<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 1997
Registration No. 333-
----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
ANTEX BIOLOGICS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-1563899
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
300 PROFESSIONAL DRIVE
GAITHERSBURG, MARYLAND 20879
(301) 590-0129
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
---------------------------------
ANTEX BIOLOGICS INC.
AMENDED AND RESTATED STOCK OPTION PLAN
AND
AMENDED AND RESTATED
ANTEX BIOLOGICS INC.
1992 DIRECTORS' STOCK OPTION PLAN
(Full title of plan)
---------------------------------
V.M. ESPOSITO COPY TO: D. MICHAEL LEFEVER
300 PROFESSIONAL DRIVE COVINGTON & BURLING
GAITHERSBURG, MARYLAND 20879 1201 PENNSYLVANIA AVENUE, N.W.
(301) 590-0129 WASHINGTON, D.C. 20004
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed maximum Proposed maximum
securities Amount offering aggregate offering Amount of
to be registered to be registered price per unit price registration fee
<S> <C> <C> <C> <C>
Common Stock 3,900,000 shares(1) $0.671875(2) $2,620,312.50 $794.03
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
amount of shares registered hereby includes such additional number of shares of
Common Stock as are required to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, based on the average of the bid and the asked prices of the Common
Stock on July 25, 1997, as reported on the OTC Bulletin Board.
<PAGE> 2
The purpose of this registration statement is to increase the
number of shares of common stock, par value $.01 per share, of Antex Biologics
Inc. (formerly MicroCarb Inc.) under the Amended and Restated Stock Option Plan
and the Amended and Restated 1992 Directors' Stock Option Plan. The contents
of Antex Biologics Inc.'s Registration Statement on Form S-8, File No.
33-94692, are hereby incorporated herein by reference.
ITEM 8: EXHIBITS
4.4 Certificate of Amendment of Certificate of
Incorporation, dated May 9, 1997 (incorporated by
reference to Exhibit 3.5 to the registrant's
quarterly report on Form 10-QSB for the period ended
March 31, 1997)
5 Opinion of Covington & Burling
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Covington & Burling (included in Exhibit 5)
99.1 Amended and Restated Stock Option Plan
99.2 Amended and Restated 1992 Directors' Stock Option Plan
- 2 -
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Gaithersburg, State of Maryland, July 30, 1997.
ANTEX BIOLOGICS INC.
By: /s/ V.M. ESPOSITO
--------------------------
V.M. Esposito
President
- 3 -
<PAGE> 4
In accordance with the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following persons in
the capacities and on the dates stated. Each person whose signature appears
below constitutes and appoints V.M. Esposito and Gregory C. Zakarian, and each
of them, as his true and lawful attorneys-in-fact and agents, each with the
power of substitution and resubstitution, for him in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
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 the
person might or could do in person, hereby ratifying and confirming what each
of said attorneys-in-fact and agents, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
SIGNATURE DATE
--------- ----
/s/ V.M. ESPOSITO July 30, 1997
--------------------------------
V.M. Esposito
Director, President, and
Chief Executive Officer
(Principal Executive Officer)
/s/ GREGORY C. ZAKARIAN July 30, 1997
--------------------------------
Gregory C. Zakarian
Treasurer and Chief Financial
Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/ CHARLES J. COULTER July 30, 1997
--------------------------------
Charles J. Coulter
Director
/s/ BRUCE E. ELMBLAD July 30, 1997
--------------------------------
Bruce E. Elmblad
Director
/s/ DONALD G. STARK July 30, 1997
--------------------------------
Donald G. Stark
Director
- 4 -
<PAGE> 5
EXHIBIT INDEX
The following exhibits are filed with this Registration
Statement.
<TABLE>
<CAPTION>
Exhibit
Number
- -------
<S> <C>
4.4 Certificate of Amendment of Incorporation, dated May 9,
1997 (incorporated by reference to Exhibit 3.5 to the
registrant's quarterly report on Form 10-QSB for the
period ended March 31, 1997)
5 Opinion of Covington & Burling
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Covington & Burling (included in Exhibit 5)
99.1 Amended and Restated Stock Option Plan
99.2 Amended and Restated 1992 Directors' Stock Option Plan
</TABLE>
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<PAGE> 1
Exhibit 5
July 30, 1997
Antex Biologics Inc.
300 Professional Drive
Gaithersburg, MD 20879
Gentlemen:
This opinion is being furnished in connection with a
Registration Statement on Form S-8 (the "Registration Statement") filed on or
about the date hereof by Antex Biologics Inc., a Delaware corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, for the registration of 3,900,000
shares of common stock, par value $.01 per share, of the Company (the "Common
Stock"). The shares of Common Stock being registered are issuable upon the
exercise of stock options granted under the Company's Amended and Restated
Stock Option Plan and under the Company's Amended and Restated 1992 Directors'
Stock Option Plan (collectively, the "Plans").
For purposes of this opinion, we have examined a copy of the
Registration Statement and the exhibits thereto. We also have examined and
relied upon a copy of the Company's Certificate of Incorporation, certified by
the Secretary of State of the State of Delaware, and copies of the Company's
By-Laws and certain resolutions adopted by the Board of Directors of the
Company, certified by the Secretary of the Company. We also have examined such
other documents and made such other investigations as we have deemed necessary
to form a basis for the opinion hereinafter expressed.
In examining the foregoing documents, we have assumed the
authenticity of documents submitted to us as originals, the genuineness of all
signatures, the conformity to original documents of documents submitted to us
as copies, and the accuracy of the representations and statements included
therein.
Based on the foregoing, we are of the opinion that the shares
of Common Stock being registered by the Registration Statement have been duly
and validly authorized and, if and when issued and sold by the Company in
accordance with the terms of the Plans and the terms of the stock options
issued pursuant thereto, will be validly issued, fully paid and nonassessable.
<PAGE> 2
Antex Biologics Inc.
July 30, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name in the Registration
Statement.
