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As filed with the Securities and Exchange Commission June , 1997
Registration No. 333-
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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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NASTECH PHARMACEUTICAL COMPANY INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware 11-2658569
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(State of other Jurisdiction of Incorporation or Organization) (I.R.S Employer Identification No. )
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45 Davids Drive
Hauppauge, NY 11788
(Address of Principal Executive Offices) (Zip Code)
NASTECH PHARMACEUTICAL COMPANY INC.
STOCK OPTION PLAN
(Full title of the Plan)
Dr. Vincent D. Romeo
President and Chief Executive Officer
NASTECH PHARMACEUTICAL COMPANY INC.
45 Davids Drive
Hauppauge, NY 11788
(516)273-0101
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Bruce R. Thaw, Esq.
45 Banfi Plaza
Farmingdale, NY, 11735
(516) 752-1760
Calculation of Registration Fee
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Titles of Each Class Proposed Maximum Proposed Maximum
of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share(1) Price Registration Fee
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Common Stock,
$.006 par value 700,000 Shares $12.125 $8,487,500 $2,571.96
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(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c) based upon a price of $12.125 per share which
was the closing sale price as reported on the Nasdaq National Market
System on June 2, 1997.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
will be sent or given to employees and other option holders as specified by
Rule 428(b)(1) under the Securities Act. Such documents have not been filed
with the Commission either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in the registration statement
pursuant to item 3 of Part II of this registration statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 0-13789)
pursuant to the Securities Exchange Act of 1934 ("Exchange Act") are
incorporated by reference:
1. The Company's Transition Report on Form 10-K for the transition
period from July 1, 1996 to December 31, 1996;
2. The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1997;
3. The Company's Current Report on Form 8-K dated February 11, 1997;
and
4. The description of Common Stock contained in the Company's Form 8-A
Registration Statement declared effective by the Commission on October 6, 1985,
and any amendment or report filed for the purpose of updating those
descriptions.
In addition, all documents filed subsequent to the date hereof by the
Company pursuant to Section 13(a), 13(c), 14 or 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 in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
This Registration Statement has been prepared, in substantial part, by
Bruce R. Thaw, General Counsel for the Company. Mr. Thaw has also given his
opinion on the validity of the securities being registered. Mr. Thaw is the
beneficial owner of 78,041 shares of the Company's Common Stock and has options
to acquire 50,000 shares of the Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law, as amended, provides for the
indemnification of the Company's officers, directors and corporate employees
and agents under certain circumstances as follows:
DEL. CODE ANN. TITLE 8
Sec. 145. Indemnification of officers, directors, employees
and agents; insurance
a) A corporation may 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 (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in
good faith and in a manner he 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 conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he 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 reasonable cause to believe that his conduct was
unlawful.
b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees),
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be
made in
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respect of 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 upon application 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 which the Court of Chancery or such other court shall deem
proper.
c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
d) Any indemnification under subsection (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct
set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceedings, or (2) if such a quorum is not obtainable,
or, even, if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (3) by the
stockholders.
e) Expenses incurred by an officer or director in defending a civil
or criminal action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in this
section. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
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such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position
under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
I) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to
be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" as referred to in this section.
j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be
director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
The Certificate of Incorporation of the Company provides that the
indemnification provisions of Sections 102(b)(7) and 145 of the Delaware
Corporation Law shall be utilized to the fullest extent possible. Further, the
Certificate of Incorporation contains provisions to eliminate the liability of
the Company's directors to the Company or its stockholders to the fullest
extent permitted by Section 102(b)(7) of the Delaware General Corporation Law,
as amended from time to time.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, is permitted to directors, officers or controlling
persons of the Registrant, pursuant to the above mentioned statutes or
otherwise, the Registrant understands that the Securities and Exchange
Commission is of the opinion that such indemnification may contravene federal
public policy, as expressed in said Act, and therefore, may be unenforceable.
Accordingly, in the event that a claim for such indemnification is asserted by
any director, officer or a controlling person of the Company, and the
Commission is still of the same opinion, the Registrant (except insofar as such
claim seeks reimbursement by the Registrant of expenses paid or incurred by a
director, officer of controlling person in successful defense of any action,
suit or proceeding) will, unless the matter has theretofore
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been adjudicated by precedent deemed by counsel for the Registrant to be
controlling, submit to a court of appropriate jurisdiction the question whether
or not indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following Exhibits, required by Item 601 of Regulation S-B, are filed
as part of this registration statement.
