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Registration No.333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AUTOIMMUNE INC.
(Exact name of issuer as specified in its charter)
DELAWARE 13 348 9062
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
128 SPRING STREET, LEXINGTON, MA 02173
(Address of principal executive offices)
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AUTOIMMUNE INC.
1998 STOCK OPTION PLAN
(Full title of plan)
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ROBERT C. BISHOP, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AUTOIMMUNE INC.
128 SPRING STREET, LEXINGTON, MA 02173
(Name, address and telephone
number of agent for service)
Copy to:
CONSTANTINE ALEXANDER, ESQ.
NUTTER, MCCLENNEN & FISH, LLP
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
(617) 439-2000
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to Amount being Proposed maximum Proposed maximum Amount of
be registered registered (1) offering price per aggregate offering price registration fee
share (2)
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<S> <C> <C> <C> <C>
Common Stock, 1,300,000 Shares $1.89 $2,457,000 $683
$.01 par value per share
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Total 1,300,000 Shares $1.89 $2,457,000 $683
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(1) This Registration Statement covers 1,300,000 shares of Common Stock
underlying awards that may be granted pursuant to the AutoImmune Inc. 1998
Stock Option Plan. In addition, pursuant to Rule 416(b) under the
Securities Act of 1933, as amended (the "Securities Act"), this
Registration Statement covers an indeterminate number of additional shares
of Common Stock which may be issued under said Plan as a result of a stock
dividend, stock split or other recapitalization.
(2) Calculated pursuant to Rule 457(h) under the Securities Act, as amended,
based on the average of the high and low prices per share of the Common
Stock as reported on the NASDAQ National Market on November 30, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
AutoImmune Inc. (the "Company") hereby incorporates by reference in this
Registration Statement the following documents and information heretofore filed
with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 filed with the Commission pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) The Company's quarterly reports on Form 10-Q for the periods ended
March 31, 1998, June 30, 1998 and September 30, 1998, respectively,
filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission
on December 9, 1992, as amended, pursuant to Section 12 of the Exchange
Act.
All 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 any post-
effective amendment which indicates that all securities offered hereunder have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that any other subsequently-filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Constantine Alexander, a partner in the firm of Nutter, McClennen & Fish,
LLP, currently serves as Secretary of the Company. Nutter, McClennen & Fish,
LLP serves as counsel to the Company and has rendered a legal opinion with
respect to the validity of the shares of Common Stock offered hereunder.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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The Company is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporation Law, as amended, which provides that a
corporation may indemnify any person who was or is a party to or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she 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 or her conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite an adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
The Company's Restated Certificate of Incorporation provides that the
Company shall indemnify any director who, as a result of his acting as a
director of the Company, was or is a party or is threatened to be made a party
to any threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, to the fullest extent
permitted by Delaware law. The Company's Restated Certificate of Incorporation
also provides that directors shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (b) for acts of omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) pursuant
to Section 174 of the Delaware General Corporation Law or (d) for any
transaction from which the director derived an improper personal benefit.
In addition, the Company's By-laws provide that the Company shall indemnify
any person who was or is or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by reason of the fact that he is
or was a director or officer of the company or is or was serving at the request
of the Company as a director, officer, employee or agent of any other
enterprise, including, without limitation, employee benefit plans, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding in the manner permitted by the Delaware General
Corporation Law.
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The Company's By-laws also provide that the Company or a court of competent
jurisdiction shall determine in each case whether the director or officer has
met the standard of conduct precedent to indemnification under the By-laws,
provided that specific authorization is not required if the director or officer
has prevailed on the merits of the action.
Any repeal or modification of the indemnification provisions in the By-laws
shall not adversely affect any rights or protection of a director or, in the
case of the indemnification provisions, an officer of the Company existing at
the time of repeal or modification with respect to acts or omissions prior to
such repeal or modification. In addition, the company may, to the extent
authorized from time to time by its Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of
the Company similar to those given to directors and officers.
The Company maintains an indemnification insurance policy covering all
directors and officers of the Company. Pursuant to provisions of the Company's
By-laws, the Company's obligation to indemnify its directors and officers shall
be reduced by the amount of any insurance proceeds the director or officer
receives.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
ITEM 8. EXHIBITS.
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See the exhibit index immediately preceding the exhibits attached hereto.
