<PAGE> 1
As filed with the Securities and Exchange Commission on April 7, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
COR THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
------------------
DELAWARE 94-3060271
(State of Incorporation) (I.R.S. Employer Identification No.)
256 EAST GRAND AVENUE
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(415) 244-6800
(Address of principal executive offices)
1998 NON-OFFICER EQUITY INCENTIVE PLAN
(Full title of the plans)
VAUGHN M. KAILIAN
PRESIDENT
COR THERAPEUTICS, INC.
256 EAST GRAND AVENUE
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(415) 244-6800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------
Copies to:
ROBERT L. JONES, ESQ.
JULIE M. ROBINSON, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(650) 843-5000
------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share (1) Price (1) Registration Fee
--------- --------- ----------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.0001) 300,000 shares $12.25-$12.8125 $3,729,750 $1,103.00
============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and
aggregate offering price are based upon (a) the weighted average
exercise price for options granted pursuant to the Registrant's 1998
Non-Officer Equity Incentive Plan and (b) the average of the high and
low prices of Registrant's Common Stock on March 31, 1998 as reported
on the Nasdaq National Market.
<PAGE> 2
The chart below details the calculations of the registration fee:
<TABLE>
<CAPTION>
Aggregate
Securities Number of Shares Offering Price Per Offering
Share Price
- --------------------------- ------- -------------- ----------
<S> <C> <C> <C>
Shares issuable pursuant to 108,000 $12.8125(1)(a) $1,383,750
outstanding options under the 1998
Non-Officer Equity Incentive Plan
Shares issuable pursuant to the 1998 192,000 $12.25(1)(b) $2,352,000
Non-Officer Equity Incentive Plan
Proposed Maximum Offering Price $3,735,750
Registration Fee $1,103.00
</TABLE>
1.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by COR THERAPEUTICS, INC. (the "Company")
with the Securities and Exchange Commission are incorporated by reference into
this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed for fiscal year end
December 31, 1997 pursuant to Sections 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
Registration Statement on Form 8-A filed May 14, 1991 under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for
the Company by Cooley Godward LLP, Palo Alto, California ("Cooley Godward"). As
of the date of this prospectus, certain members of Cooley Godward own an
aggregate of approximately 5,578 shares of the Registrant's 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 Securities
Act. The Company's By-laws require the Company to indemnify its directors and
executive officers, and permit the Company to indemnify its other officers,
employees and other agents, to the extent permitted by Delaware law. Under the
Company's By-laws, indemnified parties are entitled to indemnification for
negligence, gross negligence and otherwise to the fullest extent permitted by
law. The By-laws 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.
2.
<PAGE> 4
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1 1998 Non-Officer Equity Incentive Plan.
99.2 Form of Nonstatutory Stock Option under the 1998 Non-Officer Equity Incentive Plan.
</TABLE>
UNDERTAKINGS
1. 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:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. 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) (Section 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.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(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.
2. 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
3.
<PAGE> 5
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.
3. 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.
4.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of South San Francisco, State of California, on
April 6, 1998.
COR THERAPEUTICS, INC.
By /s/ Peter S. Roddy
-------------------------------------
Peter S. Roddy
Title: Director, Finance and Controller
(Principal Accounting Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Vaughn M. Kailian and Laura A. Brege, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (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>
/s/ Vaughn M. Kailian President, Chief Executive April 6, 1998
- ------------------------------------ Officer and Director (Principal
Vaughn M. Kailian Executive Officer)
/s/ Laura A. Brege Vice President, Finance and April 6, 1998
- ------------------------------------ Chief Financial Officer
Laura A. Brege (Principal Financial Officer)
/s/ Peter S. Roddy Director, Finance and Controller April 6, 1998
- ------------------------------------ (Principal Accounting Officer)
</TABLE>
5.
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Shaun R. Coughlin Director March 31, 1998
- ------------------------------------
Shaun R. Coughlin, M.D., Ph.D.
/s/ James T. Doluisio Director March 30, 1998
- ------------------------------------
James. T. Doluisio, Ph.D.
/s/ Charles J. Homcy Director April 6, 1998
- ------------------------------------
Charles J. Homcy
/s/ Jerry T. Jackson Director April 6, 1998
- ------------------------------------
Jerry T. Jackson
/s/ Ernest Mario Director April 6, 1998
- ------------------------------------
Ernest Mario, Ph.D.
