<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended: June 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
---------------- ---------------
Commission File Number 0-19117
IMMULOGIC PHARMACEUTICAL CORPORATION
------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-3397957
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
610 Lincoln Street, Waltham, MA 02154
- ------------------------------- ------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 466-6000
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Sections 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirement for the past 90 days.
Yes X No
--- ---
Number of shares of $.01 par value common stock outstanding as of
June 30, 1996 20,223,063
----------
- --------------------------------------------------------------------------------
Exhibit Index is on Page 10
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IMMULOGIC PHARMACEUTICAL CORPORATION
INDEX TO FORM 10-Q
------------------
Page No.
--------
PART I. FINANCIAL INFORMATION
---------------------
Item 1. Financial Statements 3
- -------
Condensed Consolidated Balance Sheets 3
June 30, 1996 and December 31, 1995
Condensed Consolidated Statements of Operations 4
Three and Six Months Ended June 30, 1996 and 1995
Condensed Consolidated Statements of Cash Flows 5
Six Months Ended June 30, 1996 and 1995
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial 7
- ------- Condition and Results of Operations
PART II. OTHER INFORMATION
-----------------
Item 4. Submission of Matters to a Vote of Security Holders 9
- -------
Item 6. Exhibits 10
- -------
Reports on Form 8-K 10
SIGNATURES 11
2
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
- -------
IMMULOGIC PHARMACEUTICAL CORPORATION
<TABLE>
CONDENSED CONSOLIDATED BALANCE SHEETS
(dollars in thousands)
<CAPTION>
June 30, 1996 December 31, 1995
------------- -----------------
(Unaudited)
<S> <C> <C>
ASSETS
------
Current assets:
Cash and cash equivalents $ 12,317 $ 19,067
Short-term investments 34,901 41,921
Prepaid expenses and other current assets 1,198 732
--------- --------
Total current assets 48,416 61,720
Property and equipment, net 9,959 10,834
Long-term investments 29,172 24,972
Other assets 49 53
--------- --------
Total assets $ 87,596 $ 97,579
========= ========
LIABILITIES
-----------
Current liabilities:
Accounts payable $ 1,632 $ 895
Accrued expense and other current liabilities 6,315 6,724
--------- --------
Total current liabilities 7,947 7,619
Other long-term liabilities 375 425
--------- --------
Total liabilities: 8,322 8,044
--------- --------
STOCKHOLDERS' EQUITY
--------------------
Preferred stock - $.01 par value;
1,000,000 shares authorized; no shares issued or outstanding
Common stock - $.01 par value; 40,000,000 shares authorized; - -
20,223,063 and 19,924,471 shares issued and outstanding at
June 30, 1996 and December 31, 1995, respectively 202 199
Additional paid-in capital 184,790 183,796
Less deferred compensation - (14)
Accumulated deficit (105,718) (94,446)
--------- --------
Total stockholders' equity 79,274 89,535
--------- --------
Total liabilities and stockholders' equity $ 87,596 $ 97,579
========= ========
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
3
<PAGE> 4
IMMULOGIC PHARMACEUTICAL CORPORATION
<TABLE>
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(in thousands, except per share data)
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
1996 1995 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues:
License fees - - - $ 5,000
Sponsored research revenues $ 625 $ 745 $ 1,250 1,406
------- ------- -------- -------
Total revenues 625 745 1,250 6,406
Operating expenses:
Research and development 5,978 6,400 12,085 12,705
General and administrative 1,517 1,595 2,985 3,141
------- ------- -------- -------
Total operating expenses 7,495 7,995 15,070 15,846
------- ------- -------- -------
Operating loss (6,870) (7,250) (13,820) (9,440)
Interest income 1,277 935 2,548 1,725
------- ------- -------- -------
Net loss $(5,593) $(6,315) $(11,272) $(7,715)
======= ======= ======== =======
Net loss per common share $ (0.28) $ (0.39) $ (0.56) $ (0.49)
======= ======= ======== =======
Weighted average number of
common shares outstanding 20,217 16,083 20,194 15,647
======= ======= ======== =======
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
4
<PAGE> 5
IMMULOGIC PHARMACEUTICAL CORPORATION
<TABLE>
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(in thousands)
<CAPTION>
Six Months Ended June 30,
1996 1995
---- ----
<S> <C> <C>
Operating activities:
Net loss $(11,272) $(7,715)
Depreciation and amortization 1,321 1,943
Other (184) 238
-------- -------
Net cash used in operating activities (10,135) (5,534)
-------- -------
Investing activities:
Purchase of equipment and leasehold improvements (432) (183)
Net change in short-term investments 7,020 (9,975)
Net change in long-term investments (4,200) 2,379
-------- -------
Net cash provided by (used in) investing activities 2,388 (7,779)
-------- -------
Financing activities:
Issuance of common stock - 8,000
Exercise of stock options 997 23
-------- -------
Net cash provided by financing activities 997 8,023
-------- -------
Net decrease in cash and cash equivalents (6,750) (5,290)
Cash and cash equivalents, beginning of period 19,067 13,608
-------- -------
Cash and cash equivalents, end of period $ 12,317 $ 8,318
======== =======
</TABLE>
The accompanying notes are an integral part of the condensed consolidated
financial statements.
5
<PAGE> 6
IMMULOGIC PHARMACEUTICAL CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Note A - Basis of Presentation
- ------------------------------
The accompanying unaudited condensed consolidated financial statements reflect
all adjustments which are necessary, in the opinion of management, for a fair
presentation of results of the interim periods presented. The statements do not
include all information and footnote disclosures required by generally accepted
accounting principles and therefore should be read in conjunction with the
consolidated financial statements and footnotes included in the Company's 1995
Annual Report. The results of operations for the interim periods presented are
not necessarily indicative of the results of operations for the full fiscal
year.
6
<PAGE> 7
IMMULOGIC PHARMACEUTICAL CORPORATION
Item 2.
- -------
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
- ---------------------
Revenues for the second quarter of 1996 were $625,000 compared to $745,000 for
the second quarter of 1995. For the first six months of 1996, revenues were
$1,250,000 consisting of research funding from Schering AG, Germany related to a
joint development and collaboration agreement in the Company's multiple
sclerosis program. In the comparable 1995 period, revenues were $6,406,000,
which included the last of three scheduled annual $5,000,000 license payments
from Hoechst Marion Roussell, Inc. (HMRI).
Total operating expenses for the second quarter of 1996 decreased $500,000 or
6.3% to $7,495,000 as compared to the second quarter of 1995. On a year-to-date
basis, total expenses decreased by $776,000 or 4.9% to $15,070,000 as compared
to the corresponding six-month 1995 period. The decrease in operating expenses
in both the three and six-month periods was primarily due to reduced headcount
and associated costs resulting from the Company's closing of its Palo Alto,
California research facility during the second quarter of 1995. This reduction
in operating expenses was partially offset by increased costs incurred in the
clinical trial program with respect to the Company's ALLERVAX[Registered
Trademark] CAT and ALLERVAX[Registered Trademark] RAGWEED products and the
associated cost of manufacturing these products for the clinical trial program.
