As filed with the Securities and Exchange Commission on July 31, 1997
Registration No. 333-______
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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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NEORX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Washington 91-1261311
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
410 West Harrison Street
Seattle, Washington 98119
(Address of Principal Executive Offices (Zip Code))
RESTATED 1994 STOCK OPTION PLAN
(Full Title of the Plan)
--------------------------
RICHARD L. ANDERSON
SENIOR VICE PRESIDENT
CHIEF FINANCIAL OFFICER, SECRETARY AND TREASURER
NEORX CORPORATION
410 West Harrison Street
Seattle, Washington 98119
(206) 281-7001
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
----------------------
Copy to:
STEPHEN M. GRAHAM
PERKINS COIE
1201 Third Avenue, 40th Floor
Seattle, Washington 98101-3099
(206) 583-8463
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CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Securities to Be Registered: Common Stock, par value $.02 per share
Amount To Be Registered (1): 1,500,000
Proposed Maximum Offering Price Per Share (2): $4.25
Proposed Maximum Aggregate Offering Price: $6,375,000
Amount of Registration Fee: $1,932
================================================================================
(1) Includes an indeterminate number of additional shares that may be issued to
adjust the number of shares issued pursuant to such Restated 1994 Stock
Option Plan as the result of any future stock split, stock dividend or
similar adjustment of the Registrant's outstanding common stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended. The
price per share is estimated to be $4.25, based on the average of the high
sales price ($4.31) and the low sales price ($4.19) for the Registrant's
common stock in the over-the-counter market on July 28, 1997, as reported
by the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, filed with the Securities and Exchange Commission
(the "Commission"), on March 27, 1997, which contains audited financial
statements for the most recent fiscal year for which such statements have been
filed;
(b) The Registrant's Quarterly Reports on Forms 10-Q for the
quarters ended March 31, 1997 and June 30, 1997, filed with the Commission on
May 13, 1997 and July 31, 1997, respectively;
(c) The Registrant's Forms 8-K dated April 11, 1997 and June
11, 1997, filed with the Commission on April 11, 1997 and June 12, 1997,
respectively, and
(d) The description of the Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed with the Commission on March 21,
1988, under Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendments or reports filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act, after the date hereof and prior to the filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters the securities covered hereby then remaining
unsold shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Washington Business Corporation Act, Sections 23B.08.510 through
23B.08.570, gives the registrant the power to indemnify directors, officers,
employees and agents of the registrant and those serving at the registrant's
request in similar positions in any other corporation, partnership, joint
venture, trust or other enterprise in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). The registrant's Restated Articles of
Incorporation and Bylaws provide for indemnification of the registrant's
directors, officers, employees and other agents to the maximum extent permitted
by the Washington Business Corporation Act. In addition, the registrant has
obtained directors' and officers' liability insurance.
Item 8. EXHIBITS
Exhibit Number Description
- --------------------- ------------------------------------------------------
5.1 Opinion of counsel regarding legality of the Common
Stock being registered
23.1 Consent of Arthur Andersen LLP (see page II-4)
23.2 Consent of Perkins Coie (included in Exhibit 5.1)
24.1 Power of Attorney (see Signature Page)
99.1 Restated 1994 Stock Option Plan
II-1
<PAGE>
Item 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) that, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement; and
(c) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered 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 that remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Seattle, state of Washington, on July 28, 1997.
NEORX CORPORATION
By: /s/ Paul G. Abrams
Paul G. Abrams
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Richard L Anderson his attorney-in-fact, with the power of substitution, for him
in any and all capacities, to sign any amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 1997.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Paul G. Abrams President, Chief Executive Officer and Director
Paul G. Abrams (Principal Executive Officer)
/s/ Richard L. Anderson Senior Vice President, Chief Financial Officer,
Richard L. Anderson Secretary and Treasurer (Principal Financial and
Accounting Officer)
/s/ Fred B. Craves Chairman of the Board of Directors
Fred B. Craves
/s/ James G. Andress Director
James G. Andress
/s/ Jack L. Bowman Director
Jack L. Bowman
/s/ Lawrence H.N. Kinet Director
Lawrence H.N. Kinet
/s/ Carl-Heinz Pommer Director
Carl-Heinz Pommer
</TABLE>
II-3
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 pertaining
to the NeoRx Corporation Restated 1994 Stock Option Plan of our report dated
February 25, 1997 included in NeoRx Corporation's Form 10-K for the year ended
December 31, 1996.
