As filed with the Securities and Exchange Commission on July 23, 1997
Registration No. _________________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
NEUREX CORPORATION
[Exact name of Registrant as specified in its charter]
Delaware 77-0128552
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
3760 Haven Avenue
Menlo Park, California 94025
(Address of Principal Executive Offices)
Neurex Corporation 1988 Employee and Consultant Stock Option Plan
Neurex Corporation 1997 Employee Stock Purchase Plan
(Full title of Plans)
Paul Goddard, Ph.D.
Chairman and Chief Executive Officer
Neurex Corporation
3760 Haven Avenue
Menlo Park, California 94025
(415) 853-1500
(Name, address and telephone number of agent for service)
Copies to: Wise & Shepard
3030 Hansen Way, Suite 100
Palo Alto, California 94304
(415) 856-1200
Attention: Thomas L. Barton, Esq.
Approximate date of commencement of proposed sales:
From time to time after the effective date
of this Registration Statement
================================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
--------------------------- -------------------------- -------------------------- -------------------------- ------------------
Title of each class of Proposed Proposed maximum Amount of
securities to be Amount to be registered maximum offering price aggregate registration
registered per share (1) offering price (1) fee (1)
--------------------------- -------------------------- -------------------------- -------------------------- ------------------
Common Stock,
par value $0.01 400,000(2) $13.00 $5,200,000 $1,575.76
--------------------------- -------------------------- -------------------------- -------------------------- ------------------
--------------------------- -------------------------- -------------------------- -------------------------- ------------------
Common Stock,
par value $0.01 1,000,000(3) $13.00 $13,000,000 $3,939.39
--------------------------- -------------------------- -------------------------- -------------------------- ------------------
--------------------------- -------------------------- -------------------------- -------------------------- ------------------
Total 1,400,000 $18,200,000 $5515.15
--------------------------- -------------------------- -------------------------- -------------------------- ------------------
</TABLE>
(1) Pursuant to Rule 457(h) and Rule 457(c), the proposed maximum offering
price per share and the registration fee are based on the reported
average of the bid and asked prices for Neurex Corporation Common Stock
on the NASDAQ National Market System on July 17, 1997.
(2) Shares reserved for issuance under the Neurex Corporation 1997 Employee
Stock Purchase Plan.
(3) Shares reserved for issuance under the Neurex Corporation 1988 Employee
and Consultant Stock Option Plan (in addition to 3,311,111 shares
previously registered on Form S-8 File No. 33-76976 and Form S-8 filed on
May 6, 1996.)
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS (fn 1)
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by Neurex
Corporation (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and the Securities Act of 1933, as amended (the "1933 Act"), are
incorporated by reference herein and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K, as amended, for the fiscal year
ended December 31, 1996.
2. The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1997.
3. The Company's Proxy Statement for its Annual Meeting, dated April 15,
1997.
4. The description of the Company's Common Stock contained in a Registration
Statement on Form S-1 (File No. 33-96840) filed under the 1933 Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the
filing of a post-effective amendment to this Registration Statement 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 in this Registration Statement and made a part hereof from the
respective dates of filing such documents (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents");
provided, however, that the documents enumerated above or subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14, and 15(d) of the 1934 Act in
each year during which the offering made by this Registration Statement is in
effect prior to the filing with the Commission of the Company's Annual Report on
Form 10-K covering such year shall not be Incorporated Documents or be
incorporated by reference in this Registration Statement or be a part hereof
from and after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document 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.
Not applicable.
- -----------------------------------------------------------------------------
1 This information is not required to be included in, and is not incorporated
by reference in, this Registration Statement.
- -------------------------------------------------------------------------------
<PAGE>
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock registered hereunder will be
passed upon for the Company by Wise & Shepard LLP, Palo Alto, California. As of
the date of this Form S-8, Thomas L. Barton, a partner of Wise & Shepard LLP,
and General Counsel, Secretary and a Director of the Company, holds 119,000
shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any director or officer of the corporation against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred in connection with any action, suit
or proceeding brought by reason of the fact that such person is or was a
director or officer of the corporation, if such person acted in good faith and
in a manner that 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, if he or she had no reason to believe his conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation,
indemnification may be made only for expenses actually incurred by any director
or officer in connection with the defense or settlement of an action or suit, if
such person has acted in good faith and in a manner that he or she reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that the
court in which the action or suit was brought shall determine upon application
that the defendant is reasonably entitled to indemnity for such expenses despite
such adjudication of liability.
The Company's Certificate of Incorporation provides that, to the
fullest extent permitted by Delaware law, the Company's directors will not be
liable for monetary damages, for breach of the directors' fiduciary duty of care
to the Company and its stockholders. This provision and the Certificate of
Incorporation does not eliminate the duty of care and in appropriate
circumstances, equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. Each director
will continue to be subject to liability for breach of the directors' duty of
loyalty to the Company for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, for acts or omissions that
the director believes to be contrary to the best interests of the Company or its
stockholders, for any transaction from which the director derived an improper
personal benefit, for acts or omissions involving a reckless disregard of the
director's duty to the Company or its stockholders where the director was aware
or should have been aware of the risk of serious injury to the Company or its
stockholders, for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the Company
or its stockholders, for improper transactions between the director and the
Company, and for improper distributions to stockholders and loans to directors
and officers. This provision also does not affect the director's
responsibilities under any other laws such as the federal securities laws or
state or federal environmental laws.
The Company has an insurance policy covering the liability and expenses
which might be incurred in connection with lawful indemnification of directors
and officers of the Company and its majority owned subsidiaries for certain
liabilities and expenses of such directors and officers for acts in those
capacities. Such directors and officers are also insured against certain
liabilities and expense incurred for acts in such capacities and for which they
are not entitled to indemnification by the Company.