Very truly yours,
/s/ Covington & Burling
COVINGTON & BURLING
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report, dated February 7, 1997, on our audits of the
consolidated financial statements of Antex Biologics Inc. and its subsidiary as
of December 31, 1995 and 1996, and for the years then ended, and for the period
January 1, 1993 to December 31, 1996, which report is included in Antex
Biologics Inc.'s Annual Report on Form 10-KSB for the year ended December 31,
1996.
Coopers & Lybrand L.L.P.
Rockville, Maryland
July 30, 1997
<PAGE> 1
Exhibit 99.1
ANTEX BIOLOGICS INC.
AMENDED AND RESTATED STOCK OPTION PLAN
1. Purpose.
The purpose of the Antex Biologics Inc. Amended and Restated
Stock Option Plan (the "Plan") is to secure for Antex Biologics Inc. (the
"Company") and its shareholders the benefits of providing equity incentives to
officers, key employees, consultants, and members of an advisory board of the
Company who are expected to contribute to the Company's future growth and
success. Except where the context otherwise requires, the term "Company" shall
include any parent and subsidiary of the Company as defined in Section 424(e)
and 424(f), respectively, of the Internal Revenue Code of 1986, as amended or
replaced from time to time (the "Code").
2. Type of Options and Administration.
(a) Types of Options. Options granted pursuant to the
Plan shall be either incentive stock options within the meaning of Section 422
of the Code ("Incentive Stock Options") or options that are not Incentive Stock
Options ("Non-Statutory Options").
(b) Administration. The Plan shall be administered by a
committee of the Board of Directors of the Company (the "Committee") (i) having
at least such number of members as is required to meet the requirements of Rule
16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any successor rule or regulation ("Rule 16b-3"), each of
whom is a disinterested person within the meaning of Rule 16b-3 and (ii) to the
extent that it is determined desirable to exempt any compensation resulting
from the exercise of options granted under the Plan from the limitation on
deductions imposed by Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code") and the rules and regulations thereunder ("Section
162(m)"), having such composition to exempt such compensation under Section
162(m). Except as set forth below, the Committee may in its sole discretion
grant options to purchase shares of the Company's Common Stock, $0.01 par value
("Common Stock"). The Committee shall have authority, subject to the express
provisions of the Plan, to construe the respective option agreements and the
Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, to determine the terms and provisions of the respective option
agreements, which need not be identical, and to make any other determination in
the judgment of the Committee necessary or desirable for the administration of
the Plan. The Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any option agreement in the
manner and to the extent it shall deem expedient to carry the Plan into effect.
Notwithstanding the foregoing, except (i) with respect to the application of
the Plan to
<PAGE> 2
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directors and officers within the meaning of Section 16 of the Exchange Act
("Insiders") and (ii) to the extent necessary or desirable to avoid the
limitation on deductions imposed by Section 162(m), the Board of Directors may
perform any or all functions of the Committee under the Plan (in which case
each reference herein to the Committee shall be deemed a reference to the Board
of Directors). All actions taken by the Committee or the Board of Directors in
connection with the administration of the Plan shall be final and conclusive.
No member of either the Committee or the Board of Directors shall be liable for
any actions taken or determinations made in good faith.
(c) Applicability of Rule 16b-3. Those provisions of the
Plan which make express reference to Rule 16b-3 shall apply only to Insiders.
3. Eligibility.
(a) General. Options shall be granted only to persons
who are, at the time of grant, (i) salaried employees of the Company (including
officers and directors who are employees), (ii) members of an advisory board of
the Company or (iii) consultants of, or advisors to, the Company; provided,
however, that the persons to whom Incentive Stock Options may be granted shall
be limited to salaried employees (including officers and directors who are
employees) of the Company. Directors who are not salaried employees of the
Company shall not be eligible to receive options. An Incentive Stock Option
may be granted to a person who, at the time such option is granted, owns,
directly or indirectly, stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company, only if the requirements
of paragraph (b) of Section 11 are satisfied. The attribution of stock
ownership provisions of Section 424(d) of the Code, and any successor
provisions thereto, shall be applied in determining the shares of stock owned
by a person for purposes of applying the foregoing percentage limitation.
(b) Limitations on Awards. No person may receive options
to purchase more than 5,000,000 shares of Common Stock (subject to adjustment
as provided in Section 15) in any three calendar years during the term of Plan.
For purposes of the application of this limitation, if an option is cancelled,
the shares of Common Stock subject to the cancelled option shall continue to be
counted against the maximum number of shares for which options may be granted
to the individual. If, after a grant of an option, the option exercise price
is reduced, the transaction shall be treated as a cancellation of the option
and a grant of a new option, and both the shares of Common Stock subject to the
option that is deemed to be cancelled and the shares of Common Stock subject to
the option that is deemed to be granted shall reduce the maximum number of
shares of Common Stock for which options may be granted to the individual.
<PAGE> 3
- 3 -
4. Stock Subject to Plan.
Subject to adjustment as provided in Section 15 below, the
maximum number of shares of Common Stock of the Company which may be issued and
sold under the Plan is equal to 7,500,000 shares (including shares with respect
to which options were granted under the Plan prior to its amendment and
restatement). Such shares may be authorized and unissued shares or may be
shares that previously were issued and thereafter acquired by the Company. If
an option granted under the Plan (including options that were granted under the
Plan prior to its amendment and restatement) shall expire or terminate for any
reason without having been exercised in full, the unpurchased shares subject to
such option shall be reinstated as shares in respect of which options may be
granted under the Plan. However, if shares issued upon exercise of an option
under the Plan are tendered to, or withheld by, the Company either in payment
of the exercise price of an option granted under the Plan or in satisfaction of
any withholding tax obligation arising under the Plan, such tendered shares
shall not again be available for subsequent option grants under the Plan.
5. Forms of Option Agreements.
As a condition to the grant of an option under the Plan, each
optionee shall execute an option agreement in such form not inconsistent with
the Plan as may be approved by the Committee. Such option agreements may
differ among optionees. Each option agreement shall state whether the options
granted thereby are Incentive Stock Options or Non-Statutory Options.
Appropriate officers of the Company are hereby authorized to execute and
deliver option agreements in the name of the Company as directed from time to
time by the Committee.