4.1 Specimen of Common Stock Certificate of Registrant (Filed as an
Exhibit to the Company's Registration Statement on Form SB-2, as
amended, Commission File No. 33-70180 and incorporated herein by
reference).
4.2 Nastech Pharmaceutical Company Inc. 1990 Stock Option Plan.
4.3 Form of Stock Option Agreement intended to be used under the
Stock Option Plan.
5 Opinion of Counsel as to the legality of securities being
registered.
15 Not Applicable.
23.1 Consent of Bruce R. Thaw, Counsel to the Company (contained in
Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP, Certified Public Accountants.
23.3 Consent of Robbins, Greene, Horowitz, Lester & Co.,LLP,
Certified Public Accountants
24 Power of Attorney (Contained on signature page).
ITEM 9. UNDERTAKINGS
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 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.
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(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.
(4) 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.
(5) 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 any charge provision, by-law contract,
arrangements statute, 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 liabilities (other
than the payment by 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 against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized at Hauppauge, New York on the ___ day of May, 1997.
NASTECH PHARMACEUTICAL COMPANY INC.
By:/s/ Dr. Vincent D. Romeo
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DR. VINCENT D. ROMEO, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each of the undersigned whose
signature appears below constitutes and appoints Dr. Vincent D. Romeo and Devin
N. Wenig, and each of them (with full power of each of them to act alone), his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution for him and on his behalf, and in his name, place and stead,
in any and all capacities to execute and sign any and all amendments or
post-effective amendments to this registration statement, or subsequent
registration statements related to the shares registered hereby and to file the
same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-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
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents or any of them or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof and the
Registrant hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
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Signature Title Date
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/s/Dr. Vincent D. Romeo President, Chief Executive Officer, June 4, 1997
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DR. VINCENT D. ROMEO
/s/ Devin N. Wenig Chairman of the Board June 4, 1997
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DEVIN N. WENIG
/s/ Andrew P. Zinzi Chief Financial Officer June 4, 1997
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ANDREW P. ZINZI Accounting Officer)
/s/ Joel Girsky Director, Secretary/Treasurer June 4, 1997
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JOEL GIRSKY
/s/ Ian R. Ferrier Director June 4, 1997
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IAN R. FERRIER
/s/ Alvin Katz Director June 4, 1997
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ALVIN KATZ
/s/ John V. Pollock. Director June 4, 1997
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JOHN V. POLLOCK
/s/ Grant W. Denison Director June 4, 1997
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GRANT W. DENISON
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EXHIBIT 4.2
NASTECH PHARMACUTICAL COMPANY, INC.
1990 STOCK OPTION PLAN
1. Purpose of the Plan.
The purpose of this 1990 Stock Option Plan (the "Plan") is to further
the growth and development of Nastech Pharmaceutical Company, Inc. (the
"Company") by encouraging and enabling employees, including officers and
directors of the Company to obtain a proprietary interest in the Company
through the ownership of stock, thereby providing such persons with an added
incentive to continue in the employ or service of the Company and to stimulate
their efforts in promoting the growth, efficiency and profitability of the
Company, and affording the Company a means of attracting to its service persons
of outstanding quality.
The Plan is also intended to encourage ownership of the Company's
stock, by non-employee directors and advisors (either full-time or part-time)
of the Company, and to provide additional incentive for them to promote the
success of the Company's business.
2. Shares of Stock Subject to the Plan.
Subject to the provisions of Section 12 hereof, an aggregate of
375,000 shares of the Common Stock, par value $.002 per share, of the Company
(the "Common Stock") shall be reserved for issuance upon the exercise of
options which may be granted from time to time in accordance with the Plan.
Such shares may be, in whole or in part, as the Board of Directors of the
Company (the "Board of Directors") shall from time to time determine,
authorized but unissued shares or issued shares which have been reacquired by
the Company. If, for any reason, an option shall lapse, expire or terminate
without having been exercised in full, the unpurchased shares underlying these
options shall (unless the Plan shall have terminated) again be available for
the purpose of the Plan.
