As filed with the Securities and Exchange Commission on August 8, 1996
Registration 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Aprogenex, Inc.
(Exact name of registrant as specified in its charter)
Delaware 76-0269632
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8000 El Rio Street,
Houston, Texas 77054-4104
(Address of Principal Executive Offices) (Zip Code)
-------------------
APROGENEX, INC.
DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
------------------
J. Donald Payne
Vice President - Finance, Chief Financial Officer
and Corporate Secretary
8000 El Rio Street, Houston, Texas 77054-4104
(Name and address of agent for service)
(713) 748-5114
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
==================================================================
Proposed Proposed
Title of maximum maximum Amount
securities Amount offering aggregate of
to be to be price per offering registration
registered registered share (1) price fee (2)
- ------------------------------------------------------------------
Common Stock, 50,000 $1.00 $50,000 $18
par value shares
$.001 per
share
==================================================================
(1) Estimated pursuant to Rules 457(c) and (h) solely for purposes
of computing the registration fee and based upon the average of
the high and low sales prices reported on the American Stock
Exchange on August 5, 1996.
(2) In accordance with Rule 429, an additional 100,000 shares of
Common Stock, par value $.001 per share, are being carried forward
from Registration Statement No. 33-94258. The Registrant paid the
filing fee of $196 associated with such shares on July 3, 1995.
Pursuant to Rule 429, the Prospectus to which this Registration
Statement relates is a combined Prospectus that also relates to
Registration Statement No. 33-94258 previously filed by the
Registrant on Form S-8 on July 3, 1995.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information concerning the
Aprogenex, Inc. Director Stock Option Plan (the "Plan") required
by Item 1 of Form S-8 under the Securities Act of 1933, as amended
(the "Securities Act"), and the statement of availability of
registrant information, Plan information and other information
required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428. In accordance with Rule
428 and the requirements of Part I of Form S-8, such documents are
not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
Aprogenex, Inc. (the "Company" or the "Registrant") shall maintain
a file of such documents in accordance with the provisions of Rule
428. Upon request, the Registrant shall furnish to the Commission
or its staff a copy or copies of all of the documents included in
such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents, which the Company has filed with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (File No. 1-12416), are incorporated
in this Registration Statement by reference and shall be deemed to
be a part hereof:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1995;
(b) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A dated September 20,
1993;
(c) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1996;
(d) The Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1996;
(e) The Company's Current Reports on Form 8-K dated April 1, 1996
and June 12, 1996; and
(f) The Company's Proxy Statement dated as of June 7, 1996,
relating to the annual meeting of stockholders held on July
12,1996, as adjourned from June 24, 1996.
All documents filed by the Company with the Commission pursuant to
sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing
of a post-effective amendment of this Registration Statement which
indicates that all securities offered hereby have been sold, or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing of such
documents.
Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the
Registration Statement to the extent that a statement contained
herein or in any subsequently filed supplement to this
Registration Statement or in any document that also is
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of the Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Restated Certificate of Incorporation, as amended, of the
Company limits the personal liability of directors of the Company
to the Company or its stockholders for monetary damages for breach
of fiduciary duty as a director to the fullest extent permitted by
Delaware law. Specifically, directors of the Company will not be
personally liable for monetary damages for breach of a directors'
fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation
Law, which relates to unlawful payments of dividends or unlawful
stock repurchases or redemptions or (iv) for any transaction from
which the director derived an improper personal benefit. The
Delaware General Corporation Law does not eliminate a directors'
duty of care and has no effect on the availability of equitable
remedies such as injunction or rescission based upon a director's
breach of the duty of care.
Section 145 of the Delaware General Corporation Law permits a
Delaware corporation to indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of such corporation), by reason of the fact that
such person is or was a director, officer, employee or agent of
such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that
such officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's
best interests, or, for criminal proceedings, had no reasonable
cause to believe his conduct was illegal. A Delaware corporation
may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in
the performance of his duty. Where an officer or director is
successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the
expenses which such officer or director actually and reasonably
incurred.