ITEM 9. UNDERTAKINGS.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, (the "Securities Act"), each such post-
effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) 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
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that is incorporated by reference in the Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(b) 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 provisions of the Delaware General Corporation
Law and the registrant's Certificate of Incorporation and By-laws, 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 a
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.
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SIGNATURES
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Pursuant to the requirements of the Securities Act, 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 Lexington, Massachusetts, on the 30th day of November, 1998.
AUTOIMMUNE INC.
By: /s/ Robert C. Bishop
---------------------------------
Robert C. Bishop
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below on this Registration Statement hereby constitutes and appoints Robert C.
Bishop and Heather A. Ellerkamp, and each of them singly, his or her true and
lawful attorney-in-fact and agent, each with full power of substitution and
resubstitution, for him or her in any and all capacities (until revoked in
writing), to sign and any and all amendments (including post-effective
amendments and amendments thereto) to this Registration Statement on Form S-8 of
the registrant, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission
and any other regulatory authority or body, 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 fully to all intents and
purposes as he or she might or could do in person, thereby ratifying and
confirming all that all said attorneys-in-fact and agents, or any of them, or
their, or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, as amended, this
registration statement has been signed below by the following persons on behalf
of the registrant in the capacities and on the dates indicated.
/s/ Robert C. Bishop November 30, 1998
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Robert C. Bishop, Ph.D.
President, Chief Executive
Officer and Director
/s/ Heather A. Ellerkamp November 30, 1998
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Heather A. Ellerkamp
Treasurer and Director of Finance
/s/ Hugh A. D'Andrade November 30, 1998
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Hugh A. D'Andrade
Director
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/s/ Allan R. Ferguson November 30, 1998
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Allan R. Ferguson
Director
/s/ R. John Fletcher November 30, 1998
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R. John Fletcher
Director
/s/ Henri A. Termeer November 30, 1998
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Henri A. Termeer
Director
/s/ Barry Weinberg November 30, 1998
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Barry Weinberg
Director
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EXHIBIT INDEX
Exhibit No. Title
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4 AutoImmune Inc. 1998 Stock Option Plan
5 Opinion of Nutter, McClennen & Fish, LLP
23.1 Consent of Nutter, McClennen & Fish, LLP
(Contained in Exhibit 5).
23.2 Consent of Independent Accountants
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EXHIBIT 4
AUTOIMMUNE INC.
1998 STOCK OPTION PLAN
1. PURPOSE
The purpose of this 1998 Stock Option Plan (the "Plan") is to advance the
interests of AutoImmune Inc. (the "Company") by enhancing the ability of the
Company and its subsidiaries to attract and retain directors, employees,
consultants or advisers who are in a position to make significant contributions
to the success of the Company, to reward them for their contributions and to
encourage them to take into account the long-term interests of the Company.
The Plan provides for the award of options to purchase shares of the
Company's common stock ("Stock"). Options granted pursuant to the Plan may be
incentive stock options as defined in Section 422 of the Internal Revenue Code
of 1986 (as from time to time amended, the "Code") (any option that is intended
to qualify as an incentive stock option being referred to herein as an
"incentive option"), or options that are not incentive options, or both.
Options granted pursuant to the Plan shall be presumed to be non-incentive
options ("nonqualified options") unless expressly designated as incentive
options.
2. ELIGIBILITY FOR AWARDS
Persons eligible to receive awards under the Plan shall be all officers,
employees, consultants and advisers of the Company and its subsidiaries who, in
the opinion of the Board, are in a position to make a significant contribution
to the success of the Company and its subsidiaries. Directors, including
directors who are not employees, of the Company shall be eligible to receive
awards under the Plan. Incentive options shall be granted only to "employees"
as defined in the provisions of the Code or regulations thereunder applicable to
incentive stock options. A subsidiary for purposes of the Plan shall be a
corporation in which the Company owns, directly or indirectly, stock possessing
50% or more of the total combined voting power of all classes of stock. Persons
selected for awards under the Plan are referred to herein as "participants".
3. ADMINISTRATION
The Plan shall be administered by the Board of Directors (the "Board") of
the Company. The Board shall have authority, not inconsistent with the express
provisions of the Plan, (a) to grant awards consisting of options to such
participants as the Board may select; (b) to determine the time or times when
awards shall be granted and the number of shares of Stock subject to each award;
(c) to determine which options are, and which options are not, incentive
options; (d) to determine the terms and conditions of each award; (e) to
prescribe the form or forms of any instruments evidencing awards and any other
instruments required under the Plan and to change such forms from time to time;
(f) to adopt, amend and rescind rules and regulations for the administration of
the Plan; and (g) to interpret the Plan and to decide any questions and settle
all controversies and disputes that may arise in connection with the Plan. Such
determination of the Board shall be conclusive and shall bind all parties.