3. Administration of the Plan.
(a) The Board of Directors shall administer the Plan and, subject
to the provisions of the Plan, shall have authority in its discretion to
determine and designate from time to time, those persons eligible for a grant
of options under the Plan, those persons to whom options are to be granted, and
the manner in which said options are exercisable. In making such determination,
the Board of Directors may take into account the nature of the services
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rendered by the respective persons, their present and potential contributions
to the Company's success and such other factors as the Board of Directors in
its sole discretion shall deem relevant. Subject to the express provisions of
the Plan, the Board of Directors shall also have the authority to interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to it, to
determine the terms and provisions of the instruments by which options shall be
evidenced, which shall not be inconsistent with the terms of the Plan, and to
make all other determinations necessary or advisable for the administration of
the Plan, all of which determinations shall be final, binding and conclusive.
(b) The Board of Directors may, at its discretion appoint from
among its members a Stock Option Plan Committee (the "Committee"). Such
Committee shall be composed of three or more directors and shall have and may
exercise any and all of the powers relating to the administration of the Plan
and the grant of options hereunder as are set forth above in Section 3(a), as
the Board of Directors shall confer and delegate. The Board of Directors shall
have the power at any time to fill vacancies in, to change the membership of,
or to discharge, such committee. The Committee shall select one of its members
as its Chairman and shall hold its meetings at such times and at such places as
it shall deem advisable. A majority of such committee shall constitute a quorum
and such majority shall determine its action. The Committee shall keep minutes
of its proceedings and shall report same to the Board of Directors at the
meeting next succeeding. No director or member of the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any option granted thereunder.
4. Persons To Whom Shares May Be Granted.
Subject to the provisions hereinafter set forth, options granted under
the Plan shall be designated either (i) "Incentive Stock Options" (which term,
as used herein, shall mean options intended to be "incentive stock options"
within the meaning of Section 422A of the Code) or (ii) "Non-Incentive Stock
Options" (which term, as used herein, shall mean options not intended to be
"incentive stock options" within the meaning of Section 422A of the Code).
Incentive Stock Options may be granted to persons who are, at the time of the
grant, employees, including officers, or directors of the Company or any
subsidiary corporation (as defined in Section 425 of the Internal Revenue Code,
as amended (the "Code"), and herein referred to as "Subsidiary"), including
part-time employees, as the Board of Directors (or Committee) shall select,
from time to time, from among those nominated by the Board of Directors (or
Committee). Each option granted to a person who is not an "employee" (within
the meaning of Section 422A of the Code)
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of the Company or a Subsidiary on the date of the grant shall be designated a
Non-Incentive Stock Option.
The Board of Directors (or Committee) may grant, at any time, new
options to a person who has previously received options whether such prior
options are still outstanding, have previously been exercised in whole or in
part, have expired, or are cancelled in connection with the issuance of new
options. The purchase price of the new options may be established by the Board
of Directors (or Committee) without regard to the existing option price.
5. Option Price.
(a) The purchase price of the Common Stock underlying each option
shall be determined by the Board of Directors (or Committee), which
determination shall be final, binding and conclusive; provided, however, that
in no event shall the purchase price for an Incentive Stock Option be less than
100% (110% in the case of optionees who own more than 10% of the voting power
of all classes of stock of the Company) of the fair market value of the Common
Stock on the date the option is granted. The purchase price for a Non-Incentive
Stock Option may be less than 100% of the fair market value of the Common Stock
on the date the option is granted. In determining such fair market value, the
Board of Directors (or Committee) shall consider (i) the average between the
highest and lowest selling prices of the Common Stock on the date on which the
option is granted (if such Common Stock is listed on a national securities
exchange); (ii) the closing bid prices as quoted by the National Quotation
Bureau Incorporated or a recognized dealer in the Common Stock on the date of
grant (if such Common Stock is not listed on such an exchange); and (iii) such
other factors as the Board of Directors (or Committee) shall deem appropriate
or which may be relevant under applicable federal tax laws and Internal Revenue
rules and regulations. For purposes of the Plan, the date of grant of an option
shall be the date on which the Board of Directors (or Committee) shall by
resolution duly authorize such option.