/s/ Robert R. Momsen Director April 6, 1998
- ------------------------------------
Robert R. Momsen
/s/ Lloyd Hollingsworth Smith Director March 30, 1998
- -----------------------------------------
Lloyd Hollingsworth Smith, Jr., M.D.
</TABLE>
6.
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION SEQUENTIAL PAGE NUMBER
NUMBER
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1 1998 Non-Officer Equity Incentive Plan.
99.2 Form of Nonstatutory Stock Option under the 1998 Non-Officer Equity
Incentive Plan.
</TABLE>
7.
<PAGE> 1
April 6, 1998 EXHIBIT 5.1
COR Therapeutics, Inc.
256 East Grand Avenue
South San Francisco, CA 94080
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by COR Therapeutics, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 300,000 shares of the
Company's Common Stock, $.0001 par value (the "Shares"), pursuant to its 1998
Non-Officer Equity Incentive Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, the Company's Restated Certificate of Incorporation, as
amended, and Restated By-laws, and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We 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 sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Robert L. Jones
------------------------------------
Robert L. Jones
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1998 Non-Officer Equity Incentive Plan of COR
Therapeutics, Inc. of our report dated January 19, 1998, with respect to the
financial statements of COR Therapeutics, Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 1997, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
----------------------------------
Palo Alto, California
April 2, 1998
<PAGE> 1
EXHIBIT 99.1
COR THERAPEUTICS, INC.
1998 NON-OFFICER EQUITY INCENTIVE PLAN
ADOPTED FEBRUARY 27, 1998
STOCKHOLDER APPROVAL NOT REQUIRED
TERMINATION DATE: NONE
1. PURPOSES.
(a) The purpose of the Plan is to provide a means by which selected
Employees and Consultants may be given an opportunity to benefit from increases
in value of the common stock of the Company ("Common Stock") through the
granting of (i) Nonstatutory Stock Options, (ii) stock bonuses and (iii) rights
to purchase restricted stock.
(b) The Company, by means of the Plan, seeks to retain the services of
persons who are now Employees or Consultants, to secure and retain the services
of new Employees and Consultants and to provide incentives for such persons to
exert maximum efforts for the success of the Company and its Affiliates.
(c) The Company intends that the Stock Awards issued under the Plan
shall, in the discretion of the Board, be either (i) Nonstatutory Stock Options
granted pursuant to Section 6 hereof or (ii) stock bonuses or rights to purchase
restricted stock granted pursuant to Section 7 hereof. All Options shall be in
such form as issued pursuant to Section 6.
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, or such other parent corporation or
subsidiary corporation designated by the Board.
(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 COR Therapeutics, Inc., a Delaware corporation.
(f) "CONSULTANT" means any person, including an 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 a Director.
(g) "CONTINUOUS SERVICE" means that the Participant's service with the
Company or an Affiliate is not interrupted or terminated. The Participant's
Continuous Service shall not be
1.
<PAGE> 2
deemed to have terminated merely because of a change in the capacity in which
the Participant renders service to the Company or an Affiliate, whether as an
Employee, Consultant, Director or member of the Board of Directors of an
Affiliate, provided that there is no interruption or termination of the
Participant's service. Nor shall the Participant's Continuous Service be deemed
to have terminated merely because of a change in the entity for which the
Participant renders such service, provided that there is no interruption or
termination of the Participant's service. For example, a change in status from
an Employee of the Company to a member of the Board of Directors of an Affiliate
will not constitute an interruption of Continuous Service. The Board or the
chief executive officer of the Company, in that party's sole discretion, may
determine whether Continuous Service shall be considered interrupted in the case
of any leave of absence approved by that party, including sick leave, military
leave or any other personal leave.
(h) "DIRECTOR" means a member of the Board.
(i) "DISABILITY" means total and permanent disability as defined in
Section 22(e) of the Code.
(j) "EMPLOYEE" means any person 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.
(k) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(l) "FAIR MARKET VALUE" means, as of any date, the value of the Common
Stock of the Company determined as follows:
(1) 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 average of
the high and low sales prices for such stock as quoted on such exchange or
market (or the exchange or market with the greatest volume of trading in 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.
(2) In the absence of such markets for the Common Stock, the Fair
Market Value shall be determined in good faith by the Board.
(m) "NONSTATUTORY STOCK OPTION" means an Option not intended to qualify
as an incentive stock option pursuant to Section 422 of the Code and the
regulations promulgated thereunder.