ARTHUR ANDERSEN LLP
Seattle, Washington
July 30, 1997
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- --------------------- ------------------------------------------------------
5.1 Opinion of counsel regarding legality of the Common
Stock being registered
23.1 Consent of Arthur Andersen LLP (see page II-4)
23.2 Consent of Perkins Coie (included in Exhibit 5.1)
24.1 Power of Attorney (see Signature Page)
99.1 Restated 1994 Stock Option Plan
II-4
Exhibit 5.1
PERKINS COIE
A Law Partnership Including Professional Corporations
1201 Third Avenue, 40th Floor Seattle, Washington 98101-3099
Telephone: (206) 583-8888 Facsimile: (206) 583-8500
July 31, 1997
NeoRx Corporation
410 West Harrison Street
Seattle, WA 98119
RE: Registration Statement on Form S-8
Gentlemen and Ladies:
We have acted as counsel to NeoRx Corporation (the "Company") in
connection with the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") which is being filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to
1,500,000 shares of common stock, $.02 par value, of the Company (the "Shares").
The Shares may be issued pursuant to the Restated 1994 Stock Option Plan (the
"Plan"). We have examined the Registration Statement and such documents and
records of the Company and other documents as we have deemed necessary for the
purpose of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that may be issued upon the exercise of stock options granted or to be
granted pursuant to the Plan have been duly authorized and that, upon the due
execution by the Company and the registration by its registrar of the Shares and
the sale thereof by the Company in accordance with the terms of the Plan, and
the receipt of the consideration therefor in accordance with the terms of the
Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
Perkins Coie
Exhibit 99.1
NEORX CORPORATION
RESTATED 1994 STOCK OPTION PLAN
As Amended and Restated on December 3, 1996
SECTION 1. PURPOSE
The purpose of the Restated 1994 Stock Option Plan (this "Plan") is to
provide a means whereby selected employees, officers, directors, agents,
consultants, advisors and independent contractors of NeoRx Corporation (the
"Company"), or of any parent or subsidiary (as defined in subsection 5.8 and
referred to hereinafter as "related corporations") thereof, may be granted
incentive stock options and/or nonqualified stock options to purchase the Common
Stock (as defined in Section 3) of the Company, in order to attract and retain
the services or advice of such employees, officers, directors, agents,
consultants, advisors and independent contractors and to provide added incentive
to such persons by encouraging stock ownership in the Company.
SECTION 2. ADMINISTRATION
This Plan shall be administered by the Board of Directors of the
Company (the "Board") or a committee or committees (which term includes
subcommittees) appointed by, and consisting of two or more members of, the
Board. The administrator of this Plan shall hereinafter be referred to as the
"Plan Administrator." So long as the Common Stock is registered under Section
12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Board shall consider, in selecting the Plan Administrator and the
membership of any committee acting as Plan Administrator of this Plan with
respect to any persons subject or likely to become subject to Section 16 under
the Exchange Act, the provisions regarding (a) "outside directors," as
contemplated by Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"), and (b) "nonemployee directors," as contemplated by Rule 16b-3
under the Exchange Act. The Board may delegate the responsibility for
administering this Plan with respect to designated classes of eligible
participants to different committees, subject to such limitations as the Board
deems appropriate. Committee members shall serve for such term as the Board may
determine, subject to removal by the Board at any time.
2.1 Procedures
The Board shall designate one of the members of the Plan Administrator
as chairman. The Plan Administrator may hold meetings at such times and places
as it shall determine. The acts of a majority of the members of the Plan
Administrator present at meetings at which a quorum exists, or acts reduced to
or approved in writing by all Plan Administrator members, shall be valid acts of
the Plan Administrator.