(b) Notwithstanding any other provisions herein contained, the
aggregate fair market value (as defined above) determined at the time the
Incentive Stock Options are granted, of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by an employee
during any calendar year shall not exceed $100,000. Non-Incentive Stock Options
shall not be subject to the limitations of this paragraph 5(b).
6. Exercise of Options.
(a) Subject to the provisions set forth in Sections 9, 10 and 11
hereof, no Incentive Stock Option shall be
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exercisable unless the holder thereof shall have been an employee, including
officer, or director of the Company and/or a Subsidiary from the date of the
granting of the option until the date of exercise.
(b) The number of shares which are issued pursuant to the exercise
of an option shall be charged against the maximum limitations on shares set
forth in Section 2 hereof.
(c) The exercise of an option shall be made contingent upon
receipt by the Company from the holder thereof of (i) a written representation
and acknowledgement that at the time of such exercise it is the holder's
present intention to acquire the option shares for investment and not with a
view to distribution or resale thereof, that the holder knows that the Company
is not obligated to register the shares and that the shares may have to be held
indefinitely unless an exemption from the registration requirement of the
Securities Act of 1933, as amended, is available or the Company has registered
the shares underlying the options, that the Company may place a legend on the
certificate(s) evidencing the shares reflecting the fact that they were
acquired for investment and cannot be sold or transferred unless registered
under the Securities Act of 1933, as amended, or unless counsel for the Company
is satisfied that the circumstances of the proposed transfer do not require
such registration and (ii) cash, or a check to its order, for the purchase
price of such shares.
(d) The holder of an option shall have none of the rights of a
stockholder with respect to shares subject to the option until a certificate
for such shares has been issued to the holder upon the due exercise of the
option.
7. Term of Options.
The period during which each option granted hereunder shall be
exercisable shall be determined by the Board of Directors (or Committee);
provided, however, that no option shall be exercisable for a period exceeding
ten (10) years (five (5) years in the case of optionees who own more than 10%
of the voting power of all classes of the stock of the Company) from the date
the options are granted.
8. Non-Transferability of Options.
No option granted pursuant to this Plan shall be subject to
anticipation, sale, assignment, pledge, encumbrance, or charge or otherwise
transferable except by will or the laws of descent and distribution, and an
option shall be exercisable during the lifetime of the holder thereof only by
such holder.
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9. Termination of Services.
In the event that an employee or any other person to whom an
Incentive Stock Option has been granted under the Plan shall cease to be an
employee, officer or director of the Company or a Subsidiary, by reason of a
termination of such relationship other than by reason of death, disability or
retirement at age 65, such holder may exercise such options prior to the
expiration date of such options or within three months after the date of
termination, whichever is earlier, but only to the extent the holder had the
right to exercise such options on the date of termination. In the event
employment is terminated for cause, any options held by such person shall
terminate immediately. So long as the holder of an option shall continue to be
in the employ, or continue to be a director, of the Company or one or more of
its Subsidiaries, such holder's option shall not be affected by any changes of
duties or position. Absence on leave approved by the employing corporation
shall not be considered an interruption of employment for any purpose under the
Plan. The granting of an option in any year shall not give the holder of the
option any rights to similar grants in future years or any right to be retained
in the employ or service of the Company or any of its Subsidiaries or interfere
in any way with the right of the Company or any such Subsidiary to terminate
such holder's employment or services at any time.
If the holder of a Non-Incentive Stock Option granted hereunder ceases
to be a director or advisor of the Company, any option held by such person may
be exercised, to the extent exercisable on the termination date, within three
months thereafter (but in no event after the option expires by its terms). Any
termination of such an option pursuant to this section shall be without
prejudice to any right or remedies which the Company or any of its subsidiaries
may have against the holder of the option under the stock option agreement or
otherwise.
10. Retirement or Disability of Option Holder.
If any person to whom an option has been granted under the Plan shall
cease to be an employee, officer, director or advisor of the Company or a
Subsidiary, by reason of disability or retirement at age 65, such holder may
exercise such option at any time prior to the expiration date of the option or
within three months (one year in the case of termination by reason of
disability) after the date of termination for such cause, whichever is earlier,
but only to the extent the holder had the right to exercise such option on the
date of termination.