The Company's Bylaws provide for the indemnification of its
executive officers and directors, and the advancement to them of
expenses in connection with proceedings and claims, to the fullest
extent permitted by the Delaware General Corporation Law. The
Bylaws include related provisions meant to facilitate the
indemnitees' receipt of such benefits. These provisions cover,
among other things (i) specification of the method of determining
entitlement to indemnification and the selection of independent
counsel that will in some cases make such determination, (ii)
specification of certain time periods by which certain payments or
determinations must be made and actions must be taken and (iii)
the establishment of certain presumptions in favor of an
indemnitee. The benefits of certain of these provisions are
available to an indemnitee only if there has been a change in
control (as defined).
The Company has obtained directors' and officers' liability
insurance. The policy covers certain claims of up to $1 million
per occurrence and $1 million in the aggregate.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibits incorporated by reference to a prior filing are
designated by an asterisk (*).
Exhibit
Number Description
4.1* Amended and Restated Certificate of Incorporation of the
Company. (Incorporated by reference from Exhibit 3.1 to
the Company's Registration Statement on Form SB-2, Reg.
No. 33-66586-FW, declared effective October 15, 1993).
4.2* Certificate of Amendment of Amended and Restated
Certificate of Incorporation of Aprogenex, Inc.
effective as of June 10, 1994 (Incorporated by
reference from Exhibit 3.1 to the Company's Form 10-QSB
for the quarterly period ended June 30, 1994).
4.3* Certificate of Designations of Series A Convertible
Preferred Stock effective May 26, 1995 (Incorporated by
reference from Exhibit 4.4 to the Company's Registration
Statement on Form S3, Reg No. 33-95014, filed July 26,
1995).
4.4* Bylaws of the Company (Incorporated by reference from
Exhibit 4-3 to the Company's Registration Statement on
Form S-3, Reg. No. 33-90514, filed on July 26, 1995).
4.5* Form of Certificate of Common Stock. (Incorporated by
reference from Exhibit 4.1 to the Company's Registration
Statement on Form SB-2, Reg. No. 33-66586-FW, declared
effective October 15, 1993.)
4.6* Convertible Note Subscription Agreement dated as of
May 1, 1996 among Aprogenex, Inc. and the various
purchasers (Incorporated by reference from Exhibit
4.1(a) to the Company's Form 8-K dated as of June 12,
1996).
4.7* Form of Convertible Note dated as of June 12, 1996
(Incorporated by reference from Exhibit 4.1(b) to the
Company's Form 8-K dated as of June 12, 1996).
4.8* Director Stock Option Plan, as in effect prior to
July 12, 1996 (Incorporated by reference from Exhibit
4.6 to the Company's Registration Statement on Form S-8,
Reg. No. 33-94258, filed on July 3, 1995).
4.9 Director Stock Option Plan, as Amended and Restated on
July 12, 1996.
5 Opinion of Baker and Botts, L.L.P.
23.1 Consent of Baker and Botts, L.L.P. (included in
Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
- -------------
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any additional or changed material information
with respect to the plan of distribution;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this Item do not apply if the information required to be included
in a post-effective amendment by those paragraphs is incorporated
by reference in the Registration Statement from periodic reports
filed as a small business issuer under the Exchange Act.
(2) For purposes of determining any liability under the
Securities Act, it will treat each filing of a post-effective
amendment to this Registration Statement as a new registration
statement of the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end
of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provision, or otherwise, the Company has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of
such issue.
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 Houston, the State of Texas, on August 8, 1996.
Aprogenex, Inc.
By: /s/ J. Donald Payne
----------------------------
J. Donald Payne
Vice President-Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in
the capacities indicated and on the date indicated.
DATED: August 8, 1996 BY: /s/ David Leech
----------------------------
David Leech
President, Chief Executive Officer
and Director (Principal Executive
Officer and Director)
DATED: August 8, 1996 BY: /s/ Michael Hogan
----------------------------
Michael Hogan
Director
DATED: August 8, 1996 BY: /s/ Christopher Kelly
----------------------------
Christopher Kelly
Director
DATED: August 8, 1996 BY: /s/ Terry Ward
----------------------------
Terry Ward
Director
DATED: August 8, 1996 BY: / s/ J. Donald Payne
----------------------------
J. Donald Payne
Vice President - Finance,
Chief Financial Officer and
Corporate Secretary and Director
(Principal Financial and Accounting
Officer)
EXHIBIT INDEX
Exhibits incorporated by reference to a prior filing are
designated by an asterisk (*).