2.2 Responsibilities
Except for the terms and conditions explicitly set forth in this Plan,
the Plan Administrator shall have the authority, in its discretion, to determine
all matters relating to the options to be granted under this Plan, including
selection of the individuals to be granted options, the number of shares to be
subject to each option, the exercise price, and all other terms and conditions
of the options. Grants under this Plan need not be identical in any respect,
even when made simultaneously. The interpretation and construction by the Plan
Administrator of any terms or provisions of this Plan or any option issued
hereunder, or of any rule or regulation promulgated in connection herewith,
shall be conclusive and binding on all interested parties, so long as such
interpretation and construction with respect to incentive stock options
correspond to the requirements of Section 422 of the Code, the regulations
thereunder and any amendments thereto.
<PAGE>
2.3 Rule 16b-3 Compliance and Bifurcation of Plan
Notwithstanding anything in this Plan to the contrary, the Board, in
its absolute discretion, may bifurcate this Plan so as to restrict, limit or
condition the use of any provision of this Plan to participants who are subject
to Section 16 of the Exchange Act without so restricting, limiting or
conditioning this Plan with respect to other participants.
SECTION 3. STOCK SUBJECT TO THIS PLAN
The stock subject to this Plan shall be the Company's Common Stock (the
"Common Stock"), presently authorized but unissued or subsequently acquired by
the Company. Subject to adjustment as provided in Section 7, the aggregate
amount of Common Stock to be delivered upon the exercise of all options granted
under this Plan shall not exceed 4,000,000 shares as such Common Stock was
constituted on the effective date of this Plan. If any option granted under this
Plan shall expire or be surrendered, exchanged for another option, canceled or
terminated for any reason without having been exercised in full, the unpurchased
shares subject thereto shall thereupon again be available for purposes of this
Plan, including for replacement options which may be granted in exchange for
such expired, surrendered, exchanged, canceled or terminated options.
SECTION 4. ELIGIBILITY
An incentive stock option may be granted only to any individual who, at
the time the option is granted, is an employee of the Company or any related
corporation. A nonqualified stock option may be granted to any employee,
officer, director, agent, consultant, advisor or independent contractor of the
Company or any related corporation, whether an individual or an entity. Any
party to whom an option is granted under this Plan shall be referred to
hereinafter as an "Optionee."
SECTION 5. TERMS AND CONDITIONS OF OPTIONS
Options granted under this Plan shall be evidenced by written
agreements which shall contain such terms, conditions, limitations and
restrictions as the Plan Administrator shall deem advisable and which are not
inconsistent with this Plan. Notwithstanding the foregoing, options shall
include or incorporate by reference the following terms and conditions:
5.1 Number of Shares and Price
The maximum number of shares that may be purchased pursuant to the
exercise of each option and the price per share at which such option is
exercisable (the "exercise price") shall be as established by the Plan
Administrator, provided that the maximum number of shares with respect to which
an option or options may be granted to any Optionee in any one fiscal year of
the Company shall not exceed 500,000 shares (the "Maximum Annual Optionee
Grant"); and provided that the Plan Administrator shall act in good faith to
establish the exercise price which shall be not less than the fair market value
per share of the Common Stock at the time the option is granted and, with
respect to incentive stock options granted to greater than 10% shareholders, the
exercise price shall be as required by subsection 6.1.
5.2 Term and Maturity
Subject to the restrictions contained in Section 6 with respect to
granting incentive stock options to greater than 10% shareholders, the term of
each incentive stock option shall be as established by the Plan Administrator
and, if not so established, shall be 10 years from the date it is granted but in
no event shall it exceed 10 years. The term of each nonqualified stock option
shall be as established by the Plan Administrator and, if not so established,
shall be 10 years. To ensure that the Company or a related corporation will
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<PAGE>
achieve the purpose and receive the benefits contemplated in this Plan, any
option granted to any Optionee hereunder shall, unless the condition of this
sentence is waived or modified in the agreement evidencing the option or by
resolution adopted at any time by the Plan Administrator, be exercisable
according to the following schedule:
Period of Optionee's Continuous
Relationship With the Company or Related Portion of Total
Corporation From the Date the Option Is Option Which Is
Granted Exercisable
------------------------------------------ -------------------
after one year 25%
after two years 50%
after three years 75%
after four years 100%
Unless the Plan Administrator (or the Company's Chief Executive Officer in the
case of optionees who are not subject to Section 16 under the Exchange Act)
determines otherwise, the vesting schedule of an option shall be adjusted
proportionately to the extent an Optionee's hours of employment or service are
reduced after the date of grant.