<PAGE> 6
11. Death of Option Holder.
If any person to whom an option has been granted under the Plan shall
cease to be an employee, officer, director or advisor of the Company or a
Subsidiary, by reason of death, or a holder of an option shall die within three
months after termination by reason of retirement at age 65, the option may be
exercised by the person or persons to whom the optionee's rights under the
option are transferred by will or by laws of descent and distribution at any
time prior to the expiration date of the option or within one year from the
date of death, whichever is earlier, but only to the extent the holder of the
option had the right to exercise such option on the date of such termination.
Notwithstanding the foregoing, no option may be exercised after ten years from
the date of its grant.
12. Adjustments Upon Changes in Capitalization.
If the shares of Common Stock outstanding are changed in number, kind
or class by reason of a stock split, combination, merger, consolidation,
reorganization, reclassification, exchange or any capital adjustment, including
a stock dividend, or if any distribution is made to shareholders other than a
cash dividend, then the Board of Directors (or Committee) shall, in its sole
judgment, determine for adjustment (i) the aggregate number and class of shares
that may be issued or transferred pursuant to Section 2, (ii) the number and
class of shares which are issuable under outstanding options, and (iii) the
purchase price to be paid per share under outstanding options. Adjustments
under this Section 12 shall be made in a proportionate and equitable manner by
the Board of Directors (or Committee), whose determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding and
conclusive. In the event that a fraction of a share results from the foregoing
adjustment, said fraction shall be eliminated and the price per share of the
remaining shares subject to the option adjusted accordingly.
In the event of a liquidation of the Company, or a merger,
reorganization, or consolidation of the Company with any other corporation in
which the Company is not the surviving corporation or the Company becomes a
wholly owned subsidiary of another corporation, any unexercised options
theretofore granted under the Plan shall be deemed cancelled unless the
surviving corporation in any such merger, reorganization or consolidation
elected to assume the options under the Plan or to issue substitute options in
place thereof; provided, however, that, notwithstanding the foregoing, if such
options would otherwise be cancelled in accordance with the foregoing, the
optionee shall have the right, exercisable during a ten-day period ending on
the fifth day prior to such liquidation, merger or
<PAGE> 7
consolidation, to exercise the option in whole or in part.
The granting of an option pursuant to this Plan shall not affect in
any way the right or power of the Company to make adjustments, reorganizations,
reclassifications, or changes of its capital or business structure or to merge,
consolidate, dissolve, liquidate, or sell or transfer all or any part of its
business or assets.
13. Vesting of Rights Under Options.
Nothing contained in this Plan or in any resolution adopted or to be
adopted by the Board of Directors (or Committee) or the stockholders of the
Company shall constitute the vesting of any rights under any option. The
vesting of such rights shall take place only when a written agreement shall be
duly executed and delivered by and on behalf of the Company to the person to
whom the option shall be granted. Each option granted under this Plan shall be
evidenced by a stock option agreement in such form and containing such
provisions (subject to and limited by the terms of this Plan) as the Board of
Directors (or Committee) shall from time to time approve. Agreements evidencing
the options need not be identical.
14. Rights as a Shareholder.
A holder of an option shall have no rights of a shareholder with
respect to any shares covered by an option until the date of issuance of a
stock certificate representing such shares.
15. Termination and Amendment.
The Board of Directors may, at any time, terminate or suspend this
Plan or make such modifications or amendments thereto as it shall deem
advisable; provided, however, that no termination, modification or amendment
shall adversely affect the rights of a holder of an option previously granted
under the Plan.
16. Modification, Extension and Renewal of Options.
Subject to the terms and conditions and within the limitations of the
Plan, the Board of Directors may modify, extend or renew outstanding options
granted under the Plan, or accept the surrender of outstanding options (to the
extent not theretofore exercised) and authorize the granting of new options in
substitution therefor. Notwithstanding the foregoing, no modification of an
option shall, without the consent of the holder thereof, alter or impair any
rights or obligations under any option theretofore granted under the plan.
<PAGE> 8
17. Indemnification.
In addition to such other rights of indemnification as they may have
as members of the Board of Directors, the members of the Board of Directors
(or Committee) administering the Plan shall be indemnified by the Company
against reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of any action, suit, or
proceeding, or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or failure to act under or in
connection with the Plan or any option granted thereof, provided that within 60
days after institution of any such action, suit or proceeding, the member
shall, in writing, offer the Company the opportunity, at its own expense, to
handle and defend same.