Interest income for the second quarter of 1996 was $1,277,000 compared to
$935,000 for the second quarter of 1995, an increase of $342,000 or 36.6%. For
the first six months of 1996, interest income was $2,548,000 compared to
$1,725,000, an increase of $823,000 or 47.7%. The increase in interest income
for both the quarter and year-to-date resulted from a higher available
investment balance as compared to the prior year, as well as interest payments
received from HMRI relating to capital expenditures made by the Company to
manufacture the ALLERVAX[Registered Trademark] family of therapeutics.
The Company reported a net loss of $5,593,000 ($(0.28) per share) for the second
quarter of 1996 compared to a net loss of $6,315,000 ($(0.39) per share) for the
comparable 1995 period. For the first six months of 1996, the Company reported a
net loss of $11,272,000 ($(0.56) per share) compared to a net loss of $7,715,000
($(0.49) per share) for the comparable 1995 period. The increased net loss for
the six-month period was due to the receipt in 1995 of the last of three
scheduled annual $5,000,000 license payments from HMRI, offset in part by higher
interest income earned on the Company's investments and lower operating costs as
a result of the consolidation of the Company's research operations to Waltham,
Massachusetts during the second quarter of 1995.
7
<PAGE> 8
IMMULOGIC PHARMACEUTICAL CORPORATION
Item 2. - Continued
- ------- ---------
Liquidity and Capital Resources
- -------------------------------
At June 30, 1996, the Company had $40,469,000 of working capital consisting
primarily of cash and cash equivalents and short-term investments, as compared
to $54,101,000 at December 31, 1995. In addition, the Company had $29,172,000 in
long-term investments compared to $24,972,000 at December 31, 1995. The decrease
of $13,632,000 in working capital was primarily attributable to cash used in
operations of $10,135,000 and capital purchases of $432,000 offset in part by
stock option exercises of $997,000.
On March 7, 1996, the Company received notification from HMRI of its withdrawal
from its joint collaboration with the Company, effective September 7, 1996. The
Company and HMRI are working together to effect an orderly transition of
responsibilities. Under the terms of the agreement, upon termination of the
collaboration, the Company will reacquire all ownership rights to it's
ALLERVAX[Registered Trademark] allergy program.
The Company expects to incur losses for at least a number of years as the
Company's research, development, and clinical trial programs continue. ImmuLogic
has funded its operations to date primarily through the sale of equity
securities, sponsored research revenues, license payments, and earnings on
invested capital. The Company has expended substantial funds for the research
and development of its products, and will in the future expend substantial funds
for further research and development, establishment of commercial-scale
manufacturing capabilities, and the marketing of its products. The Company will
seek to obtain additional funds for these purposes through equity or debt
financings, collaborative arrangements with corporate partners, or from other
sources. No assurance can be given that such additional funds will be available
to the Company for such purposes on acceptable terms, if at all. Insufficient
funds could require the Company to delay, scale back, or eliminate certain of
its research and development programs or to license third parties to
commercialize products or technologies that the Company would otherwise develop
or commercialize itself.
8
<PAGE> 9
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Securities Holders
- ------- -----------------------------------------------------
At the Annual Meeting of Stockholders on May 23, 1996, the vote with respect to
the election of six directors to the Board, consisting of Malcolm L. Gefter,
Robert J. Gerety, Alan J. Dalby, M Howard Jacobson, Kenneth L. Melmon, and Larry
Soll, was 17,959,160 shares FOR and 410,867 shares WITHHELD for all nominees.
The vote with respect to amending the Restated Certificate of Incorporation of
the Company to increase the number of authorized shares of common stock from
30,000,000 to 40,000,000 was 17,016,540 shares FOR, 1,130,471 shares AGAINST,
15,675 shares ABSTAINING and 207,341 shares subject to BROKER NON-VOTES. The
vote with respect to amending the Company's Restated Certificate of
Incorporation providing for the classification of the Board of Directors of the
Company into three classes with each class holding office for staggered three
year terms was 8,423,324 shares FOR, 6,246,675 shares AGAINST, 26,209 shares
ABSTAINING and 3,673,809 shares subject to BROKER NON-VOTES. The vote with
respect to approving the Company's 1996 Stock Option Plan was 10,802,014 shares
FOR, 7,199,768 shares AGAINST, 34,763 shares ABSTAINING and 315,482 shares
subject to BROKER NON-VOTES. The vote with respect to amending the Company's
1993 Director's Stock Option Plan increasing from 200,000 to 300,000 the number
of shares reserved for issuance under the plan was 13,788,712 shares FOR,
4,227,872 shares AGAINST, 37,961 shares ABSTAINING and 315,482 shares subject to
BROKER NON-VOTES. The vote with respect to ratifying the selection of Coopers
and Lybrand L.L.P. as the Company's independent auditors for the current year
was 18,329,120 shares FOR, 26,927 shares AGAINST and 13,980 shares ABSTAINING.
9
<PAGE> 10
Item 6. Exhibits and Reports on Form 8-K
- ------- --------------------------------
(a) EXHIBITS:
Exhibit
Number Exhibit
------ -------
3.01 Amended and Restated Certificate of
Incorporation, as amended
10.01 Consulting Agreement dated July 11, 1996
between the Registrant and Daniel A. Cuoco
10.02 Amendment to Company's 1993 Director's
Stock Option Plan
27 Financial Data Schedule
(b) REPORTS ON FORM 8-K
No Current Reports on Form 8-K were filed during the quarter ended
June 30, 1996.
10
<PAGE> 11
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IMMULOGIC PHARMACEUTICAL CORPORATION
------------------------------------
(Registrant)
Date: August 8, 1996 /s/ Robert J. Gerety
--------------- --------------------
Robert J. Gerety, M.D., Ph.D.
