As Filed with the Securities and Exchange Commission on November 5, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRIMERIS, INC.
(Exact name of issuer as specified in its charter)
Delaware 56-1808663
(State of Incorporation) (IRS Employer Identification Number)
4727 University Drive, Suite 100, Durham, North Carolina 27707
(Address of Principal Executive Offices)
(919) 419-6050
(Registrant's telephone number, including area code)
TRIMERIS, INC.
AMENDED AND RESTATED STOCK INCENTIVE PLAN
(Full title of the Plan)
----------------------------
Dr. Dani P. Bolognesi
Chief Executive Officer and Chief Scientific Officer
Trimeris, Inc.
4727 University Drive, Suite 100
Durham, North Carolina 27707
(919) 419-6050
(Name, address and telephone number of agent for service)
----------------------------
Copy to:
John B. Watkins, Esquire Loryn C. Nembirkow
Wilmer, Cutler & Pickering Legal Counsel and Assistant Secretary
2445 M Street, N.W. Trimeris, Inc.
Washington, DC 20037 4727 University Drive, Suite 100
(202) 663-6000 Durham, North Carolina 27707
(919) 419-6050
----------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price (2) Fee(2)
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 shares $18.094 $ 14,842,523 $ 4,127.00
par value $0.001 per
share
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
</TABLE>
(1) Also registered hereunder are such additional number of shares of Common
Stock, presently indeterminable, as may be necessary pursuant to the Trimeris,
Inc. Amended and Restated Stock Incentive Plan (the "Plan") in the event of a
stock dividend, reverse stock split, split-up, recapitalization or other similar
event as provided under the terms of the Plan.
<PAGE>
(2) In accordance with Rule 457(h) and Rule 457(c), the maximum aggregate
offering price and the amount of the registration fee are computed on the basis
of (a) for 328,187 shares not yet subject to options, $18.094, the average of
the high and low prices reported in the Nasdaq Stock Market on November 1, 1999,
and (b) for granted options for 671,813 shares, the actual exercise prices
specified in those granted options (which range from $11.625 to $19.00).
INCORPORATION OF PREVIOUS REGISTRATION STATEMENTS
Pursuant to General Instruction E of Form S-8, this Registration
Statement is filed solely to register an additional 1,000,000 shares of common
stock of the Registrant under the Trimeris, Inc. Amended and Restated Stock
Incentive Plan. Shares of common stock were previously registered for issuance
under the Plan on Form S-8 Registration Statements No. 333-44145 and No.
333-66401 filed with the Commission on or about January 12, 1998 and October 30,
1998, respectively. Pursuant to General Instruction E and except as set forth
below, the contents of the Registrant's Form S-8 Registration Statements No.
333-44145 and No. 333-66401 are incorporated herein by reference.
PART II
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock offered hereby will be
passed upon for Trimeris by Loryn C. Nembirkow, Legal Counsel and Assistant
Secretary of Trimeris. Ms. Nembirkow is a full-time employee of Trimeris
and owns shares of and options to purchase shares of the common stock of
Trimeris.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Durham, County of Durham, State of North
Carolina on November 5, 1999.
TRIMERIS, INC.
/s/ Dani P. Bolognesi
----------------------
Dani P. Bolognesi
Chief Executive Officer and Chief Scientific Officer
<PAGE>
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Dani P. Bolognesi or Timothy J. Creech his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or in his name, place and stead, in any and all
capacities to sign any and all amendments or post-effective amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on this 1st day of November 1999.