6. Purchase Price.
(a) General. The purchase price per share of Common
Stock deliverable upon the exercise of an option shall be determined by the
Committee; provided, however, that (i) in the case of an Incentive Stock
Option, the purchase price per share shall not be less than 100% of the fair
market value of a share at the time of grant of such option, or less than 110%
of such fair market value in the case of such an option granted to a person
described in paragraph (b) of Section 11, and (ii) in the case of a
Non-Statutory Option, the purchase price per share shall not be less than 50%
of the fair market value of a share at the time of grant of such option (except
that in the case of such an option that is intended to be exempt from the
limitation on deductions under Section 162(m), the purchase price per share
shall not be less than 100% of the fair market value of a share on the date of
the grant of such option). In no event may an option be granted if the
purchase price per share is less than the par value of a share. For purposes
of this Plan, the "fair market value" of a share of Common Stock on a certain
date shall be deemed to be (x) the last sale price on NASDAQ or a national
security
<PAGE> 4
- 4 -
exchange on that date if shares are so listed or (y) if shares are not so
listed, the price determined in good faith by the Committee.
(b) Payment of Purchase Price. Options granted under the
Plan may provide for the payment of the purchase price by delivery of cash or a
check to the order of the Company in an amount equal to the purchase price of
the aggregate number of shares being purchased, or, to the extent provided in
the applicable option agreement, (i) by delivery to the Company of shares of
Common Stock already owned by the optionee having a fair market value equal in
amount to the purchase price of the aggregate number of shares being purchased,
or (ii) by any other means (including, without limitation, by delivery of a
promissory note of the optionee payable on such terms as are specified by the
Committee) which the Committee determines are consistent with the purpose of
the Plan and with applicable laws and regulations (including, without
limitation, the provisions of Rule 16b-3, the margin regulations promulgated by
the Board of Governors of the Federal Reserve Board System and Section 162(m),
as applicable) or (iii) by any combination of such methods of payment. The
fair market value of any consideration other than shares of Common Stock that
is permitted to be in payment of the exercise price of an option shall be
determined in such manner as may be prescribed by the Committee.
7. Option Period.
Each option and all rights thereunder shall expire on such
date as the Committee shall determine, but in no event after the expiration of
ten years from the day on which the option is granted (or five years in the
case of Incentive Stock Options granted to persons described in paragraph (b)
of Section 11) and shall be subject to earlier termination as provided in the
Plan or the applicable option agreement.
8. Exercise of Options.
Each option granted under the Plan shall be exercisable either
in full or in installments at such time or times and during such period as
shall be set forth in the agreement evidencing such option, subject to the
provisions of the Plan.
9. Nontransferability of Options.
Except as set forth herein, no option granted under the Plan
shall be assignable or transferable by the person to whom it is granted, either
voluntarily or by operation of law, except by will or the laws of descent and
distribution, and during the life of the optionee, shall be exercisable only by
the optionee; provided, however, that Non-Statutory Options may be transferred
pursuant to a qualified domestic relations order (as defined in Section 414(p)
of the Code).
<PAGE> 5
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10. Effect of Termination of Employment or Other Relationship.
Subject to Section 11(d) in the case of an Incentive Stock
Option, the Committee shall determine the period of time during which an
optionee may exercise an option following (i) the termination of the optionee's
employment or other relationship with the Company or (ii) the death or
disability of the optionee. Such periods shall be set forth in the option
agreement. Whether an authorized leave of absence, or absence in military or
government service, shall constitute termination of employment shall be
determined at the time of such absence in accordance with the provisions of
Section 1.421-7(h) of the Income Tax Regulations (or any successor
regulations).
11. Incentive Stock Options.
Options granted under the Plan which are intended to be
Incentive Stock Options shall be subject to the following additional terms and
conditions.
(a) Express Designation. All Incentive Stock Options
granted under the Plan shall, at the time of the grant, be specifically
designated as such in the option agreement covering such Incentive Stock
Options.
(b) 10% Shareholder. If any employee to whom an
Incentive Stock Option is to be granted under the Plan is, at the time of the
grant of such option, the owner of stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company (after taking into
account the attribution of stock ownership rules of Section 424(d) of the
Code), then the following special provisions shall be applicable to the
Incentive Stock Option granted to such individual:
(i) The purchase price per share of the Common Stock
subject such Incentive Stock Option shall not be less than
110% of the fair market value of one share of Common Stock at
the time of grant; and
(ii) The term of such Incentive Stock Option shall not
exceed five years from the date of grant.
(c) Dollar Limitation. For so long as the Code shall so
provide, options granted to any employee under the Plan (and any other stock
option plans of the Company) which are intended to constitute Incentive Stock
Options shall not constitute Incentive Stock Options to the extent that such
options, in the aggregate, become exercisable for the first time in any one
calendar year for shares of Common Stock with an aggregate fair market value
(determined as of the respective date or dates of grant) of more than $100,000.
This subsection (c) shall be applied by taking options into account in the
order in which they were granted.
<PAGE> 6
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(d) Termination of Employment. Unless the Committee
provides otherwise at the time of grant of an Incentive Stock Option, an
Incentive Stock Option shall remain exercisable after the optionee's
termination of employment according to the following schedule:
(i) Upon termination of the optionee's employment with
the Company for any reason other than death or total or
permanent disability (within the meaning of Section 22(e)(3)
of the Code) ("Disability"), an optionee may exercise an
Incentive Stock Option, to the extent then exercisable, at any
time within the period of three months after the date the
optionee ceases to be an employee of the Company, but not
after such period;
(ii) If the optionee dies while in the employ of the
Company or while the option is exercisable pursuant to
paragraph (i) or (iii), the Incentive Stock Option may be
exercised, to the extent then exercisable, by the person to
whom it is transferred by will or the laws of descent and
distribution at any time within the period of one year after
the date of death, but not after such period; and
(iii) If the optionee's employment with Company terminates
because of Disability, the Incentive Stock Option may be
exercised, to the extent then exercisable, within the period
of one year after the date the optionee ceases to be an
employee of the Company, but not after such period;
Notwithstanding any other provision of this Section 11, in no event may any
Incentive Stock Option be exercised after the expiration date of the option.