President and Chief Executive Officer
Date: August 8, 1996 /s/ Richard N. Small
--------------- --------------------
Richard N. Small
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
11
<PAGE> 1
RESTATED CERTIFICATE OF INCORPORATION
OF
IMMULOGIC PHARMACEUTICAL CORPORATION,
a Delaware corporation
Incorporated March 27, 1987
Pursuant to Section 245 of the
General Corporation Law of the State of Delaware
The undersigned, Richard E. Bagley and Janet C. Bush are President
and Chief Executive Officer, and Secretary and Treasurer, respectively,
of ImmuLogic Pharmaceutical Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware
(the "Corporation"). The Corporation's Certificate of Incorporation was
initially filed in the Office of the Secretary of State of the State of
Delaware on March 27, 1987. Certificates of Amendment to the
Certificate of Incorporation were filed with the Office of the
Secretary of State of the State of Delaware on April 2, 1987, May 26,
1987 and December 9, 1987. The Corporation's Amended and Restated
Certificate of Incorporation was initially filed in the Office of the
Secretary of State of the State of Delaware on July 11, 1988. A
Certificate of Amendment to the Amended and Restated Certificate of
Incorporation was filed with the Office of the Secretary of State of
the State of Delaware on October 4, 1989. The Corporation's current
Amended and Restated Certificate of Incorporation was filed in the
Office of the Secretary of the State of Delaware on March 27, 1991. A
Certificate of Amendment to the Amended and Restated Certificate of
Incorporation was filed with the Office of the Secretary of State of
the State of Delaware on May 20, 1991. The undersigned, as President
and Secretary of the Corporation, do hereby certify that (a) by
unanimous vote the Board of Directors at a meeting held on November 14,
1991 and in accordance with Section 245 of the General Corporation law
of Delaware, the Board of Directors adopted a resolution setting forth
the proposed Restated Certificate of Incorporation of the Corporation;
and (b) this Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the
Corporation's Amended and Restated Certificate of Incorporation and
there is no discrepancy between such provisions and the provisions of
this Restated Certificate of Incorporation.
The Restated Certificate of Incorporation is as follows:
FIRST: The name of the Corporation is: ImmuLogic
Pharmaceutical Corporation.
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<PAGE> 2
SECOND: The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street
in the City of Wilmington, County of New Castle. The name of the
registered agent of the Corporation at such address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which
the Corporation shall have authority to issue is sixteen million
(16,000,000) shares, consisting of fifteen million (15,000,000) shares
of Common Stock, $.01 par value per share ("Common Stock"), and one
million (1,000,000) shares of undesignated Preferred Stock, $.01 par
value per share (Undesignated Preferred Stock").
A. Common Stock.
-------------
1. GENERAL. The voting, dividend and liquidation rights of
the holders of the Common Stock are subject to and qualified by
the rights of the holders of the Preferred Stock.
2. DIVIDENDS. Dividends may be declared and paid on the
Common Stock from funds lawfully available therefor as and when
determined by the Board of Directors and subject to any
preferential dividend rights of any then outstanding Preferred
Stock.
3. LIQUIDATION. In the event of liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or
involuntary, each issued and outstanding share of Common Stock shall
entitle the holder thereof to receive an equal portion of the net
assets of the Corporation available for distribution to holders of
Common Stock, subject to any preferential rights of any then
outstanding Preferred Stock.
4. VOTING RIGHTS. Each issued and outstanding share of Common
Stock shall entitle the holder thereof to one vote for each share held
at all meetings of stockholders. Except as otherwise required by law or
as otherwise provided herein, holders of Common Stock will vote
together with holders of the Preferred Stock as a single class, subject
to any preferential voting rights of any then outstanding Preferred
Stock. There shall be no cumulative voting.
B. Undesignated Preferred Stock.
-----------------------------
Undesignated Preferred Stock may be issued from time to time in
one or more series, each of such series to have such terms as stated or
expressed herein and in the resolution or resolutions
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<PAGE> 3
providing for the issue of such series adopted by the Board of
Directors of the Corporation as hereinafter provided. Different series
of Preferred Stock shall not be construed to constitute different
classes of shares for the purposes of voting by classes unless
expressly provided.
Authority is hereby expressly granted to the Board of Directors
from time to time to issue the Undesignated Preferred Stock in one or
more series, and in connection with the creation of any such series, by
resolution or resolutions providing for the issue of the share thereof,
to determine and fix such voting powers, full or limited, or no voting
powers, and such designations, preferences, relative participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, including without limitation thereof, dividend
rights, conversion rights, redemption privileges and liquidation
preferences, as shall be stated and expressed in such resolutions, all
to the full extent now or hereafter permitted by the General
Corporation Law of the State of Delaware. Without limiting the
generality of the foregoing, the resolutions providing for issuance of
any series of Undesignated Preferred Stock may provide that such series
shall be superior or rank equally or be junior to the Undesignated
Preferred Stock of any other series or any Designated Preferred Stock
to the extent permitted by law and subject to the terms of previously
issued and then outstanding series of Undesignated Preferred Stock or
Designated Preferred Stock. Except as otherwise provided in this
Restated Certificate of Incorporation, no vote of the holders of the
Undesignated Preferred Stock or Common Stock shall be a prerequisite to
the designation or issuance of any shares of any series of the
Undesignated Preferred Stock authorized by and complying with the
conditions of this Restated Certificate of Incorporation, the right to
have such vote being expressly waived by all present and future holders
of the capital stock of the Corporation.
FIFTH: The name and mailing address of the incorporator is
Sandra Ward, c/o Weil, Gotshal & Manges, 767 Fifth Avenue, New
York, New York 10153.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized to make, alter or repeal the bylaws of the Corporation.
EIGHTH: This Article is inserted for indemnification of
officers and directors.
Section 1. ACTIONS, SUITS AND PROCEEDINGS OTHER THAN BY OR
IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify
each person who was or is a party or is threatened to be made a
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<PAGE> 4
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation), by reason
of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer or
trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise (including any
employee benefit plan) (all such persons being referred to hereafter as
an "Indemnitee"), or by reason of any action alleged to have been taken
or omitted in such capacity, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such
action, suit or proceeding and any appeal therefrom, if he acted in
good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a please
of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. Notwithstanding anything to the contrary in this Article,
except as set forth in Section 6 below, the Corporation shall not
indemnify an Indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the Board of Directors of the
Corporation.
Section 2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION.
The Corporation shall indemnify any Indemnitee who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or
was, or has agreed to become, a director or officer of the Corporation,
or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture, trust
or other enterprise (including any employee benefit plan), or by reason
of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys' fees) and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person
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<PAGE> 5
shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including
attorneys' fees) which the Court of Chancery of Delaware or such other
court shall deem proper.
Section 3. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article, to the extent
that an Indemnitee has been successful, on the merits or otherwise, in
defense of any action, suit or proceeding referred to in Sections 1 and
2 of this Article, or in defense of any claim, issue or matter therein,
or on appeal from any such action, suit or proceeding, he shall be
indemnified against all expenses (including attorneys' fees) actually
and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or
proceeding is disposed of, on the merits or otherwise (including a
disposition without prejudice), without (i) the disposition being
adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was
liable to the Corporation, (iii) a plea of guilty or NOLO CONTENDERE by
the Indemnitee, (iv) an adjudication that the Indemnitee did not act in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, (v) with respect to
any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee
shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
Section 4. NOTIFICATION AND DEFENSE OF CLAIM. As a condition
precedent to his right to be indemnified, the Indemnitee must notify
the Corporation in writing as soon as practicable of any action, suit,
proceeding or investigation involving him for which indemnity will or
could be sought. With respect to any action, suit, proceeding or
investigation of which the Corporation is so notified, the Corporation
will be entitled to participate therein at its own expense and/or to
assume the defense, thereof at its own expense, with legal counsel
reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any
legal or other expenses subsequently incurred by the Indemnitee in
connection with such claim, other than as provided below in this
Section 4. The Indemnitee shall have the right to employ his own
counsel in connection with such claim, but the fees and expenses of
such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the
Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (ii) counsel to the Indemnitee
shall have reasonably concluded that there may be a
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<PAGE> 6
conflict of interest or position on any significant issue between the
Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel
to assume the defense of such action, in each of which cases the fees
and expenses of counsel for the Indemnitee shall be at the expense of
the Corporation, except as otherwise expressly provided by this
Article. The Corporation shall not be entitled, without the consent of
the Indemnitee, to assume the defense of any claim brought by or in the
right of the Corporation or as to which counsel for the Indemnitee
shall have reasonably made the conclusion provided for in clause (ii)
above.