Exhibit
Number Description
4.1* Amended and Restated Certificate of Incorporation of the
Company. (Incorporated by reference from Exhibit 3.1 to
the Company's Registration Statement on Form SB-2,
Reg. No. 33-66586-FW, declared effective October 15,
1993).
4.2* Certificate of Amendment of Amended and Restated
Certificate of Incorporation of Aprogenex, Inc. effective
as of June 10, 1994 (Incorporated by reference from
Exhibit 3.1 to the Company's Form 10-QSB for the
quarterly period ended June 30, 1994).
4.3* Certificate of Designations of Series A Convertible
Preferred Stock effective May 26, 1995 (Incorporated by
reference from Exhibit 4.4 to the Company's Registration
Statement on Form S3, Reg No. 33-95014, filed July 26,
1995).
4.4* Bylaws of the Company (Incorporated by reference from
Exhibit 4-3 to the Company's Registration Statement on
Form S-3, Reg. No. 33-90514, filed on July 26, 1995).
4.5* Form of Certificate of Common Stock. (Incorporated by
reference from Exhibit 4.1 to the Company's Registration
Statement on Form SB-2, Reg. No. 33-66586-FW, declared
effective October 15, 1993.)
4.6* Convertible Note Subscription Agreement dated as of
May 1, 1996 among Aprogenex, Inc. and the various
purchasers (Incorporated by reference from Exhibit 4.1(a)
to the Company's Form 8-K dated as of June 12, 1996).
4.7* Form of Convertible Note dated as of June 12, 1996
(Incorporated by reference from Exhibit 4.1(b) to the
Company's Form 8-K dated as of June 12, 1996).
4.8* Director Stock Option Plan, as in effect prior to
July 12, 1996 (Incorporated by reference from Exhibit
4.6 to the Company's Registration Statement on Form S-8,
Reg. No. 33-94258, filed on July 3, 1995).
4.9 Director Stock Option Plan, as Amended and Restated on
July 12, 1996.
5 Opinion of Baker and Botts, L.L.P.
23.1 Consent of Baker and Botts, L.L.P. (included in
Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
EXHIBIT 4.9
APROGENEX, INC.
DIRECTOR STOCK OPTION PLAN
Amended and Restated as of July 12, 1996
1. Purpose. The purpose of this Director Stock Option Plan
(the "Plan") of Aprogenex, Inc. (the "Company"), is to encourage
ownership in the Company by outside directors of the Company whose
services are considered essential to the Company's continued
progress and thus to provide them with a further incentive to
continue to serve as directors of the Company. The Plan is also
intended to assist the Company through utilization of the
incentives provided by the Plan to attract and retain experienced
and qualified candidates to fill vacancies in the Board which may
occur in the future.
2. Administration. The Plan will be administered by the Board
of Directors (the "Board") of the Company. Subject to the express
provisions of the Plan, the Board will have complete authority to
interpret the Plan; to prescribe, amend, and rescind rules and
regulations relating to it; to determine the terms and provisions
of the respective option agreements in accordance with the
provisions of the Plan; and to make all other determinations
necessary or advisable for the administration of the Plan. The
Board's determination on the matters referred to in this Section 2
will be conclusive.
3. Participation in the Plan. The Directors of the Company
who are not employees of the Company or any Parent or Subsidiary
of the Company (within the meaning of Section 424(e) or (f) of the
Internal Revenue Code of 1986, as amended) ("Eligible Directors")
shall be eligible to participate in the Plan. A director who is
or has been an employee of the Company or any Parent or Subsidiary
of the Company shall not be eligible to become an Eligible
Director unless and until such director is elected to a new term
of office as a director while no longer serving as an employee of
the Company.
4. Stock Subject to the Plan. The stock subject to the Plan
shall consist of 150,000 shares of the $0.001 par value common
stock of the Company ("Common Stock"). Such shares may, as the
Board shall from time to time determine, be either authorized and
unissued shares of Common Stock or issued shares of Common Stock
which have been reacquired by the Company. If any option granted
under the Plan expires or terminates for any reason without having
been exercised in full, the shares subject to, but not delivered
under, such option may again become available for the grant of
other options under the Plan.