(n) "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.
(o) "OPTION" means a Nonstatutory Stock Option granted pursuant to the
Plan.
(p) "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.
2.
<PAGE> 3
(q) "OPTIONEE" means a person to whom an Option is granted pursuant to
the Plan.
(r) "PARTICIPANT" means a person to whom a Stock Award is granted
pursuant to the Plan or, if applicable, such other person who holds an
outstanding Stock Award.
(s) "PLAN" means this COR Therapeutics, Inc. 1998 Non-Officer Equity
Incentive Plan.
(t) "SHARE" means a share of Common Stock of the Company.
(u) "STOCK AWARD" means any right granted under the Plan, including any
Option, any stock bonus and any right to purchase restricted stock.
(v) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(w) "STOCK AWARD AGREEMENT" means an Option Agreement or other written
agreement between the Company and a holder of a Stock Award evidencing the terms
and conditions of an individual Stock Award grant. Each Stock Award Agreement
shall be subject to the terms and conditions of the Plan.
3. ADMINISTRATION.
(a) The Board shall administer the Plan 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:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted Stock Awards; when and how each Stock Award
shall be granted; whether a Stock Award will be an Option, a stock bonus, a
right to purchase restricted stock or a combination of the foregoing; the
provisions of each Stock Award granted (which need not be identical), including
the time or times when a person shall be permitted to receive Shares pursuant to
a Stock Award and the number of Shares with respect to which a Stock Award shall
be granted to each such person.
(2) To construe and interpret the Plan and Stock Awards 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 Stock Award Agreement,
in a manner and to the extent it shall deem necessary or expedient to make the
Plan fully effective.
(3) To amend the Plan or a Stock Award as provided in Section 13.
(4) 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 which are not in conflict with the provisions of the Plan.
3.
<PAGE> 4
(c) The Board may delegate administration of the Plan to a committee or
committees ("Committee") of one or more members of the Board. 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 12 relating to adjustments upon
changes in the Common Stock, the Shares that may be issued pursuant to Stock
Awards shall not exceed in the aggregate Three Hundred Thousand (300,000)
Shares. If any Stock Award shall for any reason expire or otherwise terminate,
in whole or in part, without having been exercised in full (or vested in the
case of restricted stock), the Shares not acquired under such Stock Award shall
revert to and again become available for issuance under the Plan.
(b) The Shares subject to the Plan may be unissued Shares or reacquired
Shares bought on the market or otherwise.
5. ELIGIBILITY.
Stock Awards may be granted only to Employees or Consultants who are
not, at the time of such grants, (i) Directors or (ii) Officers.
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 of grant, or such longer or shorter term as may be
provided in the Option Agreement.
(b) PRICE. The exercise price of each Option shall be as determined by
the Board and shall be set forth in the Option Agreement; provided, however,
that in no event shall the exercise price be less than one hundred percent
(100%) of the Fair Market Value on the date of grant.
(c) CONSIDERATION. The consideration to be paid for the Shares to be
issued upon exercise of an Option, including the method of payment, shall be
determined by the Board and may consist entirely of (i) cash or check, (ii)
promissory note (except that payment of the Share's "par value," as defined in
the Delaware General Corporation Law, shall not be made by deferred payment),
(iii) other Shares having a fair market value on the date of surrender equal to
the aggregate exercise price of the Shares as to which the Option shall be
exercised, including by delivering to the Company an attestation of ownership of
owned and unencumbered Shares in a form approved by the Company, (iv) payment
pursuant to a program developed under Regulation T as promulgated by the Federal
Reserve Board which, prior to the issuance of the Shares, results
4.
<PAGE> 5
in either the receipt of cash (or check) by the Company or the receipt of
irrevocable instructions to pay the aggregate exercise price to the Company from
the sales proceeds, (v) any combination of such methods of payment or (vi) such
other consideration and method of payment for the issuance of Shares to the
extent permitted under applicable law. In making its determination as to the
type of consideration to accept, the Board shall consider if acceptance of such
consideration may be reasonably expected to benefit the Company. In the case of
any deferred payment arrangement, interest shall be compounded at least annually
and shall be charged at not less than the minimum rate of interest necessary to
avoid the treatment as interest, under any applicable provisions of the Code, of
any amounts other than amounts stated to be interest under the deferred payment
arrangement
(d) TRANSFERABILITY. An Option may be transferred to the extent provided
in the Option Agreement; provided, however, that if the Option Agreement does
not specifically provide for transferability, the Option shall not be
transferable except by will or by the laws of descent and distribution or
pursuant to a domestic relations order. Notwithstanding the fore- going, the
Optionee 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 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. The vesting provisions of
individual Options may vary. The provisions of this subsection 6(e) are subject
to any Option provisions governing the minimum number of Shares as to which an
Option may be exercised.