If an Incentive Stock Option fails to qualify as an Incentive Stock Option
because of the length of the period between the termination of employment and
the exercise of the option, the exercise of the option shall be treated as the
exercise of a Non-Statutory Option. For all purposes of the Plan and any
option granted hereunder, "employment" shall be defined in accordance with the
provisions of Section 1.421-7(h) of the Income Tax Regulations (or any
successor regulations).
(e) Any optionee who disposes of shares of Common Stock
purchased upon the exercise of an Incentive Stock Option either (i) within two
years after the date on which the option was granted, or (ii) within one year
after the transfer of such shares of Common Stock to the optionee, shall
promptly notify the Company of the date of such disposition and of the amount
realized upon such disposition.
12. Additional Provisions.
(a) Additional Option Provisions. The Committee may, in
its sole discretion, include additional provisions in any option granted under
the Plan, including without limitation restrictions on transfer, repurchase
rights, commitments to pay cash
<PAGE> 7
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bonuses, to make, arrange for or guaranty loans or to transfer other property
to optionees upon exercise of options, or such other provisions as shall be
determined by the Committee with the approval of the Board of Directors;
provided that such additional provisions shall not be inconsistent with any
other term or condition of the Plan and such additional provisions shall not
cause an Incentive Stock Option granted under the Plan to fail to qualify as an
Incentive Stock Option within the meaning of Section 422 of the Code or an
option granted to an Insider under the Plan to fail to comply with Rule 16b-3.
(b) Acceleration. The Committee may, in its sole
discretion, (i) accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or (ii) extend the
dates during which all or any particular option or options granted under the
Plan may be exercised; provided, however, that no such acceleration or
extension shall be permitted, without the consent of the optionee, if it would
cause an Incentive Stock Option granted under the Plan to fail to qualify as an
Incentive Stock Option within the meaning of Section 422 of the Code or an
option granted to an Insider under the Plan to fail to comply with Rule 16b-3.
13. General Restrictions.
(a) Investment Representations. The Company may require
any optionee, as a condition of exercising such option, to give written
assurances in substance and form satisfactory to the Company to the effect that
such optionee is acquiring the Common Stock subject to the option for his or
her own account for investment and not with any present intention of selling or
otherwise distributing the same, and to such other effects as the Company deems
necessary or appropriate in order to comply with federal and applicable state
securities laws.
(b) Compliance With Securities Laws. Each option shall
be subject to the requirement that if, at any time, counsel to the Company
shall determine that the listing, registration or qualification of the shares
subject to such option upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental or regulatory body,
or that the disclosure of non-public information or the satisfaction of any
other condition is necessary as a condition of, or in connection with, the
issuance or purchase of shares thereunder, such option may not be exercised, in
whole or in part, unless such listing, registration, qualification, consent or
approval, or satisfaction of such condition shall have been effected or
obtained on conditions acceptable to the Committee. Nothing herein shall be
deemed to require the Company to apply for or to obtain such listing,
registration or qualification, or to satisfy such condition. Any such
postponement or limitation affecting the right to exercise an option or the
grant or distribution of an option or shares shall not extend the time within
which the option may be granted or exercised or the shares distributed, unless
the Company and the optionee choose to amend the terms of the option to provide
for such an extension; and neither the Company, nor any of its directors or
officers shall have any obligation or
<PAGE> 8
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liability to the optionee or to a beneficiary as to any shares to which the
option shall lapse because of such a postponement or limitation.
14. Rights as a Shareholder.
The holder of an option shall have no rights as a shareholder
with respect to any shares covered by the option (including, without
limitation, any rights to receive dividends or non-cash distributions with
respect to such shares) until the date of issue of a stock certificate to him
or her for such shares. No adjustment shall be made for dividends or other
rights for which the record date is prior to the date such stock certificate is
issued.
15. Adjustment Provisions for Recapitalization and Related Transactions.
(a) General. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar distribution with respect to the
outstanding shares of Common Stock or other securities, (i) the outstanding
shares of Common Stock are increased or decreased, or are exchanged for a
different number or kind of shares or other securities of the Company, or (ii)
additional shares or new or different shares or other securities of the Company
or other non-cash assets are distributed with respect to such shares of Common
Stock or other securities, an appropriate and proportionate adjustment may be
made in (w) the maximum number and kind of shares reserved for issuance under
the Plan as provided in Section 4, (x) the number of shares with respect to
which options may be granted to an optionee within any three-year period as
provided in Section 3(b), (y) the number and kind of shares or other securities
subject to then outstanding options under the Plan, and (z) the purchase price
for each share subject to any then outstanding options under the Plan, but
without changing the aggregate purchase price as to which such options remain
exercisable, provided that no adjustment shall be made pursuant to this Section
15, without the consent of the optionee, if such adjustment would cause an
Incentive Stock Option granted under the Plan to fail to qualify as an
Incentive Stock Option within the meaning of Section 422 of the Code or an
option granted to an Insider under the Plan to fail to comply with Rule 16b-3.
(b) Committee Authority to Make Adjustments. Adjustments
under this Section 15 shall be made by the Committee, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive.
16. Merger, Consolidation, Asset Sale, Liquidation, etc.
(a) General. In the event of a consolidation or merger
or sale of all or substantially all of the assets of the Company in which
outstanding shares of Common Stock are exchanged for securities, cash or other
property of any other corporation or
<PAGE> 9
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business entity, or in the event of a liquidation of the Company, the
Committee, or the entity performing a similar function on behalf of any
corporation assuming the obligations of the Company, may, in its sole
discretion, take any one or more of the following actions as to outstanding
options: (i) provide that such options shall be assumed, or equivalent options
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof), provided that any such options substituted for Incentive
Stock Options shall meet the requirements of Section 424(a) of the Code, (ii)
upon written notice to the optionees, provide that all unexercised options will
terminate immediately prior to the consummation of such transaction unless
exercised by the optionee within a specified number of days following the date
of such notice, (iii) in the event of a merger under the terms of which holders
of the Common Stock will receive upon consummation thereof a cash payment for
each share surrendered in the merger (the "Merger Price"), make or provide for
a cash payment to the optionees equal to the difference between (A) the Merger
Price times the number of shares of Common Stock subject to such outstanding
options (to the extent exercisable at prices not in excess of the Merger Price)
and (B) the aggregate exercise price of all such outstanding options in
exchange for the termination of such options, or (iv) provide that all or any
outstanding options shall become exercisable in full immediately prior to such
event. In any such case, the Committee may, in its sole discretion, advance
the lapse of any waiting or installment periods and exercise dates.