Section 5. ADVANCE OF EXPENSES. Subject to the provisions of
Section 6 below, in the event that the Corporation does not assume the
defense pursuant to Section 4 of this Article of any action, suit,
proceeding or investigation of which the Corporation receives notice
under this Article, any expenses (including attorneys' fees) incurred
by an Indemnitee in defending a civil or criminal action, suit,
proceeding or investigation or any appeal therefrom shall be paid by
the Corporation in advance of the final disposition of such matter,
PROVIDED, HOWEVER, that the payment of such expenses incurred by an
Indemnitee in advance of the final disposition of such matter shall be
made only upon receipt of an undertaking by or on behalf of the
Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Corporation as authorized in this Article. Such
undertaking may be accepted without reference to the financial ability
of such person to make such repayment.
Section 6. PROCEDURE FOR INDEMNIFICATION. In order to obtain
indemnification or advancement of expenses pursuant to Section 1, 2, 3
or 5 of this Article, the Indemnitee shall submit to the Corporation a
written request, including in such request to such documentation and
information as is reasonably available to the Indemnitee and is
reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification or advancement of expenses.
Any such indemnification or advancement of expenses shall be made
promptly, and in any event within 60 days after receipt by the
Corporation of the written request of the Indemnitee, unless with
respect to requests under Section 1, 2 or 5 the Corporation determines,
by clear and convincing evidence, within such 60-day period that the
Indemnitee did not meet the applicable standard of conduct set forth in
Section 1 or 2, as the case may be. Such determination shall be made in
each instance by (a) a majority vote of a quorum of the director so the
Corporation consisting of persons who are not at that time parties to
the action, suit or proceeding in question ("disinterested directors"),
(b) if no such quorum is obtainable, a majority vote of a committee of
two or more disinterested directors, (c) a majority vote of a quorum of
the outstanding shares of stock of all classes entitled to vote for
directors,
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<PAGE> 7
voting as a single class, which quorum shall consist of stockholders
who are not at that time parties to the action, suit or proceeding in
questions, (d) independent legal counsel (who may be regular legal
counsel to the Corporation), or (e) a court of competent jurisdiction.
Section 7. REMEDIES. The right to indemnification or advances as
granted by this Article shall be enforceable by the Indemnitee in any
court of competent jurisdiction if the Corporation denies such request,
in whole or in part, or if no disposition thereof is made within the
60-day period referred to above in Section 6. Unless otherwise provided
by law, the burden of proving that the Indemnitee is not entitled to
indemnification or advancement of expenses under this Article shall be
on the Corporation. Neither the failure of the Corporation to have made
a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee
has met the applicable standard of conduct, nor an actual determination
by the Corporation pursuant to Section 6 that the Indemnitee has not
met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The Indemnitee's expenses (including
attorneys' fees) incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Corporation.
Section 8. SUBSEQUENT AMENDMENT. No amendment, termination of
repeal of this Article or of the relevant provisions of the General
Corporation Law of Delaware or any other applicable laws shall affect
or diminish in any way the rights of any Indemnitee to indemnification
under the provisions hereof with respect to any action, suit,
proceeding or investigation arising out of or relating to any actions,
transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
Section 9. OTHER RIGHTS. The indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of any
other rights to which an Indemnitee seeking indemnification or
advancement of expenses may be entitled under any law (common or
statutory), agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in this official capacity and
as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to
be a director or officer, and shall inure to the benefit of the estate,
heirs, executors and administrators of the Indemnitee. Nothing
contained in this Article shall be deemed to prohibit, and the
Corporation is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and procedures
different from those set forth in this Article. In addition, the
Corporation may, to the extent authorized from time to time by its
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<PAGE> 8
Board of Directors, grant indemnification rights to other employees or
agents of the Corporation or other persons serving the Corporation and
such rights may be equivalent to, or greater or less than, those set
forth in this Article.
Section 10. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled
under any provision of this Article to indemnification by the
Corporation for some or a portion of the expenses (including attorneys'
fees), judgments, fees or amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any
action, suit, proceeding or investigation and any appeal therefrom but
not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in
settlement to which the Indemnitee is entitled.
Section 11. INSURANCE. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise (including any
employee benefit plan) against any expense, liability or loss incurred
by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General
Corporation Law of Delaware.
Section 12. MERGER OR CONSOLIDATION. If the Corporation is merged
into consolidated with another corporation and the Corporation is not
the surviving corporation, the surviving corporation shall assume the
obligations of the Corporation under this Article with respect to any
action, suit, proceeding or investigation arising out of or relating to
any actions, transactions or facts occurring prior to the date of such
merger or consolidation.
Section 13. SAVINGS CLAUSE. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each
Indemnitee as to any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in connection with any action,
suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion
of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
Section 14. DEFINITIONS. Terms used herein and defined in Section
145(h) and Section 145(i) of the General Corporation Law of Delaware
shall have the respective meanings assigned to such terms in such
Section 145(h) and Section 145(i).
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<PAGE> 9
Section 15. SUBSEQUENT LEGISLATION. If the General Corporation
Law of Delaware is amended after adoption of this Article to expand
further the indemnification permitted to Indemnitees, then the
Corporation shall indemnify such person sot the fullest extent
permitted by the General Corporation Law of Delaware, as so amended.
NINTH: Except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty, no director of the
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability.
No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director of the
Corporation for or with respect to any actions or omissions of such
director occurring prior to such amendment.
TENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereinafter prescribed by statute, and all rights
conferred by the stockholders herein are granted subject to this
reservation.
ELEVENTH: Whenever a compromise or arrangement is proposed between
the Corporation and its creditors or any class of them and/or between
the Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of the Corporation or of any creditor or
stockholder thereof, or on the application of any receiver or receivers
appointed for the Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver of receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors of class of creditors,
and/or of the stockholders or class of stockholders of the Corporation,
as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of
the creditors or class or creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of the
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
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<PAGE> 10
This Restated Certificate of Incorporation supersedes and takes
the place of the heretofore existing Amended and Restated Certificate
of Incorporation and all amendments, certificates and supplements
thereto.
EXECUTED at Cambridge, Massachusetts, as of the 13th day of
December, 1991.