5.3 Exercise
Subject to the vesting schedule described in subsection 5.2, each
option may be exercised in whole or in part at any time and from time to time;
provided, however, that no fewer than 100 shares (or the remaining shares then
purchasable under the option, if less than 100 shares) may be purchased upon any
exercise of option rights hereunder and that only whole shares will be issued
pursuant to the exercise of any option. Options shall be exercised by delivery
to the Company of notice of the number of shares with respect to which the
option is exercised, together with payment of the exercise price.
5.4 Payment of Exercise Price
Payment of the option exercise price shall be made in full at the time
the notice of exercise of the option is delivered to the Company and shall be in
cash, bank certified or cashier's check or personal check (unless at the time of
exercise the Plan Administrator in a particular case determines not to accept a
personal check) for the Common Stock being purchased.
The Plan Administrator can determine at any time before exercise that
additional forms of payment will be permitted. Unless the Plan Administrator in
its sole discretion determines otherwise, either at the time the option is
granted or at any time before it is exercised, and to the extent permitted by
applicable laws and regulations (including, but not limited to, federal tax and
securities laws and regulations and state corporate law), an option may be
exercised by a combination of cash and/or check and one or both of the following
alternative forms:
(a) tendering (either actually or by attestation) shares of stock of
the Company held by an Optionee having a fair market value equal to the exercise
price, such fair market value to be determined in good faith by the Plan
Administrator; provided, however, that payment in stock held by an Optionee
shall not be made unless the stock shall have been owned by the Optionee for a
period of at least six months (or any shorter period necessary to avoid a charge
to the Company's earnings for financial accounting purposes); or
(b) delivery of a properly executed exercise notice, together
with irrevocable instructions to a broker, all in accordance with the
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<PAGE>
regulations of the Federal Reserve Board, to promptly deliver to the Company the
amount of sale or loan proceeds to pay the exercise price and any federal, state
or local withholding tax obligations that may arise in connection with the
exercise.
5.5 Withholding Tax Requirement
The Company may require the Holder to pay to the Company the amount of
any withholding taxes that the Company is required to withhold with respect to
the grant or exercise of any Award. Subject to the Plan and applicable law, the
Plan Administrator, in its sole discretion may permit a Holder to satisfy
withholding obligations, in whole or in part, by paying cash, by electing to
have the Company withhold shares of Common Stock or by transferring shares of
Common Stock to the Company, in such amounts as are equivalent to the fair
market value of the withholding obligation. The Company shall have the right to
withhold from any shares of Common Stock issuable pursuant to an Award or from
any cash amounts otherwise due or to become due from the Company to the
Participant an amount equal to such taxes.
5.6 Holding Periods
5.6.1 Securities and Exchange Act Section 16
If an individual subject to Section 16 of the Exchange Act sells shares
of Common Stock obtained upon the exercise of a stock option within six months
after the date the option was granted, such sale may result in short-swing
profit liability under Section 16(b) of the Exchange Act.
5.6.2 Taxation of Stock Options
In order to obtain certain tax benefits afforded to incentive stock
options under Section 422 of the Code, an Optionee must hold the shares issued
upon the exercise of an incentive stock option for two years after the date of
grant of the option and one year from the date of exercise. An Optionee may be
subject to the alternative minimum tax at the time of exercise of an incentive
stock option.
The Plan Administrator may require an Optionee to give the Company
prompt notice of any disposition of shares of Common Stock acquired by the
exercise of an incentive stock option prior to the expiration of such holding
periods.
Tax advice should be obtained when exercising any option and prior to
the disposition of the shares issued upon the exercise of any option.