(f) TERMINATION OF SERVICE RELATIONSHIP. In the event an Optionee's
Continuous Service terminates (other than upon the Optionee's death or
Disability), the Optionee may, but only within three (3) months (or such longer
or shorter period specified in the Option Agreement) after the date of such
termination, exercise his or her Option, which shall in no event be later than
the expiration of the term of the Option as set forth in the Option Agreement
(the "Post-Termination Exercise Period") and only to the extent that the
Optionee was entitled to exercise the Option on the date the Optionee's
Continuous Service terminates. The Board may at any time extend the
Post-Termination Exercise Period and provide for continued vesting during such
extended period. If, as of 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 the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified in the
Option Agreement or as otherwise determined above, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan. Notwithstanding
the foregoing, the Board shall have the power to permit an Option to vest, in
whole or in part, during the Post-Termination Exercise Period.
5.
<PAGE> 6
An Optionee's Option Agreement may also provide that if the
exercise of the Option following the termination of the Optionee's Continuous
Service (other than upon the Optionee's death or disability) would be prohibited
at any time solely because the issuance of Shares would violate the registration
requirements under the Securities Act, then the Option shall terminate on the
earlier of (i) the expiration of the term of the Option set forth in the first
paragraph of this subsection 6 (f), or (ii) the expiration of a period of three
(3) months after the termination of the Optionee's Continuous Service during
which the exercise of the Option would not be in violation of such registration
requirements.
(g) DISABILITY OF OPTIONEE. In the event an Optionee's Continuous
Service 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 as of the date of termination), but only within such period of time
ending on the earlier of (i) the date twelve (12) months (or such longer or
shorter period specified in the Option Agreement) 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.
(h) DEATH OF OPTIONEE. In the event of the death of an Optionee during
Optionee's Continuous Service, the Option may be exercised (to the extent the
Optionee was entitled to exercise the Option as of the date of death) by the
Optionee's estate, by a person who acquired the right to exercise the Option by
bequest or inheritance, but only within the period ending on the earlier of (i)
the date eighteen (18) months (or such longer or shorter period specified in the
Option Agreement) 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.
(i) EARLY EXERCISE. The Option may, but need not, include a provision
whereby the Optionee may elect at any time while before the Optionee's
Continuous Service terminates 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.
7. TERMS OF STOCK BONUSES AND PURCHASES OF RESTRICTED STOCK.
Each stock bonus or restricted stock purchase agreement shall be in such
form and shall contain such terms and conditions as the Board shall deem
appropriate. The terms and conditions of stock bonus or restricted stock
purchase agreements may change from time to time, and the terms and conditions
of separate agreements need not be identical, but each stock bonus or restricted
stock purchase agreement shall include (through incorporation of provisions
hereof
6.
<PAGE> 7
by reference in the agreement or otherwise) the substance of each of the
following provisions as appropriate:
(a) PURCHASE PRICE. The purchase price under each restricted stock
purchase agreement shall be such amount as the Board shall determine and
designate in such agreement. Notwithstanding the foregoing, the Board may
determine that eligible participants in the Plan may be awarded stock pursuant
to a stock bonus agreement in consideration for past services actually rendered
to the Company or for its benefit.
(b) TRANSFERABILITY. No rights under a stock bonus or restricted stock
purchase agreement shall be transferable except by will or the laws of descent
and distribution so long as stock awarded under such agreement remains subject
to the terms of any restrictive covenant (such as a repurchase option or
reacquisition option) in favor of the Company.
(c) CONSIDERATION. The purchase price of Shares acquired pursuant to a
stock purchase agreement shall be paid either: (i) in cash at the time of
purchase, (ii) at the discretion of the Board, according to a deferred payment
or other arrangement with the Optionee, except that payment of the common
stock's "par value" (as defined in the Delaware General Corporation Law) shall
not be made by deferred payment, or (iii) in any other form of legal
consideration that may be acceptable to the Board in its discretion.
