As filed with the Securities and Exchange Commission on November 7, 1997
Registration No.33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Somatogen, Inc.
(Exact name of registrant as specified in its charter)
Delaware 84-0991858
(State of Incorporation) (I.R.S. Employer Identification No.)
2545 Central Avenue, Suite FD1
Boulder, Colorado 80301-2857
(303) 440-9988
(Address and telephone number of principal executive offices)
Amended and Restated Consultants Stock Option Plan
Amended and Restated Nonemployee Director Stock Option Plan
(Full title of the plans)
Timothy D. Hoogheem
Senior Vice President of Finance and Administration,
Chief Financial Officer, Treasurer and Assistant Secretary
SOMATOGEN, INC.
2545 Central Avenue, Suite FD1
Boulder, Colorado 80301-2857
(303) 440-9988
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
James C.T. Linfield, Esq.
Cooley Godward LLP
2595 Canyon Blvd., Suite 250
Boulder, Colorado 80302
(303) 546-4000
Approximate date of commencement of proposed sale to
the public: As soon as practicable after
this Registration Statement becomes effective.
Page 1 of 7
Exhibit Index at Page: 7
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
======================== ================= ======================== ========================= =======================
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered (1) Share (2) Price (2) Registration Fee
========================= ================= ======================== ========================= =======================
Stock Options and
Common Stock (par value 300,000 $6.5625 $1,968,750 $596.53
$.001)
========================= ================= ========================= ========================= =======================
</TABLE>
(1) Comprised of 200,000 and 100,000 shares of Common Stock to be
registered under the Amended and Restated Nonemployee Director
Stock Option Plan and the Amended and Restated Consultants Stock
Option Plan, respectively.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering
price are based upon the closing price as reported on the Nasdaq
National Market, pursuant to Rule 457(h) of the Act, of the
Registrant's Common Stock on November 3, 1997, for shares subject to
options to be granted under the Amended and Restated Nonemployee
Director Stock Option Plan and the Amended and Restated Consultants
Stock Option Plan.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Somatogen, Inc., a Delaware
corporation (the "Company" or the "Registrant") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997;
(c) A description of the Company's Common Stock, which is contained in
the Form 8-A Registration Statement filed by the Company with the Commission
which was declared effective on August 1, 1991, as amended through the date
hereof; and
<PAGE> 3
(d) All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this registration statement
from the date of the filing of such reports and documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the Common Stock offered pursuant to
the Amended and Restated Nonemployee Director Stock Option Plan and the Amended
and Restated consultants Stock Option Plan will be passed upon for the Company
by Cooley Godward LLP. As of the date hereof, certain members of Cooley Godward
LLP beneficially owned 19,794 shares of Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Act. The
Company's Bylaws require the Company to indemnify its directors and executive
officers, and permit the Company to indemnify its employees and other agents, to
the extent permitted by Delaware law. Under the company's Bylaws, indemnified
parties are entitled to indemnification for negligence, gross negligence and
otherwise to the fullest extent permitted by law. The Bylaws also require the
Company to advance litigation expenses in the case of stockholder derivative
actions or other actions, against an undertaking by the indemnified party to
repay such advances if it is ultimately determined that the indemnified party is
not entitled to indemnification.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain provisions
which are in some respects broader than the specific indemnification provisions
contained in Delaware law.
EXHIBITS
Exhibit
Number
3.4* Bylaws.
4.1* Certificate of Incorporation, as amended.
4.5* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the signature page.
10.78 Registrant's Amended and Restated Nonemployee Director Stock Option
Plan.
10.79 Registrant's Amended and Restated Consultants Stock Option Plan.
- -----------------------
* Filed as an exhibit to the Form S-1 Registration Statement (No.
33-41229), as amended through the date hereof, and incorporated herein
by reference.
<PAGE> 4
UNDERTAKINGS
I. The undersigned registrant hereby undertakes:
A. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
1. To include any prospectus required by section 10(a)(3) of the
Securities Act;
2. To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (ss. 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
3. 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.
B. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
III. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE> 5
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 Boulder, State of Colorado, on the 7th day of November,
1997.
SOMATOGEN, INC.
By: Timothy D. Hoogheem
Senior Vice President of Finance
and Administration, Chief Financial
Officer, Treasurer and Assistant
Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Andre de Bruin and Timothy D.
Hoogheem, his/her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Andre de Bruin Chairman of the Board, President, November 7, 1997
- ------------------- Chief Executive Officer
(Principal executive officer)
Timothy D. Hoogheem Senior Vice President of Finance and November 7, 1997
- ------------------- and Administration, Chief Financial
Officer, Treasurer and Assistant
Secretary (Principal financial officer)
Conrad A. McCarty Corporate Controller November 7, 1997
- ------------------- (Principal accounting officer)
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Carlos A. Ferrer Director November 7, 1997
- ---------------------------
Bernadine Healy, M.D. Director November 7, 1997
- ---------------------------
Gene I. Miller Director November 7, 1997
- ---------------------------
George B. Rathmann, Ph.D. Director November 7, 1997
- ---------------------------
Jack W. Schuler Director November 7, 1997
- ---------------------------
Ralph Snyderman, M.D. Director November 7, 1997
- ---------------------------
</TABLE>
<PAGE> 7
INDEX TO EXHIBITS
Exhibit
Number
3.4* Bylaws.