<TABLE>
<CAPTION>
- ----- --------------------------------------------------------------------------------------------------------------
- ----- --------------------------------------------------------------------------------------------------------------
Signatures Title
<S> <C>
/s/ Dani P. Bolognesi Chief Executive Officer
- --------------------- (principal executive officer), Chief Scientific
Dani P. Bolognesi Officer and Director
/s/ Robert R. Bonczek Acting Chief Administrative Officer and
- --------------------- Acting Chief Financial Officer (principal financial
Robert R. Bonczek officer)
/s/ Timothy J. Creech Director of Finance and Administration and Secretary
- --------------------- (principal accounting officer)
Timothy J. Creech
/s/ Jeffrey M. Lipton Chairman of the Board
- ---------------------
Jeffrey M. Lipton
/s/ Jesse I. Treu Director
- -----------------
Jesse I. Treu, Ph.D.
/s/ Brian H. Dovey Director
- ------------------
Brian H. Dovey
/s/ Charles A. Sanders Director
- ----------------------
Charles A. Sanders, M.D.
/s/ J. Richard Crout Director
- --------------------
J. Richard Crout, M.D.
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description
<S> <C>
4.1 Trimeris, Inc. Amended and Restated Stock Incentive Plan, as amended.
5.1 Opinion of Loryn C. Nembirkow, Legal Counsel and Assistant Secretary of Trimeris.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Loryn C. Nembirkow, Legal Counsel and Assistant Secretary of Trimeris.
(included in Exhibit 5.1).
24.1 Power of Attorney (included as part of the signature page to this Registration
Statement).
</TABLE>
EXHIBIT 4.1
TRIMERIS, INC.
AMENDED AND RESTATED STOCK INCENTIVE PLAN
(formerly, the Trimeris, Inc. New Stock Option Plan)
1. Purpose
The Trimeris, Inc. Amended and Restated Stock Incentive Plan (formerly,
the Trimeris, Inc. New Stock Option Plan) (the "Plan") is established to advance
the interests of the Company's stockholders by creating an incentive for, and
enhancing the Company's ability to attract, retain and motivate, key employees,
directors and consultants or advisors of Trimeris, Inc. and any successor
corporations thereto (collectively, the "Company") or future parent and/or
subsidiary corporations of such corporation (as defined in Sections 424(e) and
424(f) of the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder (the "Code")) (all of whom, along with the Company,
sometimes being individually referred to as a "Participating Company" and
collectively referred to as the "Participating Company Group") by providing such
persons with equity ownership opportunities and performance-based incentives and
thereby better aligning the interests of such persons with those of the
Company's stockholders.
2. Eligibility
All of the Company's employees, officers, directors, consultants and
advisors are eligible to be granted options, restricted stock or other
stock-based awards (each, an "Award") under the Plan. Any person who has been
granted an Award under the Plan shall be deemed a "Participant." The Board of
Directors of the Company (the "Board"), in its sole discretion, shall determine
which persons shall be granted Awards under the Plan. A director of the Company
shall be eligible to be granted an Incentive Stock Option (as hereinafter
defined) only if the director is also an employee of the Company. A consultant
or advisor to the Company or a non-employee director of the Company shall be
eligible to be granted only Awards other than Incentive Stock Options.
Participants may, if otherwise eligible, be granted additional Awards.
3. Administration; Delegation
(a) ADMINISTRATION BY BOARD. The Plan shall be administered by the
Board. The Board shall have authority to grant Awards and to adopt, amend and
repeal such administrative rules, guidelines and practices relating to the Plan
as it shall deem advisable from time to time. The Board may correct any defect,
supply any omission or reconcile any inconsistency in the Plan or any Award in
the manner and to the extent it shall deem expedient to carry the Plan into
effect and it shall be the sole and final judge of such expediency. No member of
the Board shall be liable for any action or determination relating to the Plan.
All decisions by the Board shall be made in the Board's sole discretion and
shall be final and binding on all persons having or claiming any interest in the
Plan or in any Award. No director or person acting pursuant to the
<PAGE>
authority delegated by the Board shall be liable for any action or determination
under the Plan made in good faith.