Subject to Section 8, the Board shall also have the authority, both generally
and in particular instances, to waive compliance by a participant with any
obligation to be performed by the participant under an award, to waive any
condition or provision of an award, and to amend or cancel any award (and if an
award is canceled, to grant a new award on such terms as the Board shall
specify). Nothing in the preceding sentence shall be construed as limiting the
power of the Board to make adjustments required by Section 5(c) and Section
6(i).
<PAGE>
The Board may, in its discretion, delegate some or all of its powers with
respect to the Plan to the Compensation Committee (the "Committee"), in which
event all references in this Plan (as appropriate) to the Board shall be deemed
to refer to the Committee. A majority of the members of the Committee shall
constitute a quorum, and all determinations of the Committee shall be made by a
majority of its members. Any determination of the Committee under the Plan may
be made without notice or meeting of the Committee by a writing signed by a
majority of the Committee members.
4. EFFECTIVE DATE AND TERM OF PLAN
The Plan shall become effective on the date on which it is approved by the
shareholders of the Company. Grants of awards under the Plan may be made prior
to that date (but contemporaneous with or after Board adoption of the Plan),
subject to approval of the Plan by such shareholders.
The Plan shall expire one day less than ten years from the earlier of the
date of the adoption of the Plan by the Board or the date the Plan received
shareholder approval. In no event shall any Options be granted under the Plan
after the expiration of the Plan.
5. SHARES SUBJECT TO THE PLAN
(a) Number of Shares. Subject to adjustment as provided in Section 5(c),
the aggregate number of shares of Stock that may be delivered upon the exercise
of awards granted under the Plan shall be 1,300,000. Subject to adjustment as
provided in Section 5(c), in no event shall any participant receive in any
calendar year awards under the Plan and grants of stock options under any other
stock option plan maintained by the Company for more than 200,000 shares of
Stock.
(b) Shares to be Delivered. Shares delivered under the Plan shall be
authorized but unissued Stock or, if the Board so decides in its sole
discretion, previously issued Stock acquired by the Company and held in its
treasury. No fractional shares of Stock shall be delivered under the Plan.
(c) Changes in Stock. In the event of a stock dividend, stock split or
combination of shares, recapitalization or other change in the Company's capital
stock, the number and kind of shares of Stock subject to awards then outstanding
or subsequently granted under the Plan, the exercise price of such awards, the
maximum number of shares of Stock that may be delivered under the Plan, and
other relevant provisions shall be appropriately adjusted by the Board, whose
determination shall be binding on all persons.
The Board may also adjust the number of shares subject to outstanding
awards and the exercise price and the terms of outstanding awards to take into
consideration material changes in accounting practices or principles,
extraordinary dividends, consolidations or mergers (except those described in
Section 6(i)), acquisitions or dispositions of stock or property or any other
event if it is determined by the Board that such adjustment is appropriate to
avoid distortion in the operation of the Plan, provided that no such adjustment
shall be made in the case of an incentive option, without the consent of the
participant, if it would constitute a modification, extension or renewal of the
option within the meaning of Section 424(h) of the Code.
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6. TERMS AND CONDITIONS OF OPTIONS
(a) Exercise Price of Options. The exercise price of each option shall be
determined by the Board but shall not be less than 100% (110% in the case of an
incentive option granted to a 10% shareholder) of the fair market value of the
Stock at the time the option is granted and shall in no event be less, in the
case of an original issue of authorized stock, than par value. For this
purpose, "fair market value" shall have the same meaning as it does in the
provisions of the Code applicable to incentive options and the regulations
thereunder; and "10% shareholder" shall mean any participant who at the time of
grant owns, directly, or by reason of the attribution rules set forth in Section
424(d) of the Code, is deemed to own stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any of its
parent or subsidiary corporations. Once an option has been granted, its
exercise price shall not be repriced.
(b) Duration of Options. Options shall be exercisable during such period
or periods as the Board may specify. The latest date on which an option may be
exercised (the "Final Exercise Date") shall be the date that is ten years (five
years in the case of an incentive option granted to a "10% shareholder" as
defined in (a) above) from the date the option was granted or such earlier date
as the Board may specify at the time the option is granted.