The Company's Bylaws provide that the Company has the power to
indemnify its directors and officers to the fullest extent permitted by the
Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits listed in the following Exhibit Index are filed as part
of, or incorporated by reference into, this Registration Statement.
Exhibit Number Description
4.1 Amended and Restated Certificate of Incorporation of Neurex
Corporation, dated September 27, 1993 (filed as Exhibit 3.1
to Registrant's Form 10-K for the fiscal year ended September
30, 1993, file number 0-19874, and incorporated herein by
reference).
4.2 Amended and Restated Bylaws of Neurex Corporation, as adopted
by the Board of Directors and Stockholders November 6, 1987
and as amended on March 3, 1988, January 1, 1989, November
16, 1989 and December 8, 1992 (filed as Exhibit 3.2 to
Registrant's Registration Statement on Form S-1, File No.
33-63888 and incorporated herein by reference).
4.3 Neurex Corporation Amended 1988 Employee and Consultant Stock
Option Plan*
4.4 1997 Employee Stock Purchase Plan*
5 Opinion of Wise & Shepard LLP*
23.1 Consent of Wise & Shepard LLP (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors*
24 Power of Attorney (included on signature page hereto)
- ------------------------------------------------------------------------------
* filed herewith
Item 9. 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 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;
(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 (1)(a)(i) and (1)(a)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement;
(b) 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; and
(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 the purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrant'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 an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(3) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Menlo Park, State of California, on this 17th day of
July, 1997.
NEUREX CORPORATION
By: /s/ Paul Goddard
Paul Goddard, Ph.D.
Chairman of the Board
Chief Executive Officer,
President and Director
POWER OF ATTORNEY
Know all men by these presents, that each officer or director of Neurex
Corporation whose signature appears below constitutes and appoints Paul Goddard
and John Varian, and each of them severally her/his true and lawful
attorney-in-fact and agent, with full and several power of substitution, for
her/him and in her/his name, place and stead, in any and all capacities, to sign
any or all amendments, including post-effective amendments and supplements 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 attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as
they or she/he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or her/his or their substitute or
substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated and on the dates set forth opposite their signature.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ Paul Goddard, PhD. Chairman of the Board, July 17, 1997
- ----------------------------------
Paul Goddard, Ph.D. Chief Executive Officer, President and
Director (Principal Executive Officer)
/s/ John Varian Vice President of Finance and July 17, 1997
- ----------------------------------
John Varian Administration, Chief Financial
Officer and Treasurer (Principal
Financial and Accounting Officer)
/s/ Roberto Crea, Ph.D. Senior Vice President of Research and July 17, 1997
- ----------------------------------
Roberto Crea, Ph.D. Technology Development and Director
/s/ Robert R. Luther, M.D. Executive Vice-President July 17, 1997
- ----------------------------------
Robert R. Luther, M.D. of Development and Director
/s/ Thomas L. Barton General Counsel, Secretary and July 17, 1997
- ----------------------------------
Thomas L. Barton Director
/s/ David L. Anderson Director July 17, 1997
- ----------------------------------
David L. Anderson
/s/ Gerard N. Burrow, M.D. Director July 17, 1997
- ----------------------------------
Gerard N. Burrow, M.D.
/s/ John F. Chappell Director July 17, 1997
- ----------------------------------
John F. Chappell
/s/ Ray L. Egan Director July 17, 1997
- ----------------------------------
Ray L. Egan
/s/ John W. Glynn Director July 17, 1997
- ----------------------------------
John W. Glynn
/s/ Howard E. Greene, Jr. Director July 17, 1997
- ----------------------------------
Howard E. Greene, Jr.
</TABLE>
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
filed with
Registration Statement
On
Form S-8
Under
The Securities Act of 1933
Neurex Corporation
(Exact name of issuer as specified in its charter)
================================================================================
<PAGE>
Neurex Corporation
Exhibit Number Description Sequential
Page Number
4.3 Neurex Corporation Amended 1988 Employee 10
and Consultant Stock Option Plan
4.4 Neurex Corporation 1997 Employee Stock 20
Purchase Plan
5 Opinion of Wise & Shepard LLP 31
23.2 Consent of Ernst & Young LLP, Independent 34
Auditors
EXHIBIT 4.3
NEUREX CORPORATION
1988 EMPLOYEE AND CONSULTANT STOCK OPTION PLAN
(As Amended effective February 6, 1997)
1. Purpose of the Plan. The purposes of the 1988 Employee and Consultant
Stock Option Plan, as amended and restated on February 6, 1992, February 24,
1994, and March 30, 1995 (the "Plan") of Neurex Corporation, a Delaware
corporation (the "Company"), are to:
(a) Furnish incentive to individuals chosen to receive options
because they are considered capable of responding by improving operations and
increasing profits;
(b) Encourage selected employees and consultants to accept or
continue employment with, or consulting to, the Company or its affiliates; and
(c) Increase the interest of selected employees and consultants in
the Company's welfare through their participation in the growth in value of the
Company's Common Stock ("Common Stock").
To accomplish the foregoing objectives, this Plan provides a means
whereby employees, directors, and consultants may receive options to purchase
Common Stock. Options granted under this Plan will be either nonstatutory stock
options (subject to federal income taxation upon exercise) or incentive stock
options (generally not subject to immediate federal income taxation upon
exercise).
2. Eligible Persons. Every individual who at the date of grant is an
employee of the Company or of any parent or subsidiary of the Company (as
defined in subsection 5.1(c) below) is eligible to receive incentive stock
options and nonstatutory stock options to purchase Common Stock under this Plan.