4.1* Certificate of Incorporation, as amended.
4.5* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the signature page.
10.78 Registrant's Amended and Restated Nonemployee Director Stock Option
Plan.
10.79 Registrant's Amended and Restated Consultants Stock Option Plan.
- -----------------------
* Filed as an exhibit to the Form S-1 Registration Statement (No.
33-41229), as amended through the date hereof, and incorporated herein
by reference.
Exhibit 5.1
November 7, 1997
Somatogen, Inc.
2545 Central Avenue
Suite FD1
Boulder, Colorado 80301-2857
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Somatogen, Inc. (the "Registrant") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 200,000 shares of the
Registrant's Common Stock, $.001 par value, pursuant to the Registrant's Amended
and Restated Nonemployee Director Stock Option Plan (the "Director Plan") and
100,000 shares of the Registrant's Common Stock, $.001 par value pursuant to the
Registrant's Amended and Restated Consultants Stock Option Plan (the
"Consultants Plan") (the Director Plan and the Consultants Plan herein after
collectively referred to as the "Plans") (collectively the "Shares").
In connection with this opinion, we have (i) examined the Registration Statement
and the related Prospectus, and (ii) reviewed the Registrant's Certificate of
Incorporation and Bylaws, as amended, and such other documents, records,
certificates, memoranda and other instruments as we deem necessary as a basis
for this opinion. We also have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued and sold in accordance with the Plans, the
Registration Statement and the related Prospectus, will be validly issued, fully
paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: James C.T. Linfield
EXHIBIT 23.1
CONSENT OF PRICE WATERHOUSE LLP, INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Somatogen, Inc. pertaining to the Amended and Restated
Nonemployee Director Stock Option Plan and the Amended and Restated Consultants
Stock Option Plan of our report dated July 25, 1997 appearing on Page F-1 of
Somatogen, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1997.
PRICE WATERHOUSE LLP
Boulder, Colorado
November 5, 1997
Exhibit 10.78
SOMATOGEN, INC.
AMENDED AND RESTATED
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
ADOPTED JULY 13, 1993
AMENDED AND RESTATED JULY 22, 1997
1. Purpose.
The Somatogen, Inc. Amended and Restated Nonemployee Director Stock
Option Plan (the "Plan") provides for the grant of Stock Options to Nonemployee
Directors of Somatogen, Inc. (the "Company") in order to advance the interests
of the Company through the motivation, attraction and retention of its
Nonemployee Directors. This Plan is amended and restated to increase the number
of shares reserved for issuance, to conform to the provisions of Rule 16b-3
under the Securities Exchange Act of 1934 and to permit Nonemployee Directors to
exchange their directors' fees for discounted stock options.
2. NON-STATUTORY STOCK OPTIONS.
The Stock Options granted under the Plan shall be nonstatutory stock
options ("NSOs") which are intended to be options that do not qualify as
"incentive stock options" under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
3. ADMINISTRATION.
3.1 Committee. The Plan shall be administered by the Board of Directors
of the Company (the "Board") or by a committee of two or more directors (the
"Committee") if the Board delegates administration of the Plan to the Committee.
The Committee or the Board, as the case may be, shall have full authority to
administer the Plan, including authority to interpret and construe any provision
of the Plan and any Stock Option granted thereunder, and to adopt such rules and
regulations for administering the Plan as it may deem necessary in order to
comply with the requirements of the Code or in order to conform to any
regulation or to any change in any law or regulation applicable thereto. The
Board of Directors may reserve to itself any of the authority granted to the
Committee as set forth herein, and it may perform and discharge all of the
functions and responsibilities of the Committee at any time that a duly
constituted Committee is not appointed and serving. All references in this Plan
to the "Committee" shall be deemed to refer to the Board of Directors whenever
the Board is discharging the powers and responsibilities of the Committee.
3.2 Actions of Committee. All actions taken and all interpretations and
determinations made by the Committee in good faith (including determinations of
Fair Market Value) shall be final and binding upon all Participants, the Company
and all other interested persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan, and all members of the Committee shall, in addition to
their rights as directors, be fully protected by the Company with respect to any
such action, determination or interpretation.
<PAGE> 2
4. DEFINITIONS.
4.1 "Change in Control." A Change in Control occurs if (i) any person
(as such term is used in Sections 23(d) and 14(d)(2) of the Securities and
Exchange Act of 1934 (the "Exchange Act")), other than the Corporation, is or
becomes the beneficial owner (as defined in Rule 13D-3 under the Exchange Act),
directly or indirectly, of 50% or more of the combined voting power of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (calculated as provided in Rule 13d-3(d)
under the Exchange Act in the case of rights to acquire capital stock), whether
by means of a tender offer or exchange offer, Transaction or otherwise; or (ii)
the Board or the stockholders of the Corporation approve a Transaction. A
"Transaction" is: (a) any consolidation or merger of the Corporation other than
a merger solely to effect a reincorporation or a merger of the Corporation as to
which stockholder approval is not required pursuant to Sections 251(f) or 253 of
the Delaware General Corporation Law; or (b) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of 50% or more
of the assets of the Corporation; or (c) the adoption of any plan or proposal
for the liquidation or dissolution of the Corporation.