(c) Exercise of Options.
(i) Options shall become exercisable at such time or times and upon
such conditions as the Board shall specify. In the case of an
option not immediately exercisable in full, the Board may at any
time accelerate the time at which all or any part of the option
may be exercised.
(ii) To the extent that the aggregate "fair market value" of Stock
subject to any option with respect to which incentive options
first become exercisable by a participant in any calendar year
exceeds $100,000, such options shall be treated as nonqualified
options. For this purpose, "fair market value" of the Stock
subject to the options shall be determined as of the date the
options were awarded. In reducing the $100,000 limit, the most
recently granted option shall be reduced first. To the extent a
reduction of simultaneously granted options is necessary to meet
the $100,000 limit, the Board may, in the manner and to the
extent permitted by law, designate which shares of Stock are to
be treated as shares acquired pursuant to the exercise of an
incentive option.
(iii) Options may be exercised only in writing by the proper person
and furnished to the Company, together with (A) such documents as
the Board requires and (B) payment in full as specified below in
Section 6(d) for the number of shares for which the option is
exercised.
(iv) The delivery of Stock upon the exercise of an option shall be
subject to compliance with (A) applicable federal and state laws
and regulations, (B) if the outstanding Stock is at the time
listed on any stock exchange, the listing requirements of such
exchange, and (C) Company counsel's approval of all other legal
matters in connection with the issuance and delivery of such
Stock. If the sale of Stock has not been registered under the
Securities Act of 1933, as
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amended, the Company may require, as a condition to exercise of
the option, such representations or agreements as counsel for the
Company may consider appropriate to avoid violation of such Act
and may require that the certificates evidencing such Stock bear
an appropriate legend restricting transfer.
(v) In the case of an option that is not an incentive option, the
Board shall have the right to require that the participant
exercising the option remit to the Company an amount sufficient
to satisfy any federal, state, or local income tax withholding
requirements (or make other arrangements satisfactory to the
Company with regard to such taxes) prior to the delivery of any
Stock pursuant to the exercise of the option. If permitted by
the Board, either at the time of the grant of the option or the
time of exercise, the participant may elect, at such time and in
such manner as the Board may prescribe, to satisfy such
withholding obligation by (A) delivering to the Company Stock
(which in the case of Stock acquired from the Company shall have
been owned by the participant for at least six months prior to
the delivery date) having a fair market value equal to such
withholding obligation, or (B) requesting that the Company
withhold from the shares of Stock to be delivered upon the
exercise a number of shares of Stock having a fair market value
equal to such withholding obligation.
In the case of an incentive option, if at the time the option is
exercised the Board determines that under applicable law and
regulations the Company could be liable for the withholding of
any federal or state income tax with respect to a disposition of
the Stock received upon exercise, the Board may require as a
condition of exercise that the participant exercising the option
agree (A) to inform the Company promptly of any disposition
(within the meaning of Section 424(c) of the Code and the
regulations thereunder) of Stock received upon exercise, and (B)
to give such security as the Board deems adequate to meet the
potential liability of the Company for the withholding of tax,
and to augment such security from time to time in any amount
reasonably deemed necessary by the Board to preserve the adequacy
of such security.
(vi) If an option is exercised by the executor or administrator of a
deceased participant, or by the person or persons to whom the
option has been transferred by the participant's will or the
applicable laws of descent and distribution, the Company shall be
under no obligation to deliver Stock pursuant to such exercise
until the Company is satisfied as to the authority of the person
or persons exercising the option.
(d) Payment for and Delivery of Stock. Stock purchased upon exercise of an
option under the Plan shall be paid for as follows:
(i) in cash or by personal check, certified check, bank draft or
money order payable to the order of the Company; or
(ii) if so permitted by the Board (which, in the case of an incentive
option, shall specify the method of payment at the time of
grant), (A) through the delivery of shares of Stock (which, in
the case of Stock acquired from the Company, shall
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have been held for at least six months prior to delivery) having
a fair market value at the date of delivery equal to the purchase
price or (B) by delivery of a promissory note of the participant
to the Company, such note to be payable on such terms as are
specified by the Board, but which in no event shall be forgiven
prior to its payment in full or (C) by delivery of an
unconditional and irrevocable undertaking by a broker to deliver
promptly to the Company sufficient funds to pay the exercise
price or (D) by any combination of the permissible forms of
payment; provided, that if the Stock delivered upon exercise of
the option is an original issue of authorized Stock, at least so
much of the exercise price as represents the par value of such
Stock shall be paid by a personal check or promissory note of the
person exercising the option.
