. If adequate
coverage and reimbursement levels are not provided by government and other
third-party payors for the Company's products, the market acceptance of these
products would be adversely affected.
NO MANUFACTURING EXPERIENCE; RELIANCE ON THIRD-PARTY MANUFACTURING.
The Company's strategy for development and commercialization of certain of its
products is dependent upon entering into various arrangements with research
collaborators, commercial partners and others and upon the subsequent success
of these third parties in performing their obligations.
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<PAGE> 12
The Company has no experience in manufacturing products for commercial
purposes and does not have manufacturing facilities. Consequently, the Company
will be dependent on its commercial partners or contract manufacturers for the
production of products for development and commercial purposes. The
manufacture of the Company's products for clinical trials and commercial
purposes is subject to current Good Manufacturing Practice ("GMP") regulations
promulgated by the FDA. In the event that the Company is unable to obtain or
retain third-party manufacturing, it will not be able to commercialize its
products as planned. There can be no assurance that the Company will be able
to enter into agreements for the manufacture of future products with
manufacturers whose facilities and procedures comply with GMP and other
regulatory requirements. The Company's current dependence upon others for the
manufacture of its products may adversely affect its profit martin, if any, on
the sale of future products and the Company's ability to develop and deliver
products on a timely and competitive basis.
POTENTIAL PRODUCT LIABILITY; UNCERTAINTIES RELATED TO INSURANCE. The
use of any of the Company's potential products in clinical trials and the sale
of any approved products, including the testing and commercialization of
pimagedine, may expose the Company to liability claims resulting from the use
of products or product candidates. These claims might be made directly by
consumers, pharmaceutical companies or others. The Company maintains a limited
amount of product liability insurance coverage for claims arising from the use
of its products in clinical trials. However, coverage is becoming increasingly
expensive, and no assurance can be given that the Company will be able to
maintain insurance or, if maintained, that it will be sufficient to protect the
Company against liability that could have a material adverse effect on the
Company's business, financial conditions and results of operations. There can
be no assurance that the Company will be able to obtain commercially reasonable
product liability insurance for any product approved for marketing in the
future or that insurance coverage and the resources of the Company would be
sufficient to satisfy any liability resulting from product liability claims. A
successful product liability claim or series of claims brought against the
Company could have a material adverse effect on its business, financial
condition and results of operations.
ATTRACTION AND RETENTION OF KEY EMPLOYEES AND CONSULTANTS. The
Company is highly dependent on the principal members of its management and
scientific staff. The loss of services of any of these personnel could impede
the achievement of the Company's development objectives. Furthermore,
recruiting and retaining qualified scientific personnel to perform research and
development work in the future will also be critical to the Company's success.
There can be no assurance that the Company will be able to attract and retain
personnel on acceptable terms given the competition between pharmaceutical and
health care companies, universities and nonprofit research institutions for
experienced scientists. In addition, the Company relies on consultants to
assist the Company in formulating its research and development strategy. All
of Oncogene Science's consultants are employed by employers other than the
Company and may have commitments to or consulting or advisory contracts with
other entities that may limit their availability to the Company.
RISK OF HAZARDOUS MATERIAL CONTAMINATION. The activities of the
Company involve and will involve the controlled use of hazardous materials.
Although the Company believes that its safety procedures for handling and
disposing of such materials comply with the standards prescribed by state and
federal laws and regulations, the risk of accidental contamination or injury
from these materials cannot be completely eliminated. In the event of such an
accident, the Company could be held liable for damages that result, and any
such liability could exceed its resources or otherwise have a material adverse
impact on the Company.
A-7
<PAGE> 13
IMPACT OF "IN-THE-MONEY" OPTIONS AND WARRANTS. The Company currently
has outstanding, and may in the future issue, options and warrants to purchase
shares of the Company's Common Stock. To the extent such options and warrants
are in-the-money relative to the price of the Company's Common Stock as quoted
on the NMS, the exercise of such options and warrants may have the effect of
depressing the market price of the Company's Common Stock and reducing its
liquidity. In addition, the existence of options and warrants that may be
exercised for shares of the Company's Common Stock at less than its then
current market value may make it more difficult or expensive for the Company to
obtain equity capital in the future.