4.2 "Common Stock." A share of Common Stock means a share of authorized
by unissued or reacquired Common Stock (par value $.001 per share) of the
Company.
4.3 "Fair Market Value." Fair Market Value means, as of any date, the
value of the Common Stock of the Company determined as follows:
i. If the Common Stock is listed on any established stock
exchange or traded on the Nasdaq National Market System or the Nasdaq SmallCap
Market, the fair market value of a share of Common Stock shall be the closing
sales price for such Common Stock (or the closing bid, if no sales were
reported) as quoted on such exchange or market (or the exchange or market with
the greatest volume of trading in the Company's Common Stock in the event that
the Company's Common Stock is traded on more than one such exchange or market)
on the day of determination, as reported in The Wall Street Journal or such
other source as the Board deems reliable; or
ii. In the absence of such markets for the Common Stock, the
fair market value shall be determined in good faith by the Board. The Fair
Market Value of a share of Common Stock on any date shall be the officially
quoted closing sale price on the Nasdaq National Market on the date in question
or, in the absence of such markets for the Common Stock, the fair market value
shall be determined in good faith by the Board.
<PAGE> 3
4.4 "Nonemployee Director." A Nonemployee Director is a Member of the
Board of Directors of the Company who is not also an employee of the Company.
4.5 "Participant." A Participant is a Nonemployee Director to whom a
Stock Option is granted.
4.6 "Stock Option." A Stock Option is the right granted under the Plan
to a Nonemployee Director to purchase, at such time or times and at such price
or prices ("Option Price") as are determined pursuant to the Plan, the number of
shares of Common Stock determined pursuant to the Plan.
5. AUTOMATIC STOCK OPTION GRANTS
5.1 Initial Grant. On the date of election as a Director, each
Nonemployee Director shall be granted a Stock Option to Purchase 15,000 shares
of common stock (subject to adjustment pursuant to Section 7.2 hereof). Any
Nonemployee Director who is prohibited by a policy of his/her employer from
receiving stock options under the Plan will not be eligible to receive stock
options under this Plan.
5.2 Annual Grant. Options were granted under this Plan prior to the
date of the Annual Meeting of Stockholders in 1997 under the terms of the Plan
in effect prior to this amendment and restatement. No automatic annual grants
shall be made under this Plan at the Annual Meeting of Stockholders in 1997.
At each Annual Meeting of Stockholders commencing in 1998, each
Nonemployee Director who serves as a Director at such meeting shall be granted a
Stock Option to purchase a number of shares of Common Stock determined by
multiplying 7,500 by a fraction, the numerator of which is $20.00, and the
denominator of which is the Fair Market Value of one share of Common Stock on
such date. The number of shares subject to each annual Stock Option grant will
not exceed 15,000 and will not be less than 7,500. The foregoing share numbers
and $20.00 figure will be proportionately adjusted to reflect the occurrence of
any of the events referred to in Section 7.2.
Notwithstanding the foregoing, if the number of shares remaining
available for grant of Stock Options hereunder on the date of any Annual Meeting
of Stockholders is not sufficient to cover the foregoing number of shares, the
available shares shall be allocated ratably among the Nonemployee Directors
eligible and receive a Stock Option on such date. Any Nonemployee Director who
is prohibited by a policy of his or her employer from receiving Stock Options
under this Plan will not be eligible to receive Stock Options under the Plan.
<PAGE> 4
5.3 Price. The purchase price per share of Common Stock for the shares
to be purchased pursuant to the exercise of any Stock Option shall be 100% of
the Fair Market Value of a share of Common Stock on the date on which the
Nonemployee Director is granted the Stock Option.
5.4 Other Terms. Except for the limitations set forth in Sections 5.1
and 5.2, the terms and provisions of Stock Options shall be as determined from
time to time by the Committee, and each Stock Option issued may contain terms
and provisions different from other Stock Options granted to the same or other
Stock Option recipients. Each Stock Option shall be evidenced by a written
agreement ("Option Agreement") containing such terms and provisions as the
Committee may determine, subject to the provisions of the Plan.
5.5 Time of Exercise. Stock Options shall vest in equal quarterly
installments over a period of three years from grant and shall expire, to the
extent not exercised, six years after the date of grant. Stock Options granted
under the Plan, including those granted prior to this amendment and restatement
of the Plan, shall be fully vested and exercisable immediately prior to the
consummation of a Change in Control.
5.6 Six-Month Holding Period. The shares of Common Stock issued upon
the exercise of a Stock Option may not be sold or otherwise disposed of within
six months after the date of grant of the Stock Option.