(b) Substitute Option. The Company may grant options
under the Plan in substitution for options held by employees of another
corporation who become employees of the Company, or a subsidiary of the
Company, as the result of a merger or a consolidation of the employing
corporation with the Company or a subsidiary of the Company, or as a result of
the acquisition by the Company, or one of its subsidiaries, of property or
stock of the employing corporation. Such substitute options shall be granted
on such terms and conditions as the Committee considers appropriate in the
circumstances.
17. Change in Control.
Notwithstanding any other provision of the Plan and except as
otherwise provided in the relevant option or award agreement, in the event of a
"Change in Control of the Company" (as defined below), the exercise dates of
all options then outstanding shall be accelerated in full and any restrictions
on exercising outstanding options issued pursuant to the Plan prior to any
given date shall terminate. For purposes of the Plan, a "Change in Control of
the Company" shall occur or be deemed to have occurred only if (i) any
"person", as such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Company, or any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities; (ii) during
any period of two consecutive years ending during the term of the Plan (not
including any period prior to the adoption of the Plan),
<PAGE> 10
- 10 -
individuals who at the beginning of such period constitute the Board of
Directors of the Company, and any new director (other than a director
designated by a person who has entered into an agreement with the Company to
effect any transaction described in clause (i), (iii) or (iv) of this Section
17) whose election by the Board of Directors or nomination for election by the
Board of Directors or nomination for election by the Company's shareholders was
approved by a vote of at least a majority of the directors then still in office
who were either directors at the beginning of the period or whose election or
whose nomination for election was previously so approved (collectively, the
"Disinterested Directors"), cease for any reason to constitute a majority of
the Board of Directors; (iii) the shareholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than (A) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which
no "person" (as hereinabove defined) acquires more than 50% of the combined
voting power of the Company's then outstanding securities; or (iv) the
shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets which, in either case, has not
previously been approved by a majority of the Disinterested Directors.
18. No Special Employment Rights.
Nothing contained in the Plan or in any option shall confer
upon any optionee any right with respect to the continuation of his or her
employment by the Company or interfere in any way with the right of the Company
at any time to terminate such employment or to increase or decrease the
compensation of the optionee.
19. Other Employee Benefits.
Except as to plans which by their terms include such amounts
as compensation, neither the amount of any compensation deemed to be received
by an employee as a result of the exercise of an option nor the sale of shares
received upon such exercise shall constitute compensation with respect to which
any other employee benefits of such employee are determined, including, without
limitation, benefits under any bonus, pension, profit-sharing, life insurance
or salary continuation plan, except as otherwise specifically determined by the
Board of Directors.
20. Fractional Shares.
No fractional shares shall be issued pursuant to the exercise
of any option granted under the Plan. The Board of Directors shall determine
whether cash, other
<PAGE> 11
- 11 -
securities, or other property shall be paid or transferred in lieu of
fractional shares, or whether fractional shares or any rights thereto shall be
cancelled, terminated or otherwise eliminated.
21. Amendment or Termination of the Plan.
(a) Except as set forth herein, the Board of Directors
may at any time, and from time to time terminate the Plan or modify or amend
the Plan in any respect, except that if at any time the approval of the
shareholders of the Company is required as to such modification or amendment
under Section 422 of the Code or any successor provision with respect to
Incentive Stock Options or under Rule 16b-3 with respect to options granted to
insiders, the Board of Directors may not effect such modification or amendment
without such approval.
(b) The termination or any modification or amendment of
the Plan shall not, without the consent of an optionee, affect his or her
rights under an option previously granted to him or her. With the consent of
the optionee affected, the Board of Directors may amend outstanding option
agreements in a manner not inconsistent with the Plan. The Board of Directors
shall have the right to amend or modify (i) the terms and provisions of the
Plan and of any outstanding Incentive Stock Options granted under the Plan to
the extent necessary to qualify any or all such options for such favorable
federal income tax treatment (including deferral of taxation upon exercise) as
may be afforded Incentive Stock Options under Section 422 of the Code and (ii)
the terms and provisions of the Plan and of any outstanding option to the
extent necessary to ensure the qualification of the Plan under Rule 16b-3 or
any successor rule.
22. Withholding.
The Company shall have the right to deduct from payments of
any kind otherwise due to the optionee any federal, state or local taxes of any
kind required by law to be withheld with respect to any shares issued upon
exercise of options under the Plan. Subject to the prior approval of the
Committee, which may be withheld by the Committee in its sole discretion, the
optionee may elect to satisfy such obligations, in whole or in part, (i) by
causing the Company to withhold shares of Common Stock otherwise issuable
pursuant to the exercise of an option or (ii) by delivering to the Company
shares of Common Stock already owned by the optionee. Any shares so delivered
or withheld shall be valued at their fair market value as of the date that the
amount of tax to be withheld is to be determined. In the event that shares of
Common Stock are being delivered to the Company pursuant to this Section 22, an
optionee may satisfy his or her withholding obligation only with shares of
Common Stock which are not subject to any repurchase, forfeiture, unfulfilled
vesting or other similar requirements.
<PAGE> 12
- 12 -
23. Cancellation and New Grant of Options.
The Committee shall have the authority, at any time and from
time to time, with the consent of the affected optionees, (i) to cancel any or
all outstanding options under the Plan and to grant in substitution therefor
new options under the Plan covering the same or different numbers of shares of
Common Stock having an option exercise price per share which may be lower or
higher than the exercise price per share of the cancelled options or (ii) to
amend the terms of any and all outstanding options under the Plan to provide an
option exercise price per share which is higher or lower than the then-current
exercise price per share of such outstanding options.
