<PAGE> 1
As filed with the Securities and Exchange Commission on July 18, 1997
Registration No. 333-
-------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
ANESTA CORP.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 87-0424798
(State of Incorporation) (I.R.S. Employer of Identification No.)
4745 WILEY POST WAY
PLAZA 6, SUITE 650
SALT LAKE CITY, UTAH 84116
(801) 595-1405
- --------------------------------------------------------------------------------
(Address and telephone number of principal executive offices)
1993 STOCK OPTION PLAN
- --------------------------------------------------------------------------------
(Full title of the plan)
WILLIAM C. MOELLER
CHIEF EXECUTIVE OFFICER AND TREASURER
ANESTA CORP.
4745 WILEY POST WAY
PLAZA 6, SUITE 650
SALT LAKE CITY, UTAH 84116
- --------------------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------
Copies to:
JAMES C.T. LINFIELD, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUITE 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.001) 749,797 $16.75 $11,788,188 $3,572
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Act"). The offering price per share and
aggregate offering price are based on (a) the weighted average
exercise price for shares subject to options and stock previously
granted under the Registrant's 1993 Stock Option Plan, as amended and
(b) the price per share and aggregate offering price based upon the
closing price of Registrant's Common Stock on July 15, 1997 as
reported on the Nasdaq National Market for options and shares to be
granted under the 1993 Stock Option Plan, as amended. The following
chart illustrates the calculation of the registration fee:
<TABLE>
<CAPTION>
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE
<S> <C> <C> <C>
Shares issuable pursuant
to options outstanding
under the 1993 Stock 211,789 $13.11(a) $ 2,776,554
Option Plan, as amended
Shares issuable upon
exercise of options
available for grant under
the 1993 Stock Option 538,008 $16.75(b) $ 9,011,634
Plan, as amended
Proposed Maximum $11,788,188
Aggregate Offering Price
x .000303
Registration Fee $3,572
</TABLE>
(a) Weighted average exercise price.
(b) Nasdaq National Market closing price of the Registrant's
Common Stock on July 15, 1997.
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
2.
<PAGE> 3
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENT ON FORM S-8 NO. 33-74650
The following documents filed by Anesta Corp., a Delaware corporation
(the "Company" or the "Registrant") with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement:
(a) The Registration Statement on Form S-8 No. 33-74650 filed on
February 1, 1994;
(b) The Company's latest annual report on Form 10-K for the fiscal
year ended December 31, 1996;
(c) A description of the Company's Common Stock, which is
contained in the Form 8-A Registration Statement filed by the
Company with the Commission which was declared effective on January 27, 1994;
and
(d) All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part of this registration
statement from the date of the filing of such reports and documents.
EXHIBITS
EXHIBIT
NUMBER
- ------
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.5 Registrant's 1993 Stock Option Plan, as amended.
3.
<PAGE> 4
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 Salt Lake City, State of
Utah, on July 18, 1997.
ANESTA CORP.
By /s/ William C. Moeller
--------------------------------------
William C. Moeller
Chief Executive Officer,
Treasurer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William C. Moeller and Thomas B. King,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, 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 all 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 and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
4.
<PAGE> 5
Pursuant to 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 indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ WILLIAM C. MOELLER Chief Executive Officer, Treasurer July 18, 1997
- ---------------------------------------- and Director (Principal Executive
William C. Moeller Officer and Principal Financial
Officer)
/s/ THOMAS B. KING President and Chief Operating July 18, 1997
- ---------------------------------------- Officer and Director
Thomas B. King
/s/ THEODORE H. STANLEY, M.D. Chairman of the Board and Secretary July 18, 1997
- ----------------------------------------
Theodore H. Stanley, M.D.
/s/ ROGER P. EVANS Controller (Principal Accounting July 18, 1997
- ---------------------------------------- Officer)
Roger P. Evans
/s/ EDWIN M. KANIA, JR. Director July 18, 1997
- ----------------------------------------
Edwin M. Kania, Jr.
/s/ DANIEL L. KISNER, M.D. Director July 18, 1997
- ----------------------------------------
Daniel L. Kisner, M.D.
/s/ RICHARD H. LEAZER Director July 18, 1997
- ----------------------------------------
Richard H. Leazer
/s/ EMANUEL M. PAPPER, M.D., Ph.D. Director July 18, 1997
- ----------------------------------------
Emanuel M. Papper, M.D., Ph.D.