5.7 Termination of Director Status Before Exercise. If a Participant's
term as a director for the Company shall terminate for any reason other than the
Participant's death or disability, any Stock Option then held by the
Participant, to the extent then exercisable under the applicable Option
Agreement(s), shall remain exercisable after the termination of his director
status for a period of three months (but in no event beyond six years from the
date of grant of the Stock Option). If the Participant's director status is
terminated because the Participant dies or is disabled within the meaning of
Section 22(e)(3) of the Code, any Stock Option then held by the Participant, to
the extent then exercisable under the applicable Option Agreement(s), shall
remain exercisable after the termination of his employment for a period of
twelve months (but in no event beyond six years from the date of grant of the
Stock Option). If the Stock Option is not exercised during the applicable
period, it shall be deemed to have been forfeited and of no further force or
effect.
<PAGE> 5
6. DEFERRED DIRECTOR FEE GRANTS.
6.1 Deferral of Directors' Fees. Each Nonemployee Director may elect to
apply all or any portion of the meeting fees otherwise payable in cash for his
or her service on the Board or a committee of the Board ("Directors' Fees") to
the acquisition of a Stock Option pursuant to the terms of this Section 6 (a
"Deferred Fee Option"). Such election must be filed with the Corporation's Chief
Financial Officer prior to the effective date of the Plan for the Nonemployee
Director to be granted a Deferred Fee Option on the effective date of this
amendment and restatement, and before the Annual Meeting of Stockholders for the
Nonemployee Director to receive a Deferred Fee Option as of the date of each
such Annual Meeting of Stockholders. The deferral election shall be irrevocable
until the Annual Meeting of Stockholders following the Deferred Fee Option grant
date. Each Nonemployee Director who files such a timely election shall
automatically be granted an option under this Section 6 on the effective date of
this amendment and restatement of the Plan or the date of the Annual Meeting of
Stockholders following the submission of the election.
Notwithstanding the foregoing, if the number of shares remaining
available for grant of Stock Options under the Plan is not sufficient to cover
the grant of options under Section 6 and Deferred Fee Options, the available
shares shall be first allocated to the Stock Options under Section 5 and then
ratably among the Nonemployee Directors eligible and receive a Deferred Fee
Option based on their relative deferred fees.
6.2 Price. The purchase price per share of Common Stock for the shares
to be purchased pursuant to the exercise of any Deferred Fee Option shall be
33-1/3% of the Fair Market Value of a share of Common Stock on the date of
grant.
6.3 Number of Option Shares. The number of shares of Common Stock
subject to a Deferred Fee Option shall be determined pursuant to the following
formula (rounded down to the nearest whole number):
X = A / (B x 66-2/3%), where
X is the number of option shares,
A is the maximum amount of the Director's Fees subject to the
Nonemployee Director's deferral election, and
B is the fair market value per share of Common Stock on the
option grant date.
<PAGE> 6
6.4 Vesting. Each Deferred Fee Option shall vest (become exercisable)
in installments on each date that Directors' Fees would have been payable in
cash had no deferral election been in effect under this Section 6 with respect
to the number of shares equal to (1) the aggregate shares subject to the
Deferred Fee Option multiplied by (2) the fraction obtained where the numerator
is the cash Directors' Fees that the Nonemployee Director otherwise would have
received on such date and the denominator is the aggregate Directors' Fees that
the Nonemployee Director would have received in cash absent a deferral election
following the date of grant until the next Annual Meeting of Stockholders. Each
Deferred Fee Option shall be fully vested and exercisable immediately prior to
the consummation of a Change in Control. Solely for purposes of calculating the
vested percentage of a Deferred Fee Option, a Nonemployee Director who dies or
becomes disabled (within the meaning of Section 22(e)(3) of the Code) while a
director shall be deemed to have earned, as of the date of his or her death or
disability, the maximum Directors' Fees that he or she could have earned until
the next Annual Meeting of Stockholders.
To the extent a Deferred Fee Option is not vested on the day of the
next Annual Meeting of Stockholders following the date of grant, the Deferred
Fee Option shall be forfeited and the shares of Company common stock underlying
such Deferred Fee Option shall again be made subject to Stock Options under the
Plan.
6.5 Termination of Director Status Before Exercise. If a Participant's
term as a director for the Company shall terminate for any reason, any Stock
Option then held by the Participant, to the extent then exercisable, shall
remain exercisable after the termination of his director status for a period of
three years (but in no event beyond six years from the date of grant of the
Deferred Fee Option). If the Deferred Fee Option is not exercised during the
applicable period, it shall be deemed to have been forfeited and of no further
force or effect.
<PAGE> 7
7. SHARES OF COMMON STOCK SUBJECT TO THE PLAN
7.1 Maximum Number. The maximum aggregate number of shares of Common
Stock that may be made subject to Stock Options shall be 470,000 authorized but
unissued shares. If any shares of Common Stock subject to Stock Options are not
purchased or otherwise paid for before such Stock Options expire, such shares
may again be made subject to Stock Options hereunder.