The term "employee" includes an officer or director who is an employee of the
Company or a parent or subsidiary of it, as well as a non-officer, non-director
employee of the Company or a parent or subsidiary of it. Every individual who at
the date of grant is a consultant to, or a non-employee director of, the Company
or of any affiliate of the Company (as defined in Section 150 of California
Corporations Code) is eligible to receive nonstatutory stock options to purchase
Common Stock under this Plan, but shall not be eligible to receive incentive
stock options. The term "consultant" includes individuals employed by, or
otherwise affiliated with, a person providing consulting services to the
Company.
Subject to the limitations of Section 3, below, each non-employee director
serving on the Board as of March 30 of each year will be granted options to
purchase 8,000 shares of Common Stock, and each non-employee director elected or
appointed to the Board after March 30, 1995 will initially be granted options to
purchase 12,000 shares of Common Stock, and will thereafter be granted options
to purchase 8,000 shares of Common Stock on March 30 of each year for so long as
they serve as directors of the Company. Such non-employee director options shall
become exercisable over a three (3) year period, however, in the event of any
merger, reorganization, or consolidation of the Company with or into any other
entity, or the sale of all or substantially all of the Company's assets, all
such option grants shall immediately become exercisable.
3. Common Stock Subject to Plan.
(a) There shall be reserved for issue upon the exercise of options
granted under this Plan four million three hundred eleven thousand one hundred
eleven (4,311,111) shares of Common Stock, subject to adjustment as provided in
Section 7 hereof. If an option granted under the Plan shall expire or terminate
for any reason without having been exercised in full, the unpurchased shares
subject thereto shall again be available for the purposes of the Plan.
(b) Notwithstanding any other provisions of this Plan, the aggregate
number of shares of Common Stock subject to outstanding options granted under
this Plan, plus the aggregate number of shares issued upon the exercise of all
options granted under this Plan, shall never be permitted to exceed the number
of shares specified in the first sentence of subsection 3(a) above.
4. Administration. The Plan shall be administered by the Board of
Directors (the "Board") of the Company, or by a committee of two or more
directors appointed by the Board, each of who is a disinterested person (in
either case, the "Administrator"). No option shall be granted to a director or
officer of the Company, except by the Board, if each member is a disinterested
person, or otherwise by an Administrator comprised of less than the entire
Board. "Disinterested Person" shall have the meaning set forth in Rule
16b-3(c)(2)(ii), as promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934 (the "Exchange Act"), or any successor
definition adopted by the Commission. Rule 16b-3(c)(2)(ii) currently defines a
disinterested person as a director who has not, during the one (1) year prior to
services as an administrator of a plan, been granted or awarded equity
securities pursuant to the Plan or any other plan of the issuer or any of its
affiliates, subject to certain limited exceptions.
The Administrator may delegate nondiscretionary administrative duties to
such employees of the Company as it deems proper. Subject to the terms and
conditions of this Plan, and except as otherwise set forth herein, the
Administrator shall have the sole authority, in its discretion:
(a) to determine to which of the eligible individuals, and the time
or times at which, options to purchase Common Stock of the Company shall be
granted;
(b) to determine the number of shares of Common Stock to be subject
to options granted to each eligible individual;
(c) to determine the price to be paid for the shares of Common Stock
upon the exercise of each option;
(d) to determine the term and the exercise schedule of each option;
(e) to determine the terms and conditions of each stock option
agreement (which need not be identical) entered into between the Company and any
eligible individual to whom the Administrator has granted an option;
(f) to interpret the Plan;
(g) to accelerate the exercise date or schedule with respect to any
option granted under the Plan or, with the consent of the holder thereof, to
modify or amend any such option; and
(h) to make all determinations deemed necessary or advisable for the
administration of the Plan.
5. Terms of Options. Each option granted under the Plan shall be evidenced
by a stock option agreement between the individual to whom the option is granted
(the "optionee") and the Company. Each such agreement shall designate the option
thereby granted as an incentive stock option, or a nonstatutory stock option or
in part an incentive stock option, and in part a nonstatutory stock option. Each
such agreement shall be subject to the terms and conditions set forth in
subsection 5.1, and to such other terms and conditions not inconsistent herewith
as the Administrator may deem appropriate in each case. In addition, incentive
stock options shall be subject to the terms and conditions set forth in
subsection 5.2.
5.1 Terms and Conditions to Which All Options Are Subject. All options
granted under this Plan shall be subject to the following terms and conditions:
(a) Term of Options. The period or periods within which an option may
be exercised shall be determined by the Administrator at the time the option is
granted, and such period or periods may be amended subsequently only by written
mutual agreement of the Company (at the direction of the Administrator) and the
optionee. In no event shall such period extend beyond ten (10) years from the
date the option is granted in the case of an incentive stock option or ten (10)
years and one (1) week from the date the option is granted in the case of a
nonstatutory stock option.
(b) Exercise Price. The price to be paid for each share of Common
Stock upon the exercise of an option shall be determined by the Administrator at
the time the option is granted, but shall in no event be less than eighty-five
percent (85%) in the case of a nonstatutory stock option, and one hundred
percent (100%) in the case of an incentive stock option, of the fair market
value of a share of Common Stock on the date the option is granted. For all
purposes of this Plan, the fair market value of the Common Stock on any
particular date shall be the closing price on the trading day next preceding
that date on the principal securities exchange on which the Company's Common
Stock is listed, or, if such Common Stock is not then listed on any securities
exchange, then the fair market value of the Common Stock on such date shall be
the mean of the closing bid and asked prices as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") on
the trading day next preceding such date. In the event that the Company's Common
Stock is neither listed on a securities exchange nor quoted by NASDAQ, then the
Administrator shall determine the fair market value of the Company's Common
Stock on such date.