(e) Rights as Shareholder. A participant shall not have the rights of a
shareholder with regard to awards under the Plan except as to Stock actually
received by the participant under the Plan.
(f) Nontransferability of Awards; Restrictions on Stock. Except as the
Board may otherwise determine, no award may be transferred other than by will or
by the laws of descent and distribution, and during a participant's lifetime an
award may be exercised only by the participant.
The Board, in its discretion, may at the time an award is granted make
Stock delivered under the award subject to such restrictions and conditions,
including restrictions on resale and buy-back rights, as it deems appropriate.
(g) Death. Except as otherwise provided in the award by the Board at the
time of grant, if a participant dies, each option held by the participant
immediately prior to death may be exercised, to the extent it was exercisable
immediately prior to death, by the participant's executor or administrator or by
the person or persons to whom the option is transferred by will or the
applicable laws of descent and distribution, at any time within the one-year
period (or such longer or shorter period as the Board may determine) beginning
with the date of the participant's death but in no event beyond the Final
Exercise Date.
(h) Termination of Service other than by Death. Except as otherwise
provided in the award by the Board at the time of grant, if an employee's
employment with the Company and its subsidiaries terminates for any reason other
than by death, all options held by the employee that are not then exercisable
shall terminate. Options that are exercisable on the date employment terminates
shall continue to be exercisable for a period of 90 days (or such longer period
as the Board may determine, but in no event beyond the Final Exercise Date)
unless the employee (i) was discharged for cause (in which event all options
then held by the employee shall terminate as of the date of discharge, whether
or not then exercisable) or (ii) resigned and within 90 days thereafter the
Board determines that the participant's conduct prior to his or her resignation
warranted a discharge for cause (in which event all options held by the employee
as of the date of resignation shall terminate as of the date of resignation,
whether or not then exercisable). After completion of the post-termination
exercise period, such options shall terminate to the extent not previously
exercised, expired or terminated. For purposes of this Section 6(h), (i)
employment shall not be considered terminated (A) in the case of sick leave or
other bona fide leave of absence approved for purposes of the Plan by the Board,
so long as the employee's right to reemployment is guaranteed either by statute
or by contract, or (B) in the case of a transfer of employment between the
Company and a subsidiary or between subsidiaries, or to the employment of a
corporation (or a parent or subsidiary corporation of such
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corporation) issuing or assuming an option in a transaction to which section
424(a) of the Code applies, and (ii) "cause" shall mean willful misconduct by
the participant or willful failure to perform his or her responsibilities in the
best interests of the Company (including, without limitation, breach by the
participant of any provision of any employment, advisory, consulting,
nondisclosure, non-competition or other agreement between the participant and
the Company or any subsidiary of the Company).
In the case of a participant who is not an employee, provisions relating to
the exercisability of options following termination of service shall be
specified in the award. If not so specified, all options held by such
participant that are not then exercisable shall terminate upon termination of
service. Options that are exercisable on the date the participant's service as
a director, consultant or adviser terminates shall continue to be exercisable
for a period of 30 days (or such longer period as the Board may determine, but
in no event beyond the Final Exercise Date) unless the director, consultant or
adviser (i) was terminated for cause or (ii) resigned and within 30 days
thereafter the Board determines that the participant's conduct prior to his or
her resignation warranted a discharge for cause. After completion of the post-
termination exercise period, such options shall terminate to the extent not
previously exercised, expired or terminated.
(i) Mergers, etc. In the event of a consolidation or merger in which the
Company is not the surviving corporation or which results in the acquisition of
a majority of all of the Company's outstanding Stock by a single person or
entity or by a group of persons and/or entities acting in concert, or in the
event of the sale or transfer of all or substantially all of the Company's
assets, all outstanding awards shall thereupon terminate, provided that at least
20 days prior to the effective date of any such merger, consolidation or sale of
assets, the Board shall either (i) make all outstanding awards exercisable
immediately prior to (and subject to) consummation of such merger, consolidation
or sale of assets or (ii) if there is a surviving or acquiring corporation,
arrange, subject to consummation of the merger, consolidation or sale of assets,
to have that corporation or an affiliate of that corporation grant to
participants replacement awards, which awards in the case of incentive options
shall satisfy, in the determination of the Board, the requirements of Section
424(a) of the Code.
