<PAGE> 1
As filed with the Securities and Exchange Commission on August 27, 1996
Registration NO.333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
MAGAININ PHARMACEUTICALS INC.
(Exact name of issuer as specified in its charter)
Delaware 13-3445668
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5110 Campus Drive
Plymouth Meeting, PA 19462
(Address of principal executive offices)
1992 STOCK OPTION PLAN
(Full title of the plans)
JAY MOORIN
Chairman, President and
Chief Executive Officer
Magainin Pharmaceuticals Inc.
5110 Campus Drive
Plymouth Meeting, PA 19462
(Name and address of agent for service)
(610) 941-4020
(Telephone number, including area code, of agent for service)
Copy to:
DAVID R. KING
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103-6993
(215) 963-5371
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ------------------------------ ---------------------------- ------------------ ------------------------ ------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered under registered under offering price aggregate offering registration fee
1992 Stock Option Plan 1992 Stock Option Plan per share* price*
- ------------------------------ ---------------------------- ------------------ ------------------------ ------------------
Common Stock,
par value $.002 per share 1,000,000 $11.281 $11,281,000 $3,890
============================== ============================ ================== ======================== ==================
</TABLE>
(*) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the
purpose of calculating the registration fee, based upon the average of
the reported high and low sales prices of shares of Common Stock on
August 26, 1996, as reported on the Nasdaq National Market.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by Magainin Pharmaceuticals
Inc. ("the Company") with the Securities and Exchange Commission, are
incorporated by reference in this Registration Statement and made a part hereof:
(a) The Company's latest annual report, filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act").
(b) All other reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report referred to in (a) above.
(c) The description of the Common Stock of the
Company contained in a registration statement filed 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 that indicates that all
securities offered hereby have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents. Any statement
contained in any document, all or a portion of which is incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained or
incorporated by reference herein modifies or supersedes such statement. Any
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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("Section
145") permits indemnification of directors, officers, agents and controlling
persons of a corporation under certain conditions and subject to certain
limitations. Article 9 of the Company's By-laws provides for the indemnification
of directors, officers, employees and agents of the Company to the maximum
extent permitted by the Delaware General Corporation Law. Section 145 empowers a
corporation to indemnify any person who 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, by reason of the fact
that he is or was a director, officer or agent of the corporation or another
enterprise if serving at the request of the corporation. Depending on the
character of the proceeding, a corporation may indemnify against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding if the person indemnified acted in good faith and in a manner he
reasonably believed to be in or not opposed to, the best interests of the
corporation, and, with respect to any criminal
<PAGE> 3
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. In the case of an action by or in the right of the corporation, no
indemnification may be made with respect to 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 Court of Chancery or the court in which
such action or suit was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Section 145 further provides that to
the extent a director, officer, employee or agent of a corporation has been
successful in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
The Company's By-laws permit it to purchase insurance on
behalf of any such person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against such
liability under the foregoing provision of the By-laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this
Registration Statement.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------ -------
<S> <C>
4.1 - 1992 Stock Option Plan, As Amended
5.1 - Opinion of Morgan, Lewis & Bockius LLP
23.1 - Consent of Richard A. Eisner & Company
23.2 - Consent of Morgan, Lewis & Bockius LLP (included as part
of Exhibit 5.1)
25.1 - Power of Attorney (included as part of the signature page)
</TABLE>
3
<PAGE> 4
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(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; and
(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)(1)(i) and
(a)(1)(ii) of this section 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 Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered that remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
the purpose of determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of a
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Company 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 Town of Plymouth Meeting, Commonwealth of Pennsylvania,
on this 16th day of August, 1996.
MAGAININ PHARMACEUTICALS INC.
By: /s/Jay Moorin
----------------------------------
Jay Moorin
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by or on behalf of the
following persons in the capacities and on the dates indicated.