/s/ Richard E. Bagley
------------------------------
Richard E. Bagley
President
ATTEST:
/s/ Janet C. Bush
-----------------------
Janet C. Bush
Secretary
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<PAGE> 11
CERTIFICATE OF AMENDMENT
OF THE
RESTATED
CERTIFICATE OF INCORPORATION
OF
IMMULOGIC PHARMACEUTICAL CORPORATION
IMMULOGIC PHARMACEUTICAL CORPORATION, a corporation organized
and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "corporation"), does hereby certify as
follows:
1. The Board of Directors duly adopted a resolution pursuant
to Section 242 of the General Corporation Law of the State of
Delaware, proposing that an amendment to the Restated Certificate of
Incorporation of the Corporation be approved and declaring said
amendment to be advisable; and
2. The stockholders of the Corporation duly approved this
Certificate of Amendment in accordance with Sections 222 and 242 of
the General Corporation Law of the State of Delaware.
The resolution setting forth the amendment is as follows:
RESOLVED: That Article Fourth of the Restated
Certificate of Incorporation be and hereby is
amended to read as follows:
1. The total number of shares of all classes
of stock which the Corporation shall have authority
to issue is twenty-one million (21,000,000) shares,
consisting of twenty million (20,000,000) shares of
Common Stock, $.01 par value per share ("Common
Stock"), and one million (1,000,000) shares of
undesignated Preferred Stock, $.01 par value per
share ("Undesignated Preferred Stock").
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<PAGE> 12
Executed at Cambridge, Massachusetts, as of the 7th day of August,
1992.
/s/ Richard E. Bagley
--------------------------------
Richard E. Bagley
President
ATTEST:
/s/ Janet C. Bush
------------------------
Janet C. Bush
Secretary
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<PAGE> 13
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
IMMULOGIC PHARMACEUTICAL CORPORATION
ImmuLogic Pharmaceutical Corporation, a corporation organized
and existing under and by virture of the General Corporation Law
of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, in a
Written Action of Directors in Lieu of Meeting, dated as of March
22, 1994, as filed with the minutes of the Board, duly adopted a
resolution pursuant to Section 242 of the General Corporation Law
of the State of Delaware ("Delaware Law") proposing and declaring
advisable the following amendment to the Restated Certificate of
Incorporation of the Corporation:
RESOLVED: That the first paragraph of Article FOURTH of
the Restated Certificate of Incorporation be
amended to read in its entirety as follows:
FOURTH: The total number of shares of all classes
of stock which the Corporation has authority to
issue is thirty-one million (31,000,000) shares
consisting of thirty million (30,000,000) shares of
common stock, $.01 par value per share ("Common
Stock"), and one million (1,000,000) shares of
undesignated Preferred Stock, $.01 par value per
share ("Undesignated Preferred Stock").
SECOND: That the foregoing Amendment to the Corporation's
Restated Certificate of Incorporation was adopted by the holders
of a majority of the outstanding shares of Common Stock at the
Corporation's Annual Meeting of Stockholders held on May 26, 1994
pursuant to notice duly given.
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<PAGE> 14
IN WITNESS WHEREOF, ImmuLogic Pharmaceutical Corporation has
caused this Certificate to be signed by Richard N. Small, its Vice
President, Chief Financial Officer and attested by Stacey L.
Channing, its Secretary, this 7th day of June, 1994.
IMMULOGIC PHARMACEUTICAL
CORPORATION
By: /s/ Richard N. Small
---------------------
Richard N. Small
Its: Vice President, Chief
Financial Officer
ATTEST:
By: /s/ Stacey L. Channing
-----------------------------
Stacey L. Channing
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<PAGE> 15
FORM
of
CERTIFICATE OF DESIGNATIONS
of
IMMULOGIC PHARMACEUTICAL CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
---------------------------------
ImmuLogic Pharmaceutical Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware
(hereinafter called the "Corporation"), hereby certifies that the
following resolution was adopted by the Board of Directors of the
Corporation as required by Section 151 of the General Corporation Law
at a meeting duly called and held on July 11, 1995:
RESOLVED: That pursuant to the authority granted to and vested in
the Board of Directors of this Corporation (hereinafter called the
"Board of Directors" or the "Board") in accordance with the provisions
of the Restated Certificate of Incorporation, as amended, the Board of
Directors hereby creates a series of Preferred Stock, $.01 par value
(the "Preferred Stock"), of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights,
preferences and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock") and the number of shares constituting the
Series A Preferred Stock shall be twenty-five thousand (25,000). Such
number of shares may be increased or decreased by resolution of the
Board of Directors; PROVIDED, that no decrease shall reduce the number
of shares of Series A Preferred Stock to a number less than the number
of
<PAGE> 16
shares then outstanding plus the number of shares reserved for issuance
upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock (or any similar stock)
ranking prior and superior to the Series A Preferred Stock
with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common
Stock, par value $.01 per share (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled
to receive, when, as and if declared by the Board of
Directors out of funds of the Corporation legally available
for the payment of dividends, quarterly dividends payable in
cash on March 31, June 30, September 30 and December 31 in
each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Preferred Stock, in
an amount per share (rounded to the nearest cent) equal to
the greater of (a) $10 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate
per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share
of Series A Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of
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<PAGE> 17
Series A Preferred Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. In the event the
Corporation shall at any time declare or pay any dividend on
the Series A Preferred Stock payable in shares of Series A
Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series A Preferred
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series A Preferred Stock) into a
greater or lesser number of shares of Series A Preferred
Stock, then in each such case the amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under clause (b) of the first sentence of
this Section 2(A) shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of
shares of Series A Preferred Stock that were outstanding
immediately prior to such event and the denominator of which
is the number of shares of Series A Preferred Stock
outstanding immediately after such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock) and the
Corporation shall pay such dividend or distribution on the
Series A Preferred Stock before the dividend or distribution
declared on the Common Stock is paid or set apart; provided
that, in the event no dividend or distribution shall have
been declared on the Common Stock during the period between
any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $10 per share
on the Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
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<PAGE> 18
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of
Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment
thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred Stock shall
entitle the holder thereof to 1,000 votes on all matters
submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision, combination or consolidation
of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a
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<PAGE> 19
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event. In the
event the Corporation shall at any time declare or pay any
dividend on the Series A Preferred Stock payable in shares of
Series A Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of
Series A Preferred Stock (by reclassification or otherwise
than by payment of a dividend in shares of Series A Preferred
Stock) into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the number of votes
per share to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event shall be
adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Series A
Preferred Stock that were outstanding immediately prior to
such event and the denominator of which is the number of
shares of Series A Preferred Stock outstanding immediately
after such event.
(B) Except as otherwise provided herein, in the Restated
Certificate of Incorporation or by law, the holders of shares
of Series A Preferred Stock and the holders of shares of
Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class
on all matters submitted to a vote of stockholders of the
Corporation.