/s/ RICHARD P. URFER Director July 18, 1997
- ----------------------------------------
Richard P. Urfer
</TABLE>
5.
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBER
<S> <C>
5.1 Opinion of Cooley LLP.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.5 Registrant's 1993 Stock Option Plan, as amended.
</TABLE>
6.
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LETTERHEAD]
July 18, 1997
Anesta Corp.
4745 Wiley Post Way
Plaza 6, Suite 650
Salt Lake City, UT 84116
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Anesta Corp. (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 749,797 shares of the Company's
Common Stock, $.001 par value, (the "Shares") pursuant to its 1993 Stock Option
Plan, as amended (the "Plan").
In connection with this opinion, we have examined the Registration Statement
and related Prospectus, your Certificate of Incorporation and By-laws, as
amended, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies thereof,
and the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain
deferred payment arrangements, which will be fully paid and nonassessable when
such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ James C.T. Linfield
-----------------------------------
James C. T. Linfield
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
Anesta Corp. on Form S-8 of our report dated February 26, 1997, on our audits
of the financial statements of Anesta Corp. as of December 31, 1996 and 1995,
and for the years ended December 31, 1996, 1995 and 1994, which report is
included in the Anesta Corp. Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Salt Lake City, Utah
July 15, 1997
<PAGE> 1
EXHIBIT 99.5
ANESTA CORP.
STOCK OPTION PLAN
ADOPTED SEPTEMBER 13, 1993
AMENDED AUGUST 22, 1996
AMENDED FEBRUARY 26, 1997
APPROVED BY STOCKHOLDERS JUNE 17, 1997
1. PURPOSES.
(A) The purpose of the Plan is to provide a means by which selected
Employees and Directors of and Consultants to the Company, and its
Affiliates, may be given an opportunity to purchase stock of the Company.
(B) The Company, by means of the Plan, seeks to retain the services
of persons who are now Employees or Directors of or Consultants to the
Company and its Affiliates, to secure and retain the services of new Employees,
Directors and Consultants, and to provide incentives for such persons to
exert maximum efforts for the success of the Company and its Affiliates.
(C) The Company intends that the Options issued under the Plan shall, in
the discretion of the Board or any Committee to which responsibility for
administration of the Plan has been delegated pursuant to subsection 3(c), be
either Incentive Stock Options or Nonstatutory Stock Options. All Options
shall be separately designated Incentive Stock Options or Nonstatutory Stock
Options at the time of grant, and in such form as issued pursuant to Section 6,
and a separate certificate or certificates will be issued for shares
purchased on exercise of each type of Option.
1.
<PAGE> 2
2. DEFINITIONS.
(A) "AFFILIATE" means any parent corporation or subsidiary
corporation, whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f) respectively, of the Code.
(B) "BOARD" means the Board of Directors of the Company.
(C) "CODE" means the Internal Revenue Code of 1986, as amended.
(D) "COMMITTEE" means a Committee appointed by the Board in
accordance with subsection 3(c) of the Plan.
(E) "COMPANY" means Anesta Corp., a Delaware corporation.
(F) "CONSULTANT" means any person, including an advisor, engaged by
the Company or an Affiliate to render services and who is compensated for
such services, provided that the term "Consultant" shall not include Directors
who are paid only a director's fee by the Company or who are not compensated
by the Company for their services as Directors.
(G) "CONTINUOUS STATUS AS AN EMPLOYEE, DIRECTOR OR CONSULTANT"
means the employment or relationship as a Director or Consultant is not
interrupted or terminated. The Board, in its sole discretion, may
determine whether Continuous Status as an Employee, Director or
Consultant shall be considered interrupted in the case of: (i) any leave of
absence approved by the Board, including sick leave, military leave, or any
other personal leave; or (ii) transfers between locations of the Company or
between the Company, Affiliates or their successors.
(H) "DIRECTOR" means a member of the Board.
(I) "DISABILITY" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
2.
<PAGE> 3
(J) "DISINTERESTED PERSON" means a Director: (i) who was not
during the one year prior to service as an administrator of the Plan
granted or awarded equity securities pursuant to the Plan or any other plan
of the Company or any of its affiliates entitling the participants therein
to acquire equity securities of the Company or any of its affiliates except as
permitted by Rule 16b-3(c)(2)(i); or (ii) who is otherwise considered to be a
"disinterested person" in accordance with Rule 16b-3(c)(2)(i), or any other
applicable rules, regulations or interpretations of the Securities and Exchange
Commission.