24. Effective Date and Duration of the Plan.
(a) Effective Date. This amendment and restatement of
the Plan shall become effective when adopted by the Board of Directors, but
Incentive Stock Options and any options granted to Insiders from the additional
shares of Common Stock authorized for delivery by this amended and restated
Plan shall not become exercisable unless and until the amended and restated
Plan shall have been approved by the Company's shareholders in accordance with
the requirements of the Code and Rule 16b-3. If such shareholder approval is
not obtained within twelve months after the date of the Board's adoption of
this amended and restated Plan, any such options shall terminate and no other
such options shall be granted. For the purpose of commencing the ten-year
period specified in Section 422(b)(2) of the Code during which Incentive Stock
Options may be granted, this amendment and restatement of the Plan shall
constitute the adoption of a new Plan. Except as provided in this Plan
immediately prior to its amendment and restatement, any option that was
outstanding on the date of the adoption of this amended and restated Plan by
the Board of Directors shall be governed by the terms of this amended and
restated Plan.
(b) Termination. Unless sooner terminated in accordance
with Section 16 or Section 21, the Plan shall terminate with respect to
Incentive Stock Options, upon the earlier of (i) the close of business on the
day next preceding the tenth anniversary of the date of the adoption of this
amended and restated Plan by the Board of Directors, or (ii) the date on which
all shares available for issuance under the Plan shall have been issued
pursuant to the exercise or cancellation of options granted under the Plan.
Unless sooner terminated in accordance with Section 16, the Plan shall
terminate with respect to options which are not Incentive Stock Options on the
date specified in (ii) above. If the date of termination is determined under
(i) above, then options outstanding on such date shall continue to have force
and effect in accordance with the provisions of the instruments evidencing such
options.
<PAGE> 13
- 13 -
25. Unfunded Plan
Any liability of the Company to any optionee or beneficiary
with respect to an option shall be based solely upon the contractual
obligations created pursuant to the provisions of the Plan and the option
agreement; no such obligation shall be deemed to be secured by any pledge of,
or encumbrance on, any property of the Company.
26. Governing Law
The Plan shall be governed and its provisions construed,
enforced and administered in accordance with the laws of Maryland, except to
the extent that such laws may be superseded by any federal law.
As amended by the Board of Directors through January 21, 1997
<PAGE> 1
Exhibit 99.2
AMENDED AND RESTATED
ANTEX BIOLOGICS INC.
1992 DIRECTORS' STOCK OPTION PLAN
1. Purpose.
The purpose of this 1992 Directors' Stock Option Plan (the "Plan") of
Antex Biologics Inc. (the "Company") is to promote the recruiting and retention
of highly qualified outside Directors and to strengthen the commonality of
interest between directors and shareholders. Except where the context
otherwise requires, the term "Company" shall include all present and future
subsidiaries of the Company as defined in Sections 424(e) and 424(f) of the
Internal Revenue Code of 1986, as amended or replaced from time to time (the
"Code").
2. Administration.
The Plan will be administered by the Board of Directors of the
Company, whose construction and interpretation of the terms and provisions of
the Plan shall be final and conclusive. Grants of stock options under the Plan
and the amount and nature of the awards to be granted shall be automatic and
nondiscretionary in accordance with Section 5. However, all questions of
interpretation of the Plan or of any options issued under it shall be
determined by the Board of Directors and such determination shall be final and
binding upon all persons having an interest in the Plan. No director shall be
liable for any action or determination under the Plan made in good faith.
3. Participation in the Plan.
Directors of the Company who are not employees of the Company shall be
eligible to be granted options under the Plan.
4. Stock Subject to the Plan.
(a) The maximum number of shares which may be issued under the Plan
shall be 1,700,000 shares of the Company's Common Stock, $0.01 par value per
share ("Common Stock"), subject to adjustment as provided in Section 9.
(b) If any outstanding option under the Plan for any reason expires or
is terminated without having been exercised in full, the shares allocable to
the unexercised portion of such option shall again become available for grant
pursuant to the Plan.
(c) All options granted under the Plan shall be nonstatutory options
which are not intended to meet the requirements of Section 422 of the Code.
<PAGE> 2
5. Terms, Conditions and Form of Options.
Each option granted under the Plan shall be evidenced by a written
agreement in such form as the Board of Directors shall from time to time
approve, which agreements shall comply with and be subject to the following
terms and conditions:
(a) Option Grant Dates. Following approval of the Plan by the holders
of a majority of the shares of Common Stock present or represented at a meeting
of the Company's shareholders duly called and held in accordance with the
Company's by-laws and applicable law, options shall be granted automatically to
all eligible directors as follows: (i) each director (an "Original Director")
who is elected to the Board prior to the Company's initial public offering of
shares of its Common Stock (the "Initial Public Offering") and who is eligible
for participation shall be granted an option to purchase 5,000 shares of Common
Stock on the effective date of the Company's Initial Public Offering (the
"Original Options"); (ii) after the date of the Initial Public Offering and
prior to May 21, 1996, the date of the annual stockholders' meeting (the "1996
Annual Meeting"), each Original Director and each person who becomes an
eligible director shall be granted annually an option to purchase 7,500 shares
of Common Stock on the close of business on the date of his or her initial
election to the Board of Directors or at the time of his or her re-election at
the annual stockholders' meeting, or if such director is continuing in his or
her term, at the time of the annual stockholders' meeting, as applicable,
provided he or she is an eligible director on the date of grant; and (iii) on
and after the date of the 1996 Annual Meeting, each director who is eligible to
participate in the Plan shall receive an option to purchase shares of Common
Stock as follows: (A) each eligible director who has served on the Board of
Directors for at least three years as of the date of the 1996 Annual Meeting
shall be granted (I) on the date of the 1996 Annual Meeting, and on the date of
the Annual Meeting every third year thereafter, an option to purchase the
number of shares of Common Stock equal to $20,000 divided by the Fair Market
Value of the Common Stock, and multiplied by a factor of 2.5, and (II) on the
date of each other Annual Meeting after the 1996 Annual Meeting, an option to
purchase the number of shares of Common Stock equal to $20,000 divided by the
Fair Market Value of the Common Stock, and (B) each eligible director who has
served on the Board of Directors for fewer than three years as of the date of
the 1996 Annual Meeting shall be granted (I) on the date of the first Annual
Meeting following the completion of three years of service, and on the date of
the Annual Meeting every third year thereafter, an option to purchase the
number of shares of Common Stock equal to $20,000 divided by the Fair Market
Value of the Common Stock, and multiplied by a factor of 2.5, and (II) on the
date of each other Annual Meeting after the 1996 Annual Meeting, an option to
purchase the number of shares of Common Stock equal to $20,000 divided by the
Fair Market Value of the Common Stock (each option granted pursuant to clause
(ii) or (iii) being referred to as an "Additional Option"). The Fair Market
Value shall be equal to the exercise price of the option calculated in
accordance with paragraph (b), except that in no event shall the Fair Market
Value be less than $0.50 per share.