VOLATILITY OF COMMON STOCK PRICE; MARKET FOR THE COMMON STOCK; NO
DIVIDENDS. The market prices for securities of biotechnology and
pharmaceutical companies, including Oncogene Science, have historically been
highly volatile, and the market has from time to time experienced significant
price and volume fluctuations that are unrelated to the operating performance
of particular companies. Factors such as fluctuations in the Company's
operating results, announcements of technological innovations or new
therapeutic products by the Company or others, clinical trial results,
developments concerning agreements with collaborators, governmental regulation,
developments in patent or other proprietary rights, public concern as to the
safety of drugs developed by the Company or others, future sales of substantial
amounts of Common Stock by existing stockholders and general market conditions
can have an adverse effect on the market price of the Common Stock. The
realization of any of the risks described in these "Risk Factors" could have a
dramatic and adverse impact on market prices. The Company has not paid any
cash dividends on its Common Stock and does not anticipate paying any such
dividends.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the
securities covered by this Prospectus.
SELLING STOCKHOLDERS
This Prospectus relates to the Shares that may be acquired by the
Selling Stockholders pursuant to the exercise of options that have been, or may
be in the future, granted pursuant to the Option Plans. The following table
sets forth certain information with respect to Selling Stockholders who
currently hold options to purchase Shares. The Company is unaware of whether
the Selling Stockholders listed below presently intend to sell the Shares they
may acquire upon exercise of options. The Company in the future may grant
additional options to the persons listed below and to persons other than those
listed below whose subsequent sale of Shares will be covered by this
Prospectus, which, in such case, will be supplemented.
A-8
<PAGE> 14
<TABLE>
<CAPTION>
Number of Shares (and
Percentage of
Number of Shares Number of Shares Offered Outstanding Shares)
Beneficially Owned for Selling Beneficially Owned
Name and Prior to this Stockholder's After Completion of
Position with the Company Offering(1) Account(2) this Offering (3)
------------------------- ---------------------- ------------------------ ----------------------
<S> <C> <C> <C>
G. Morgan Browne 60,116(4) 57,500(2) 42,150(*)(4)
Director
J. Gordon Foulkes, Ph.D. 111,889(5) 161,500 None
Vice President, Chief
Scientific Officer and
Director
Gary E. Frashier 192,270(6) 250,000 8,934(*)
Chief Executive Officer and
Director
John H. French II 40,489(7) 63,000(2) 6,500(*)
Director
Edwin A. Gee, Ph.D. 117,966(5) 157,000(2) None
Chairman of the Board and
Director
Colin Goddard 31,681(8) 93,000 800(*)
Vice President,
Pharmaceutical Operations
Walter M. Lovenberg, Ph.D. 53,000(9) 70,000(2) 1,000(*)
Director
Steve M. Peltzman 113,844(10) 212,500 14,599(*)
President, Chief Operating
Officer and Director
Ann H. Rose, Ph.D. 24,625(5) 70,000 None
Vice President, TGF-Beta3
Program and Regulatory
Affairs
Robert L.Van Nostrand, 53,053(11) 70,000 450(*)
Vice President,
Finance and
Administration
</TABLE>
A-9
<PAGE> 15
- -------------------
* Denotes less than 1% of class.
(1) The number of shares of Common Stock beneficially owned by any Selling
Stockholder includes shares subject to options or warrants held by the
Selling Stockholder that are exercisable within 60 days of the date of
this Prospectus.
(2) Represents shares of Common Stock that may be acquired through the
exercise of options granted pursuant to the Option Plans, without
regard to whether such options are, or when they become, exercisable.
For each of Messrs. Browne and French and Drs. Gee and Lovenberg, this
number includes 20,000 shares subject to options granted contingent
upon approval by the Company's stockholders at the 1996 annual meeting
of stockholders of an amendment to the 1993 Incentive and
Non-Qualified Stock Option Plan.