(C)(i) If at any time dividends on any Series A
Preferred Stock shall be in arrears in an amount equal to six
quarterly dividends thereon, the holders of the Series A
Preferred Stock, voting as a separate series from all other
series of Preferred Stock and classes of capital stock, shall
be entitled to elect two members of the Board of Directors in
addition to any Directors elected by any other series, class
or classes of securities and the authorized number of
Directors will automatically be increased by two. Promptly
thereafter, the Board of Directors of this Corporation shall,
as soon as may be practicable, call a special meeting of
holders of Series A Preferred Stock for the purpose of
-5-
<PAGE> 20
electing such members of the Board of Directors. Said special
meeting shall in any event be held within 45 days of the
occurrence of such arrearage.
(ii) During any period when the holders of Series A
Preferred Stock, voting as a separate series, shall be
entitled and shall have exercised their right to elect two
Directors, then and during such time as such right continues
(a) the then authorized number of Directors shall be
increased by two, and the holders of Series A Preferred
Stock, voting as a separate series, shall be entitled to
elect the additional Directors so provided for, and (b) each
such additional Director shall not be a member of any
existing class of the Board of Directors, but shall serve
until the next annual meeting of stockholders for the
election of Directors, or until his successor shall be
elected and shall qualify, or until his right to hold such
office terminates pursuant to the provisions of this Section
3(C).
(iii) A Director elected pursuant to the terms hereof
may be removed with or without cause by the holders of Series
A Preferred Stock entitled to vote in an election of such
Director.
(iv) If, during any interval between annual meetings
of stockholders for the election of Directors and while the
holders of Series A Preferred Stock shall be entitled to
elect two Directors, there is no such Director in office by
reason of resignation, death or removal, then, promptly
thereafter, the Board of Directors shall call a special
meeting of the holders of Series A Preferred Stock for the
purpose of filling such vacancy and such vacancy shall be
filled at such special meeting. Such special meeting shall in
any event be held within 45 days of the occurrence of such
vacancy.
(v) At such time as the arrearage is fully cured, and
all dividends accumulated and unpaid on any shares of Series
A Preferred Stock outstanding are paid, and, in addition
thereto, at least one regular dividend has been paid
subsequent to curing such arrearage, the term of office of
any Director elected pursuant to this Section 3(C), or his
successor, shall automatically terminate, and the authorized
number of Directors shall
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<PAGE> 21
automatically decrease by two, the rights of the holders of
the shares of the Series A Preferred Stock to vote as
provided in this Section 3(C) shall cease, subject to renewal
from time to time upon the same terms and conditions, and the
holders of shares of the Series A Preferred Stock shall have
only the limited voting rights elsewhere herein set forth.
(D) Except as set forth herein, or as otherwise provided
by law, holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders
of Common Stock as set forth herein) for taking any corporate
action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
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<PAGE> 22
otherwise acquire shares of any such junior stock in exchange
for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. REACQUIRED SHARES. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock
or as otherwise required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation, dissolution or winding up of
the Corporation, no distribution shall be made (1) to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have
received $10 per share, plus
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<PAGE> 23
an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date
of such payment, provided that the holders of shares of
Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of
shares of Common Stock, or (2) to the holders of shares of
stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution
or winding up.
(B) Neither the consolidation, merger or other business
combination of the Corporation with or into any other
corporation nor the sale, lease, exchange or conveyance of
all or any part of the property, assets or business of the
Corporation shall be deemed to be a liquidation, dissolution
or winding up of the Corporation for purposes of this Section
6.
(C) In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination
or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of paragraph (A) of this
Section 6 shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event. In the
event the Corporation shall at any time declare or pay any
dividend on the Series A Preferred Stock payable in shares of
Series A Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of
Series A
-9-
<PAGE> 24
Preferred Stock (by reclassification or otherwise than by
payment of a dividend in shares of Series A Preferred Stock)
into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the aggregate amount
to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in
clause (1) of paragraph (A) of this Section 4 shall be
adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Series A
Preferred Stock that were outstanding immediately prior to
such event and the denominator of which is the number of
shares of Series A Preferred Stock outstanding immediately
after such event.
Section 7. CONSOLIDATION, MERGER, ETC. Notwithstanding anything to
the contrary contained herein, in case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such
case each share of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times
the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event. In the event the Corporation shall at
any time declare or pay any dividend on the Series A Preferred Stock
payable in shares of Series A Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Series A
Preferred Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series A Preferred Stock) into a greater or
lesser number of shares of
-10-
<PAGE> 25
Series A Preferred Stock, then in each such case the amount set forth
in the first sentence of this Section 7 with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Series A Preferred Stock that were outstanding
immediately prior to such event and the denominator of which is the
number of shares of Series A Preferred Stock outstanding immediately
after such event.
Section 8. NO REDEMPTION. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. RANK. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets,
junior to all series of any other class of the Preferred Stock issued
either before or after the issuance of the Series A Preferred Stock,
unless the terms of any such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Certificate of Incorporation,
as amended, of the Corporation shall not be amended in any manner which
would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of
the outstanding shares of Series A Preferred Stock, voting together as
a single class.
Section 11. FRACTIONAL SHARES. Series A Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and have the
benefit of all other rights of holders of Series A Preferred Stock.
-11-
<PAGE> 26
IN WITNESS WHEREOF, this Certificate of Designations is executed
on behalf of the Corporation by its President and Chief Executive
Officer and attested by its Secretary this 11th day of July, 1995.
IMMULOGIC PHARMACEUTICAL
CORPORATION
/s/ Robert J. Gerety
-------------------------------------
Robert J. Gerety, M.D., Ph.D.
President and Chief Executive
Officer
Attest:
/s/ Stacey L. Channing
--------------------------------
Stacey L. Channing,
Secretary
-12-
<PAGE> 27
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
IMMULOGIC PHARMACEUTICAL CORPORATION
ImmuLogic Pharmaceutical Corporation, a corporation organized
and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation at a
meeting on March 21, 1996 duly adopted a resolution pursuant to
Section 242 of the General Corporation Law of the State of
Delaware ("Delaware Law") proposing and declaring advisable the
following amendment to the Amended and Restated Certificate of
Incorporation of the Corporation:
RESOLVED: That the first paragraph of Article FOURTH of
the Amended and Restated Certificate of
Incorporation, as amended, be amended to read in
its entirety as follows:
FOURTH: The total number of shares of all classes of
stock which the Corporation has authority to issue is
forty-one million shares (41,000,000) consisting of
forty million (40,000,000) shares of common stock,
$.01 par value per share ("Common Stock"), and one
million (1,000,000) shares of Preferred Stock, $.01
par value per share ("Preferred Stock").
<PAGE> 28
SECOND: That the foregoing Amendment to the Corporation's
Amended and Restated Certificate of Incorporation, as amended, was
adopted by the holders of a majority of the outstanding shares of
Common Stock at the Corporation's Annual Meeting of Stockholders
held on May 23, 1996 pursuant to notice duly given.