(K) "EMPLOYEE" means any person, including Officers and Directors,
employed by the Company or any Affiliate of the Company. Neither service as
a Director nor payment of a director s fee by the Company shall be sufficient
to constitute "employment" by the Company.
(L) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(M) "FAIR MARKET VALUE" means, as of any date, the value of the
common stock of the Company determined as follows:
(1) If the common stock is listed on any established stock
exchange or a national market system, including without limitation the
National Market System of the National Association of Securities Dealers,
Inc. Automated Quotation ("NASDAQ") System, the Fair Market Value of a share
of common stock shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such system or exchange
(or the exchange with the greatest volume of trading in common stock) on the
last market trading day prior to the day of determination, as reporting in the
Wall Street Journal or such other source as the Board deems reliable;
(2) If the common stock is quoted on the NASDAQ System (but not
on the National Market System thereof) or is regularly quoted by a recognized
securities dealer but
3.
<PAGE> 4
selling prices are not reported, the Fair Market Value of a share of common
stock shall be the mean between the bid and asked prices for the common
stock on the last market trading day prior to the day of determination,
as reported in the Wall Street Journal or such other source as the Board deems
reliable;
(3) In the absence of an established market for the common stock,
the Fair Market Value shall be determined in good faith by the Board.
(N) "INCENTIVE STOCK OPTION" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(O) "NON-EMPLOYEE DIRECTOR" means a Director of the Company who is
not otherwise an Employee.
(P) "NONSTATUTORY STOCK OPTION" means an Option not intended to
qualify as an Incentive Stock Option.
(Q) "OFFICER" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(R) "OPTION" means a stock option granted pursuant to the Plan.
(S) "OPTION AGREEMENT" means a written agreement between the
Company and an Optionee evidencing the terms and conditions of an individual
Option grant. Each Option Agreement shall be subject to the terms and
conditions of the Plan.
(T) "OPTIONED STOCK" means the common stock of the Company subject to
an Option.
(U) "OPTIONEE" means an Employee, Director or Consultant who holds an
outstanding Option.
4.
<PAGE> 5
(V) "PLAN" means this 1993 Anesta Corp. Stock Option Plan.
(W) "RULE 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
3. ADMINISTRATION.
(A) The Plan shall be administered by the Board unless and until the
Board delegates administration to a Committee, as provided in subsection 3(c).
(B) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted Options; when and how each Option shall be
granted; whether an Option will be an Incentive Stock Option or a
Nonstatutory Stock Option; the provisions of each Option granted (which need
not be identical), including the time or times such Option may be exercised
in whole or in part; and the number of shares for which an Option shall be
granted to each such person.
(2) To construe and interpret the Plan and Options granted under
it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Option Agreement, in a
manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.
(3) To amend the Plan as provided in Section 11.
(4) Generally, to exercise such powers and to perform such
acts as the Board deems necessary or expedient to promote the best interests
of the Company.
5.
<PAGE> 6
(C) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members (the "Committee"), all of the members
of which Committee shall be Disinterested Persons, if required under
subsection 3(d). If administration is delegated to a Committee, the Committee
shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board (and references in this Plan to the Board
shall thereafter be to the Committee), subject, however, to such resolutions,
not inconsistent with the provisions of the Plan, as may be adopted from time
to time by the Board. The Board may abolish the Committee at any time and
revest in the Board the administration of the Plan. Additionally, prior to
the date of the first registration of an equity security of the Company
under Section 12 of the Exchange Act, and notwithstanding anything to the
contrary contained herein, the Board may delegate administration of the
Plan to any person or persons and the term "Committee" shall apply to any
person or persons to whom such authority has been delegated. Notwithstanding
anything in this Section 3 to the contrary, the Board or the Committee may
delegate to a committee of one or more members of the Board the authority
to grant options to eligible persons who are not then subject to Section
16 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(D) Any requirement that an administrator of the Plan be a
Disinterested Person shall not apply (i) prior to the date of the first
registration of an equity security of the Company under Section 12 of the
Exchange Act, or (ii) if the Board or the Committee expressly declares that
such requirement shall not apply. Any Disinterested Person shall otherwise
comply with the requirements of Rule 16b-3.
6.
<PAGE> 7
4. SHARES SUBJECT TO THE PLAN.
(A) Subject to the provisions of Section 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to Options
shall not exceed in the aggregate One Million Five Hundred Thousand
(1,500,000) shares of the Company's common stock. If any Option shall for
any reason expire or otherwise terminate without having been exercised in
full, the stock not purchased under such Option shall revert to and again
become available for issuance under the Plan.