(3) Computed in each case by assuming that all options (without regard to
when such options become exercisable) granted to the Selling
Stockholder under the Option Plans have been exercised and that the
Shares acquired in connection with such exercise were disposed of by
the Selling Stockholder. For purposes of computing the percentage of
the Company's Common Stock owned by the Selling Stockholder after
completion of this offering, it is assumed that the total number of
shares of the Company's outstanding Common Stock includes such Shares.
(4) Includes 400 shares owned by Mr. Browne's wife as to which Mr. Browne
disclaims beneficial ownership. Includes (only as to the number of
shares reflected as beneficially owned prior to this offering) 17,966
shares that may be acquired at or within 60 days of November 30, 1995
pursuant to the exercise of outstanding options. Also includes 21,750
shares owned by Cold Spring Harbor Laboratory, of which Mr. Browne is
an executive officer. Mr. Browne disclaims beneficial ownership of
the shares owned by Cold Spring Harbor Laboratory.
(5) Consists entirely of shares that may be acquired at or within 60 days
of November 30, 1995 pursuant to the exercise of outstanding options.
(6) Includes (only as to the number of shares reflected as beneficially
owned prior to this offering) 183,336 shares that may be acquired at
or within 60 days of November 30, 1995 pursuant to the exercise of
outstanding options.
(7) Includes 33,989 shares that may be acquired at or within 60 days of
November 30, 1995 pursuant to the exercise of outstanding options.
(8) Includes 30,881 shares that may be acquired at or within 60 days of
November 30, 1995 pursuant to the exercise of outstanding options.
(9) Includes 52,000 shares that may be acquired at or within 60 days of
November 30, 1995 pursuant to the exercise of outstanding options.
(10) Includes 99,245 shares that may be acquired at or within 60 days of
November 30, 1995 pursuant to the exercise of outstanding options.
(11) Includes 52,603 shares that may be acquired at or within 60 days of
November 30, 1995 pursuant to the exercise of outstanding options.
PLAN OF DISTRIBUTION
The Shares of Common Stock covered by this Prospectus are being registered
by the Company for the account of the Selling Stockholders. The Company will
pay all expenses of registering the Shares, but will not receive any of the
proceeds from sales by any of the Selling Stockholders. The Company
understands that none of such Shares will be offered through underwriters.
The Shares may be sold from time to time by the Selling Stockholders either
through one or more brokers or dealers, through privately negotiated
transactions or otherwise, at market prices prevailing at the time of sale or
at prices otherwise negotiated. In connection therewith, the Selling
Stockholders and participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act, and commissions or
discounts or any profit realized on the sale of Shares received by a Selling
Stockholder or any such broker or dealer may be deemed to be underwriting
commissions or discounts within the meaning of the Securities Act. As of the
date of this Prospectus, the Company understands
A-10
<PAGE> 16
that none of the Selling Stockholders has any agreement, arrangement or
understanding with any brokers or dealers concerning the distribution of
Shares.
DOCUMENTS INCORPORATED BY REFERENCE
Incorporated herein by reference and made a part hereof are: (1) the
description of the Company's Common Stock contained in the registration
statement filed by the Company to register such securities under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description, (2) the Company's Annual Report on Form 10-K for the
year ended September 30, 1994, (3) the Company's Quarterly Reports on Form 10-Q
for the quarters ended December 31, 1994, and March 31 and June 30, 1995, and
(4) the Company's Current Reports on Form 8-K dated April 19, 1995 and August
2, 1995, which documents are on file with the Commission. All documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the termination of this offering shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing such documents.
INDEMNIFICATION
Under the provisions of Article Six of the Company's By-laws, the Company is
required to indemnify, to the fullest extent permitted by applicable law as it
presently exists or hereafter may be amended, any person who was or is made or
is threatened to be made a party to, or is otherwise involved in, any action,
suit or other proceeding by reason of the fact that he or she is or was a
director, officer, employee or agent of the Company, against all liability and
loss suffered and expenses incurred by such person. The Company is required to
indemnify a person in connection with a proceeding initiated by such person
only if the proceeding was authorized by the Board of Directors of the Company.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed 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.