Each person, in so signing, also makes, constitutes and
appoints Jay Moorin, Chairman, President and Chief Executive Officer, and
Michael R. Dougherty, Executive Vice President and Chief Financial Officer, and
each of such officers acting singly, his true and lawful attorney-in-fact, in
his name, place and stead to execute and cause to be filed with the Securities
and Exchange Commission any or all amendments to this Registration Statement,
with all exhibits and any and all documents required to be filed with respect
thereto, and to do and perform each and every act and thing necessary to
effectuate the same.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Jay Moorin Chairman, President and Chief Executive August 16, 1996
- ---------------------------------------- Officer and Director (Principal
Jay Moorin Executive Officer)
/s/ Michael R. Dougherty Executive Vice President and Chief August 16, 1996
- ------------------------------------ Executive Officer
Michael R. Dougherty (Principal Financial and Accounting Officer)
/s/ Michael A. Zasloff, M.D., Ph.D. Vice Chairman, Executive Vice President August 16, 1996
- ----------------------------------- and Director
Michael A. Zasloff, M.D., Ph.D.
August __, 1996
Director
- -----------------------------------
Bernard Canavan, Ph.D.
/s/ James H. Cavanaugh, Ph.D. Director August 16, 1996
- -----------------------------------
James H. Cavanaugh, Ph.D.
/s/ Zola P. Horovitz, Ph.D. Director August 16, 1996
- -----------------------------------
Zola P. Horovitz, Ph.D.
</TABLE>
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
<S> <C>
4.1 - 1992 Stock Option Plan, As Amended
5.1 - Opinion of Morgan, Lewis & Bockius LLP
23.1 - Consent of Richard A. Eisner & Company
23.2 - Consent of Morgan, Lewis & Bockius LLP (included as
part of Exhibit 5.1)
25.1 - Power of Attorney (included as part of the signature page)
</TABLE>
<PAGE> 1
EXHIBIT 4.1
MAGAININ PHARMACEUTICALS INC.
1992 STOCK OPTION PLAN, AS AMENDED
Section 1. Purpose
The 1992 Stock Option Plan (the "Plan") authorizes the Committee (as
hereafter defined) to provide Non-Employee Directors, Employees and Consultants
of the Corporation and its Subsidiaries, who are in a position to contribute
materially to the long-term success of the Corporation, with options to acquire
common stock of the Corporation in accordance with the terms specified herein.
The Corporation believes that this incentive program will cause those persons to
increase their interest in the Corporation's welfare, and aid in attracting and
retaining Non-Employee Directors, Employees and Consultants of outstanding
ability.
Section 2. Definitions
Unless the context clearly indicates otherwise, the following terms,
when used in this Plan, shall have the meanings set forth in this Section :
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Cause" shall mean (i) the Grantee's willful misconduct with
respect to the business and affairs of the Corporation or any
Subsidiary or affiliate thereof; (ii) the Grantee's gross
neglect of duties or failure to act which materially and
adversely affects the business or affairs of the Company or
any Subsidiary or affiliate thereof; (iii) the Grantee's
commission of an act involving embezzlement or fraud or
conviction for any felony; or the (iv) the Grantee' breach of
an employment or consulting agreement with the Corporation or
any Subsidiary or affiliate thereof.
(c) "Change in Control" shall mean the occurrence of any of the
following: (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes a
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Corporation representing 40% or more of the voting power of
the then outstanding securities of the Corporation; (ii)
during any period of two consecutive calendar years there is a
change of 25% or more in the composition of the Board of the
Corporation in office at the beginning of the period except
for changes approved by at least two-thirds of the Directors
then in office who were Directors at the beginning of the
period; (iii) the stockholders of the Corporation approve an
agreement providing for (A) the merger or consolidation of the
Corporation with another corporation where the stockholders of
the Corporation, immediately prior to the merger or
consolidation, would not beneficially own, immediately after
the merger or consolidation, shares entitling such
stockholders to 50% or more of all votes (without
consideration of the rights of any class of stock to elect
Directors by a separate class vote) to which all stockholders
of the corporation issuing cash or securities in the merger or
consolidation would be entitled in the election of directors
or where the members of the Board, immediately prior to the
merger or consolidation, would not, immediately after the
merger or consolidation, constitute a majority of the Board of
Directors of the corporation issuing cash or securities in the
merger or consolidation or (B) the sale or other disposition
of all or substantially all the assets of the Corporation, or
a liquidation, dissolution or statutory exchange of the
Corporation; or (iv) any person has commenced, or announced an
intention to commence, a tender offer or exchange offer for
40% or more of the voting power of the then-outstanding
securities of the Corporation.