Notwithstanding the above provisions of this Section 5.1(b), the exercise
price of all options granted to the Company's non-employee directors will be the
closing bid price of the Common Stock as reported by NASDAQ on the grant date.
The preceding sentence shall not apply if the Common Stock is not quoted by
NASDAQ.
(c) More than Ten Percent Shareholders. No option shall be granted to
any individual who, at the time such option would be granted, owns stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of outstanding capital stock of the Company, or of any parent
corporation or subsidiary corporation of the Company, unless the exercise price
(as provided in subsection 5.1(b) hereof) is, in the case of a nonstatutory
stock option, not less than one hundred percent (100%) and in the case of an
incentive stock option, not less than one hundred ten percent (110%) of the fair
market value of the Common Stock on the date the option is granted, and in the
case of an incentive stock option the period within which the option may be
exercised (as provided in subsection 5.1(a) hereof) does not exceed five (5)
years from the date the option is granted. For purposes of this subsection
5.1(c) in determining stock ownership, an optionee shall be considered as owning
the voting capital stock owned, directly or indirectly, by or for his brothers
and sisters, spouse, ancestors and lineal descendants. Voting capital stock
owned, directly or indirectly, by or for a corporation, partnership, estate or
trust shall be considered as being owned proportionately by or for its
shareholders, partners or beneficiaries, as applicable. An optionee shall not be
considered as owning the shares of Common Stock issuable upon exercise of any
option which such optionee holds. Additionally, for purposes of this subsection
5.1(c), outstanding capital stock shall include all capital stock actually
issued and outstanding immediately after the grant of the option to the
optionee. Outstanding capital stock shall not include capital stock authorized
for issue under outstanding options held by the optionee or by any other person.
As used in this Plan, the terms "parent corporation" and "subsidiary
corporation" shall have the meanings set forth in Sections 424(e) and (f),
respectively, of the Internal Revenue Code of 1986, as amended (the "I.R.C.")
(d) Method of Payment for Common Stock. The exercise price for each
share of Common Stock purchased under an option shall be paid in full in cash at
the time of purchase.
(e) Nontransferability. All options shall be nontransferable, except
by will or the laws of descent and distribution, and shall be exercisable during
the lifetime of the optionee only by the optionee.
(f) Repurchase of Stock. At the option of the Administrator, the
stock to be delivered pursuant to the exercise of any option granted to an
employee under this Plan may be subject to a right of repurchase in favor of the
Company with respect to any employee whose employment with the Company is
terminated, with respect to any consultant whose consultancy has terminated,
and/or with respect to any non-employee director whose membership on the Board
of Directors is terminated. Any such right of repurchase of unvested shares
shall be at the option exercise price and any such right of repurchase for
vested shares shall be at the higher of the fair market value of the shares as
of the termination date or the option exercise price. Any such right of
repurchase shall expire at such times and with respect to such number of shares
as set by the Administrator. Determination of the number of shares subject to
such right of repurchase shall be made as of the date the employee or consultant
or director's relationship with the Company terminates, not as of the date that
any option granted to such employee, consultant or director is exercised.
(g) Withholding and Employment Taxes. At the time of exercise of an
option, the optionee shall remit to the Company in cash the amount of any and
all applicable federal and state withholding and employment taxes.
(h) Death. Upon the death of an employee, any option which such
employee holds may be exercised by such employee, within such period after the
date of death as the Administrator shall prescribe in the stock option
agreement, by the employee's representative or by the person entitled thereto
under the employee's will or the laws of intestate succession.
(i) Disability. Upon the permanent and total disability of an
employee (as defined in Section 105(d)(4) of the I.R.C.), any stock option which
the employee holds may be exercised by the employee within such period after the
date of termination of employment resulting from such disability (not to exceed
twelve (12) months in the case of an incentive stock option) as the
Administrator shall prescribe in the stock option agreement. The option shall
terminate upon the expiration of such prescribed period, unless the employee
dies prior thereto, in which event the provisions of subsection 5.1(h) hereof
shall apply.
(j) Retirement. Upon the voluntary retirement of an employee at or
after reaching sixty-five (65) years of age, any stock option which such
employee holds may be exercised by such employee with respect to all or any
portion of the balance of the Common Stock subject thereto within such period
after the date of retirement (not to exceed three (3) months in the case of an
incentive stock option) as the Administrator shall prescribe in the stock option
agreement. The option shall terminate upon the expiration of such prescribed
period, unless the employee dies prior thereto, in which event the provisions of
subsection 5.1(h) hereof shall apply.
(k) Transfer to Related Corporation. In the event that an employee
leaves the employ of the Company to become an employee of any parent or
subsidiary corporation of the Company, or if the employee leaves the employ of
any such parent or subsidiary corporation to become an employee of the Company
or of another parent or subsidiary corporation, such employee shall be deemed to
continue as an employee of the Company for all purposes of this Plan.
(l) Other Severance. In the event an employee leaves the employ of
the Company for any reason other than as set forth in subsections (h) through
(j), above, any stock option which such employee holds may be exercised by such
employee with respect to all or any portion of the balance of the Common Stock
subject thereto within such period after the date of severance (not to exceed
three (3) months in the case of an incentive stock option) as the Administrator
shall prescribe in the stock option agreement.
(m) Other Provisions. Each option granted under this Plan may contain
such other terms, provisions and conditions not inconsistent with this Plan as
may be determined by the Administrator. However, options granted after the date
the Common Stock of the Company is first quoted on the National Association of
Securities Dealers Automated Quotation System or listed on an established stock
exchange shall not contain any provisions giving the Company a right of first
refusal to purchase the Common Stock underlying the options.