Notwithstanding the foregoing, the Board to which administration of the Plan has
been delegated may award stock pursuant to a stock bonus agreement in
consideration for past services actually rendered to the Company or for its
benefit.
(d) VESTING. Shares sold or awarded under the Plan may, but need not, be
subject to a repurchase option or reacquisition option in favor of the Company
in accordance with a vesting schedule to be determined by the Board.
(e) TERMINATION OF CONTINUOUS SERVICE. In the event a Participant's
Continuous Service terminates, the Company may repurchase or otherwise reacquire
any or all of the Shares held by the Participant which have not vested as of the
date of termination under the terms of the stock bonus or restricted stock
purchase agreement between the Company and the Participant.
8. CANCELLATION AND RE-GRANT OF OPTIONS.
The Board or the Committee shall have the authority to effect, at any
time and from time to time, with the consent of the affected holders of Options,
(i) the repricing of any outstanding Options under the Plan and/or (ii) the
cancellation of any outstanding Options and the grant in substitution therefor
of new Options under the Plan covering the same or different numbers of shares
of Common Stock, but having an exercise price per share not less than one
hundred percent (100%) of the fair market value.
7.
<PAGE> 8
9. COVENANTS OF THE COMPANY.
(a) During the terms of the Stock Awards, the Company shall keep
available at all times the number of Shares required to satisfy such Stock
Awards.
(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 under Stock Awards; provided, however, that this
undertaking shall not require the Company to register under the Securities Act
either the Plan, any Stock Award or any Shares issued or issuable pursuant to
any such Stock Award. 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 Shares under
the Plan, the Company shall be relieved from any liability for failure to issue
and sell Shares upon exercise of such Stock Awards unless and until such
authority is obtained.
10. USE OF PROCEEDS FROM SHARES.
Proceeds from the sale of Shares pursuant to Stock Awards shall
constitute general funds of the Company.
11. MISCELLANEOUS.
(a) The Board shall have the power to accelerate the time at which all
or any part of a Stock Award may first be exercised or the time during which a
Stock Award or any part thereof will vest, notwithstanding the provisions in the
Stock Award stating the time at which it may first be exercised or the time
during which it will vest.
(b) No Participant 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 a Stock Award
unless and until the Participant has satisfied all requirements for the exercise
of the Stock Award pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Stock Award
granted pursuant thereto shall confer upon any Participant any right to continue
in the employ of the Company or any Affiliate or to continue serving as a
Consultant or shall affect the right of the Company or any Affiliate to
terminate the employment or consulting relationship with or without notice and
with or without cause.
(d) The Company may require a Participant, as a condition of exercising
or acquiring Shares under any Stock Award, (i) to give written assurances
satisfactory to the Company as to such person'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
associated with the Stock Award, and (ii) to give written assurances
satisfactory to the Company stating that such person is acquiring the Shares
subject to the Stock Award for such person's own account and not with any
present intention of selling or otherwise distributing the Shares. The foregoing
requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (i) the issuance of the Shares upon the exercise or acquisition
of Shares under the Stock Award has been registered
8.
<PAGE> 9
under a then currently effective registration statement under 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 Shares.
(e) To the extent provided by the terms of a Stock Award Agreement, the
Participant may satisfy any federal, state or local tax withholding obligation
relating to the exercise or acquisition of Shares under a Stock Award by any of
the following means or by a combination of such means: (i) tendering a cash
payment, (ii) authorizing the Company to withhold Shares from the Shares
otherwise issuable to the participant as a result of the exercise or acquisition
of Shares under the Stock Award or (iii) delivering to the Company owned and
unencumbered Shares, including by delivering to the Company an attestation of
ownership of owned and unencumbered Shares in a form approved by the Company.
12. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the Shares subject to the Plan, or subject
to any Stock Award, without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reincorporation, 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 class(es) and maximum
number of Shares subject to the Plan pursuant to subsection 4(a), and the
outstanding Stock Awards will be appropriately adjusted in the class(es) and
number of Shares and price per Share subject to such outstanding Stock Awards.
Such adjustments shall be made by the Board, 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.")
(b) Notwithstanding anything to the contrary in this Plan, in the event
of a Change of Control (as hereinafter defined), then, at the sole discretion of
the Board and to the extent permitted by applicable law: (i) any surviving
corporation shall assume the rights and obligations of the Company under any
Stock Awards outstanding under the Plan or shall substitute similar Stock Awards
for those outstanding under the Plan; (ii) the time during which such Stock
Awards become vested or may be exercised shall be accelerated and any
outstanding unexercised rights under any Stock Awards terminated if not
exercised prior to such event; or (iii) such Stock Awards shall continue in full
force and effect.