18. Effectiveness of the Plan.
The Plan shall become effective upon adoption by the Board of
Directors provided, however, that the Plan shall be submitted for approval by
the stockholders of the Company no later than 12 months after the date of
adoption of the Plan by the Board of Directors. Should the stockholders fail to
approve the Plan, all options granted thereunder shall be and become null and
void. The Plan will terminate ten years from the date of adoption by the Board
of Directors, unless the Board of Directors elects to terminate the Plan prior
to that date.
19. Governmental and Other Regulations.
The Plan, and the grant and exercise of an option to purchase shares
hereunder, and the Company's obligation to sell and deliver shares upon the
exercise of rights to purchase shares shall be subject to all applicable
federal and state laws, rules and regulations, and to such approvals by any
regulatory or governmental agency which may, in the opinion of legal counsel
for the Company, be required.
20. Severability.
If any provision of the Plan is invalid, illegal or unenforceable, the
balance of the Plan shall remain in effect, and if any provision is
inapplicable to any person or circumstance, it shall nevertheless remain
applicable to all other persons and circumstances.
<PAGE> 1
EXHIBIT 4.3
NASTECH PHARMACEUTICAL COMPANY INC.
INCENTIVE STOCK OPTION AGREEMENT
[ Date ]
[Optionee Name and Address]
Dear [ Optionee ]:
We are pleased to inform you that by the determination of the
Compensation Committee of the Board of Directors of Nastech Pharmaceutical
Company, Inc. (the "Company"), an option to purchase [ ] shares of the
Common Stock, par value $.006 per share, of the Company (the "Common Stock"),
at an exercise price of $[ ] per share, has been granted to you on the date
indicated above.
1. Acceptance of Option Agreement
Your execution of this Option Agreement indicates your acceptance of
and your willingness to be bound by its terms. It imposes no obligation upon
you to purchase any of the shares subject to your option. Your obligation to
purchase shares arises only upon your exercise of the option in the manner set
forth in paragraph 3 hereof.
2. Time of Exercise
The option granted to you hereunder may be exercised, on a cumulative
basis with respect to [ ] shares which shall be immediately vested and, to
the extent of [ ]shares every six (6) months, from the date of grant until
the expiration of the option; provided, however, that this option may not be
exercised as to less than 1,000 shares at any one time. This option expires on
[ ] whether or not it has been duly exercised, unless sooner
terminated as provided in paragraphs 6, 7 and 8 hereof.
3. Method of Exercise
This option shall be exercisable by a written notice signed by you and
delivered to the Company at its principal executive offices, attention of the
President of the Company, signifying your election to exercise the option, and
accompanied by cash or a certified check to the order of the Company for the
full purchase price of the shares being purchased. The notice, which must be
substantially in the form annexed hereto as Appendix "A", must state the number
of shares of Common Stock as to which your option is being exercised and must
contain, unless indicated to the contrary by the Company, a representation and
acknowledgment by you (in a form acceptable to the Company) that, among other
things, such shares are being acquired by you for investment and not with a
view to their distribution or resale, that the shares are not registered under
the Securities
<PAGE> 2
Act of 1933, as amended, that the Company is not obligated to register the
shares, that the shares may have to be held indefinitely unless an exemption
from the registration requirements is available and that the Company may place
a legend on the certificate evidencing the shares reflecting the fact that they
were acquired for investment and cannot be sold or transferred unless
registered under the Securities Act of 1933, as amended, or unless counsel to
the Company is satisfied that the circumstances of the proposed transfer do not
require such registration.
If notice of the exercise of this option is given by a person or
persons other than you, the Company may require, as a condition to the exercise
of the option, the submission to the Company of appropriate proof of the right
of such person or persons to exercise the option.