IN WITNESS WHEREOF, ImmuLogic Pharmaceutical Corporation has
caused this Certificate to be signed by Stacey L. Channing, its
Vice President, General Counsel this 24th day of May, 1996.
IMMULOGIC PHARMACEUTICAL CORPORATION
By: /s/ Stacey L. Channing
-----------------------------
Stacey L. Channing
Its: Vice President,
General Counsel
-2-
<PAGE> 1
Exhibit 10.01
CONSULTATION AGREEMENT
This Consultation Agreement, effective as of July 11, 1996, between
ImmuLogic Pharmaceutical Corporation, a Delaware corporation having a place of
business at 610 Lincoln Street, Waltham, MA 02154, its consultants and
affiliates ("ImmuLogic"), and Daniel A. Cuoco, having an office at 28
Edgerstoune Road, Princeton, NJ 08540 ("Consultant").
W I T N E S S E T H:
WHEREAS, ImmuLogic desires to have the benefit of Consultant's knowledge
and experience, and Consultant desires to provide services to ImmuLogic, all as
hereinafter provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreement
hereinafter set forth, effective the date hereof, ImmuLogic and Consultant
hereby agree as follows:
1. SERVICES. ImmuLogic shall retain Consultant, and Consultant shall serve
ImmuLogic upon the terms and conditions hereinafter set forth.
2. TERM. The term of this Agreement shall be from the above date until the
effective date of termination. Either party may terminate the Agreement by
providing thirty (30) days prior written notice to the other party.
3. DUTIES.
(a) During the term, Consultant agrees to serve as Vice President and General
Counsel of ImmuLogic, at the pleasure of the President and Chief Executive
Officer, and Consultant shall render to ImmuLogic or to ImmuLogic's
designee such consulting services in his fields of expertise and knowledge
related to the business of ImmuLogic and at such times and places as
ImmuLogic may from time to time request; provided, however, that Consultant
shall not be obligated, without his consent, to provide services hereunder
for more than two days per week. ImmuLogic shall give Consultant reasonable
advance notice of any additional services required of him hereunder. It is
the intent of the parties that Consultant will not be required to render
services hereunder in the months of January and August of each year, except
that he shall attend operating team meetings at least twice in each month.
Consultant agrees to use his best efforts to devote as much time as is
necessary to perform his duties as chief legal officer of ImmuLogic, but it
is also the intent of the parties that he will be afforded the resources to
accomplish this in a manner that will eventually limit his time to an
average of two days a week.
(b) All work to be performed by Consultant for ImmuLogic shall be under the
general supervision of ImmuLogic.
Page 1
<PAGE> 2
(c) Consultant shall devote his best efforts and ability to the performance of
the duties attaching to this obligation, devoting an amount of time as
mutually agreed. All work performed by Consultant for ImmuLogic shall be at
times reasonably convenient to him. Consultant agrees to furnish ImmuLogic
with written reports with respect to such consulting services if and when
requested by ImmuLogic.
4. COMPENSATION. In consideration for the services rendered by Consultant to
ImmuLogic, ImmuLogic shall pay Consultant during the Term compensation in the
amount of one thousand five hundred dollars ($1,500.00) per day for each day of
consulting work performed by Consultant on behalf of ImmuLogic. Consultant shall
provide ImmuLogic with detailed invoices of work performed every four weeks.
Payment for services in excess of two days per week shall be subject to
ImmuLogic's approval and shall be made with the next payment otherwise due to
Consultant. The payment of such amounts shall cease upon Consultant's death or
permanent disability.
5. REIMBURSEMENT OF EXPENSES. ImmuLogic shall reimburse Consultant for his
reasonable out-of-pocket expenses incurred in the performance of his duties
hereunder as requested by ImmuLogic upon presentation of reasonably detailed
receipts, including, without limitation, air and ground transportation to and
from the New York-New Jersey area (Palm Beach area in the month of January) and
hotel accommodations in the Boston area while working in Waltham, MA.
6. STATUS. Consultant's relation to ImmuLogic shall be that of an independent
contractor and neither this Agreement nor the services to be rendered hereunder
shall for any purpose whatsoever or in any way or manner create any
employer-employee relationship between the parties. Consultant acknowledges that
he will be a corporate officer of ImmuLogic for purposes of Section 16 of the
Securities Exchange Act of 1934.
7. INVENTIONS, PROPRIETARY RIGHTS AND DISCLOSURES.
(a) Consultant agrees to disclose promptly to ImmuLogic all inventions,
discoveries, designs, improvements and all other intellectual property
rights (collectively referred to as "Inventions") made or perfected in the
performance of, or arising out of, the work to be performed by Consultant
for ImmuLogic, and will maintain adequate and current written records (in
the form of notes, sketches, drawings and as may be specified by
ImmuLogic), properly corroborated, to document the conception and/or first
actual reduction to practice of any Invention. Such written records shall
be available to and remain the sole property of ImmuLogic at all times. All
such Inventions and patents therefor shall be the exclusive property of
ImmuLogic. Consultant hereby undertakes and agrees to execute such
assignments and other papers which, in the opinion of ImmuLogic, are
necessary at any time to permit the filing and prosecution of copyrights,
applications for copyrights, applications for patents covering the
Inventions or are otherwise required for compliance with the provisions of
this paragraph.
(b) Consultant agrees that the services furnished pursuant to the work to be
performed hereunder, the data and Inventions generated by the said work and
any and all information, data, specifications, techniques, formulae and
processes disclosed by ImmuLogic in connection therewith (collectively
referred to as "Confidential Information") are the property of ImmuLogic
and are confidential and proprietary to ImmuLogic. Consultant agrees that
he shall not use Confidential Information for any purpose other than as
advised or directed by ImmuLogic regardless of whether such Confidential
Information has been furnished or made available to
Page 2
<PAGE> 3
Consultant by ImmuLogic or is original with Consultant. Without ImmuLogic's
express written consent first obtained, Consultant agrees that he shall not
disclose or make available any Confidential Information to any third party
regardless of whether such Confidential Information has been furnished or
made available to Consultant by ImmuLogic or is original with Consultant.
Consultant shall not discuss the nature of his activities in connection
with ImmuLogic with anyone except authorized representatives of ImmuLogic.
At ImmuLogic's request, Consultant shall provide ImmuLogic with all
Confidential Information furnished to Consultant by ImmuLogic or original
with Consultant in connection with his services furnished hereunder which
has been reduced to writing and retain no copies thereof. Consultant
understands that in receiving Confidential Information, he receives no
right to a license, implied or otherwise, under any patent or other rights
now or hereafter owned or controlled by ImmuLogic.