(c) For purposes of the Plan, a "Change of Control" shall be deemed to
have occurred at any of the following times:
(1) Upon the acquisition (other than from the Company) by any
person, entity or "group," within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act (excluding, for this purpose, the Company or its affiliates, or
any employee benefit plan of the Company or its
9.
<PAGE> 10
affiliates which acquires beneficial ownership of voting securities of the
Company), of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of fifty percent (50%) or more of either the then
outstanding shares of common stock or the combined voting power of the Company's
then outstanding voting securities entitled to vote generally in the election of
directors; or
(2) At the time individuals who, as of January 1998, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to January 1998, whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors of the
Company, as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall be, for purposes of the Plan, considered as though
such person were a member of the Incumbent Board; or
(3) Immediately prior to the consummation by the Company of a
reorganization, merger, consolidation, (in each case, with respect to which
persons who were the stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities) or a liquidation or dissolution of
the Company or of the sale of all or substantially all of the assets of the
Company; or
(4) The occurrence of any other event that the Incumbent Board in
its sole discretion determines constitutes a Change of Control.
13. AMENDMENT OF THE PLAN AND STOCK AWARDS.
(a) The Board at any time, and from time to time, may amend the Plan.
(b) The Board, in its sole discretion, may submit the Plan and/or any
amendment to the Plan for stockholder approval.
(c) Rights and obligations under any Stock Award granted before
amendment of the Plan shall not be impaired by any such amendment unless (i) the
Company requests the consent of the Participant and (ii) the Participant
consents in writing.
(d) The Board at any time may amend the terms of any one or more Stock
Awards; provided, however, that the rights and obligations under any Stock Award
shall not be impaired by any such amendment unless (i) the Company requests the
consent of the Participant and (ii) the Participant consents in writing.
14. 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 when all Shares reserved for
issuance under the Plan have been issued and all such issued Shares are no
longer subject to a repurchase option or a
10.
<PAGE> 11
reacquisition option in favor of the Company. No Stock Awards may be granted
under the Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any Stock Award granted while the Plan
is in effect shall not be impaired by suspension or termination of the Plan,
except with the written consent of the Participant.
15. EFFECTIVE DATE OF PLAN.
The Plan shall become effective on February 27, 1998.
<PAGE> 1
EXHIBIT 99.2
COR THERAPEUTICS, INC.
NONSTATUTORY STOCK OPTION
_________________________, Optionee:
COR Therapeutics, Inc. (the "Company"), pursuant to its 1998 Non-Officer
Equity Incentive Plan (the "Plan"), has granted to you, the optionee named
above, an option to purchase shares of the common stock of the Company ("Common
Stock"). This option is not intended to qualify as and will not be treated as an
"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's employees
and consultants. Defined terms not explicitly defined in this agreement but
defined in the Plan shall have the same definitions as in the Plan.
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of
shares of Common Stock subject to this option is ____________________ (______).
2. VESTING. Subject to the limitations contained herein, ___________ of
the shares will vest (become exercisable) on _______________ and ____________of
the shares will vest (become exercisable) each ________ thereafter, until either
(i) your Continuous Service (as defined in the Plan) terminates for any reason,
or (ii) this option becomes fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) EXERCISE PRICE. The exercise price of this option is
_______________________ ($____) per share.
(b) METHOD OF PAYMENT. Payment of the exercise price per share is
due in full upon exercise of all or any part of each installment which has
accrued to you. You may elect, to the extent permitted by applicable statutes
and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in cash
(including check) at the time of exercise;
(ii) Payment pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board which, prior to the
issuance of Common Stock, results in either the receipt of cash (or check) by
the Company or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company from the sales proceeds;
<PAGE> 2
(iii) Provided that at the time of exercise the
Company's Common Stock is publicly traded and quoted regularly in the Wall
Street Journal, payment by delivery of already-owned shares of Common Stock,
held for the period required to avoid a charge to the Company's reported
earnings, and owned free and clear of any liens, claims, encumbrances or
security interests, which Common Stock shall be valued at its fair market value
on the date of exercise; or
(iv) Payment by a combination of the above methods.