(d) "Code" shall mean the Internal Revenue Code of 1986 as it may
be amended from time to time.
(e) "Committee" shall mean a Committee of not less than two
Directors who are "Disinterested Persons," as that term is
defined and interpreted pursuant to Rule 16b-3 under the
Exchange Act. Directors who have received options or
Stock-related compensation pursuant to a discretionary award
by the Corporation, the Board or by any Subsidiary or
affiliate of the Corporation during the one-year period before
serving on the Committee or at any time while serving on the
Committee shall be disqualified from serving on the Committee
and prohibited from serving as
<PAGE> 2
such until at least one-year has passed from the most recent
discretionary award; provided, however, the receipt of options
automatically awarded to Non-Employee Directors, as provided
in Section 6(b) herein, shall not disqualify such Non-Employee
Director from serving on the Committee. The Committee shall be
appointed by and serve at the pleasure of the Board.
(f) "Consultant" shall mean any consultant of the Corporation or
its Subsidiaries.
(g) "Control Person" shall mean any person who, as of the date of
grant of an Option, owns (within the meaning of Section
422(b)(6) of the Code) stock possessing more than ten percent
of the total combined voting power or value of all classes of
stock of the Corporation or of any parent or Subsidiary.
(h) "Corporation" shall mean Magainin Pharmaceuticals Inc., a
Delaware corporation.
(i) "Director" shall mean any member of the Board.
(j) "Employee" shall mean any employee of the Corporation or its
Subsidiaries.
(k) "Exchange Act" shall mean the Securities Exchange Act of 1934
as it may be amended from time to time.
(l) "Fair Market Value" shall mean for any day the closing price
of the Stock in the over-the-counter market, as reported
through the National Association of Securities Dealers
Automated Quotation System or, if the Stock is listed or
admitted to trading on any national securities exchange, the
last reported sale price on such exchange.
(m) "Grantee" shall mean a person granted an Option under the
Plan.
(n) "ISO" shall mean an Option granted pursuant to the Plan to
purchase shares of the Stock and intended to qualify as an
incentive stock option under Section 422 of the Code, as now
or hereafter constituted.
(o) "NQSO" shall mean an Option granted pursuant to the Plan to
purchase shares of the Stock that is not an ISO.
(p) "Non-Employee Director" shall mean a Director who is not an
employee of the Corporation or any of its Subsidiaries.
(q) "Options" shall refer collectively to NQSOs and ISOs subject
to the Plan.
(r) "Parent" shall mean any parent of the Corporation, as defined
in Section 424 of the Code.
(s) "Plan" shall mean this 1992 Stock Option Plan as set forth
herein and as amended from time to time.
(t) "Stock" shall mean shares of the Common Stock of the
Corporation.
(u) "Subsidiary" shall mean any subsidiary corporation as defined
in Section 424 of the Code.
Section 3. Shares of Stock Subject to the Plan
Subject to the provisions of Section 8, the Stock which may be issued
or transferred pursuant to Options granted under the Plan shall not exceed
2,500,000 shares in the aggregate. Notwithstanding anything in the plan to the
contrary, the maximum aggregate number of shares of stock that shall be subject
to options granted to any single individual during the term of the plan shall be
50% of the aggregate number of shares available for issuance under the Plan.