5.7 Transferability of Options
Options granted under this Plan and the rights and privileges conferred
hereby may not be transferred, assigned, pledged or hypothecated in any manner
(whether by operation of law or otherwise) other than by will or by the
applicable laws of descent and distribution, and shall not be subject to
execution, attachment or similar process. During an Optionee's lifetime, any
options granted under this Plan are personal to him or her and are exercisable
solely by such Optionee or a permitted assignee or transferee of such Optionee
(as provided below). Any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of any option under this Plan or of any right or privilege
conferred hereby, contrary to the Code or to the provisions of this Plan, or the
sale or levy or any attachment or similar process upon the rights and privileges
conferred hereby shall be null and void. Notwithstanding the foregoing, to the
extent permitted by Section 422 of the Code, the Plan Administrator may permit
an Optionee to (i) during the Optionee's lifetime, designate a person who may
exercise the option after the Optionee's death by giving written notice of such
designation to the Company (such designation may be changed from time to time by
the Optionee by giving written notice to the Company revoking any earlier
designation and making a new designation) or (ii) transfer the option and the
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<PAGE>
rights and privileges conferred hereby; provided, however, that any option so
assigned or transferred shall be subject to all the same terms and conditions
contained in the instrument evidencing the award.
5.8 Termination of Relationship
If the Optionee's relationship with the Company or any related
corporation ceases for any reason, then the portion of the Optionee's option
that is not exercisable at the time of such cessation shall terminate
immediately upon such cessation, unless the Plan Administrator determines
otherwise. If the Optionee's relationship with the Company or any related
corporation ceases for any reason other than termination for cause, death or
total disability, and unless by its terms the option sooner terminates or
expires, then the Optionee may exercise, for a three-month period, that portion
of the Optionee's option which is exercisable at the time of such cessation, but
the Optionee's option shall terminate at the end of such period following such
cessation as to all shares for which it has not theretofore been exercised,
unless such provision is waived in the agreement evidencing the option or at any
time prior to the expiration of the option by the Plan Administrator in its sole
discretion. If, however, in the case of an incentive stock option, the Optionee
does not exercise the Optionee's option within three months after cessation of
employment, the option will no longer qualify as an incentive stock option under
the Code.
If an Optionee is terminated for cause, any option granted hereunder
shall automatically terminate as of the first discovery by the Company of any
reason for termination for cause, and such Optionee shall thereupon have no
right to purchase any shares pursuant to such option. "Termination for cause"
shall mean dismissal for dishonesty, conviction or confession of a crime
punishable by law (except minor violations), fraud, misconduct or disclosure of
confidential information. If an Optionee's relationship with the Company or any
related corporation is suspended pending an investigation of whether or not the
Optionee shall be terminated for cause, all the Optionee's rights under any
option granted hereunder likewise shall be suspended during the period of
investigation.
If an Optionee's relationship with the Company or any related
corporation ceases because of a total disability, the portion of the Optionee's
option that is exercisable at the time of such cessation may be exercised for a
period of one year following such cessation (unless by its terms it sooner
terminates and expires). As used in this Plan, the term "total disability"
refers to a mental or physical impairment of the Optionee which is expected to
result in death or which has lasted or is expected to last for a continuous
period of 12 months or more and which causes the Optionee to be unable, in the
opinion of the Company and two independent physicians, to perform his or her
duties for the Company and to be engaged in any substantial gainful activity.
Total disability shall be deemed to have occurred on the first day after the
Company and the two independent physicians have furnished their opinion of total
disability to the Plan Administrator.
Any change of relationship with the Company shall not constitute a
termination of the Optionee's relationship with the Company for purposes of this
Section 5.8 so long as the Optionee continues to be an employee, officer,
director or, pursuant to a written agreement with the Company, an agent,
consultant, advisor or independent contractor of the Company or of a related
corporation. The Plan Administrator, in its absolute discretion, may determine
all questions of whether particular leaves of absence constitute a termination
of services; provided, however, that with respect to incentive stock options,
such determination shall be subject to any requirements contained in the Code.
The foregoing notwithstanding, with respect to incentive stock options,
employment shall not be deemed to continue beyond the first 90 days of such
leave, unless the Optionee's reemployment rights are guaranteed by statute or by
contract.