5. Stock Options. Each option granted under this Plan shall be
evidenced by a written agreement in such form as the Board shall
from time to time approve, which agreements shall comply with and
be subject to the following terms and conditions:
A. Option Grant Dates. For each Eligible Director who is
elected to the Board of Directors after the date of approval
of the Plan, as amended and restated, by the stockholders of
the Company (such date hereinafter referred to as the
"Effective Date"), options shall be granted to each such
Eligible Director on the day of his or her initial election
or appointment to the Board of Directors (or, if such date
falls on a non-business day, the first business day
thereafter) (the "Grant Date"). If the election or
appointment is subject to or conditioned upon the acceptance
by the Eligible Director, then the Grant Date for all
purposes herein (other than the determination of Fair Market
Value as set forth in Section 5C herein) shall be such date
of acceptance. Initially, for each Eligible Director serving
on the Effective Date, the Effective Date shall be the Grant
Date for such Eligible Director.
B. Number of Shares Earned. On the Grant Date, each
Eligible Director shall be awarded an option to purchase
10,000 shares of Common Stock. Such grant is a one-time
grant and not an annual grant.
C. Option Price per Share. The options granted
hereunder shall be exercisable at a price per share equal to
the Fair Market Value of the Common Stock on the Grant Date
(except that for Eligible Directors whose term of service
starts after the date of appointment or election, the date of
such appointment or election shall be the date for
determination of the Fair Market Value). For purposes of
this Plan, the "Fair Market Value" of a share on a particular
date shall be deemed to be, (i) if the Common Stock is listed
on a national securities exchange, the closing selling price
per share of the Common Stock on any such national securities
exchange on that date, as reported in The Wall Street Journal
or, if there shall have been no such sale so reported on that
date, on the last preceding date on which such a sale was so
reported, or (ii) if the Common Stock is not so listed, the
closing selling price (or, if not so reported, the mean
between the closing bid and asked price) on that date, or, if
there are no quotations available for such date, on the last
preceding date on which such quotations shall be available,
as reported by NASDAQ, or, if not reported by NASDAQ, by the
National Quotation Bureau, Inc.
D. Options Nontransferable. 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, and shall be exercisable during the
lifetime of the optionee only by the optionee. While living,
no option or interest therein may be transferred, assigned,
pledged, or hypothecated by the optionee, whether by
operation of law or otherwise, or be made subject to
execution, attachment, or similar process.
E. Exercisability and Term of Options. Each option
granted under the Plan shall vest as follows: (i) options as
to 5,000 shares shall vest and be exercisable on the first
anniversary of the Grant Date; and (ii) options as to the
remaining 5,000 shares shall vest and be exercisable on the
second anniversary of the Grant Date. If not previously
exercised or forfeited pursuant to the provisions of Sections
5F, 5G and 5H herein, such options shall expire on the fifth
anniversary of the Grant Date.
F. Termination of Status as a Director. In the event
of termination of an optionee's status as an Eligible
Director (regardless of whether such termination is by
resignation, removal, failure to nominate or reelect upon the
end of any term or by becoming an employee of the Company)
prior to such option or portion thereof becoming exercisable
pursuant to the provisions of Section 5E or 5G herein, then
such option or portion thereof which was not exercisable as
of the date of such termination shall be forfeited. Any
portion of the option which was exercisable as of the date of
such termination shall continue to be exercisable until the
earlier of (i) the expiration of such option pursuant to
Section 5E herein or (ii) six months after the death of such
optionee pursuant to the provisions of section 5H herein.
G. Disability of Optionee. In the event of the total
and permanent disability (as defined in Section 22(e)(3) of
the Internal Revenue Code of 1986) of an Eligible Director,
regardless of whether the Eligible Director continues to
serve as a director of the Company, all of such option shall
become fully exercisable and may be exercised at any time
prior to the earlier of (i) the expiration of the option as
set forth in Section 5E herein or (ii) six months after the
death of such optionee pursuant to the provisions of section
5H herein.
H. Death. In the event of the death of an optionee during
the term of the option who is at the time of his death an
Eligible Director of the Company, the option shall become
fully exercisable (regardless of the extent of the right to
exercise that had accrued as of the date of death), and all
of such option may be exercised at any time within six (6)
months following the date of death, by the optionee's estate
or by a person who acquired the right to exercise the Option
by bequest or inheritance. In the event of the death of an
optionee during the term of the option who is not at the time
of his death an Eligible Director of the Company, the option
may be exercised at any time within six (6) months following
the date of death, by the optionee's estate or by a person
who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent that the right to
exercise that had accrued as of the date of death. However,
in no event may an option be exercised after the expiration
of such option pursuant to the provisions of section 5E
herein.