Stock issuable upon the exercise of any Option may be authorized but unissued
shares or reacquired shares of Stock. If any unexercised Options lapse or
terminate for any reason, the Stock covered thereby may again be optioned. More
than one Option may be granted to one person.
<PAGE> 3
Section 4. Administration of the Plan
The Plan shall be administered by the Committee. Subject to the express
provisions of the Plan, the Committee shall have the authority to interpret the
Plan, to prescribe, amend, and rescind rules and regulations relating to the
Plan, to determine the terms and provisions of stock option agreements
thereunder and to make all other determinations necessary or advisable for the
administration of the Plan. The Committee shall have the discretion to determine
under the provisions of stock option agreements for Options, that, upon the
occurrence of a Change in Control specified in Section 2(c)(iii) hereof, the
Committee may require the cancellation for cash of outstanding Options or the
issuance of comparable replacement options granted by the surviving entity. Any
controversy or claim arising out of or related to this Plan or the Options
granted thereunder shall be determined unilaterally by, and at the sole
discretion of, the Committee.
Section 5. Types of Options
Options granted under the Plan may be of two types: ISOs and NQSOs. The
Committee shall have the authority and discretion to grant to an eligible
Employee either ISOs, NQSOs or both, but shall clearly designate the nature of
each Option at the time of grant. Non-Employee Directors and Consultants shall
only be entitled to receive NQSOs.
Section 6. Grant of Options to Non-Employee Directors, Employees and
Consultants
(a) Non-Employee Directors, Employees and Consultants of the
Corporation and its Subsidiaries shall be eligible to receive
Options under the Plan.
(b) Each Non-Employee Director shall receive a grant of NQSOs in
accordance with this clause (b).
(1) Initial Grant: Each Non-Employee Director shall
receive a grant of an NQSO to purchase 15,000 shares
of Stock upon the following terms and conditions:
(i) As to any such person who becomes a member
of the Board after the date of the
Corporation's 1993 annual meeting of
stockholders, the date of grant shall be the
date he or she first becomes a member of the
Board; and
(ii) As to any such person who is elected at the
Corporation's 1993 annual meeting of
stockholders, the date of grant shall be
such date of the Corporation's 1993 annual
meeting of stockholders.
(2) Annual Grant: On each date that the Corporation holds
its annual meeting of stockholders, commencing with
the 1994 calendar year, each Non-Employee Director in
office immediately after the annual election of
directors (other than those Non-Employee Directors
who first commence their service as directors upon
election by the stockholders at such meeting) shall
receive a grant of an NQSO to purchase 5,000 shares
of Stock.
(3) Options granted under this subsection (b) shall have
a per share exercise price equal to the fair market
value of a share of Stock on the date of grant and a
term of ten years, and such option shall become
exercisable, with respect to 25% of the shares of
Stock underlying the option, on each anniversary of
the date of grant for a four-year period.
Notwithstanding any other provision of the Plan, this
subsection may not be amended more than once every
six months, except for amendments necessary to
conform the Plan to changes in the provisions of or
the regulations relating to the Internal Revenue Code
or the Employee Retirement Income Security Act of
1974.
(4) The provisions of this Section 6(b) are intended to
operate automatically and not require administration.
However, to the extent that administrative
determinations are required, the provisions of this
Section 6(b) shall be made by the members of the
Board who are not eligible to receive grants under
this Section 6(b), but in no event shall such
determinations affect the eligibility of optionees,
the determination of the exercise price, the timing
of the grants or the number of shares subject to
options hereunder.
<PAGE> 4
(5) Except as otherwise provided in this Section 6(b),
the NQSOs granted to Non-Employee Directors shall be
subject to the provisions of this Plan applicable to
NQSOs granted to other persons.