(B) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
5. ELIGIBILITY.
(A) Incentive Stock Options may be granted only to Employees.
Nonstatutory Stock Options may be granted only to Employees, Directors or
Consultants.
(B) A Director shall in no event be eligible for the benefits of
the Plan unless at the time discretion is exercised in the selection of the
Director as a person to whom Options may be granted, or in the determination
of the number of shares which may be covered by Options granted to the
Director: (i) the Board has delegated its discretionary authority over the
Plan to a Committee which consists solely of Disinterested Persons; or
(ii) the Plan otherwise complies with the requirements of Rule 16b-3. The
Board shall otherwise comply with the requirements of Rule 16b-3. This
subsection 5(b) shall not apply (i) prior to the date of the first
registration of an equity security of the Company under Section 12 of the
Exchange Act, or (ii) if the Board or Committee expressly declares that it shall
not apply.
(C) No person shall be eligible for the grant of an Incentive Stock
Option if, at the time of grant, such person owns (or is deemed to own
pursuant to Section 424(d) of the Code)
7.
<PAGE> 8
stock possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or of any of its Affiliates unless
the exercise price of such Incentive Stock Option is at least one hundred ten
percent (110%) of the Fair Market Value of such stock at the date of grant and
the Incentive Stock Option is not exercisable after the expiration of five (5)
years from the date of grant.
6. OPTION PROVISIONS.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of separate
Options need not be identical, but each Option shall include (through
incorporation of provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:
(A) TERM. No Option shall be exercisable after the expiration of ten
(10) years from the date it was granted.
(B) PRICE. The exercise price of each Incentive Stock Option shall be
not less than one hundred percent (100%) of the Fair Market Value of the stock
subject to the Option on the date the Option is granted. The exercise price of
each Nonstatutory Stock Option shall be not less than eighty five percent
(85%) of the Fair Market Value of the stock subject to the Option on the date
the Option is granted.
(C) CONSIDERATION. The purchase price of stock acquired pursuant to
an Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (i) in cash at the time the option is exercised, or (ii)
at the discretion of the Board or the Committee, either at the time of
the grant or exercise of the Option, (A) by delivery to the Company of other
common stock of the Company, (B) according to a deferred payment or other
arrangement (which may include, without limiting the generality of the
foregoing, the use of other common stock of the
8.
<PAGE> 9
Company) with the person to whom the Option is granted or to whom the Option
is transferred pursuant to subsection 6(d), or (C) in any other form of legal
consideration that may be acceptable to the Board.
In the case of any deferred payment arrangement, interest shall be
payable at least annually and shall be charged at the minimum rate of
interest necessary to avoid the treatment as interest, under any applicable
provisions of the Code, of any amounts other than amounts stated to be interest
under the deferred payment arrangement.
(D) TRANSFERABILITY. An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and distribution, and
shall be exercisable during the lifetime of the person to whom the Incentive
Stock Option is granted only by such person. A Nonstatutory Stock Option
shall not be transferable except by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Code or Title I of the Employee Retirement Income Security Act, or the
rules thereunder (a "QDRO" ), and shall be exercisable during the lifetime of
the person to whom the Option is granted only by such person or any transferee
pursuant to a QDRO.
(E) VESTING. The total number of shares of stock subject to an
Option may, but need not, be allotted in periodic installments (which may,
but need not, be equal) or pursuant to performance criteria or other factors.
The Option Agreement may provide that from time to time during each of such
installment periods, the Option may become exercisable ("vest") with respect
to some or all of the shares allotted to that period, and may be exercised
with respect to some or all of the shares allotted to such period and/or any
prior period as to which the Option became vested but was not fully exercised.
During the remainder of the term of the Option (if its term extends beyond
the end of the installment periods), the option may be exercised from time
9.
<PAGE> 10
to time with respect to any shares then remaining subject to the Option. The
provisions of this subsection 6(e) are subject to any Option provisions
governing the minimum number of shares as to which an Option may be exercised.