(b) Option Exercise Price. The option exercise price per share for
each option granted under the Plan shall equal the closing price per share of
the Company's Common Stock on NASDAQ, or the principal exchange on which the
Common Stock is then listed, on the date of
2
<PAGE> 3
grant, and if no such price is reported on such date, such price as reported on
the nearest preceding date on which such price is reported. If any options are
granted on a date on which the Company's stock is listed on the OTC Bulletin
Board (or similar quotation reporting service), the option exercise price per
share shall be the average closing bid price over the thirty trading days
preceding the date of grant. If any options are granted on a date on which the
Common Stock is not listed on an exchange or NASDAQ, the option exercise price
per share shall be the fair market value of the Common Stock as determined by
the Board of Directors in its sole discretion.
(c) Options Non-Transferable. Each option granted under the Plan by
its terms shall not be transferable by the optionee otherwise than by will or
by the laws of descent and distribution, or pursuant to a qualified domestic
relations order (as defined in Section 414(p) of the Code) and shall be
exercised during the lifetime of the optionee only by such optionee.
(d) Exercise Period. Each Original Option shall become vested and
exercisable upon completion of one year of service, and may be exercised
thereafter from time to time, in whole or in part, prior to the fifth
anniversary of the date of grant. Each Additional Option shall vest quarterly
in four equal installments over a period of one year following the date of
grant and may be exercised at any time and from time to time, in whole or in
part, prior to the fifth anniversary of the date of grant.
(e) Exercise Procedure. Options may be exercised only by written
notice to the Company at its principal office accompanied by payment of the
full consideration for the shares as to which they are exercised.
(f) Payment of Purchase Price. Payment of the exercise price may be
made, at the election of the optionee, (i) by delivery of cash or a check to
the order of the Company in an amount equal to the exercise price, (ii) by
delivery to the Company of shares of Common Stock of the Company already owned
and held by the optionee for at least twelve months and having a fair market
value equal in amount to the exercise price of the options being exercised, or
(iii) by any combination of such methods of payment. The fair market value of
any shares of Common Stock which may be delivered upon exercise of an option
shall be determined by the Company as of the date that such shares are
delivered.
6. Assignments.
The rights and benefits under the Plan may not be assigned except as
provided in Section 5.
7. Time for Granting Options.
No options for shares subject to the Plan shall be granted after the
termination date of the Plan as provided for in Section 14(b).
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<PAGE> 4
8. Limitation of Rights.
(a) No Right to Continue as a Director. Neither the Plan, nor the
granting of an option nor any other action taken pursuant to the Plan, shall
constitute or be evidence of any agreement or understanding, express or
implied, that the Company will retain a director for any period of time.
(b) No Shareholder Rights for Options. An optionee shall have no
rights as a shareholder with respect to the shares covered by his or her option
until the date of the issuance to him or her of a stock certificate therefor,
and no adjustment will be made for dividends or other rights for which the
record date is prior to the date such certificate is issued.
9. Adjustment Provisions.
(a) Recapitalizations. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar transaction, (i) the outstanding
shares of Common Stock are increased or decreased or are exchanged for a
different number or kind of shares or other securities of the Company, or (ii)
additional shares or new or different shares or other securities of the Company
or other non-cash assets are distributed with respect to such shares of Common
Stock or other securities, an appropriate and proportionate adjustment may be
made in (x) the maximum number and kind of shares reserved for issuance under
the Plan, (y) the number and kind of shares or other securities subject to then
outstanding options under the Plan, and (z) the price for each share subject to
any then outstanding options under the Plan, without changing the aggregate
purchase price as to which such options remain exercisable, provided that no
adjustment shall be made pursuant to this Section 9 if such adjustment would
cause the Plan to fail to comply with Rule 16b-3 under the Securities Exchange
Act of 1934 (the "Exchange Act"), or any successor rule ("Rule 16b-3").
(b) Mergers. In the event of a consolidation or merger or sale of all
or substantially all of the assets of the Company in which outstanding shares
of Common Stock are exchanged for securities, cash or other property of any
other corporation or business entity or in the event of a liquidation of the
Company, the Board of Directors of the Company, or the board of directors of
any corporation assuming the obligations of the company, may, in its
discretion, take any one or more of the following actions, as to outstanding
options: (i) provide that such options shall be assumed, or equivalent options
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof), (ii) upon written notice to the optionees, provide that all
unexercised options will terminate immediately prior to the consummation of
such transaction unless exercised by the optionee within a specified period
following the date of such notice; and (iii) in the event of a merger under the
terms of which holders of the Common Stock of the Company will receive upon
consummation thereof a cash payment for each share surrendered in the merger
(the "Merger Price"), make or provide for a cash payment to the optionees equal
to the difference between (A) the Merger Price times the number of shares of
Common Stock subject to such outstanding options (to the extent then
exercisable at prices not in excess of the Merger Price)
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<PAGE> 5
and (B) the aggregate exercise price of all such outstanding options in
exchange for the termination of such options.