5.2 Additional Terms and Conditions to Which Incentive Stock Options Are
Subject. Options granted under this Plan which are designated as incentive stock
options shall be subject to the following additional terms and conditions:
(a) Annual Limitation. To the extent the aggregate fair market value
(determined as of the date an incentive stock option is granted) of the stock
with respect to which incentive stock options granted are exercisable for the
first time by an employee during any one (1) calendar year (under this Plan and
under all other plans of the Company and of any parent or subsidiary
corporation) exceed One Hundred Thousand Dollars ($100,000), such options shall
be treated as options which are not incentive stock options.
(b) Disqualifying Dispositions. If Common Stock acquired by exercise
of an incentive stock option granted pursuant to this Plan is disposed of within
two (2) years from the date of grant of the option or within one (1) year after
the transfer of the Common Stock to the optionee, the holder of the Common Stock
immediately prior to the disposition shall promptly notify the Company in
writing of the date and terms of the disposition and shall provide such other
information regarding the disposition as the Company may reasonably require.
6. Stock Issuance and Rights as Shareholder. Notwithstanding any other
provisions of the Plan, no optionee shall have any of the rights of a
shareholder (including the right to vote and receive dividends) of the Company,
by reason of the provisions of this Plan or any action taken hereunder, until
the date such optionee shall both have paid the exercise price for the Common
Stock and shall have been issued (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company) the
stock certificate evidencing such shares.
7. Adjustments Upon Changes in Capitalization or Merger.
(a) Subject to any required action by the Company's shareholders, the
number of shares of Common Stock covered by this Plan as provided in Section 3,
the number of shares covered by each outstanding option granted hereunder and
the exercise price thereof shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
subdivision or consolidation of such shares or the payment of a stock dividend
(but only on the Common Stock) or any other increase or decrease in the number
of such outstanding shares of Common Stock effected without the receipt of
consideration by the Company; provided, however, that the conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration."
(b) Subject to any required action by the Company's shareholders, if
the Company shall be the surviving corporation in any merger or consolidation,
each outstanding option shall pertain and apply to the securities to which a
holder of the number of shares subject to the option would have been entitled. A
dissolution or liquidation of the Company or a merger or consolidation in which
the Company is not the surviving corporation shall cause each outstanding option
to terminate, unless the surviving corporation in the case of a merger or
consolidation assumes outstanding options or replaces them with substitute
options having substantially similar terms and conditions; provided, however,
that if an outstanding option is to terminate upon any such event, the
Administrator on such terms and conditions as it deems appropriate, shall
provide either by the terms of the stock option agreement or by a resolution
adopted prior to the occurrence of any such event, that, for some period of time
prior to such event, such option shall be exercisable as to all of the shares
covered by the portion of the option that previously has not lapsed, terminated,
or been exercised, notwithstanding any exercise schedule provided in the stock
option agreement.
(c) To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
(d) Except as hereinabove expressly provided in this Section 7, no
optionee shall have any rights by reason of any subdivision or consolidation of
shares of the capital stock of any class or the payment of any stock dividend or
any other increase or decrease in the number of shares of any class or by reason
of any dissolution, liquidation, merger or consolidation or spin-off of assets
or stock of another corporation, and any issue by the Company of shares of stock
of any class or of securities convertible into shares of stock of any class
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares subject to any option granted hereunder.
(e) The grant of an option pursuant to this Plan shall not affect in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
8. Manner of Exercise. An optionee wishing to exercise an option shall
give written notice to the Company at its principal executive office, to the
attention of the Secretary of the Company, accompanied by payment of the
exercise price as provided in subsection 5.1(b). The date the Company receives
written notice of an exercise hereunder accompanied by payment of the exercise
price will be considered as the date such option was exercised.
Promptly after receipt of written notice of exercise of an option, the
Company shall, without stock issue or transfer taxes to the optionee or other
person entitled to exercise the option, deliver to the optionee or such other
person a certificate or certificates for the requisite number of shares of stock
pursuant to the terms of the option agreement.
9. Employment or Consulting Relationship. Nothing in this Plan or any
option granted hereunder shall interfere with or limit in any way the right of
the Company or of any of its Affiliates to terminate any optionee's employment,
consultancy, or directorship at any time, nor confer upon any optionee any right
to continue as an employee of, consultant to, or director of, the Company or any
of its parent or subsidiaries.
10. Securities Law Requirements.
(a) The Administrator may require an individual as a condition of the
grant and of the exercise of an option, to represent and establish to the
satisfaction of the Administrator that all shares of Common Stock to be acquired
upon the exercise of such option will be acquired for investment and not for
resale. The Administrator shall cause such legends to be placed on certificates
evidencing shares of Common Stock issued upon exercise of an option as, in the
opinion of the Company's counsel, may be required by federal and applicable
state securities laws.
(b) No shares of Common Stock shall be issued upon the exercise of
any option unless and until counsel for the Company determines that: (i) the
Company and the optionee have satisfied all applicable requirements under the
Securities Act of 1933, as amended, and the Exchange Act; (ii) any applicable
requirement of any stock exchange or quotation system on which the Company's
Common Stock is listed or quoted has been satisfied; and (iii) all other
applicable provisions of state and federal law have been satisfied.
11. Amendment. The Board may terminate the Plan or amend the Plan from
time to time in such respects as the Board may deem advisable, except that,
without the approval of the Company's shareholders in compliance with the
requirements of applicable law, no such revision or amendment shall:
(a) increase the number of shares of Common Stock reserved under
Section 3 hereof for issue under the Plan, except as provided in Section 7
hereof;
(b) change the class of persons eligible to participate in the Plan
under Section 2 hereof;
(c) extend the term of the Plan under Section 12 hereof; or
(d) amend this Section 11 to defeat its purpose.