7.2 Capital Changes. In the event any changes are made to the shares of
Common Stock (whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend in excess of ten percent (10%) at any single
time, stock split, combination of shares, exchange of shares, change in
corporate structure or otherwise), appropriate adjustments shall be made in: (i)
the number of shares of Common Stock theretofore made subject to Stock Options,
and in the purchase price of said shares; and (ii) the aggregate number of
shares which may be made subject to Stock Options. If any of the foregoing
adjustments shall result in a fractional share, the fraction shall be
disregarded, and the Company shall have no obligation to make any cash or other
payment with respect to such a fractional share.
8. NO EFFECT UPON STOCKHOLDER RIGHTS.
Nothing in this Plan shall interfere in any way with the right of the
stockholders of the Company to remove the Participant from the Board pursuant to
the Delaware General Corporation Law and the Company's Restated Certificate of
Incorporation and Bylaws.
9. NO RIGHTS AS A STOCKHOLDER.
A Participant shall have no rights as a stockholder with respect to any
shares of Common Stock subject to a Stock Option. Except as provided in Section
7.2, no adjustment shall be made in the number of shares of Common Stock issued
to a Participant, or in any other rights of the Participant upon exercise of a
Stock Option, by reason of any dividend, distribution or other right granted to
stockholders for which the record date is prior to the date of exercise of the
Participant's Stock Option.
<PAGE> 8
10. ASSIGNABILITY.
No Stock Option granted under this Plan, nor any other rights acquired
by a Participant under this Plan, shall be assignable or transferable by a
Participant, other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code, Title I
of the Employment Retirement Income Security Act ("ERISA"), or the rules
thereunder. In the event of the Participant's death, the Stock Option may be
exercised by the Personal Representative of the Participant's estate or, if no
Personal Representative has been appointed, by the successor or successors in
interest determined under the Participant's will or under the applicable laws of
descent and distribution.
11. MERGER OR LIQUIDATION OF THE COMPANY.
If the Company or its stockholders enter into an agreement to dispose
of all, or substantially all, of the assets or outstanding capital stock of the
Company by means of a sale or liquidation, or a merger or reorganization in
which the Company is not the surviving corporation, the Committee shall have the
power and discretion to prescribe the terms and conditions for the exercise of,
or modification of, the Stock Options granted hereunder. By way of illustration,
and not by way of limitation, the Committee may provide that such Stock Options
will be exchanged or converted into options to acquire securities of the
surviving or acquiring corporation, or may provide for a payment or distribution
in respect of outstanding Stock Options (or the portion thereof that is
currently exercisable) in cancellation thereof. The Committee may provide that
Stock Options or other rights granted hereunder must be exercised in connection
with the closing of such transaction, and that if not so exercised such Options
will expire. The provisions of this Section 11 shall not apply to any
transaction undertaken for the purpose of reincorporating the Company under the
laws of another jurisdiction, if such transaction does not materially affect the
beneficial ownership of the Company's capital stock.
12. AMENDMENT.
The Board may from time to time alter, amend, suspend or discontinue
the Plan, including, where applicable, any modifications or amendments as it
shall deem advisable in order to conform to any regulation or to change in any
law or regulation applicable thereto; provided, however, that no such action
shall adversely affect the rights and obligations with respect to Stock Options
at any time outstanding under the Plan; and provided further that no such action
shall be taken without the approval of the stockholders of the Company where
such approval is required to conform to Nasdaq or stock exchange listing
requirements.
<PAGE> 9
13. REGISTRATION OF OPTIONED SHARES.
No shares of Common Stock will be issuable upon exercise of Stock
Options unless the issuance of such shares is pursuant to an applicable
effective registration statement under the Securities Act of 1933, as amended
(the "Act"), or unless, in the opinion of counsel to the Company, the issuance
of such shares would be exempt from the registration requirements of the Act and
from the registration or qualification requirements of applicable state
securities laws.
14. BROKERAGE ARRANGEMENTS.
The Committee, in its discretion, may enter into arrangements with one
or more banks, brokers or other financial institutions to facilitate the
disposition of shares acquired upon exercise of Stock Options including, without
limitation, arrangements for the simultaneous exercise of Stock Options and sale
of the shares acquired upon such exercise.
15. NONEXCLUSIVITY OF THE PLAN.
Neither the adoption of the Plan by the Board nor the submission of the
Plan to stockholders of the Company for approval shall be construed as creating
any limitations on the power or authority of the Board to adopt such other or
additional compensation arrangements of whatever nature as the Board may deem
necessary or desirable or preclude or limit the continuation of any other plan,
practice or arrangement for the payment of compensation or fringe benefits to
Nonemployee Directors, which the Company now has lawfully put into effect.