As used herein, the term "related corporation," when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in,
at the time of the granting of the option, an unbroken chain of corporations
ending with the Company, if stock possessing 50% or more of the total combined
voting power of all classes of stock of each of the corporations other than the
Company is owned by one of the other corporations in such chain. When referring
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<PAGE>
to a parent corporation, the term "related corporation" shall mean any
corporation in an unbroken chain of corporations ending with the Company if, at
the time of the granting of the option, each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
5.9 Death of Optionee
If an Optionee dies while he or she has a relationship with the Company
or any related corporation or within the three-month period (or 12-month period
in the case of totally disabled Optionees) following cessation of such
relationship, any option held by such Optionee to the extent that the Optionee
would have been entitled to exercise such option, may be exercised within one
year after his or her death by the personal representative of his or her estate
or by the person or persons to whom the Optionee's rights under the option shall
pass (i) by will or by the applicable laws of descent and distribution or (ii)
by a designation or transfer pursuant to Section 5.7.
5.10 No Status as Shareholder
Neither the Optionee nor any party to which the Optionee's rights and
privileges under the option may pass shall be, or have any of the rights or
privileges of, a shareholder of the Company with respect to any of the shares
issuable upon the exercise of any option granted under this Plan unless and
until such option has been exercised.
5.11 Continuation of Relationship
Nothing in this Plan or in any option granted pursuant to this Plan
shall confer upon any Optionee any right to continue in the employ or other
relationship of the Company or of a related corporation, or to interfere in any
way with the right of the Company or of any such related corporation to
terminate his or her employment or other relationship with the Company at any
time.
5.12 Modification and Amendment of Option
Subject to the requirements of Code Section 422 with respect to
incentive stock options and to the terms and conditions and within the
limitations of this Plan, the Plan Administrator may modify or amend outstanding
options granted under this Plan. The modification or amendment of an outstanding
option shall not, without the consent of the Optionee, impair or diminish any of
his or her rights or any of the obligations of the Company under such option.
Except as otherwise provided in this Plan, no outstanding option shall be
terminated without the consent of the Optionee.
5.13 Limitation on Value for Incentive Stock Options
As to all incentive stock options granted under the terms of this Plan,
to the extent that the aggregate fair market value of the stock (determined at
the time the incentive stock option is granted) with respect to which incentive
stock options are exercisable for the first time by the Optionee during any
calendar year (under this Plan and all other incentive stock option plans of the
Company, a related corporation or a predecessor corporation) exceeds $100,000,
such options shall be treated as nonqualified stock options. The previous
sentence shall not apply if the Internal Revenue Service issues a public rule,
issues a private ruling to the Company, any Optionee or any legatee, personal
representative or distributee of an Optionee or issues regulations changing or
eliminating such annual limit.
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SECTION 6. GREATER THAN 10% SHAREHOLDERS
6.1 Exercise Price and Term of Incentive Stock Options
If incentive stock options are granted under this Plan to employees who
own more than 10% of the total combined voting power of all classes of stock of
the Company or any related corporation, the term of such incentive stock options
shall not exceed five years and the exercise price shall be not less than 110%
of the fair market value of the Common Stock at the time the incentive stock
option is granted. This provision shall control notwithstanding any contrary
terms contained in an option agreement or any other document.
6.2 Attribution Rule
For purposes of subsection 6.1, in determining stock ownership, an
employee shall be deemed to own the stock owned, directly or indirectly, by or
for his or her brothers, sisters, spouse, ancestors and lineal descendants.
Stock owned, directly or indirectly, by or for a corporation, partnership,
estate or trust shall be deemed to be owned proportionately by or for its
shareholders, partners or beneficiaries. If an employee or a person related to
the employee owns an unexercised option or warrant to purchase stock of the
Company, the stock subject to that portion of the option or warrant which is
unexercised shall not be counted in determining stock ownership. For purposes of
this Section 6, stock owned by an employee shall include all stock actually
issued and outstanding immediately before the grant of the incentive stock
option to the employee.
SECTION 7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
The aggregate number and class of shares for which options may be
granted under this Plan, the Maximum Annual Optionee Grant set forth in Section
5.1, the number and class of shares covered by each outstanding option and the
exercise price per share thereof (but not the total price), and each such
option, shall all be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock of the Company resulting from a
split-up or consolidation of shares or any like capital adjustment, or the
payment of any stock dividend.