12. Termination. The Plan shall terminate automatically on April 20, 1998,
and may be terminated at any earlier date by the Board. No option shall be
granted hereunder after termination of the Plan, but such termination shall not
affect the validity of any option then outstanding.
13. Time of Granting Options. The date of grant of an option hereunder
shall, for all purposes, be the date on which the Administrator makes the
determination granting such option.
14. Reservation of Shares. The Company, during the term of this Plan, will
at all times reserve and keep available such number of shares of its Common
Stock as shall be sufficient to satisfy the requirements of the Plan.
15. Effective Date. This Plan shall become effective upon adoption by the
Board of Directors of the Company, and shall be effective on said date, provided
the Plan is approved within twelve (12) months of said date by the shareholders
of the Company in accordance with the Certificate of Incorporation and Bylaws of
the Company and the requirements of the I.R.C. and the Delaware General
Corporation Law. Options may be granted, but may not be exercised, prior to the
date of such shareholder approval.
As amended to February 6, 1997.
EXHIBIT 4.3
NEUREX CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
Adopted May 15, 1997
1. Purpose.
(a) The purpose of the Plan is to provide a means by which employees of
Neurex Corporation, a Delaware corporation (the "Company"), and its Affiliates,
as defined in subparagraph (b), which are designated as provided in subparagraph
2(b), may be given an opportunity to purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of
its employees, to secure and retain the services of new employees, and to
provide incentives for such persons to exert maximum efforts for the success of
the Company.
(d) The Company intends that the rights to purchase stock of the
Company granted under the Plan be considered options issued under an "employee
stock purchase plan" as that term is defined in Section 423(b) of the Code.
2. Administration.
(a) The Plan shall be administered by the Board of Directors (the
"Board") of the Company unless and until the Board delegates administration to a
Committee, as provided in subparagraph 2(c). Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan.
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(i) To determine when and how rights to purchase stock of the
Company shall be granted and the provisions of each offering of such rights
(which need not be identical).
(ii) To designate from time to time which Affiliates of the
Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights 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, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 13.
(v) Generally, to exercise such powers and to perform such
acts as the Board deems necessary or expedient to promote the best interests of
the Company.
(c) The Board may delegate administration of the Plan to a Committee
composed of not fewer than two (2) members of the Board (the "Committee") who
are non-employee directors. 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, 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 shall otherwise comply with the
requirements of Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as from time to time in effect. The Board
may abolish the Committee at any time and revest in the Board the administration
of the Plan.
(d) The term "non-employee director" as used in this Plan, shall mean
an administrator of the Plan, whether a member of the Board or of any Committee
to which responsibility for administration of the Plan has been delegated
pursuant to subparagraph 2(c), who is not at the time he or she exercises
discretion in administering the Plan receiving annual compensation exceeding
$60,000, either directly or indirectly, from the Company for services rendered
as a consultant or in any capacity other than as a Board member, and does not
have an interest in any transaction with the Company involving an amount
exceeding $60,000. Any such person shall otherwise comply with the requirements
of Rule l6b-3 promulgated under the Exchange Act as from time to time in effect.
3. Shares Subject To The Plan.
(a) Subject to the provisions of paragraph 12 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to rights granted
under the Plan shall not exceed in the aggregate four hundred thousand (400,000)
shares of the Company's common stock (the "Common Stock"). If any right granted
under the Plan shall for any reason terminate without having been exercised, the
Common Stock not purchased under such right shall again become available for the
Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the open market or otherwise.
4. Grant Of Rights; Offering.
The Board or the Committee may from time to time grant or provide for
the grant of rights to purchase Common Stock of the Company under the Plan to
eligible employees (an "Offering") on a date or dates (the "Offering Date(s)")
selected by the Board or the Committee. Each Offering shall be in such form and
shall contain such terms and conditions as the Board or the Committee shall deem
appropriate. The provisions of separate Offerings need not be identical, but
each Offering shall include (through incorporation of the provisions of this
Plan by reference in the Offering or otherwise) the substance of the provisions
contained in paragraphs 5 through 8, inclusive.
5. Eligibility.
(a) Rights may be granted only to employees of the Company or, as the
Board or the Committee may designate as provided in subparagraph 2(b), to
employees of any Affiliate of the Company. Except as provided in subparagraph
5(b), an employee of the Company or any Affiliate shall not be eligible to be
granted rights under the Plan, unless, on the Offering Date, such employee has
been in the employ of the Company or any Affiliate for such continuous period
preceding such grant as the Board or the Committee may require, but in no event
shall the required period of continuous employment be equal to or greater than
two (2) years. In addition, unless otherwise determined by the Board or the
Committee, no employee of the Company or any Affiliate shall be eligible to be
granted rights under the Plan, unless, on the Offering Date, such employee's
customary employment with the Company or such Affiliate is at least twenty (20)
hours per week and at least five (5) months per calendar year.
(b) A director shall in no event be eligible for the benefits of the
Plan unless and until such director is expressly declared eligible to
participate in the Plan by action of the Board or the Committee, and only if, at
any time discretion is exercised by the Board in the selection of a director as
a person to whom rights may be granted, or in the determination of the number of
shares that may be covered by rights granted to a director, a majority of the
Board and a majority of the directors acting in such matter are non-employee
directors, as defined in subparagraph 2(d). The Board shall otherwise comply
with the requirements of Rule 16b-3 promulgated under the Exchange Act, as from
time to time in effect.