4. Issuance of Certificates Upon Exercise of Option
Certificates representing the shares of the Common Stock for which
payment is made upon exercise of this option shall be issued as soon as
practicable. The Company, however, shall not be required to issue or deliver a
certificate for any shares until it has complied with all requirements of the
Securities Act of 1933, the Securities Exchange Act of 1934, any stock exchange
on which the Company's Common Stock may then be listed and all applicable state
laws in connection with the issuance or sale of such shares. Until the
issuance of the certificate for such shares, you or such other person as may be
entitled to exercise this option, shall have none of the rights of a
stockholder with respect to the shares subject to this option.
5. Nature of Shares Issuable Upon Exercise of Option
In the event the Company chooses not to register the shares underlying
the options, the shares of Common Stock issuable upon exercise of this option
will be unregistered and must be held indefinitely unless they are subsequently
registered under the Securities Act of 1933 or an exemption from such
registration, such as embodied in Rule 144, is available. Rule 144 under the
Securities Act of 1933 permits, upon compliance with certain conditions, sales
in limited amounts of shares of publicly held companies which are current in
the filing of various required reports with the Securities and Exchange
Commission, which shares have been beneficially owned and fully paid for at
least two years. The Company has not covenanted to file a registration
statement under the Securities Act of 1933 covering the shares issuable upon
exercise of this option nor to take such action as may be necessary to permit
sales under Rule 144. You are advised to inquire of the appropriate officer of
the Company at any time that you may wish to sell any shares obtained from the
exercise of this option.
<PAGE> 3
6. Termination of Employment
If your employment with the Company (or a subsidiary thereof) is
terminated for any reason other than by death, disability or retirement at age
65, you may exercise this option within three months of the date of termination
to the extent this option was exercisable on the date of termination; provided,
however, that such exercise must occur not later than [ ].
7. Retirement or Disability
If your employment with the Company (or a subsidiary thereof) is
terminated by reason of your disability or retirement at age 65, you may
exercise this option within three months from the date of termination due to
retirement or within one year from the date of termination due to disability to
the extent this option was exercisable on the date of termination; provided,
however, that such exercise must occur not later than [ ].
8. Death
If you die while employed by the Company (or a subsidiary thereof), or
die within three months after termination of your employment due to retirement
at age 65, this option may be exercised by the person or persons to whom your
rights under the option are transferred by will or by the laws of descent and
distribution within three months from the date of your death to the extent this
option was exercisable on the date of your death, but in no event later than [
].
9. Non-Transferability of Option
This option shall not be transferable or assignable except by will or
the laws of descent and distribution, and may be exercised during your lifetime
only by you.
10. Adjustments Upon Certain Changes In Capitalization
If at any time after the date of grant of this option, the Company
shall, by stock dividend, stock split, combination, reclassification or
exchange, or through merger or consolidation, or otherwise, change its shares
of Common Stock into a different number, kind or class of shares or other
securities or property, then the number of shares covered by this option and
the price of each share shall be proportionately adjusted for any such change
by the Board of Directors, whose determination shall be final, binding and
conclusive. In the event of a liquidation of the Company, or a merger,
acquisition, reorganization, or consolidation of the Company with any other
corporation in which the Company is not the surviving corporation or the
Company becomes a wholly-owned subsidiary of another corporation, any
unexercised options granted hereby shall be deemed canceled unless the
surviving corporation in any such merger, reorganization or consolidation
elects to assume the option granted hereby or to issue substitute options in
place thereof; provided, however, that, notwithstanding the foregoing, if the
option
<PAGE> 4
granted hereby would otherwise be canceled in accordance with the foregoing,
you shall have the right, exercisable during a ten-day period ending on the
fifth day prior to such liquidation, acquisition, merger or consolidation, to
exercise this option in whole or in part, such exercise to be effective only
upon such liquidation, or the closing of such acquisition, merger or
consolidation. Any fraction of a share resulting from the foregoing adjustments
shall be eliminated and the price per share of the remaining shares subject to
this option adjusted accordingly.
NASTECH PHARMACEUTICAL COMPANY, INC.
By:
-------------------------------
AGREED TO AND ACCEPTED
this day of , 1997
---- ----
- --------------------------
[Name of Optionee]
<PAGE> 5
APPENDIX "A"
FORM OF NOTICE OF EXERCISE OF STOCK OPTION
[Name and Address of Optionee]
[ Date ]
Nastech Pharmaceutical Company, Inc.