(c) The exercise price per share of Stock subject to an Option
granted to an Employee or Consultant shall be determined by
the Committee, provided, however, (i) that the exercise price
of each share subject to an ISO shall be not less than 100% of
the Fair Market Value of a share of the Stock on the date such
ISO is granted, (ii) that the per share exercise price of any
ISO granted to a Control Person shall not be less than 110% of
the Fair Market Value of a share of Stock on the date such ISO
is granted, and (iii) that the exercise price of each share
subject to an NQSO shall not be less than 100% of the Fair
Market Value of a share of the Stock on the date such NQSO is
granted.
(d) The term of each Option granted to an Employee or Consultant
shall be determined by the Committee, provided that no Option
shall be exercisable more than ten years from the date such
Option is granted, and provided further that no ISO granted to
a Control Person shall be exercisable more than five years
from the date of Option grant.
(e) The Committee shall determine and designate from time to time
the Employees and Consultants who are to be granted Options,
the nature of each Option granted and the number of shares of
Stock subject to each such Option.
(f) Notwithstanding any other provisions hereof, the aggregate
Fair Market Value (determined at the time the ISO is granted)
of the Stock with respect to which ISOs are exercisable for
the first time by any Employee during any calendar year under
all plans of the Corporation and any Parent or Subsidiary
corporation shall not exceed $100,000.
(g) The Committee, in its sole discretion, shall determine whether
any Option granted to an Employee or Consultant shall become
exercisable in one or more installments and specify the
installment dates. The Committee may also make such other
provisions, not inconsistent with the terms of this Plan, as
it may deem desirable, including such provisions as it may
deem necessary to qualify any ISO under the provisions of
Section 422 of the Code. The Committee, in its sole
discretion, shall have the power to accelerate the period or
periods during which Options become exercisable.
Notwithstanding any determination by the Committee regarding
the exercise period of any Option, all such Options shall
immediately become exercisable upon a Change in Control of the
Corporation.
(h) The Committee may, at any time, grant new or additional
options to any eligible Employee or Consultant who has
previously received Options under this Plan, or options under
other plans, regardless of whether such prior Options or other
options are still outstanding, have been exercised previously
in whole or in part, or have been cancelled. The exercise
price of such new or additional Options may be established by
the Committee, subject to Section 6(c) hereof, without regard
to such previously granted Options or other options.
Section 7. Exercise of Options
(a) Upon the exercise of any Option, the Grantee shall pay the
exercise price for the shares being purchased in the manner
provided in the particular stock option agreement, including
payment for such shares by the delivery of outstanding shares
of Stock or the surrender of shares of Stock (at their Fair
Market Value), if permitted by such stock option agreement,
including Stock subject to the Option then being exercised.
(b) The number of shares which are issued pursuant to the exercise
of an Option shall be charged against the maximum limitation
on shares set forth in Section 3 hereof.
(c) Except as provided in Section 9, no Option granted to a
Non-Employee Director, Employee or Consultant shall be
exercised unless at the time of such exercise the Grantee is
then a Director, Employee or Consultant.
<PAGE> 5
(d) Before the Company issues Stock to a Grantee pursuant to the
exercise of an NQSO, the Corporation shall have the right to
require that the Grantee make such provision, or furnish the
Corporation such authorization, necessary or desirable so that
the Corporation may satisfy its obligation, under applicable
income tax laws, to withhold for income or other taxes due
upon or incident to such exercise. The Board may adopt such
rules, forms and procedures as it considers necessary or
desirable to implement this Section 7(d), which rules, forms
and procedures shall be binding upon all Grantees, and which
shall be applied uniformly to all Grantees similarly situated.
Section 8. Adjustment Upon Changes in Capitalization
In the event of any reclassification, recapitalization, merger,
consolidation, reorganization, issuance of warrants, rights or debentures, stock
dividend, stock split or reverse stock split, cash dividend, property dividend,
combination or exchange of shares, repurchase of shares or any other change in
corporate structure which in the judgment of the Committee materially affects
the value of shares, the Committee may determine the appropriate adjustments, if
any, to the number and class of shares and the exercise price per share set
forth in any Option theretofore granted, provided that no such adjustments shall
be made to any ISO without the Grantee's consent, if such adjustment would cause
such ISO to fail to qualify as such.