16. EFFECTIVE DATE.
This amendment and restatement of the Plan shall be effective on the
date established by the Board; provided that this amendment and restatement of
the Plan is subject to the condition subsequent that the Plan is approved by the
stockholders of the Company. In the event that the stockholders of the Company
do not approve the amendment and restatement of the Plan at the 1997 Annual
Meeting of Stockholders, then (i) the increase in the number of shares reserved
for issuance hereunder shall be void and (ii) any Nonemployee Director's
election to defer Directors' Fees hereunder shall be void, and such deferred
Directors' Fees shall be paid in cash to such Nonemployee Director as soon as
reasonably practicable following the 1997 Annual Meeting of Stockholders.
Exhibit 10.79
SOMATOGEN, INC.
AMENDED AND RESTATED
CONSULTANTS STOCK OPTION PLAN
ADOPTED JUNE 15, 1995
AMENDED AND RESTATED OCTOBER 28, 1997
1. PURPOSES.
(a) The purpose of the Plan is to provide a means by which selected
Consultants to the Company, and its Affiliates, may be given an opportunity to
purchase stock of the Company.
(b) The Company, by means of the Plan, seeks to retain the services of
persons who are now Consultants to the Company or its Affiliates, to secure and
retain the services of new Consultants, and to provide incentives for such
persons to exert maximum efforts for the success of the Company and its
Affiliates.
(c) Options issued under the Plan shall be nonstatutory stock options
(i.e., Options that do not qualify as incentive stock options under Section 422
of the Code).
2. DEFINITIONS.
(a) "Affiliate" means any parent corporation or subsidiary corporation,
whether now or hereafter existing, as those terms are defined in Sections 424(e)
and (f) respectively, of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a Committee appointed by the Board in accordance
with subsection 3(c) of the Plan.
(e) "Company" means Somatogen, Inc., a Delaware corporation.
(f) "Consultant" means any person, including a scientific or clinical
advisor, engaged by the Company or an Affiliate to render consulting services
and who is compensated for such services, provided that the term "Consultant"
shall not include Directors who are paid only a director's fee by the Company or
who are not compensated by the Company for their services as Directors.
(g) "Continuous Status as a Consultant" means the relationship as a
Consultant is not interrupted or terminated. The Board, in its sole discretion,
may determine whether Continuous Status as a Consultant shall be considered
interrupted in the case of: (i) any leave of absence approved by the Board,
including sick leave, military leave, or any other personal leave; or (ii)
transfers between locations of the Company or between the Company, Affiliates or
their successors.
<PAGE> 2
(h) "Director" means a member of the Board.
(i) "Employee" means any person, including Officers and Directors,
employed by the Company or any Affiliate of the Company. Neither service as a
Director nor payment of a director's fee by the Company shall be sufficient to
constitute "employment" by the Company.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "Fair Market Value" means, as of any date, the value of the common
stock of the Company determined as follows:
(i) If the common stock is listed on any established stock
exchange or a national market system, including without limitation the National
Market System of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the Fair Market Value of a share of common stock
shall be the closing sales price for such stock (or the closing bid, if no sales
were reported) as quoted on such system or exchange (or the exchange with the
greatest volume of trading in common stock) on the last market trading day prior
to the day of determination, as reported in the Wall Street Journal or such
other source as the Board deems reliable;
(ii) If the common stock is quoted on the NASDAQ System (but
not on the National Market System thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a share of common stock shall be the mean between the bid and
asked prices for the common stock on the last market trading day prior to the
day of determination, as reported in the Wall Street Journal or such other
source as the Board deems reliable;
(iii) In the absence of an established market for the common
stock, the Fair Market Value shall be determined in good faith by the Board.
(l) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(m) "Option" means a stock option granted pursuant to the Plan.
(n) "Option Agreement" means a written agreement between the Company
and an Optionee evidencing the terms and conditions of an individual Option
grant. Each Option Agreement shall be subject to the terms and conditions of the
Plan.
(o) "Optionee" means a Consultant who holds an outstanding Option.
(p) "Plan" means this Somatogen, Inc. Amended and Restated Consultants
Stock Option Plan.
(q) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor
to Rule 16b-3, as in effect when discretion is being exercised with respect to
the Plan.
<PAGE> 3
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless and until the
Board delegates administration to a Committee, as provided in subsection 3(c).
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(i) To determine from time to time which of the persons
eligible under the Plan shall be granted Options; when and how each Option shall
be granted; the provisions of each Option granted (which need not be identical),
including the time or times such Option may be exercised in whole or in part;
and the number of shares for which an Option shall be granted to each such
person.
(ii) To construe and interpret the Plan and Options granted
under it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Option Agreement, in a
manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.
(iii) To amend the Plan or an Option as provided in Section 11.
(iv) Generally, to exercise such powers and to perform such
acts as the Board deems necessary or expedient to promote the best interests of
the Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than one (1) member of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board (and references in this Plan to the Board shall thereafter be to
the Committee), subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to Options shall not
exceed in the aggregate one hundred eighty thousand (180,000) shares of the
Company's common stock. If any Option shall for any reason expire or otherwise
terminate, in whole or in part, without having been exercised in full, the stock
not purchased under such Option shall revert to and again become available for
issuance under the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
<PAGE> 4
5. ELIGIBILITY.
Consultants to the Company are eligible to receive Options
hereunder. No Options may be granted under this Plan to any person who is at the
time of such grant an Officer, Director or Employee of the Company.