45 Davids Drive
Hauppauge, NY 11788
Re: Exercise Of Stock Option
Gentlemen:
In accordance with the terms of the Incentive Stock Option Agreement
between Nastech Pharmaceutical Company, Inc. (the "Company") and the
undersigned dated ______________, I hereby elect to exercise said option to
purchase ____________ shares at the purchase price of $____________ per share.
In connection therewith, enclosed please find a certified check payable to the
order of the Company in the amount of $____________.
In connection with my exercise of this stock option, I hereby
represent the following:
1. The undersigned is acquiring the shares solely for his own
account, for investment and not with a view to the sale or other disposition of
all or any part thereof or any interest therein.
2. The undersigned does not contemplate being required to dispose of
any portion of the stock to satisfy any existing or expected undertaking or
indebtedness. The undersigned is able to bear the risk of losing part or all of
his investment in the Company, and the risk of being unable to sell or transfer
the stock.
3. The undersigned understands that the shares to be issued have not
been registered under the Securities Act of 1933 ("the Act"), must be held by
him indefinitely, and may not be sold or disposed of (i) unless a registration
statement covering those
<PAGE> 6
shares becomes effective under the Act, or (ii) unless some exemption from
registration requirements becomes available.
4. The undersigned understands that the Company is not under any
obligation to register the shares under the Act or to comply with the
requirements for any exemption which might otherwise be available, or to supply
the undersigned with any information necessary to enable the undersigned to
make routine sales of the stock under Rule 144, or under any other Rule or
Regulation of the Securities and Exchange Commission.
5. The undersigned acknowledges that the securities to be acquired
hereby will carry a restrictive legend indicating that the shares were acquired
for investment and cannot be sold or transferred unless registered under the
Securities Act of 1933, as amended, or unless counsel to the Company is
satisfied that the circumstances of the proposed transfer do not require such
registration.
/s/
-------------------------
[ Name of Optionee]
[ S.S. or Tax I.D. No.]
<PAGE> 1
EXHIBIT 5
Law Offices
Bruce R. Thaw
45 Banfi Plaza
Farmingdale, NY 11735
(516)752-1760
June 5, 1997
Board of Directors
Nastech Pharmaceutical Company Inc.
45 Davids Drive
Hauppauge, NY 11788
Gentlemen:
I have examined the Registration Statement on Form S-8 to be filed by
Nastech Pharmaceutical Company Inc. (the "Company") with the Securities and
Exchange Commission on or about June 6, 1997 (the "Registration Statement"), in
connection with the registration under the Securities Act of 1933, as amended,
of 700,000 shares of the Company's common stock, $.006 par value (the
"Shares"), issuable upon exercise of options granted or to be granted under the
Nastech Pharmaceutical Company Inc. 1990 Stock Option Plan (the "Plan"),
including all exhibits to the Registration Statement.
It is my opinion that the Shares, when issued and sold in the manner
referred to in the Plan and the Registration Statement, will be legally and
validly issued, fully paid and nonassessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of my name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
Bruce R. Thaw
<PAGE> 1
EXHIBIT 23.2
The Board of Directors
Nastech Pharmaceutical Company Inc.
We consent to incorporation by reference in the registration statement (No.
333- ) on Form S-8 of Nastech Pharmaceutical Company Inc. of our report
dated March 24, 1997, relating to the balance sheet of Nastech Pharmaceutical
Company Inc. as of December 31, 1996, and the related statements of operations,
stockholders' equity and cash flows for the six-month period then ended, which
report appears in the December 31, 1996 transitional report on Form 10-K of
Nastech Pharmaceutical Company Inc.
Jericho, New York
June 4, 1997
<PAGE> 1
EXHIBIT 23.3
The Board of Directors
Nastech Pharmaceutical Company Inc.
We consent to incorporation by reference in the registration statement (No.
333- ) on Form S-8 of Nastech Pharmaceutical Company Inc. of our report
dated August 15, 1996, relating to the balance sheet of Nastech Pharmaceutical
Company Inc. as of June 30, 1996 and 1995, and the related statements of
operations, stockholders' equity and cash flows for each of the three years in
the period ended June 30, 1996, which report appears in the December 31, 1996
transitional report on Form 10-K of Nastech Pharmaceutical Company Inc.
New York, New York
June 4, 1997