I. Exercise of Options. Options may be exercised only by
written notice to the Company at its corporate office
accompanied by payment of the full consideration for the
shares as to which they are exercised, including any federal,
state and/or local income tax withholding amount due in
connection with the exercise. The purchase price, together
with any income tax withholding amount due, is to be paid in
full to the Company upon the exercise of the option by cash
payment, which may take the form of a personal check payable
to the order of the Company.
J. Nonstatutory Options. All options granted hereunder
shall be non-statutory options not intended to qualify under
Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code").
6. Assignment. The rights and benefits of a participant under
this Plan may not be assigned and any attempted assignment of such
rights and benefits shall be null and void.
7. 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, or at any particular rate of
compensation.
B. No Stockholder's Rights for Optionees. An optionee or
the optionee's representative shall have no rights as a
stockholder with respect to the shares covered by the options
until the date of the issuance to the optionee or the optionee's
representative of a stock certificate therefore, 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.
8. Changes in Present Stock.
A. Corporate Acts. The existence of outstanding options shall
not affect in any manner the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the capital
stock of the Company or its business or any merger or
consolidation of the Company, or any issue of bonds, debentures,
preferred or prior preference stock (whether or not such issue is
prior to, on a parity with or junior to the Common Stock) or the
dissolution or liquidation of the Company, or any sale or transfer
of all or any part of its assets or business, or any other
corporate act or proceeding of any kind, whether or not of a
character similar to that of the acts or proceedings enumerated
above.
B. Adjustments. In the event of any subdivision or
consolidation of outstanding shares of Common Stock or declaration
of a dividend payable in shares of Common Stock or capital
reorganization or reclassification or other transaction involving
an increase or reduction in the number of outstanding shares of
Common Stock, the Board shall adjust proportionally (i) the number
of shares of Common Stock reserved under this Plan and covered by
outstanding options denominated in Common Stock; (ii) the exercise
price in respect of such options; and (iii) the appropriate Fair
Market Value and other price determinations for such options. In
the event of any consolidation or merger of the Company with
another corporation or entity or the adoption by the Company of a
plan of exchange affecting the Common Stock or any distribution to
holders of Common Stock of securities or property (other than
normal cash dividends or dividends payable in Common Stock), the
Board shall make such adjustments as it may deem equitable,
including adjustments to avoid fractional shares, to give proper
effect to such event. In the event of a corporate merger,
consolidation, acquisition of property or stock, separation,
reorganization or liquidation, the Board shall be authorized to
issue or assume stock options, regardless of whether in a
transaction to which Section 424(a) of the Code applies, by means
of substitution of new options for previously issued options or an
assumption of previously issued options.
9. Effective Date, Transition for Current Directors, and
Duration of the Plan.
A. Effective Date. The Plan, as amended and restated, shall
take effect on the date of approval of the Plan by the affirmative
votes of the holders of a majority of the outstanding shares of
the Company present, or represented, and entitled to vote at a
meeting of the Company's stockholders, or by the written consent
of the holders of a majority of the outstanding shares of the
Company entitled to vote.
B. Transition Provisions. Upon the adoption of the Plan as
set forth herein, it is anticipated that current or previous
Eligible Directors during 1996 would otherwise be entitled to
compensation under the provisions of the Plan prior to its
amendment and restatement. For any Eligible Directors serving as
a director as of such date of adoption, any authorized or
anticipated grants of options for service in 1996 pursuant to the
provisions of the Plan prior to such amendment and restatement
shall be superseded by the provisions of this Plan as amended and
restated. For any Eligible Directors whose service as a director
in 1996 terminated prior to such amendment and restatement, any
authorized or anticipated grants of options pursuant to the
provisions of the Plan prior to such amendment shall be made and
governed by the provisions of this Plan prior to this amendment
and restatement. Any grants to Eligible Directors under the
provisions of the Plan prior to this amendment and restatement
shall continue to be governed by the provisions of the Plan before
such amendment and restatement.