The Board may grant awards under the Plan in substitution for awards held
by directors, employees, consultants or advisers of another corporation who
concurrently become directors, employees, consultants or advisers of the Company
or a subsidiary of the Company as the result of a merger or consolidation of
that corporation with the Company or a subsidiary of the Company, or as the
result of the acquisition by the Company or a subsidiary of the Company of
property or stock of that corporation. The Company may direct that substitute
awards be granted on such terms and conditions as the Board considers
appropriate in the circumstances.
7. EMPLOYMENT RIGHTS
Neither the adoption of the Plan nor the grant of awards shall confer upon
any participant any right to continue as an employee or director of, or
consultant or adviser to, the Company or any subsidiary of the Company or affect
in any way the right of the Company or any such subsidiary to terminate his or
her employment by the Company or any subsidiary of the Company at any time.
Except as specifically provided by the Board in any particular case, the loss of
existing or potential profit in awards granted under this Plan shall not
constitute an element of damages in the event of termination of the relationship
of a participant even if the termination is in violation of an obligation of the
Company or any subsidiary of the Company to the participant by contract or
otherwise.
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<PAGE>
8. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
Neither adoption of the Plan nor the grant of awards to a participant shall
affect the Company's right to make awards to such participant that are not
subject to the Plan, to issue to such participant Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock may be issued.
The Board may at any time discontinue granting awards under the Plan. With
the consent of the participant (except as otherwise provided in the Plan), the
Board may at any time cancel an existing award in whole or in part and grant
another award for such number of shares as the Board specifies. The Board may
at any time or times amend the Plan or any outstanding award for the purpose of
satisfying the requirements of Section 422 of the Code or of any changes in
applicable laws or regulations or for any other purpose that may at the time be
permitted by law, or may at any time terminate the Plan as to further grants of
awards, but no such amendment shall adversely affect the rights of any
participant (without the participant's consent) under any award previously
granted and provided that any change to the number of shares of Stock subject to
the Plan or the employees or class of employees eligible to participate in the
Plan shall be subject to shareholder approval.
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<PAGE>
EXHIBIT 5
NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748
CAPE COD OFFICE DIRECT DIAL NUMBER
HYANNIS, MASSACHUSETTS
November 30 , 1998
AutoImmune Inc.
128 Spring Street
Lexington, MA 02173
Gentlemen/Ladies:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement") which AutoImmune Inc. (the "Company") is filing
concurrently herewith with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
1,300,000 shares of the Company's common stock, $.01 par value per share (the
"Common Stock"), issuable pursuant to the Company's 1998 Stock Option Plan (the
"Plan"), and an indeterminate number of shares of such Common Stock which may be
issued or become issuable under the Plan by reason of stock dividends, stock
splits or other recapitalizations executed hereafter.
We have acted as legal counsel for the Company in connection with
adoption of the Plan, are familiar with the Company's Certificate of
Incorporation and By-laws, both as amended to date, and have examined such other
documents as we deemed necessary for this opinion. Based upon the foregoing and
in reliance upon our familiarity with the Company's corporate records, we are of
the opinion that:
1. When issued and paid for in compliance with the terms of the Plan,
the 1,300,000 shares of Common Stock referred to above will be duly and validly
issued, fully paid and non-assessable; and
2. The indeterminate number of additional shares of Common Stock
which may become issuable under the Plan by reason of stock dividends, stock
splits or other recapitalizations hereafter executed, if and when issued in
accordance with the terms of the Plan and upon compliance with the applicable
provisions of law and of the Company's Certificate of Incorporation and By-laws,
both as amended through the dates of any such issuances, will be duly and
validly issued, fully paid and non-assessable.
We understand that this opinion letter is to be used in connection with the
Registration Statement and hereby consent to the filing of this opinion letter
with and as a part of the
<PAGE>
Registration Statement and of any amendments thereto. It is understood that this
opinion letter is to be used in connection with the offer and sale of the
aforesaid shares only while the Registration Statement, as it may be amended
from time to time as contemplated by Section 10(a)(3) of the Securities Act, is
effective under the Securities Act.
Very truly yours,
/s/ Nutter, McClennen & Fish, LLP
---------------------------------
Nutter, McClennen & Fish, LLP
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<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 20, 1998, which appears on
page F-2 of AutoImmune Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
November 30, 1998