7.1 Effect of Liquidation or Reorganization
Upon a merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation of the Company, as a result of which
the shareholders of the Company receive cash, stock or other property in
exchange for or in connection with their shares of Common Stock (each, a
"corporate transaction"), then the exercisability of each option outstanding
under this Plan shall be automatically accelerated so that each such option
shall, immediately prior to the specified effective date for the corporate
transaction, become fully exercisable with respect to the total number of shares
of Common Stock purchasable under such option and may be exercised for all or
any portion of such shares. To the extent such option is not exercised, it shall
terminate, except that in the event of a corporate transaction in which
shareholders of the Company receive capital stock of another corporation in
exchange for their shares of Common Stock, such unexercised option shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation. Any such
assumed or equivalent option shall be fully exercisable with respect to the
total number of shares purchasable under such option.
Notwithstanding the foregoing, upon a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of common stock in the surviving corporation immediately
after the merger, a mere reincorporation or the creation of a holding company,
each option outstanding under this Plan shall be assumed or an equivalent option
shall be substituted by the successor corporation or a parent or subsidiary of
such corporation, and the vesting schedule set forth in the instrument
evidencing the option shall continue to apply to such assumed or equivalent
option.
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7.2 Fractional Shares
In the event of any adjustment in the number of shares covered by any
option, any fractional shares resulting from such adjustment shall be
disregarded and each such option shall cover only the number of full shares
resulting from such adjustment.
7.3 Determination of Board to Be Final
All Section 7 adjustments shall be made by the Board, and its
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. Unless an Optionee agrees otherwise, any
change or adjustment to an incentive stock option shall be made in such a manner
so as not to constitute a "modification" as defined in Code Section 425(h) and
so as not to cause his or her incentive stock option issued hereunder to fail to
continue to qualify as an incentive stock option as defined in Code Section
422(b).
SECTION 8. SECURITIES REGULATION
Shares shall not be issued with respect to an option granted under this
Plan unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, any applicable state securities laws, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance, including the
availability, if applicable, of an exemption from registration for the issuance
and sale of any shares hereunder.
SECTION 9. AMENDMENT AND TERMINATION
9.1 Board Action
The Board may at any time suspend, amend or terminate this Plan,
provided that, to the extent required for compliance with Section 422 of the
Code or by any applicable law or regulation, the Company's shareholders must
approve any amendment which will:
(a) increase the total number of shares that may be issued under this
Plan;
(b) modify the class of participants eligible for participation in this
Plan; or
(c) otherwise require shareholder approval under any applicable law or
regulation.
Such shareholder approval must be obtained within 12 months of the
adoption by the Board of such amendment.
Any amendment made to this Plan since its original adoption which would
constitute a "modification" to incentive stock options outstanding on the date
of such amendment shall not be applicable to such outstanding incentive stock
options, but shall have prospective effect only, unless the Optionee agrees
otherwise.
9.2 Automatic Termination
Unless sooner terminated by the Board, this Plan shall terminate ten
years from the earlier of (a) the date on which this Plan is adopted by the
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Board or (b) the date on which this Plan is approved by the shareholders of the
Company. No option may be granted after such termination or during any
suspension of this Plan. The amendment or termination of this Plan shall not,
without the consent of the option holder, impair or diminish any rights or
obligations under any option theretofore granted under this Plan.
SECTION 10. EFFECTIVENESS OF THIS PLAN
This Plan shall become effective upon adoption by the Board so long as
it is approved by the Company's shareholders at any time within 12 months of the
adoption of this Plan or, if earlier and to the extent required for compliance
with Rule 16b-3 under the Exchange Act, at the next annual meeting of
shareholders after adoption by the Board.
Plan adopted by the Board of Directors on February 17, 1994 and approved by
the shareholders on May 17, 1994; amended by the Board of Directors on
March 11, 1996; amended and restated by the Board of Directors on December
3, 1996 and approved by the shareholders on May 13, 1997.
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