A-11
<PAGE> 17
==================================================
TABLE OF CONTENTS
Page
----
Available Information . . . . . . . . . . . . A-2
Risk Factors . . . . . . . . . . . . . . . . A-2
Use of Proceeds . . . . . . . . . . . . . . . A-8
Selling Stockholders . . . . . . . . . . . . A-8
Plan of Distribution . . . . . . . . . . . . A-10
Documents Incorporated by Reference . . . . . A-11
Indemnification . . . . . . . . . . . . . . . A-11
------------------
No dealer, salesman or any other person has been
authorized to give any information or to make any
representation other than those contained in this
Prospectus in connection with the offer contained
in this Prospectus, and, if given or made, such
information or representation must not be relied
upon. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any
circumstances, create an implication that there
has been no change in the affairs of the Company
since the date hereof or that the information
contained or incorporated by reference herein is
correct as of any time subsequent to its date.
This Prospectus does not constitute an offer or a
solicitation by anyone in any jurisdiction in
which such offer or solicitation is not
authorized, or in which the person making such
offer or solicitation is not qualified to do so,
or to anyone to whom it is unlawful to make such
offer or solicitation.
==================================================
==================================================
ONCOGENE SCIENCE, INC.
---------------------
1,204,500 Shares
Common Stock
---------------------
PROSPECTUS
December 4, 1995
==================================================
A-12
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the City of Uniondale, State of New York, on December 1, 1995.
ONCOGENE SCIENCE, INC.
By: /s/ Gary E. Frashier
---------------------
Gary E. Frashier,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby makes, constitutes and appoints Gary E. Frashier and
Robert L. Van Nostrand, and each of them, with full power to act without the
other, 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 to this Registration
Statement, including post-effective amendments, 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 or 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 any substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gary E. Frashier Chief Executive Officer December 1, 1995
--------------------------------- and Director
Gary E. Frashier
/s/ Steve M. Peltzman President, Chief Operating Officer and December 1, 1995
-------------------------------- Director
Steve M. Peltzman
/s/ J. Gordon Foulkes Vice President, Chief Scientific December 1, 1995
--------------------------------- Officer and Director
J. Gordon Foulkes
</TABLE>
II-1
<PAGE> 19
<TABLE>
<S> <C> <C>
/s/ Robert L. Van Nostrand Vice President, Finance and December 1, 1995
------------------------------ Administration (Principal Financial
Robert L. Van Nostrand and Accounting Officer)
/s/ G. Morgan Browne Director December 1, 1995
------------------------------
G. Morgan Browne
/s/ John H. French, II Director December 1, 1995
---------------------------------
John H. French, II
/s/ Edwin A. Gee, Ph.D. Director December 1, 1995
------------------------------
Edwin A. Gee, Ph.D.
/s/ Walter M. Lovenberg, Ph.D. Director December 1, 1995
------------------------------
Walter M. Lovenberg, Ph.D.
/s/ Walter M. Miller Director December 1, 1995
-----------------------------------
Walter M. Miller
/s/ Gary Takata Director December 1, 1995
-----------------------------------
Gary Takata
/s/ John P. White Director December 1, 1995
-----------------------------------
John P. White
</TABLE>
II-2
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<S> <C>
5 Opinion of Saul, Ewing, Remick & Saul.
10 1993 Incentive and Non-Qualified Stock Option Plan.
23.1 Consent of KPMG Peat Marwick LLP, independent
public accountants.
23.2 Consent of Saul, Ewing, Remick & Saul (Contained in
Exhibit No. 5).
24 Power of Attorney authorizing Gary E. Frashier and
Robert L. Van Nostrand to sign the Registration
Statement (included in signature page of the
Registration Statement).
</TABLE>
II-3
<PAGE> 1
EXHIBIT 5
LAW OFFICES OF
SAUL, EWING, REMICK & SAUL
HARRISBURG, PENNSYLVANIA 3800 CENTRE SQUARE WEST PRINCETON, NEW JERSEY
MALVERN, PENNSYLVANIA PHILADELPHIA, PA 19102 WESTMONT, NEW JERSEY
NEW YORK, NEW YORK WILMINGTON, DELAWARE
(215) 972-7777
Fax: (215) 972-7725
Internet Email: [email protected]
World Wide Web: http://www.saul.com
December 1, 1995
Oncogene Science, Inc.