(b) DELEGATION TO EXECUTIVE OFFICERS. To the extent permitted by
applicable law, the Board may delegate to one or more executive officers of the
Company the power to make Awards and exercise such other powers under the Plan
as the Board may determine, provided that the Board shall fix the maximum number
of shares subject to Awards and the maximum number of shares for any one
Participant to be made by such executive officers.
(c) APPOINTMENT OF COMMITTEES. To the extent permitted by applicable
law, the Board may delegate any or all of its powers under the Plan to one or
more committees or subcommittees of the Board (each, a "Committee"). For so long
as the common stock, $.001 par value per share (the "Common Stock"), of the
Company is registered under the Securities Exchange Act of 1934 (the "Exchange
Act"), the Board shall appoint one such Committee of not less than two members,
each member of which shall be a "non-employee director" as defined in Rule 16b-3
promulgated under the Exchange Act. All references in the Plan to the "Board"
shall mean a Committee or the Board or the executive officer referred to in
Section 3(b) to the extent that the Board's powers or authority under the Plan
have been delegated to such Committee or executive officer.
4. Stock Available For Awards
(a) NUMBER OF SHARES. Subject to adjustment under Section 4(b), Awards
may be made under the Plan for up to a maximum of Two Million Six Hundred Two
Thousand Nine Hundred Forty-One (2,602,941) shares of Common Stock. If any Award
expires or is terminated, surrendered or canceled without having been fully
exercised or is forfeited in whole or in part or results in any Common Stock not
being issued, the unused Common Stock covered by such Award shall again be
available for the grant of Awards under the Plan, subject, however, in the case
of Incentive Stock Options, to any limitation required under the Code. Shares
issued under the Plan may consist in whole or in part of authorized but unissued
shares or treasury shares.
(b) ADJUSTMENTS TO COMMON STOCK. In the event of any stock split, stock
dividend, recapitalization, reorganization, merger, consolidation, combination,
exchange of shares, liquidation, spin-off or other similar change in
capitalization or event, or any distribution to holders of Common Stock other
than a normal cash dividend, (i) the number and class of securities available
under this Plan, (ii) the number and class of security and exercise price per
share subject to each outstanding Option (as defined below), (iii) the
repurchase price per security subject to each outstanding Restricted Stock Award
(as defined below), and (iv) the terms of each other outstanding stock-based
Award, if any, shall be appropriately adjusted by the Company (or substituted
Awards may be made, if applicable) to the extent the Board shall determine, in
good faith, that such an adjustment (or substitution) is necessary and
appropriate. If this Section 4(b) applies and Section 9(a) also applies to any
event, Section 9(a) shall be applicable to such event, and this Section 4(b)
shall not be applicable.
5. Stock Options
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<PAGE>
(a) GENERAL. The Board may grant options to purchase Common Stock
(each, an "Option") and determine the number of shares of Common Stock to be
covered by each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. Any Option granted to a Participant who is subject to
the provisions of Section 16 of the Exchange Act shall not become exercisable
for a period of at least six (6) months following the date of grant. An Option
which is not intended to be an Incentive Stock Option shall be designated a
"Nonstatutory Stock Option."
(b) INCENTIVE STOCK OPTIONS. An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code (an "Incentive
Stock Option") shall only be granted to employees of the Company and shall be
subject to and construed consistently with the requirements of Section 422 of
the Code. The Company shall have no liability to a Participant who has been
awarded an Option (an "Optionee"), or any other party, if an Option (or any part
thereof) which is intended to be an Incentive Stock Option is not an Incentive
Stock Option.
(c) EXERCISE PRICE. The Board shall establish, in its sole discretion,
the exercise price at the time each Option is granted and specify it in the
applicable option agreement; provided, however, that (i) the exercise price per
share for an Incentive Stock Option shall be not less than the fair market value
of a share of Common Stock on the date of grant of such Incentive Stock Option,
as determined by the Board in good faith (the "Fair Market Value"), and (ii) the
exercise price per share of an Incentive Stock Option granted to an Optionee who
at the time the Incentive Stock Option is granted owns stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of a Participating Company within the meaning of Section 422(b)(6) of the
Code (a "Ten Percent Owner Optionee") shall be not less than one hundred ten
percent (110%) of the Fair Market Value. Nothing hereinabove shall require that
any such assumption or modification result in the Option having the same
characteristics, attributes or tax treatment as the Option for which it is
substituted.