4. WHOLE SHARES. The minimum number of shares with respect to which this
option may be exercised at any one time is one hundred (100), except (a) as to
an installment subject to exercise, as set forth in paragraph 2, which amounts
to fewer than one hundred (100) shares, in which case, the number of shares in
such installment shall be the minimum number of shares, and (b) with respect to
the final exercise of this option, this minimum shall not apply. In no event may
this option be exercised for any number of shares which would require the
issuance of anything other than whole shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Securities Act or, if
such shares are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements of the
Securities Act.
6. TERM. The term of this option commences on __________, 19__, the date
of grant, and expires at midnight on ______________________ (the "Expiration
Date," which is the day before the tenth anniversary of the date of grant),
unless this option expires sooner as set forth below or in the Plan. In no event
may this option be exercised after the Expiration Date. This option shall
terminate prior to the Expiration Date of its term as follows: three (3) months
after the termination of your Continuous Service with the Company or an
Affiliate of the Company unless one of the following circumstances exists:
(a) Your termination of Continuous Service is due to your
permanent and total disability (within the meaning of Section 422(c)(6) of the
Code). This option will then expire on the earlier of the Expiration Date set
forth above or twelve (12) months following such termination of Continuous
Service.
(b) Your termination of Continuous Service is due to your death
or your death occurs within three (3) months following your termination of
Continuous Service. This option will then expire on the earlier of the
Expiration Date set forth above or eighteen (18) months after your death.
(c) If during any part of such three (3) month period you may not
exercise your option solely because of the condition set forth in Section 5
above, then your option will not expire until the earlier of the Expiration Date
set forth above or until this option shall have been exercisable for an
aggregate period of three (3) months after your termination of Continuous
Service.
2
<PAGE> 3
However, this option may be exercised following termination of
Continuous Service only as to that number of shares as to which it was
exercisable on the date of termination of Continuous Service under the
provisions of Section 2 of this option.
7. EXERCISE.
(a) This option may be exercised, to the extent specified above,
by delivering a notice of exercise (in a form designated by the Company)
together with the exercise price to the Secretary of the Company, or to such
other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require pursuant
to the Plan.
(b) By exercising this option you agree that, as a precondition
to the completion of any exercise of this option, the Company may require you to
enter an arrangement providing for the payment by you to the Company of any tax
withholding obligation of the Company arising by reason of (1) the exercise of
this option; (2) the lapse of any substantial risk of forfeiture to which the
shares are subject at the time of exercise; or (3) the disposition of shares
acquired upon such exercise.
8. TRANSFERABILITY. This option is not transferable, except by will or
by the laws of descent and distribution, and is exercisable during your life
only by you. Notwithstanding the foregoing, by delivering written notice to the
Company, in a form satisfactory to the Company, you may designate a third party
who, in the event of your death, shall thereafter be entitled to exercise this
option.
9. OPTION NOT A SERVICE CONTRACT. This option is not an employment
contract and nothing in this option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company
or an Affiliate, or of the Company or an Affiliate to continue your employment.
In addition, nothing in this option shall obligate the Company or any Affiliate
of the Company, or their respective shareholders, Board of Directors, officers
or employees to continue any relationship which you might have as a Consultant
for the Company or Affiliate.
10. NOTICES. Any notices provided for in this option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt or five
(5) days after deposit in the United States mail, postage prepaid, addressed to
you at the address specified below or at such other address as you hereafter
designate by written notice to the Company.
11. GOVERNING PLAN DOCUMENT. This option is subject to all the
provisions of the Plan, a copy of which is attached hereto and its provisions
are hereby made a part of this option, including without limitation the
provisions of Section 6 of the Plan relating to option provisions, and is
further subject to all interpretations, amendments, rules and regulations which
may from time to time be promulgated and adopted pursuant to the Plan. In the
event of any conflict between the provisions of this option and those of the
Plan, the provisions of the Plan shall control.
3
<PAGE> 4
Dated the ____ day of __________________, 19__.
Very truly yours,
COR THERAPEUTICS, INC.
By
-------------------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
1998 Non-Officer Equity Incentive Plan
Notice of Exercise
4
<PAGE> 5
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option and the Plan; and
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its Affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options previously granted and delivered to the undersigned
under stock option plans of the Company, and (ii) the following agreements only:
NONE --------------------------
(Initial)
OTHER
--------------------------
--------------------------
--------------------------
----------------------------------------
OPTIONEE
Address:
--------------------------------
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5