C. Termination. The Plan shall terminate when all Common Stock
subject to the Plan is subject to an option to purchase (unless
earlier discontinued by the Board) but such termination shall not
affect the rights of the holder of any option outstanding on such
date of termination. If, on a date on which options would
normally be granted, there is not a sufficient number of shares
available to grant each person otherwise eligible to receive an
option on that date an option to purchase the full number of
shares to which he or she would normally be entitled, options
shall be prorated among optionees according to the number of
shares available on such date of grant. Such optionees shall be
deemed to have received the full amount due to them on such date
of grant. All options granted under the Plan are subject to and
may not be exercised before.
10. Amendment of the Plan. The Board may suspend or
discontinue the Plan or revise or amend it in any respect
whatsoever; provided, however, that to the extent required by Rule
16b-3 under the Securities Exchange Act of 1934, as amended ("Rule
16b-3"), the provisions of this Plan relating to the class of
persons eligible to participate in this Plan and the amount,
price, and timing of awards may not be amended more often than
once every six months except to comport with changes in the Code,
the Employee Retirement Income Security Act or rules promulgated
thereunder; and provided, further, that no revision or amendment
to the Plan shall be effective without stockholder approval to the
extent required by Rule 16b-3.
11. Requirements of Law. The granting of options and the
issuance of shares of Common Stock upon the exercise of an option
shall be subject to all applicable laws, rules and regulations and
to such approvals by any governmental agencies or national
securities exchanges as may be required.
12. Notice. Any written notice to the Company required by any
of the provisions of this Plan shall be addressed to the Secretary
of the Company and shall become effective when it is received.
13. Governing Law. This Plan and all determinations made and
actions taken pursuant hereto shall be governed by the law of the
State of Delaware and construed accordingly.
APROGENEX, INC.
As approved by the Board of Directors
of the Company on May 30, 1996
/s/ J. Donald Payne
- --------------------
Secretary
As approved by the stockholders of the
Company on July 12, 1996
/s/ J. Donald Payne
- --------------------
Secretary
BAKER & BOTTS
L.L.P.
ONE SHELL PLAZA
910 LOUISIANA
HOUSTON, TEXAS 77002-4995
G-54,581 August 8, 1996
Aprogenex, Inc.
8000 El Rio Street
Houston, Texas 77054-4104
Gentlemen:
As set forth in the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Aprogenex, Inc., a
Delaware corporation (the "Company"), with the Securities and
Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), relating to 50,000 shares (the "Shares")
of common stock, par value $.001 per share, of the Company,
subject to issuance pursuant to the terms of the Aprogenex, Inc.
Director Stock Option Plan (the "Plan"), certain legal matters in
connection with the Shares are being passed upon for the Company
by us. At your request, this opinion is being furnished to you
for filing as Exhibit 5 to the Registration Statement.
In our capacity as your counsel in the connection referred to
above, we have familiarized ourselves with the Company's Amended
and Restated Certificate of Incorporation and Bylaws, each as
amended to date, and have examined the originals, or copies
certified or otherwise identified, of corporate records of the
Company, including minute books of the Company as furnished to us
by the Company, certificates of public officials and of
representatives of the Company, statutes and other instruments and
documents as a basis for the opinions hereinafter expressed. In
giving such opinions, we have relied upon certificates of officers
of the Company with respect to the accuracy of the material
factual matters contained in such certificates.
We have assumed that all signatures on all documents examined by
us are genuine, that all documents submitted to us as originals
are authentic, that all documents submitted to us as copies are
true and correct copies of the originals thereof and that all
information submitted to us was accurate and complete.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications hereinafter set forth, we are of
the opinion that upon the issuance of and payment for the Shares
in accordance with the terms and provisions of the Plan, the
Shares will be duly authorized, validly issued, fully paid and
nonassessable.
Aprogenex, Inc. -2- August 8, 1996
The opinions set forth above are limited to the laws of Texas and
Delaware and the applicable federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Baker & Botts, L.L.P.
GJO; MLW
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountant, we hereby consent to the
incorporation by reference in this Form S-8 Registration Statement
of our report dated February 2, 1996, included in Aprogenex,
Inc.'s Form 10-KSB for the year ended December 31, 1995, and to
all references to our firm included in this registration
statement.
/s/ ARTHUR ANDERSEN LLP
- --------------------------
Houston, Texas
August 8, 1996