(d) $100,000 LIMITATION. The aggregate fair market value, determined as
of the date on which an Incentive Stock Option is granted, of the shares of
Common Stock with respect to which Incentive Stock Options (determined without
regard to this subsection) are first exercisable during any calendar year (under
this Plan or under any other plan of the Participating Company Group) by any
Optionee shall not exceed $100,000. If such limitation would be exceeded with
respect to an Optionee for a calendar year, the Incentive Stock Option shall be
deemed a Nonstatutory Stock Option to the extent of such excess.
(e) TIME FOR GRANTING INCENTIVE STOCK OPTIONS. All Incentive Stock
Options must be granted, if at all, within ten (10) years from the earlier of
the date the Plan is adopted by the Board or the date the Plan is duly approved
by the stockholders of the Company.
(f) DURATION OF OPTIONS. Each Option shall be exercisable at such times
and subject to such terms and conditions as the Board may specify in the
applicable option agreement; provided, however, that (i) no Incentive Stock
Option shall be exercisable after the expiration of ten (10) years after the
date such Incentive Stock Option is granted, (ii) no Incentive Stock
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<PAGE>
Option granted to a Ten Percent Owner Optionee shall be exercisable after the
expiration of five (5) years after the date such Incentive Stock Option is
granted and (iii) no Incentive Stock Option shall be exercisable after the date
the Optionee's employment with the Participating Company Group is terminated for
cause (as determined in the sole discretion of the Board); and provided,
further, that an Option shall terminate and cease to be exercisable no later
than three (3) months after the date on which the Optionee terminates employment
with the Participating Company Group, unless Optionee's employment with the
Participating Company Group shall have terminated as a result of the Optionee's
death or disability (within the meaning of Section 22(e)(3) of the Code). In the
event the Optionee's employment with the Participating Company Group shall have
terminated due to Optionee's disability (within the meaning of Section 22(e)(3)
of the Code), the Option shall terminate and cease to be exercisable no later
than twelve (12) months from the date on which the Optionee's employment
terminated. In the event the Optionee's employment with the Participating
Company Group shall have terminated due to Optionee's death, the Option shall
become immediately vested and exercisable and remain exercisable until the
Option shall terminate no later than twelve (12) months from the date on which
the Optionee's employment terminated.
(g) EXERCISE OF OPTIONS. Options may be exercised only by delivery to
the Company of a written notice of exercise signed by the proper person together
with payment in full as specified in Section 5(f) for the number of shares for
which the Option is exercised.
(h) PAYMENT UPON EXERCISE. Common Stock purchased upon the exercise of
an Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may otherwise provide in an option
agreement, by delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient funds to pay
the exercise price, or delivery by the Optionee to the Company of a copy of
irrevocable and unconditional instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the exercise price;
(3) to the extent permitted by the Board and expressly
provided in an option agreement, (i) by delivery of shares of Common Stock owned
by the Optionee valued at their Fair Market Value, which Common Stock was owned
by the Optionee at least six (6) months prior to such delivery, (ii) to the
extent permitted by applicable law, by delivery of a promissory note of the
Optionee to the Company secured by valuable collateral acceptable to the Board
and on other terms determined by the Board, or (iii) by payment of such other
lawful consideration as the Board may determine; or
(4) any combination of the above permitted forms of payment.
6. Restricted Stock
(a) GRANTS. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to the right of the Company to repurchase all or
part of such shares at
4
<PAGE>
their issue price or other stated or formula price (or to require forfeiture of
such shares if issued at no cost) from the recipient in the event that
conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award, and subject to such other terms and
conditions as the Board shall determine (each, a "Restricted Stock Award").