10. Change in Control.
Notwithstanding any other provision of the Plan, in the event of a
"Change in Control of the Company" (as defined below), any restrictions on
exercising outstanding options issued pursuant to the Plan prior to any given
date shall terminate. For purposes of the Plan, a "Change in Control of the
Company" shall occur or be deemed to have occurred only if (i) any "person", as
such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than
the Company, any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or any corporation owned directly or
indirectly by the shareholders of the Company in substantially the same
proportion as their ownership of stock of the Company), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities; (ii) during
any period of two consecutive years ending during the term of the Plan (not
including any period prior to the adoption of the Plan), individuals who at the
beginning of such period constitute the Board of Directors of the Company, and
any new director (other than a director designated by a person who has entered
into an agreement with the Company to effect any transaction described in
clause (i), (iii) or (iv) of this Section 10) whose election by the Board of
Directors or nomination for election by the Company's shareholders was approved
by a vote of at least twothirds of the directors then still in office who were
either directors at the beginning of the period or whose election or whose
nomination for election was previously so approved (collectively, the
"Disinterested Directors"), cease for any reason to constitute a majority of
the Board of Directors; (iii) the shareholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than (A) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which
no "person" (as hereinabove defined) acquires more than 50% of the combined
voting power of the Company's then outstanding securities; or (iv) the
shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets which, in either case, has not
previously been approved by a majority of the disinterested Directors.
11. Amendment of the Plan.
(a) The provisions of Sections 3, 5(a) and 5(b) of the Plan shall not
be amended more than once every six months, other than to comport with changes
in the Code, the Employee Retirement Income Security Act of 1974, or the rules
thereunder. Subject to the foregoing, the Board of Directors may at any time,
and from time to time, modify or amend the Plan in any
5
<PAGE> 6
respect, except that if at any time the approval of the shareholders of the
Company is required as to such modification or amendment under Rule 16b-3, the
Board of Directors may not effect such modification or amendment without such
approval.
(b) The termination or any modification or amendment of the Plan shall
not, without the consent of an optionee, affect his or her rights under an
option previously granted to him or her. With the consent of the optionees
affected, the Board of Directors may amend outstanding option agreements in a
manner not inconsistent with the Plan. The Board of Directors shall have the
right to amend or modify the terms and provisions of the Plan and of any
outstanding option to the extent necessary to ensure the qualification of the
Plan under Rule 16b-3.
12. Withholding.
The Company shall have the right to deduct from payments of any kind
otherwise due to the optionee any federal, state or local taxes of any kind
required by law to be withheld with respect to any shares issued upon exercise
of options under the Plan. Subject to the prior approval of the Company, which
may be withheld by the Company in its sole discretion, the optionee may elect
to satisfy such obligations, in whole or in part, (i) by causing the Company to
withhold shares of Common Stock otherwise issuable pursuant to the exercise of
an option or (ii) by delivering to the Company shares of Common Stock already
owned by the optionee. The shares so delivered or withheld shall have a fair
market value equal to such withholding obligation. The fair market value of
the shares used to satisfy such withholding obligation shall be determined by
the Company as of the date that the amount of tax to be withheld is to be
determined. An optionee who has made an election pursuant to this Section 12
may only satisfy his or her withholding obligation with shares of Common Stock
which are not subject to any repurchase, forfeiture, unfulfilled vesting or
other similar requirements. Notwithstanding the foregoing, no election to use
shares for the payment of withholding taxes shall be effective unless made in
compliance with any applicable requirements of Rule 16b-3.
13. Notice.
Any written notice to the Company required by any of the provisions of
the Plan shall be addressed to the Chief Executive Officer of the Company and
shall become effective when it is received.
14. Effective Date and Duration of the Plan.
(a) Effective Date. The Plan shall become effective when adopted by
the Board of Directors, but no option granted under the Plan shall become
exercisable unless and until the Plan shall have been approved by the Company's
shareholders. If such shareholder approval is not obtained within twelve
months after the date of the Board's adoption of the Plan, all options granted
under the Plan shall terminate and no further options shall be granted under
the Plan. Amendments to the Plan not requiring shareholder approval shall
become effective when adopted by the Board of Directors; amendments requiring
shareholder approval (as provided in section
6
<PAGE> 7
11(a)) shall become effective when adopted by the Board of Directors, but no
option issued after the date of such amendment shall become exercisable (to the
extent that such amendment to the Plan was required to enable the Company to
grant such option to a particular optionee) unless and until such amendment
shall have been approved by the Company's shareholders. If such shareholder
approval is not obtained within twelve months of the Board's adoption of such
amendment, any options granted on or after the date of such amendment shall
terminate to the extent that such amendment to the Plan was required to enable
the Company to grant such option to a particular optionee. Subject to this
limitation, options may be granted under the Plan at any time after the
effective date and before the date fixed for termination of the Plan.
(b) Termination. Unless earlier terminated pursuant to Section 9, the
Plan shall terminate upon the earlier of (i) the day following the date of the
Company's annual shareholders' meeting in 2002, or (ii) the date on which all
shares available for issuance under the Plan shall have been issued pursuant to
the exercise of options granted under the Plan. If the date of termination is
determined under (i) above, then options outstanding on such date shall
continue to have force and effect in accordance with the provisions of the
instruments evidencing such options.
15. General Restrictions.
(a) Investment Representations. The Company may require any person to
whom an option is granted, as a condition of exercising such option, to give
written assurances in substance and form satisfactory to the Company to the
effect that such person is acquiring the Common Stock subject to the option for
his or her own account for investment and not with any present intention of
selling or otherwise distributing the same, and to such other effects as the
Company deems necessary or appropriate in order to comply with federal and
applicable state securities laws.
(b) Compliance With Securities Laws. Each option shall be subject to
the requirement that if, at any time, counsel to the Company shall determine
that the listing, registration or qualification of the shares subject to such
option upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with, the issuance or purchase
of shares thereunder, such option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or
satisfaction of such condition shall have been effected or obtained on
conditions acceptable to the Board of Directors. Nothing herein shall be
deemed to require the Company to apply for or to obtain such listing,
registration or qualification, or to satisfy such condition.
16. Governing Law.
The Plan and all determinations made and actions taken pursuant hereto
shall be governed by the laws of the State of Maryland.
As amended by the Board of Directors through January 21, 1997
7