6. OPTION PROVISIONS.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of separate
Options need not be identical, but each Option shall include (through
incorporation of provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:
(a) Term. No Option shall be exercisable after the expiration of ten
(10) years from the date it was granted.
(b) Price. The exercise price of each Option shall be not less than one
hundred percent (100%) of the Fair Market Value of the stock subject to the
Option on the date the Option is granted.
(c) Consideration. The purchase price of stock acquired pursuant to an
Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (i) in cash at the time the Option is exercised, or (ii) at
the discretion of the Board or the Committee, at the time of the grant of the
Option, (A) by delivery to the Company of other common stock of the Company, (B)
according to a deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of the
Company) with the person to whom the Option is granted or to whom the Option is
transferred pursuant to subsection 6(d), or (C) in any other form of legal
consideration that may be acceptable to the Board.
(d) Transferability. An Option shall not be transferable except by will
or by the laws of descent and distribution, and shall be exercisable during the
lifetime of the person to whom the Option is granted only by such person. The
person to whom the Option is granted may, by delivering written notice to the
Company, in a form satisfactory to the Company, designate a third party who, in
the event of the death of the Optionee, shall thereafter be entitled to exercise
the Option.
(e) Vesting. The total number of shares of stock subject to an Option
may, but need not, be allotted in periodic installments (which may, but need
not, be equal). The Option Agreement may provide that from time to time during
each of such installment periods, the Option may become exercisable ("vest")
with respect to some or all of the shares allotted to that period, and may be
exercised with respect to some or all of the shares allotted to such period
and/or any prior period as to which the Option became vested but was not fully
exercised. The Option may be subject to such other terms and conditions on the
time or times when it may be exercised (which may be based on performance or
other criteria) as the Board may deem appropriate.
<PAGE> 5
(f) Securities Law Compliance. The Company may require any Optionee, or
any person to whom an Option is transferred under subsection 6(d), as a
condition of exercising any such Option, (1) to give written assurances
satisfactory to the Company as to the Optionee's knowledge and experience in
financial and business matters and/or to employ a purchaser representative
reasonably satisfactory to the Company who is knowledgeable and experienced in
financial and business matters, and that he or she is capable of evaluating,
alone or together with the purchaser representative, the merits and risks of
exercising the Option; and (2) to give written assurances satisfactory to the
Company stating that such person is acquiring the stock subject to the Option
for such person's own account and not with any present intention of selling or
otherwise distributing the stock. The foregoing requirements, and any assurances
given pursuant to such requirements, shall be inoperative if (i) the issuance of
the shares upon the exercise of the Option has been registered under a then
currently effective registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), or (ii) as to any particular requirement, a
determination is made by counsel for the Company that such requirement need not
be met in the circumstances under the then applicable securities laws. The
Company may, upon advice of counsel to the Company, place legends on stock
certificates issued under the Plan as such counsel deems necessary or
appropriate in order to comply with applicable securities laws, including, but
not limited to, legends restricting the transfer of the stock.
(g) Termination of Relationship as a Consultant. In the event an
Optionee's Continuous Status as an Consultant terminates (other than upon the
Optionee's death or disability), the Optionee may exercise his or her Option (to
the extent that the Optionee was entitled to exercise it at the date of
termination) but only within such period of time ending on the earlier of (i)
the date three (3) months after the termination of the Optionee's Continuous
Status as a Consultant, or (ii) the expiration of the term of the Option as set
forth in the Option Agreement. If, after termination, the Optionee does not
exercise his or her Option within the time specified in the Option Agreement,
the Option shall terminate, and the shares covered by such Option shall revert
to and again become available for issuance under the Plan.
(h) Disability of Optionee. In the event an Optionee's Continuous
Status as a Consultant terminates as a result of the Optionee's disability, the
Optionee may exercise his or her Option (to the extent that the Optionee was
entitled to exercise it at the date of termination), but only within such period
of time ending on the earlier of (i) the date twelve (12) months following such
termination or (ii) the expiration of the term of the Option as set forth in the
Option Agreement. If, at the date of termination, the Optionee is not entitled
to exercise his or her entire Option, the shares covered by the unexercisable
portion of the Option shall revert to and again become available for issuance
under the Plan. If, after termination, the Optionee does not exercise his or her
Option within the time specified herein, the Option shall terminate, and the
shares covered by such Option shall revert to and again become available for
issuance under the Plan.