(b) TERMS AND CONDITIONS. The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the duration of
restrictions, conditions for repurchase (or forfeiture) and the issue price, if
any; provided, however, that any Restricted Stock Award granted to a Participant
who is subject to the provisions of Section 16 of the Exchange Act shall
restrict the release of shares under the Restricted Stock Award for a period of
at least six (6) months from the date of grant. Any stock certificates issued in
respect of a Restricted Stock Award shall be registered in the name of the
Participant and held in escrow by the Company, together with a stock power
endorsed in blank, with the Company (or its designee). At the expiration of the
applicable restriction periods, the Company (or such designee) shall deliver the
certificates no longer subject to such restrictions to the Participant or if the
Participant has died, to the beneficiary designated, in a manner determined by
the Board, by a Participant to receive amounts due or exercise rights of the
Participant in the event of the Participant's death (the "Designated
Beneficiary"). In the absence of an effective designation by a Participant,
Designated Beneficiary shall mean the Participant's estate.
7. Other Stock-based Awards
The Board shall have the right to grant other Awards based upon the
Common Stock having such terms and conditions as the Board may determine,
including the grant of shares based upon certain conditions, the grant of
securities convertible into Common Stock and the grant of stock appreciation
rights.
8. General Provisions Applicable to Awards
(a) TRANSFERABILITY OF AWARDS. Except as the Board may otherwise
determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the Participant, to the
extent relevant in the context, shall include references to authorized
transferees.
(b) DOCUMENTATION. Each Award under the Plan shall be evidenced by a
written instrument in such form as the Board shall determine. Each Award may
contain terms and conditions in addition to those set forth in the Plan.
(c) BOARD DISCRETION. Except as otherwise provided by the Plan, each
type of Award may be made alone or in addition or in relation to any other type
of Award. The terms of each type of Award need not be identical, and the Board
need not treat Participants uniformly.
(d) TERMINATION OF STATUS. The Board shall determine the effect on an
Award of the disability, death, retirement, authorized leave of absence or other
change in the employment or
5
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other status of a Participant and the extent to which, and the period during
which, the Participant, the Participant's legal representative, conservator,
guardian or Designated Beneficiary may exercise rights under the Award.
(e) WITHHOLDING. Each Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in connection with Awards to such Participant no later than the date
of the event creating the tax liability. The Board may allow Participants to
satisfy such tax obligations in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation, valued at
their Fair Market Value. The Company may, to the extent permitted by law, deduct
any such tax obligations from any payment of any kind otherwise due to a
Participant.
(f) AMENDMENT OF AWARD. The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting therefor another
Award of the same of a different type, changing the date or exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Participant.
Notwithstanding anything herein to the contrary, the Board of Directors may not
change the exercise price of any Option previously granted except pursuant to
Section 9 and Section 4(b) of the Plan and Section 424(a) of the Code.
(g) CONDITIONS ON DELIVERY OF STOCK. The Company shall not be obligated
to deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
9. Acquisition Events
(a) CONSEQUENCES OF ACQUISITION EVENTS. Except to the extent otherwise
provided in the instrument evidencing the Award or in any other agreement
between the Participant and the Company:
(i) Upon the occurrence of an Acquisition Event (as hereinafter
defined),
(A) all Restricted Stock Awards then outstanding shall become
fully vested and immediately free of all restrictions; and
(B) all other stock-based Awards other than Options and stock
appreciation rights shall become immediately exercisable, realizable or vested
in full, or shall be
6
<PAGE>
immediately free of all restrictions or conditions, as the case may be.