(c) The foregoing obligations of confidentiality and non-use shall not apply
to:
(1) information which at the time of disclosure by ImmuLogic hereunder to
Consultant or at the time of generation by Consultant is in the public
domain;
(2) information which after disclosure by ImmuLogic to Consultant or
generation by Consultant is published or otherwise becomes part of the
public domain through no fault of Consultant, but only after it is so
published or so becomes part of the public domain;
(3) information received by Consultant from a third party who is legally
in possession of the same and not under an obligation of
confidentiality with respect thereto; or
(4) information which was already in Consultant's possession at the time
of receipt from ImmuLogic, as evidenced by written records;
however, Confidential Information shall not be deemed within the foregoing
exceptions if
(i) specific information is merely embraced by more general information in
the public domain or Consultant's possession, or
(ii) it constitutes a combination which can be reconstructed from multiple
sources in the public domain or Consultant's possession, none of which
shows the whole combination of the Confidential Information.
(d) Consultant warrants and represents that no trade secrets or other
confidential information of any other person, firm, corporation,
institution or other entity will be wrongfully disclosed by him to
ImmuLogic in connection with any of the services called for hereunder.
Consultant further warrants and represents that none of the provisions of
this Agreement, nor the services which will be performed by Consultant
pursuant to the work to be performed hereunder, contravenes or is in
conflict with any agreement of Consultant with, or obligation to, any other
person, firm, corporation, institution or other entity including, without
limiting the generality of the foregoing, employment agreements, consulting
agreements, disclosure agreements or agreements for assignment of
inventions. Consultant agrees, for the Term, not to become employed by,
render service to, or act on behalf of other enterprises in activities that
include or overlap or are competitive with the specific activities he is
performing for ImmuLogic. Consultant further agrees that his services to
other enterprises may result in a conflict of interest
Page 3
<PAGE> 4
with his obligations to ImmuLogic under this Agreement, and agrees to
inform ImmuLogic of his services to other enterprises and, in the case of
conflict of interest, to immediately inform ImmuLogic and resolve the
conflict in a mutually satisfactory manner.
8. EMPLOYEES OF IMMULOGIC. Consultant agrees that during the Term and for two
(2) years thereafter, Consultant shall not directly or indirectly
(a) retain the services of any employees of ImmuLogic or assist anyone else
doing so;
(b) cause any person or entity rendering services to ImmuLogic to discontinue
his or its relationship with ImmuLogic; or
(c) perform services for any employer which has, within three (3) months before
or after termination of Consultant's duties for ImmuLogic, with
Consultant's aid or involvement retained the service of any other person or
entity rendering services for ImmuLogic which has agreed not to render
services to any such profit-oriented entity, unless Consultant's employment
by such employer has no relation to the employment of such other person or
entity and the function for which Consultant is hired has no relationship
to the function for which such person or entity was hired.
9. SURVIVAL OF PROVISIONS. The provisions of paragraphs 7 and 8 hereof shall
survive the termination or expiration of this Agreement, irrespective of
the reason therefor.
10. ASSIGNABILITY AND BINDING EFFECT. Neither this Agreement nor any interest
shall be assignable by either party unless such assignment is mutually
agreed to in writing by the parties hereto; provided, however, that
ImmuLogic may assign this Agreement to any corporation with which ImmuLogic
may merge or consolidate or to which ImmuLogic may assign substantially all
of its assets or that portion of its business to which this Agreement
pertains without obtaining the agreement of Consultant.
11. HEADINGS. The paragraph headings contained herein are included solely for
convenience of reference and shall not control or affect the meaning or
interpretation of any of the provisions of this Agreement.
12. NOTICES. Any notices or other communications hereunder by either party
shall be in writing and shall be deemed to have been duly given if
delivered personally to the other party or sent by registered or certified
mail, return receipt requested, to the other party at the following
addresses:
If to ImmuLogic: ImmuLogic Pharmaceutical Corporation
610 Lincoln Street
Waltham, MA 02154
Attention: Robert J. Gerety, M.D., Ph.D. President and
Chief Executive Officer
If to Consultant: Daniel A. Cuoco, Esq.
28 Edgerstoune Road
Princeton, NJ 08540
or at such other address as such other party may designate in conformity with
the foregoing.
Page 4
<PAGE> 5
13. ENTIRE AGREEMENT; MODIFICATION. This document sets forth the entire
Agreement between the parties hereto with respect to the subject matter hereof
and will supersede all prior and contemporaneous negotiations, agreements
(including the Consulting Agreement of April 1, 1996), representations,
understandings, and commitments with respect thereto, with the exception of the
Letter of Confidentiality dated March 19, 1996 between the parties, and the
Non-Statutory Stock Option Agreements between the parties with a March 21, 1996
and a July 1, 1996 Date of Grant. This Agreement shall not be changed or
modified in any manner except by an instrument signed by the duly authorized
officers of each of the parties hereto, which document shall make specific
reference to this Agreement and shall express the plan or intention to modify
same.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement is executed under seal by both parties
and deemed to be governed by the laws of the Commonwealth of Massachusetts,
exclusive of its conflicts of law principles.
IMMULOGIC PHARMACEUTICAL CORPORATION
By: /s/ Robert J. Gerety
--------------------
Name: Robert J. Gerety, M.D., Ph.D.
-----------------------------
Title: President and Chief Executive Officer
-------------------------------------
CONSULTANT:
By: /s/ Daniel A. Cuoco
-------------------
DANIEL A. CUOCO
Social Security Number ###-##-####
Page 5
<PAGE> 1
IMMULOGIC PHARMACEUTICAL CORPORATION
Amendment to the 1993 Director Stock Option Plan
------------------------------------------------
Adopted by the Board of Directors on March 21, 1996
Approved by the Stockholders on May 26, 1996
RESOLVED: That, subject to stockholder approval, the 1993 Director Stock
- -------- Option Plan be and hereby is amended by deleting Section 4(a) and
adding a new Section 4(a) to read in its entirety as follows:
"(a) The maximum number of shares which may be
issued under the Plan shall be 300,000 shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock"),
subject to adjustment as provided in Section 9 of the Plan."
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
FINANCIAL STATEMENTS FILED IN Q2 1996 QUARTERLY REPORT ON FORM 10Q, CONDENSED
CONSOLIDATED BALANCE SHEET, STATEMENT OF OPERATIONS AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> APR-01-1996
<PERIOD-END> JUN-30-1996
<EXCHANGE-RATE> 1
<CASH> 12,317
<SECURITIES> 64,073
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 48,416
<PP&E> 19,177
<DEPRECIATION> 9,158
<TOTAL-ASSETS> 87,596
<CURRENT-LIABILITIES> 7,947
<BONDS> 0
<COMMON> 202
0
0
<OTHER-SE> 79,072
<TOTAL-LIABILITY-AND-EQUITY> 87,596
<SALES> 0
<TOTAL-REVENUES> 625
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 7,495
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (5,593)
<INCOME-TAX> 0
<INCOME-CONTINUING> (5,593)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5,593)
<EPS-PRIMARY> (0.28)
<EPS-DILUTED> (0.28)
<FN>
MARKETABLE SECURITIES INCLUDES $29,172 OF LONG-TERM INVESTMENTS.
</FN>
</TABLE>