106 Charles Lindbergh Blvd.
Uniondale, NY 11553
Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") of Oncogene Science, Inc., a Delaware corporation (the "Company"),
to be filed with the Securities and Exchange Commission covering the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 1,600,000 shares of common stock, par value $.01 per share, of the
Company (the "Shares").
We have examined the Registration Statement, the Certificate of
Incorporation and By-laws of the Company and such records, certificates and
other documents as we have considered necessary or appropriate for the purposes
of this Opinion.
Based on the foregoing, it is our opinion that:
1. the Company is duly organized, validly existing and in good
standing under the laws of State of Delaware; and
2. the Shares to be issued in accordance with the terms described
in the Registration Statement have been duly authorized and, when issued in
accordance with the terms described in the Registration Statement, will be
validly issued, fully paid and non-assessable.
We hereby consent to use of our name in the Registration Statement as
counsel who will pass upon the legality of the Shares for the Company and as
having prepared this Opinion as an exhibit to the Registration Statement. In
giving the foregoing consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
SAUL, EWING, REMICK & SAUL
<PAGE> 1
EXHIBIT 10
ONCOGENE SCIENCE, INC.
1993 INCENTIVE AND NON-QUALIFIED
STOCK OPTION PLAN
1. Purpose
The purpose of this 1993 Incentive and Non-Qualified Stock Option Plan
(the "Plan" is to encourage and enable selected management, other key
employees, directors (whether or not employees), and consultants of Oncogene
Science, Inc. (the "Company") or a parent or subsidiary, of the Company to
acquire a proprietary interest in the Company through the ownership of common
stock, par value $.01 per share (the "Common Stock"), of the Company. Such
ownership will provide such employees with a more direct stake in the future
welfare of the Company, and encourage them to remain with the Company or a
parent or subsidiary of the Company. It is also expected that the Plan will
encourage qualified persons to seek and accept employment with the Company or a
parent or subsidiary of the Company. Pursuant to the Plan, such employees will
be offered the opportunity to acquire Common Stock through the grant of
incentive stock options and "non-qualified" stock options.
As used herein, the term "parent" or "subsidiary" shall mean any
present or future corporation which is or would be a "parent corporation" or
"subsidiary corporation" of the Company as the term is defined in Section 425
of the Internal Revenue Code of 1986, as amended (the "Code") (determined as if
the Company were the employer corporation).
2. Administration of the Plan
The Plan shall be administered by a Stock Option Committee (the
"Committee") as appointed from time to time by the Board of Directors of the
Company, which committee shall consist of not less than three members of the
Board of Directors and each member of which shall be a "disinterested person,"
within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any successor rule or regulation
("Rule 16b-3"). Except as otherwise specifically provided herein, no person,
other than members of the Committee, shall have any discretion as to decisions
regarding the Plan.
In administering the Plan, the Committee may adopt rules and
regulations for carrying out the Plan. The interpretation and decision made by
the Committee with regard to any question arising under the Plan shall be final
and conclusive on all persons participating or eligible to participate in the
Plan. Subject to the provisions of the Plan, the Committee shall determine the
terms of all options granted pursuant to the Plan, including, but not limited
to, the persons to whom, and the time or times at which, grants shall be made,
the number of options to be included in the grants, the number of options which
shall be treated as incentive stock options, and the option price.
3. Shares of Stock Subject to the Plan
Except as provided in subparagraph 6 (h) and 6 (i) and paragraph 7,
the number of shares that may be issued or transferred pursuant to the exercise
of options granted under the Plan shall not exceed 1,600,000 shares of Common
Stock. Such shares may be authorized and unissued shares or previously issued
shares acquired or to be acquired by the Company and held in treasury. Any
shares subject to an option which for any reason expires or is terminated
unexercised as to such shares may again be subject to an option right under the
Plan. The aggregate Fair Market Value (determined at the time the option is
<PAGE> 2
granted) of the stock with respect to which incentive stock options are
exercisable for the first time by an optionee during any calendar year (under
the Plan and all plans of the Company and any parent and subsidiary of the
Company) shall not exceed $100,000.