(ii) Upon the execution by the Company of an agreement to
effect an Acquisition Event other than a Change of Control Event (as hereinafter
defined), all Options and stock appreciation rights then outstanding shall
become fully vested and immediately exercisable in full upon the occurrence of
the Acquisition Event or such earlier date as may be specified by the Board by
written notice to the Participants, and the Board may take one or both of the
following additional actions with respect to then outstanding Options and stock
appreciation rights: (A) provide that such Options and stock appreciation rights
shall be assumed, or equivalent Options or stock appreciation rights be
substituted by the acquiring or succeeding corporation (or an affiliate
thereof), or (B) upon written notice to the Participants, provide that all then
unexercised Options and stock appreciation rights will terminate to the extent
not exercised by the Participants prior to the consummation of such Acquisition
Event or such earlier date as may be specified by the Board by written notice to
Participants.
(iii) Upon the occurrence of a Change of Control
Event, all Options and stock appreciation rights then outstanding shall become
fully vested and immediately exercisable in full.
As used herein, an "Acquisition Event" shall mean: (a) any merger or
consolidation which results in the voting securities of the Company outstanding
immediately prior thereto representing (either by remaining outstanding or by
being converted into voting securities of the surviving or acquiring entity)
less than 60% of the combined voting power of the voting securities of the
Company or such surviving or acquiring entity outstanding immediately after such
merger or consolidation; (b) any sale of all or substantially all of the assets
of the Company; (c) the complete liquidation of the Company; or (d) the
acquisition of "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities (other than
through a merger or consolidation or an acquisition of securities directly from
the Company) by any "person," as such term is used in Section 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 stockholders of the Company (an event
specified in this clause (d) being referred to as a "Change of Control Event").
(b) ASSUMPTION OF OPTIONS UPON CERTAIN EVENTS. The Board may grant
Awards under the Plan in substitution for stock and stock-based awards held by
employees of another corporation who become employees of the Company as a result
of a merger or consolidation of the employing corporation with the Company or
the acquisition by the Company of property or stock of the employing
corporation. The substitute Awards shall be granted on such terms and conditions
as the Board considers appropriate in the circumstances.
10. Miscellaneous
(a) NO RIGHT TO EMPLOYMENT OR OTHER STATUS. No person shall have any
claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company. The Company
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<PAGE>
expressly reserves the right at any time to dismiss or otherwise terminate its
relationship with a Participant free from any liability or claim under the Plan,
except as expressly provided in the applicable Award.
(b) NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any right
as a stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder of such shares.
(c) STATUS OF RIGHTS TO PAYMENTS UNDER PLAN. To the extent that any
person acquires a right to receive payments from the Company under the Plan,
such right shall, except as otherwise provided by the Board, be no greater than
the right of an unsecured general creditor of the Company. All payments to be
made hereunder shall be paid from the general funds of the Company, and no
special or separate fund shall be established and no segregation of assets shall
be made to assure payment of such amounts, except as otherwise provided by the
Committee. With respect to any payments not yet made to a Participant by the
Company, nothing contained herein shall give any such Optionee any rights that
are greater than those of a general creditor of the Company.
(d) SUBJECT TO LAW. The Plan and the grant of Awards hereunder shall be
subject to all applicable federal and state laws, rules, and regulations and to
such approvals by any United States government or regulatory agency as may be
required.
(e) SEVERABILITY. If any provision of this Plan or an option agreement
is or becomes or is deemed invalid, illegal or unenforceable in any
jurisdiction, or would disqualify the Plan or any agreement evidencing an Award
under any law deemed applicable by the Board, such provision shall be construed
or deemed amended to conform to applicable laws or, if it cannot be construed or
deemed amended without, in the determination of the Board, materially altering
the intent of the Plan or the agreement, it shall be stricken and the remainder
of the Plan or the agreement shall remain in full force and effect.
(f) EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on
the date on which it is adopted by the Board, but no Incentive Stock Option
granted to an Optionee shall be effective unless and until the Plan has been
approved by the Company's stockholders. No Awards shall be granted under the
Plan after the completion of ten years from the earlier of (i) the date on which
the Plan was adopted by the Board or (ii) the date the Plan was approved by the
Company's stockholders, but Awards previously granted may extend beyond that
date.