<PAGE> 6
(i) Death of Optionee. In the event of the death of an Optionee during,
or within a period specified in the Option after the termination of, the
Optionee's Continuous Status as a Consultant, the Option may be exercised (to
the extent the Optionee was entitled to exercise the Option at the date of
death) by the Optionee's estate, by a person who acquired the right to exercise
the Option by bequest or inheritance or by a person designated to exercise the
option upon the Optionee's death pursuant to subsection 6(d), but only within
the period ending on the earlier of (i) the date twelve (12) months following
the date of death, or (ii) the expiration of the term of such Option as set
forth in the Option Agreement. If, at the time of death, the Optionee was not
entitled to exercise his or her entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become available
for issuance under the Plan. If, after death, the Option is not exercised within
the time specified herein, the Option shall terminate, and the shares covered by
such Option shall revert to and again become available for issuance under the
Plan.
(j) Early Exercise. The Option may, but need not, include a provision
whereby the Optionee may elect at any time while a Consultant to exercise the
Option as to any part or all of the shares subject to the Option prior to the
full vesting of the Option. Any unvested shares so purchased may be subject to a
repurchase right in favor of the Company or to any other restriction the Board
determines to be appropriate.
(k) Withholding. To the extent provided by the terms of an Option
Agreement, the Optionee may satisfy any federal, state or local tax withholding
obligation relating to the exercise of such Option by any of the following means
or by a combination of such means: (1) tendering a cash payment; (2) authorizing
the Company to withhold shares from the shares of the common stock otherwise
issuable to the participant as a result of the exercise of the Option; or (3)
delivering to the Company owned and unencumbered shares of the common stock of
the Company.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the Options, the Company shall keep available
at all times the number of shares of stock required to satisfy such Options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the Options; provided, however,
that this undertaking shall not require the Company to register under the
Securities Act either the Plan, any Option or any stock issued or issuable
pursuant to any such Option. If, after reasonable efforts, the Company is unable
to obtain from any such regulatory commission or agency the authority which
counsel for the Company deems necessary for the lawful issuance and sale of
stock under the Plan, the Company shall be relieved from any liability for
failure to issue and sell stock upon exercise of such Options unless and until
such authority is obtained.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Options shall constitute
general funds of the Company.
<PAGE> 7
9. MISCELLANEOUS.
(a) The Board shall have the power to accelerate the time at which an
Option may first be exercised or the time during which an Option or any part
thereof will vest pursuant to subsection 6(e), notwithstanding the provisions in
the Option stating the time at which it may first be exercised or the time
during which it will vest.
(b) Neither an Optionee nor any person to whom an Option is transferred
under subsection 6(d) shall be deemed to be the holder of, or to have any of the
rights of a holder with respect to, any shares subject to such Option unless and
until such person has satisfied all requirements for exercise of the Option
pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Option granted
pursuant thereto shall confer upon any Consultant or Optionee any right to
continue in to continue acting as a Consultant or shall affect the right of the
Company or any Affiliate to terminate the relationship as a Consultant of any
Consultant or Optionee with or without cause.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) In the event of: (1) a dissolution, liquidation or sale of
substantially all of the assets of the Company; (2) a merger or consolidation in
which the Company is not the surviving corporation; or (3) a reverse merger in
which the Company is the surviving corporation but the shares of the Company's
common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise, then to the extent permitted by applicable law: (i) any
surviving corporation shall assume any Options outstanding under the Plan or
shall substitute similar Options for those outstanding under the Plan, or (ii)
such Options shall continue in full force and effect. In the event any surviving
corporation refuses to assume or continue such Options, or to substitute similar
options for those outstanding under the Plan, then, with respect to Options held
by persons then performing services as Consultants, the time during which such
Options may be exercised shall be accelerated and the Options terminated if not
exercised prior to such event.
(b) If any change is made in the stock subject to the Plan, or subject
to any Option (through merger, consolidation, reorganization, recapitalization,
stock dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by the
Company), the Plan will be appropriately adjusted in the type(s) and maximum
number of securities subject to the Plan pursuant to subsection 4(a), and the
outstanding Options will be appropriately adjusted in the types(s) and number of
securities and price per share of stock subject to such outstanding Options.
Such adjustments shall be made by the Board or Committee, the determination of
which shall be final, binding and conclusive. (The conversion of any convertible
securities of the Company shall not be treated as a "transaction not involving
the receipt of consideration by the Company.")
<PAGE> 8
11. AMENDMENT OF THE PLAN AND OPTIONS.
(a) The Board at any time, and from time to time, may amend the Plan.
(b) The Board may in its sole discretion submit any other amendment to
the Plan for stockholder approval.
(c) Rights and obligations under any Option granted before amendment of
the Plan shall not be impaired by any amendment of the Plan unless (i) the
Company requests the consent of the person to whom the Option was granted and
(ii) such person consents in writing.
(d) The Board at any time, and from time to time, may amend the terms
of any one or more Options; provided, however, that the rights and obligations
under any Option shall not be impaired by any such amendment unless (i) the
Company requests the consent of the person to whom the Option was granted and
(ii) such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on June 14, 2005. No Options may be
granted under the Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any Option granted while the Plan is
in effect shall not be impaired by suspension or termination of the Plan, except
with the consent of the person to whom the Option was granted.
13. EFFECTIVE DATE OF PLAN.
This amendment and restatement of the Plan shall be effective on the
date established by the Company's Board of Directors.