4. Eligibility
Incentive stock options may be granted only to management and other
key employees who are employed by the Company or a parent or subsidiary of the
Company. An incentive stock option may be granted to a director of the Company
or a parent or subsidiary of the Company, provided that the director is also an
officer or key employee. Directors who are not officers or key employees, and
consultants, may only be granted non-qualified stock options.
5. Granting of Options
No options pursuant to this Plan may be granted after the expiration
on January 14, 2003. The date of the grant of any option shall be the date on
which the Committee authorizes the grant of such option.
6. Options
Options shall be evidenced by stock option agreements in such form,
not inconsistent with this Plan, as the Committee shall approve from time to
time, which agreements need not be identical and shall be subject to the
following terms and conditions:
(a) Option Price. The purchase price under each
incentive stock option shall be not less than 100% of the Fair
Market Value of the Common Stock at the time the option is
granted and not less than the par value of such Common Stock.
In the case of an incentive stock option granted to an
employee owning more than 10% of the total combined voting
power of all classes of stock of the Company or of any parent
or subsidiary of the Company (a "10% Stockholder"), actually
or constructively under Section 425(d) of the Code, the option
price shall not be less than 110% of the Fair Market Value of
the Common Stock subject to the option at the time of its
grant. The purchase price under each non-qualified stock
option shall be specified by the Committee, but shall in no
case be less than the greater of 50% of the Fair Market Value
of the Common Stock at the time the option is granted and the
par value of such Common Stock. The Fair Market Value of the
Common Stock on any date shall be determined in a manner
consistent with the requirements of the Code.
(b) Medium and Time of Payment. Stock purchased
pursuant to the exercise of an option shall at the time of
purchase be paid for in full in cash, or, upon conditions
established by the Committee, by delivery of shares of Common
Stock owned by the recipient. If payment is made by the
delivery of shares, the value of the shares delivered shall be
the Fair Market Value of such shares on the date of exercise
of the respective option. Upon receipt of payment and such
documentation as the Company may deem necessary to establish
compliance with the Securities Act of 1933, as amended (the
"Securities Act"), the Company shall, without stock transfer
tax to the optionee or other person entitled to exercise the
option, deliver to the person exercising the option a
-2-
<PAGE> 3
certificate or certificates for such shares. It shall be a
condition to the performance of the Company's obligation to
issue or transfer Common Stock upon exercise of an option or
options that the optionee pay, or make provision satisfactory
to the Company for the payment of, any taxes (other than
stock transfer taxes) which the Company is obligated to
collect with respect to the issue or transfer of Common Stock
upon such exercise, including any federal, state, or local
withholding taxes.
(c) Waiting Period. The waiting period and time
for exercising an option shall be prescribed by the Committee
in each particular case; provided, however, that no option may
be exercised after 10 years from the date it is granted. In
the case of an incentive stock option granted to a 10%
Stockholder, such option, by its terms, shall be exercisable
only within five years from the date of grant.
(d) Rights to a Stockholder. A recipient of
options shall have no rights as a stockholder with respect to
any shares issuable or transferable upon exercise thereof
until the date a stock certificate is issued to him for such
shares. Except as otherwise expressly provided in the Plan,
no adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock
certificate is issued.
(e) Non-Assignability of Options. No option
shall be assignable or transferable by the recipient except by
will or by the laws of descent and distribution. During the
lifetime of a recipient, options shall be exercisable only by
him.