(F) SECURITIES LAW COMPLIANCE. The Company may require any Optionee,
or any person to whom an Option is transferred under subsection 6(d), as a
condition of exercising any such Option, (1) to give written assurances
satisfactory to the Company as to the Optionee's knowledge and experience in
financial and business matters and/or to employ a purchaser representative
reasonably satisfactory to the Company who is knowledgeable and experienced
in financial and business matters, and that he or she is capable of
evaluating, alone or together with the purchaser representative, the merits
and risks of exercising the Option; and (2) to give written assurances
satisfactory to the Company stating that such person is acquiring the stock
subject to the Option for such person's own account and not with any
present intention of selling or otherwise distributing the stock. These
requirements, and any assurances given pursuant to such requirements,
shall be inoperative if (i) the issuance of the shares upon the exercise of the
Option has been registered under a then currently effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
or (ii) as to any particular requirement, a determination is made by
counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws. The Company may,
upon advice of counsel to the Company, place legends on stock certificates
issued under the Plan as such counsel deems necessary or appropriate in
order to comply with applicable securities laws, including, but not limited
to, legends restricting the transfer of the stock.
(G) TERMINATION OF EMPLOYMENT OR RELATIONSHIP AS DIRECTOR OR CONSULTANT.
In the event an Optionee's Continuous Status as an Employee, Director or
Consultant terminates
10.
<PAGE> 11
(other than upon the Optionee's death or Disability), the Optionee may
exercise his or her Option (to the extent that the Optionee was entitled to
exercise it at the date of termination) but only within such period of time
ending on the earlier of (i) the date forty-five (45) days after the
termination of the Optionee's Continuous Status as an Employee, Director or
Consultant (or such longer or shorter period specified in the Option
Agreement), or (ii) the expiration of the term of the Option as set forth in
the Option Agreement. If, after termination, the Optionee does not exercise
his or her Option within the time specified in the Option Agreement, the
Option shall terminate, and the shares covered by such Option shall revert to
and again become available for issuance under the Plan.
(H) DISABILITY OF OPTIONEE. In the event an Optionee's
Continuous Status as an Employee, Director or Consultant terminates as a
result of the Optionee's Disability, the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it at the date
of termination), but only within such period of time ending on the earlier
of (i) the date twelve (12) months following such termination (or such
longer or shorter period specified in the Option Agreement), or (ii) the
expiration of the term of the Option as set forth in the Option Agreement.
If, at the date of termination, the Optionee is not entitled to exercise his
or her entire Option, the shares covered by the unexercisable portion of the
Option shall revert to and again become available for issuance under the
Plan. If, after termination, the Optionee does not exercise his or her Option
within the time specified herein, the Option shall terminate, and the shares
covered by such Option shall revert to and again become available for issuance
under the Plan.
(I) DEATH OF OPTIONEE. In the event of the death of an Optionee
during, or within forty-five (45) days of the termination of, the Optionee's
Continuous Status as an Employee,
11.
<PAGE> 12
Director or Consultant, the Option may be exercised (to the extent the Optionee
was entitled to exercise the Option at 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 within the period ending on the earlier of (i) the
date twelve (12) months following the date of death (or such longer or shorter
period specified in the Option Agreement), or (ii) the expiration of the term
of such Option as set forth in the Option Agreement. If, at the time of
death, the Optionee was not entitled to exercise his or her entire Option,
the shares covered by the unexercisable portion of the Option shall revert to
and again become available for issuance under the Plan. If, after death, the
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance does not exercise the Option within the time specified
herein, the Option shall terminate, and the shares covered by such Option shall
revert to and again become available for issuance under the Plan.
(J) EARLY EXERCISE. The Option may, but need not, include a provision
whereby the Optionee may elect at any time while an Employee, Director or
Consultant to exercise the Option as to any part or all of the shares subject to
the Option prior to the full vesting of the Option. Any unvested shares so
purchased may be subject to a repurchase right in favor of the Company or to any
other restriction the Board determines to be appropriate.
(K) WITHHOLDING. To the extent provided by the terms of an Option
Agreement, the Optionee may satisfy any federal, state or local tax
withholding obligation relating to the exercise of such Option by any of the
following means or by a combination of such means: (1) tendering a cash
payment; (2) authorizing the Company to withhold shares from the shares of the
common stock otherwise issuable to the participant as a result of the
exercise of the Option; or (3)
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delivering to the Company owned and unencumbered shares of the common stock of
the Company.
7. COVENANTS OF THE COMPANY.
(A) During the terms of the Options, the Company shall keep available
at all times the number of shares of stock required to satisfy such Options.