Section 9. Termination of Relationship with the Corporation
(a) Upon the termination of a Non-Employee Director's service on
the Board, an Employee's employment or a Consultant's
consulting relationship with the Corporation for any reason
(except in the case of termination for Cause whereupon such
Options shall immediately terminate), such Grantee may
exercise any outstanding and then exercisable installments of
his or her Options for a three-month period from the date of
such termination or such longer period as set forth in this
Section 9(a), provided, however, that in no event shall the
period in which such Options may be exercised hereunder extend
beyond the expiration of the Option term. The Committee shall
have the discretion to provide that upon termination of a
Non-Employee Director's service on the Board, an Employee's
employment or a Consultant's consulting relationship as a
result of death or permanent and total disability (within the
meaning of Section 22(e)(3) of the Code), such Grantee or his
or her legal representative may exercise any outstanding and
then exercisable installments of his or her Options for a
period not to exceed one year from the date of such
termination. In no event shall any Option be exercisable for
more than the maximum number of shares that the Grantee was
entitled to purchase at the date of termination, retirement,
disability, or death as the case may be. In the case of an
Employee or Consultant, the transfer among the Corporation and
any Subsidiary shall not be deemed to be a termination of the
employment or consulting relationship. Notwithstanding the
above, a change from the status of a Non-Employee Director to
an Employee or Consultant, an Employee to a Consultant or a
Consultant to an Employee shall not result in the termination
of an Option in accordance with the foregoing provisions and
such Option shall remain outstanding, subject to its original
terms and the provisions of this Plan.
(b) Subject to the foregoing, in the event of death, Options may
be exercised by a Grantee's legal representative.
Section 10. General Provisions
(a) Each Option grant shall be evidenced by a written stock option
agreement containing such terms and conditions, not
inconsistent with this Plan, as the Committee shall approve.
ISOs and NQSOs may be granted to Employees simultaneously and
subject to a single stock option agreement, provided, however,
that in no event shall a NQSO be granted in tandem with an ISO
such that the exercise of one affects the right to exercise
the other. The terms and provisions of such stock option
agreements (including the exercise price specified therein)
may vary among Grantees and among different Options granted to
the same Grantee.
(b) The grant of an Option in any year shall not give the Grantee
any right to similar grants in future years or any right to
continue such Grantee's service on the Board, employment or
consultant relationship with the Corporation or its
Subsidiaries. All Grantees shall remain subject to discharge
to the same extent as if the Plan were not in effect.
<PAGE> 6
(c) No Grantee, and no beneficiary or other persons claiming under
or through the Grantee shall have any right, title or interest
by reason of any Option to any particular assets of the
Corporation or its Subsidiaries, or any shares of Stock
allocated or reserved for the purposes of the Plan or subject
to any Option except as set forth herein. The Corporation
shall not be required to establish any fund or make any other
segregation of assets to assure the payment of any Option.
(d) No Option or other right under the Plan shall be transferable
or subject to anticipation, sale, assignment, pledge,
encumbrance, or charge, except by will or the laws of descent
and distribution, and an Option shall be exercisable during
the Grantee's lifetime only by the Grantee.
(e) Notwithstanding any other provision of this Plan or stock
option agreements made pursuant thereto, the Corporation shall
not be required to issue or deliver any certificate or
certificates for shares of Stock under this Plan prior to
fulfillment of all of the following conditions:
(1) The listing, or approval for listing upon notice of
issuance, of such shares on any securities
exchange on which the Stock may then be traded;
(2) Any registration or other qualification of such
shares under any state or federal law or regulation,
or other qualification which the Board shall, in its
absolute discretion and upon the advice of counsel,
deem necessary or advisable;
(3) The obtaining of any other consent, approval or
permit from any state or federal governmental agency
which the Board shall, in its absolute discretion and
upon the advice of counsel, determine to be necessary
or advisable; and
(4) The execution by the Grantee (or the Grantee's legal
representative) of such written representation that
the Committee may in its sole discretion deem
necessary or advisable to the effect that the shares
then being purchased are being purchased for
investment with no present intention of reselling or
otherwise disposing of such shares in any manner
which may result in a violation of the Securities Act
of 1933, as amended, and the placement upon
certificates for such shares of an appropriate legend
in connection therewith.