(f) Effect of Termination of Employment. If a
recipient's employment (or service as an officer, director or
consultant) shall terminate for any reason, other than death
or Retirement, the right of the recipient to exercise any
option otherwise exercisable on the date of such termination
shall expire unless such right is exercised within a period of
90 days after the date of such termination. The term
"Retirement" shall mean the voluntary termination of
employment (or service as an officer, director or consultant)
by a recipient who has attained the age of 55 and who has at
least five years' service with the Company. If a recipient's
employment (or service as an officer, director or consultant)
shall terminate because of death or Retirement, the right of
the recipient to exercise any option otherwise exercisable on
the date of such termination shall be unaffected by such
termination and shall continue until the normal expiration of
such option. option rights shall not be affected by any change
of employment as long as the recipient continues to be
employed by either the Company or a parent or subsidiary of
the Company. In no event, however, shall an option be
exercisable after the expiration of its original term as
determined by the Committee pursuant to subparagraph 6(c)
above. The Committee may, if it determines that to do so
would be in the Company's best interests, provide in a
specific case or cases for the exercise of options which would
otherwise terminate upon termination of employment with the
Company for any reason, upon such terms and conditions as the
Committee determines to be appropriate. Nothing in the Plan
or in any option agreement shall confer any right to continue
in the employ of the Company or any parent or subsidiary of
the Company or interfere in any way with the right of the
Company or any parent or subsidiary of the Company to
terminate the employment of a recipient at any time.
-3-
<PAGE> 4
(g) Leave of Absence. In the case of a recipient
on an approved leave of absence, the Committee may, if it
determines that to do so would be in the best interests of the
Company, provide in a specific case for continuation of
options during such leave of absence, such continuation to be
on such terms and conditions as the Committee determines to be
appropriate, except that in no event shall an option be
exercisable after 10 years from the date it is granted.
(h) Recapitalization. In the event that
dividends payable in Common Stock during any fiscal year of
the Company exceed in the aggregate five percent of the Common
Stock issued and outstanding at the beginning of the year, or
in the event there is during any fiscal year of the Company
one or more splits, subdivisions, or combinations of shares of
Common Stock resulting in an increase or decrease by more than
five percent of the shares outstanding at the beginning of the
year, the number of shares available under the Plan shall be
increased or decreased proportionately, as the case may be,
and the number of shares deliverable upon the exercise
thereafter of any options theretofore granted shall be
increased or decreased proportionately, as the case may be,
without change in the aggregate purchase price. Common Stock
dividends, splits, subdivisions, or combinations during any
fiscal year which do not exceed in the aggregate five percent
of the Common Stock issued and outstanding at the beginning of
such year shall be ignored for purposes of the Plan. All
adjustments shall be made as of the day such action
necessitating such adjustment becomes effective.
(i) Sale or Reorganization. In case the Company
is merged or consolidated with another corporation, or in case
the property of stock of the Company is acquired by another
corporation, or in case of a separation, reorganization, or
liquidation of the Company, the Board of Directors of the
Company, or the board of directors of any corporation assuming
the obligations of the Company hereunder, shall either (i)
make appropriate provisions for the protection of any
outstanding options by the substitution on an equitable basis
of appropriate stock of the Company, or appropriate stock of
the merged, consolidated, or otherwise reorganized
corporation, provided only that such substitution of options
shall comply with the requirements of Section 425 of the Code,
or (ii) give written notice to optionees that their options,
which will become immediately exercisable notwithstanding any
waiting period otherwise prescribed by the Committee, must be
exercised within 30 days of the date of such notice or they
will be terminated.
(j) General Restrictions. Each option granted
under the Plan shall be subject to the requirement that, if at
any time the Board of Directors shall determine, in its
discretion, that the listing, registration, or qualification
of the shares issuable or transferable upon exercise thereof
upon any securities exchange or under any state or federal
law, or the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of, or in
connection with, the granting of such option or the issue,
transfer, or purchase of shares thereunder, such option may
not be exercised in whole or in part unless such listing,
registration, qualification, consent, or approval shall have
been effected or obtained free of any conditions not
acceptable to the Board of Directors.