(B) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may
be required to issue and sell shares of stock upon exercise of the Options;
provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any Option or any stock
issued or issuable pursuant to any such Option. If, after reasonable efforts,
the Company is unable to obtain from any such regulatory commission or
agency the authority which counsel for the Company deems necessary for the
lawful issuance and sale of stock under the Plan, the Company shall be
relieved from any liability for failure to issue and sell stock upon exercise
of such Options unless and until such authority is obtained.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Options shall constitute general
funds of the Company.
9. MISCELLANEOUS.
(A) The Board shall have the power to accelerate the time at
which an Option may first be exercised or the time during which an Option
or any part thereof will vest pursuant to subsection 6(e), notwithstanding
the provisions in the Option stating the time at which it may first be
exercised or the time during which it will vest.
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(B) Neither an Optionee nor any person to whom an Option is
transferred under subsection 6(d) shall be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares subject to such
Option unless and until such person has satisfied all requirements for exercise
of the Option pursuant to its terms.
(C) Nothing in the Plan or any instrument executed or Option
granted pursuant thereto shall confer upon any Employee, Director, Consultant
or Optionee any right to continue in the employ of the Company or any
Affiliate (or to continue acting as a Consultant) or shall affect the right
of the Company or any Affiliate to terminate the employment or relationship
as a Consultant of any Employee, Director, Consultant or Optionee with or
without cause.
(D) To the extent that the aggregate Fair Market Value (determined
at the time of grant) of stock with respect to which Incentive Stock Options
are exercisable for the first time by any Optionee during any calendar year
under all plans of the Company and its Affiliates exceeds one hundred
thousand dollars ($100,000), the Options or portions thereof which exceed
such limit (according to the order in which they were granted) shall be
treated as Nonstatutory Stock Options.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(A) If any change is made in the stock subject to the Plan, or
subject to any Option (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash,
stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
Options will be appropriately adjusted in the class(es) and maximum number of
shares subject to the Plan and the class(es) and number of shares and price
per share of stock subject to outstanding Options.
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(B) In the event of: (1) a dissolution or liquidation of the
Company; (2) a merger or consolidation in which the Company is not the
surviving corporation; or (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock
outstanding immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or
otherwise, then to the extent permitted by applicable law the Board shall have
the power and discretion to prescribe the terms and conditions for the
exercise of, or modification of, the options granted hereunder. By way of
illustration, and not by way of limitation, the Board may provide for the
complete or partial acceleration of the dates of exercise of the Options, or
may provide that such Options will be exchanged for or converted into options
or rights to acquire securities of the surviving or acquiring corporation, or
may provide for a payment or distribution in respect of outstanding Options
(or the portion thereof that is currently exercisable) in cancellation
thereof. The Board or the Committee may provide that Options granted
hereunder must be exercised in connection with the closing of such
transaction, and that if not so exercised such Options or rights will
expire. Any such determinations by the Board may be made generally with
respect to all Optionees, or may be made on a case-by-case basis with
respect to particular Optionees. The provisions or this Section 10(b) shall
not apply to any transaction undertaken for the purpose of reincorporating
the Company under the laws of another jurisdiction, if such transaction does
not materially affect the beneficial ownership of the Company's capital stock.
11. AMENDMENT OF THE PLAN.
(A) The Board at any time, and from time to time, may amend the
Plan. However, except as provided in Section 10 relating to adjustments upon
changes in stock, no amendment
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shall be effective unless approved by the stockholders of the Company within
twelve (12) months before or after the adoption of the amendment, where the
amendment will:
(1) Increase the number of shares reserved for Options under the
Plan;
(2) Modify the requirements as to eligibility for participation
in the Plan (to the extent such modification requires stockholder approval in
order for the Plan to satisfy the requirements of Section 422 of the Code); or
(3) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to satisfy the
requirements of Section 422 of the Code or to comply with the
requirements of Rule 16b-3.
(B) It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide Optionees
with the maximum benefits provided or to be provided under the provisions of
the Code and the regulations promulgated thereunder relating to Incentive
Stock Options and/or to bring the Plan and/or Incentive Stock Options granted
under it into compliance therewith.
(C) Rights and obligations under any Option granted before amendment
of the Plan shall not be altered or impaired by any amendment of the Plan
unless (i) the Company requests the consent of the person to whom the Option was
granted and (ii) such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(A) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on September 12, 2003. No Options
may be granted under the Plan while the Plan is suspended or after it is
terminated.
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(B) Rights and obligations under any Option granted while the Plan is
in effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the Option was granted.
13. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board, but no
Options granted under the Plan shall be exercised unless and until the Plan
has been approved by the stockholders of the Company.
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