(c) No employees shall be eligible for the grant of any rights under
the Plan if, immediately after any such rights are granted, such employee owns
stock possessing five percent (5%) or more of the total combined voting power or
value of all classes of stock of the Company or of any Affiliate. For purposes
of this subparagraph 5(c), the rules of Section 424(d) of the Code shall apply
in determining the stock ownership of any employee, and stock that such employee
may purchase under all outstanding rights and options shall be treated as stock
owned by such employee.
(d) An eligible employee may be granted rights under the Plan only if
such rights, together with any other rights granted under "employee stock
purchase plans" of the Company and any Affiliates, as specified by Section
423(b)(8) of the Code, do not permit such employee's rights to purchase stock of
the Company or any Affiliate to accrue at a rate that exceeds twenty-five
thousand dollars ($25,000) of the fair market value of such stock (determined at
the time such rights are granted) for each calendar year in which such rights
are outstanding at any time.
6. Rights; Purchase Price.
(a) On each Offering Date, each eligible employee, pursuant to an
Offering made under the Plan, shall be granted the right to purchase the number
of shares of Common Stock of the Company purchasable with up to ten percent
(10%) of such employee's Base Compensation (as defined in paragraph 7(a)) during
the period that begins on the Offering Date and ends on the date stated in the
Offering, which date shall be no more than twenty-seven (27) months after the
Offering Date (the "Purchase Period"). In connection with each Offering made
under this Plan, the Board or the Committee shall specify a maximum number of
shares that may be purchased by any employee as well as a maximum aggregate
number of shares that may be purchased by all eligible employees pursuant to
such Offering. In addition, in connection with each such Offering, the Board or
the Committee may specify a maximum aggregate number of shares that may be
purchased by all eligible employees pursuant to such Offering. If the aggregate
purchase of shares upon exercise of rights granted under the Offering would
exceed such maximum aggregate number, the Board or the Committee shall make a
pro rata allocation of the shares available in as nearly a uniform manner as
shall be practicable and as it shall deem to be equitable.
(b) The purchase price of stock acquired pursuant to rights granted
under the Plan shall be not less than the lesser of:
(i) an amount equal to eighty-five percent (85%) of the fair
market value of the stock on the Offering Date, or
(ii) an amount equal to eight-five percent (85%) of the fair
market value of the stock on the date of purchase.
For purposes of this paragraph 6(b), "fair market value" shall be
determined by reference to the opening price of a share of the Company's Common
Stock as quoted on the NASDAQ National Market System.
7. Participation; Withdrawal; Termination.
(a) An eligible employee may become a participant in an Offering by
delivering an agreement to the Company within the time specified in the
Offering, in such form as the Company provides. Each such agreement shall
authorize payroll deductions of up to ten percent (10%) of such employee's Base
Compensation (for purposes of calculating Base Compensation, the Administrator,
in its discretion, may use current or historical compensation). Base
Compensation is defined as total cash compensation, including gross, regular
compensation, including any bonuses and sales commissions paid pursuant to
recurring compensation plans, and excluding overtime pay, profit sharing, any
special, non-recurring payments for extraordinary services, the cost of employee
benefits paid for by the Company, education or tuition reimbursements, imputed
income arising under any Company group insurance or benefit program, traveling
expenses, signing bonuses, business and moving expense reimbursements, income
received in connection with stock options, and contributions made by the Company
under any employee benefit plan. The payroll deductions made for each
participant shall be credited to an account for such participant under the Plan
and shall be deposited with the general funds of the Company. At any time during
the Purchase Period a participant may terminate his or her payroll deductions. A
participant may not increase the percentage rate of deduction or begin such
payroll deductions effective for a given Offering after the beginning of the
Purchase Period for that Offering. A participant may not make any additional
payments into his or her account unless expressly provided for in the Offering.
An eligible employee may not participate in an Offering if he or she is
concurrently participating in an offering under another "employee stock purchase
plan" of the Company as that term is defined in Section 423(b) of the Code.
(b) If a participant terminates his or her payroll deduction, such
participant may withdraw from the Offering by delivering to the Company a notice
of withdrawal. Such withdrawal may be elected at any time prior to the end of
the Purchase Period. Upon such withdrawal from the Offering by a participant,
the Company shall distribute as soon as practical to such participant all of his
or her accumulated payroll deductions under the Offering without interest, and
such participant's rights in that Offering shall be automatically terminated. A
participant's withdrawal from an Offering will have no effect upon such
participant's eligibility to participate in any other Offerings under the Plan
but such participant will be required to deliver a new participation agreement
in order to participate in other Offerings under the Plan.
(c) Rights granted pursuant to any Offering under the Plan shall
terminate immediately upon cessation of any participating employee's employment
with the Company or an Affiliate, for any reason, and the Company shall
distribute to such terminated employee all of his or her accumulated payroll
deductions, without interest.
(d) Rights granted under the Plan shall not be transferable, and shall
be exercisable only by the person to whom such rights are granted.
8. Exercise.
(a) On the last business day prior to the end of the Purchase Period
(the "Exercise Date"), each participant's accumulated payroll deductions will be
applied to the purchase of whole shares of stock of the Company, up to the
maximum number of shares permitted pursuant to the terms of the Plan and the
applicable Offering, at the purchase price specified in the Offering. No
fractional shares shall be issued upon the exercise of rights granted under the
Plan. The amount, if any, of accumulated payroll deductions remaining in each
participant's account after the purchase of shares that is less than the amount
required to purchase one share of stock on the Exercise Date of an Offering
shall be held in each such participant's account for the purchase of shares in
the next Offering under the Plan, unless such participant withdraws from such
next Offering, as provided in subparagraph 7(b), or is no longer eligible to be
granted rights under the Plan, as provided in paragraph 5, in which case such
amount shall be distributed to such participant after such Exercise Date,
without interest. The amount, if any, of accumulated payroll deductions
remaining in any participant's account after the purchase of shares that is
equal to an amount that would be sufficient to purchase whole shares of stock on
the Exercise Date of an Offering shall be distributed in full to such
participant after such Exercise Date, without interest.