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The Company shall not be obligated to sell or issue
any shares of Common Stock in any manner in contravention of
the Securities Act or any state securities law. The Board of
Directors may, in connection with the granting of each option,
require the individual to whom the option is to be granted to
enter into an agreement with the Company stating that as a
condition precedent to each exercise of the option, in whole
or in part, he shall, if then required by the Company,
represent to the Company in writing that such exercise is for
investment only and not with a view to distribution, and also
setting forth such other terms and conditions as the Committee
may prescribe. Such agreements may also, in the discretion of
the Committee, contain provisions requiring the forfeiture of
any options granted and/or Common Stock held, in the event of
the termination of employment or association, as the case may
be, of the optionee with the Company. Upon any forfeiture of
Common Stock pursuant to an agreement authorized by the
preceding sentence, the Company shall pay consideration for
such Common Stock to the optionee, pursuant to any such
agreement, without interest thereon.
"Fair Market Value" for all purposes under the Plan
shall mean the closing price of shares, as reported in The
Wall Street Journal, in the NASDAQ National Market Issues or
similar successor consolidated transactions reports (or a
similar consolidated transactions report for the exchange on
which the shares are then trading) for the relevant date, or
if no sales of shares were made on such date, the average of
the high and low prices of shares as reported in such
composite transaction report for the preceding day on which
sales of shares were made. If the shares are not listed on a
national securities exchange or the NASDAQ National Market
System at the time Fair Market Value is to be determined, then
Fair Market Value shall be determined by the Committee in good
faith pursuant to such method as to the Committee deems
appropriate and equitable. Under no circumstances shall the
Fair Market Value of a Share be less than its par value.
7. Termination and Amendment of the Plan
The Board of Directors shall have the right to amend, suspend, or
terminate the Plan at any time; provided, however, that no such action shall
affect or in any way impair the rights of a recipient under any option right
theretofore granted under the Plan; and, provided, further, that unless first
duly approved by the stockholders of the Company entitled to vote thereon at a
meeting (which may be the annual meeting) duly called and held for such
purpose, except as provided in subparagraphs 6(h) and 6(i), no amendment or
change shall be made in the Plan: (a) increasing the total number of shares
which may be issued or transferred under the Plan; (b) changing the purchase
price hereinbefore specified for the shares subject to options; (c) extending
the period during which options may be granted or exercised under the Plan; or
(d) changing the designation of persons eligible to receive options under the
Plan.
8. Restriction of Sale of Shares
Without the written consent of the Company, no stock acquired by an
optionee upon exercise of an incentive stock option granted hereunder may be
disposed of by the optionee within two years from the date such incentive stock
option was granted, nor within one year after the transfer of such stock to the
optionee; provided, however, that a transfer to a trustee, receiver, or other
fiduciary in any insolvency proceeding, as described in Section 422A(c)(3) of
the Code, shall not be deemed to be such a disposition. The optionee shall
make appropriate arrangements with the Company for any taxes which the Company
is obligated to collect in connection with any such disposition, including any
federal, state, or local withholding taxes.
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9. Effective Date of the Plan
This Plan shall become effective January 15, 1993, the date of its
adoption by the favorable vote of the majority of the Board of Directors of the
Company, subject, however, to approval by the stockholders of the Company
within 12 months next following such adoption by the Board of Directors; and if
such approval is not obtained, the Plan shall terminate and any and all options
granted during such interim period shall also terminate and be of no further
force or effect. The Plan shall, in all events, terminate on January 14, 2003,
or on such earlier date as the Board of Directors of the Company may determine.
Any option outstanding at the termination date shall remain outstanding until
it has either expired of has been exercised.
10. Compliance with Rule 16b-3
With respect to persons subject to Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors. To the extent any provision of the
Plan or action by the Committee (or any other person on behalf of the Committee
or the Company) fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Oncogene Science, Inc.:
We consent to incorporation by reference in the registration statement
dated December 1, 1995 on Form S-8 of Oncogene Science, Inc. of our reports
dated December 9, 1994, relating to the consolidated balance sheets of Oncogene
Science, Inc. and subsidiaries as of September 30, 1994 and 1993, and the
related consolidated statements of operations, stockholders' equity and cash
flows, and the related schedules for each of the years in the three-year period
ended September 30, 1994, which reports appear in the September 30, 1994 annual
report on Form 10-K of Oncogene Science, Inc.
KPMG PEAT MARWICK LLP
Jericho, New York
November 29, 1995