(f) The issuance of shares of Stock to Grantees or to their legal
representatives shall be subject to any applicable taxes and
other laws or regulations of the United States or of any state
having jurisdiction thereof.
(g) In the case of a grant of an Option to any Employee or
Consultant of a Subsidiary, the Corporation may, if the
Committee so directs, issue or transfer the shares covered by
the Option to the Subsidiary, for such lawful consideration as
the Committee may specify, upon the condition or understanding
that the Subsidiary will transfer the shares to the Employee
or Consultant in accordance with the terms of the Plan and the
stock option agreement relating to such Option.
Section 11. Amendment or Termination
The Committee may, at any time, alter, amend, suspend, discontinue or
terminate this Plan; provided, however, that no such action shall adversely
affect the rights of Grantees to Options previously granted hereunder and,
provided further, however, that any shareholder approval necessary or desirable
in order to comply with Rule 16b-3 under the Exchange Act or with Section 422 of
the Code (or other applicable law or regulation) shall be obtained in the manner
required therein.
Section 12. Duration of Plan
This Plan was effective upon its adoption by the Board on May 5, 1992,
subject to the approval of the Corporation's stockholders at the next annual
meeting following such adoption. This Plan as amended is effective upon its
adoption by the Board on March 25, 1996, subject to the approval of such
amendment by the Corporation's stockholders at the next annual meeting following
such adoption. This Plan shall terminate at the close of business on May 5,
2002, and no Option may be granted under the Plan thereafter, but such
termination shall not affect any Options theretofore granted.
<PAGE> 1
EXHIBIT 5.1
Morgan, Lewis & Bockius LLP
Counselors at Law
2000 One Logan Square
Philadelphia, Pennsylvania 19103-6993
Telephone: (215) 963-5000
Fax: (215) 963-5299
August 27, 1996
Magainin Pharmaceuticals Inc.
5110 Campus Drive
Plymouth Meeting, PA 19462
Re: Magainin Pharmaceuticals Inc.
Registration Statement on Form S-8
Relating to the Company's 1992 Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to Magainin Pharmaceuticals Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), relating to the offering of up to 1,000,000 shares of Common Stock
to be issued pursuant to stock options to be granted under the Magainin
Pharmaceuticals Inc. 1992 Stock Option Plan, as amended (the "1992 Plan"), and
which represent the registration of additional shares of Common Stock for which
Registration Statements filed on Form S-8 (Registration Nos. 33-52882 and
33-71984) relating to the same employee benefit plan are effective. We have
examined such records, documents, statutes and decisions as we have deemed
relevant in rendering this opinion. In our examination we have assumed the
genuineness of documents submitted to us as originals and the conformity with
the original of all documents submitted to us as copies thereof.
In our opinion, the shares of the Company's Common Stock to be issued upon
exercise of the options granted or to be granted in accordance with the terms of
the 1992 Plan will be, when issued in accordance with the terms of the 1992 Plan
for a price not less than the par value thereof, validly issued, fully paid and
nonassessable shares of the Common Stock of the Company.
The opinion set forth above is limited to the General Corporation Law of the
State of Delaware.
<PAGE> 2
Magainin Pharmaceuticals Inc.
August 27, 1996
Page 2
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement. In giving such opinion, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules or regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
MORGAN, LEWIS & BOCKIUS LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement on Form S-8 of our report dated January 26, 1996 on the
financial statements included in the annual report of Magainin Pharmaceuticals
Inc. as at and for the year ended December 31, 1995.
Richard A. Eisner & Company, LLP
New York, New York
August 26, 1996