(b) No rights granted under the Plan may be exercised to any extent
unless the Plan (including rights granted thereunder) is covered by an effective
registration statement pursuant to the Securities Act of 1933, as amended (the
"Securities Act"). If, on an Exercise Date of any Offering hereunder, the Plan
is not so registered, no rights granted under the Plan or any Offering shall be
exercised and all payroll deductions accumulated during the Purchase Period
shall be distributed to the participants, without interest.
9. Covenants Of The Company.
(a) During the terms of the rights granted under the Plan, the Company
shall keep available for issuance at all times the number of shares of stock
required to satisfy such rights.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the rights granted under the
Plan. If, after reasonable efforts, the Company is unable to obtain from any
such regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell stock
upon exercise of such rights unless and until such authority is obtained.
10. Use Of Proceeds From Stock.
Proceeds from the sale of stock pursuant to rights granted under the
Plan shall constitute general funds of the Company.
11. Rights As A Stockholder.
A participant shall not be deemed to be the holder of, or to have any
of the rights of a holder with respect to, any shares subject to rights granted
under the Plan unless and until certificates representing such shares shall have
been issued.
12. Adjustments Upon Changes In Stock.
(a) If any change is made in the stock subject to the Plan, or subject
to any rights granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Board shall make
appropriate adjustments in the maximum number of shares subject to the Plan and
the number of shares and price per share of stock subject to outstanding rights.
(b) In the event of: (1) a dissolution or liquidation of the Company;
(2) a merger or consolidation in which the Company is not the surviving
corporation; (3) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's Common Stock outstanding immediately
preceding the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash of otherwise; or (4) any other capital
reorganization in which more than fifty percent (50%) of the shares of the
Company entitled to vote are exchanged, then, as determined by the Board in its
sole discretion, any surviving corporation shall assume outstanding rights or
substitute similar rights for those under the Plan, such rights shall continue
in full force and effect, or such rights shall terminate.
13. Amendment Of Plan.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 12 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the stockholders of
the Company within 12 months before or after the adoption of the amendment,
where the amendment will:
(i) Increase the number of shares reserved for rights under
the Plan; or
(ii) Modify the provisions as to eligibility for
participation in the Plan; or
(iii) Materially increase the benefits accruing to
participants under the Plan, if such approval is required in order for the Plan
to comply with the requirements of Rule 16b-3 under the Exchange Act.
It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide eligible employers
with the maximum benefits provided or to be provided under the provisions of the
Code and the regulations promulgated thereunder relating to employee stock
purchase plans and/or to bring the Plan and/or rights granted under it into
compliance therewith.
(b) Rights and obligations under any rights granted before amendment of
the Plan shall not be altered or impaired by any amendment of the Plan, except
with the consent of the person to whom such rights were granted.
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 ten (10) years from the date the
Plan is adopted by the Board or approved by the stockholders of the Company,
whichever is earlier. No rights may be granted under the Plan while the Plan is
suspended or after it is terminated.
(b) Rights and obligations under any rights granted while the Plan is
in effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom such rights were granted.
15. Effective Date Of Plan.
The Plan shall become effective as determined by the Board, but no
rights granted under the Plan shall be exercised unless and until the Plan has
been approved by the vote of the stockholders of the Company, and, if required,
an appropriate permit has been issued by the Commissioner of Corporations of the
State of California.
EXHIBIT 5
July 22, 1997
Neurex Corporation
3760 Haven Avenue
Menlo Park, CA 94025
Re: Form S-8 Registration Statement;
1,400,000 Shares of Common Stock
Ladies and Gentlemen:
In connection with the registration by Neurex Corporation, a Delaware
corporation (the "Company"), of 1,400,000 shares of common stock, par value
$0.01 per share (the "Shares"), of the Company to be issued pursuant to the
Neurex Corporation 1988 Employee and Consultant Stock Option Plan, and 1997
Employee Stock Purchase Plan, under the Securities Act of 1933, as amended (the
"Act"), on a Registration Statement on Form S-8 to be filed with the Securities
and Exchange Commission on or about July 23, 1997 (as amended from time to time,
the "Registration Statement"), you have requested our opinion with respect to
the matters set forth below.
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization, issuance and sale of the Shares,
and for the purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Delaware and the federal law of
the United States, and we express no opinion with respect to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction or any
other laws, or as to any matters of municipal law or the laws of any other local
agencies within the state.
Subject to the foregoing, it is our opinion that, as of the date
hereof, the Shares have been duly authorized, and, upon the issuance of and
payment for the Shares in accordance with the terms set forth in the respective
stock option plans under which such Shares will be issued and sold, the Shares
will be validly issued, fully paid and nonassessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement and the use of our name wherever it appears in the
Registration Statement. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ WISE & SHEPARD LLP
----------------------------
WISE & SHEPARD LLP
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Neurex Corporation 1988 Employee and
Consultant Stock Option Plan and the Neurex Corporation 1997 Employee Stock
Purchase Plan of our report dated February 14, 1997, with respect to the
consolidated financial statements of Neurex Corporation included in its Annual
Report on Form 10-K for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
--------------------------
Ernst & Young LLP
Palo Alto, California
July 18, 1997