(g) AMENDMENT OF PLAN. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time, provided that no increase in the total
number of shares available for Awards under the Plan (except by operation of the
provisions of Section 4(b) above) or for grants of Incentive Stock Options under
the Plan may be made, unless and until such amendment shall have been approved
by the Company's stockholders.
(h) STOCKHOLDER APPROVAL. For purposes of this Plan, stockholder
approval shall mean approval by a vote of the stockholders in accordance with
the requirements of Section 422 of the
8
<PAGE>
Code.
(i) GOVERNING LAW. The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to any applicable conflicts of law.
As amended, adopted by the Board of Directors
On October 1, 1997.
As amended, approved by the stockholders of
the Company on October 1, 1997.
9
Exhibits 5.1 and 23.2
November 1, 1999
Trimeris, Inc.
4727 University Drive
Suite 100
Durham, North Carolina 27707
Ladies and Gentlemen:
I refer to the registration statement on Form S-8 (the "Registration
Statement") to be filed by Trimeris, Inc. (the "Company") with the Securities
and Exchange Commission on or about November 1, 1999 under the Securities Act of
1933, as amended (the "Act"), relating to the registration of an additional
1,000,000 shares (the "Shares") of common stock of the Company, par value $0.001
per share (the "Common Stock"), by the Company pursuant to the Trimeris, Inc.
Amended and Restated Stock Incentive Plan (the "Plan"). As Legal Counsel and
Assistant Secretary of the Company, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, such
corporate records, certificates, public documents and other documents, and have
reviewed such questions of law, as considered necessary or appropriate for the
purposes of this opinion.
In my examination, I have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted as originals, the conformity to original documents of all documents
submitted to as certified, conformed or photostatic copies and the authenticity
of the originals of such documents. As to any facts material to the opinions
expressed herein which have not been independently established or verified, I
have relied upon statements and representations of officers and other
representations of the Company and others.
Upon the basis of such examination, it is my opinion that:
1. The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
2. The issuance of the Shares of Common Stock have been duly authorized
by the Company and the Plan, as amended, has been duly adopted and authorized by
the board of directors and the stockholders of the Company, and when (i) the
Registration Statement shall have been filed with the Securities and Exchange
Commission under the Act and (ii) upon payment of the consideration and
termination or lapse of any restrictions set forth in any award agreement under
the Plan, and delivery of the certificate evidencing the Shares so acquired, the
Shares of Common Stock will be legally issued, fully paid and non-assessable.
<PAGE>
Trimeris, Inc.
November 1, 1999
Page 2 of 2
I express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of North Carolina, the Delaware General Corporation
Law and the Federal laws of the United States of America to the extent
specifically referred to herein.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving said consent, I do not admit that I am
included in the category of person whose consent is required under Section 7 of
the Act or the rules or regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Loryn C. Nembirkow
Loryn C. Nembirkow
Legal Counsel and Assistant Secretary
EXHIBIT 24.1
KPMG LLP
150 Fayetteville Street Mall
Suite 1200
Post Office Box 29543
Raleigh, NC 27626-0543
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
Trimeris, Inc.:
We consent to incorporation by reference in the Registration Statement
(No. 333-) on Form S-8 of Trimeris, Inc. (A Development Stage Company), of our
report dated February 4, 1999, relating to the balance sheets of Trimeris, Inc.
as of December 31, 1997 and 1998, and the related statements of operations,
stockholders' equity (deficit), and cash flows for each of the years in the
three-year period ended December 31, 1998 and for the cumulative period from
the date of inception to December 31, 1998, which report appears in the
December 31, 1998 annual report on Form 10-K of Trimeris, Inc.
KPMG LLP
Raleigh, North Carolina
November 3, 1999
