As filed with the Securities and Exchange Commission on January 9, 1998
Registration No.333-_________
UNITED STATES
SECURITY AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
NEUROBIOLOGICAL TECHNOLOGIES, INC.
(Exact name of small business issuer as specified in its charter)
Delaware 94-3049219
(State or other jurisdiction of incorporation (IRS Employer Identification No.)
or organization)
1387 Marina Way South
Richmond, California 94804
(Address of principal executive offices)
AMENDED AND RESTATED NEUROBIOLOGICAL TECHNOLOGIES, INC.
1993 STOCK PLAN
(Full title of the plan)
Copy to:
PAUL E. FREIMAN NEIL FLANZRAICH
President and Chief Executive Officer STEPHEN C. FERRUOLO
Neurobiological Heller Ehrman White
Technologies, Inc & McAuliffe, Attorneys
1387 Marina Way South 525 University Avenue
Richmond, California 94804 Palo Alto, California 94301
(510) 215-8000 (650) 624-7000
(Name and address of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
------------------- ----------------- ----------------------- ----------------------- ---------------
<S> <C> <C> <C> <C> <C>
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered offering price per aggregate offering registration
register share (1) price fee
------------------- ----------------- ----------------------- ----------------------- ---------------
Common Stock,
$ .01 par value 500,000 shares $.656 $328,000 $108.24
------------------- ----------------- ----------------------- ----------------------- ---------------
<FN>
(1) Pursuant to Rule 457 (h), the registration fee was computed on the basis of
the market value of the Common Stock, computed in accordance with Rule 457 (c)
on the basis of the average of the high and low prices per share of such Common
Stock as reported on The Nasdaq SmallCap Market on January 7, 1998.
</FN>
</TABLE>
The registration statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
GENERAL INFORMATION
This Registration Statement is being filed for the purpose of
increasing the number of shares of Common Stock reserved for issuance under the
1993 Stock Plan by 500,000 shares to a total of 2,000,000 shares. This will
increase the number of securities of the same class as other securities for
which a Registration Statement of the Registration on Form S-8 relating to the
same employee benefit plan is effective.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(1) Registrant's Form S-8 Registration Statements filed with the
Securities and Exchange Commission on February 16 1994 (File No
33-75392) and on December 20, 1996 (File No. 333-18519).
(2) Registrant's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1997, as amended, which contains, among other
things, the audited financial statements of Registrant for the
fiscal year ended June 30, 1997, together with the report thereon
of Ernst & Young LLP, independent auditors.
(3) Registrant's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1997.
(4) The description of Registrant's common stock contained in
Registrant's Registration Statement on Form 8-A filed on January
14, 1994 (File No. 0-23280).
In addition, all documents subsequently filed by Registrant pursuant to
Section 13 (a), 13 (c), 14 and 15 (d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 8. EXHIBITS
Exhibit
Number Exhibit
- ------ -------
5.1 Opinion regarding legality of securities to be offered.
10.1 Amended and Restated Neurobiological Technologies, Inc. 1993
Stock Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Heller Ehrman White & McAuliffe, Attorneys
(included in Exhibit 5.1).
24.1 Power of Attorney
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange 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 Richmond, State of California, on January 9,
1998.
NEUROBIOLOGICAL TECHNOLOGIES, INC.
By /s/ Paul E. Freiman
-------------------
Paul E. Freiman
President, Chief Executive Officer
EXHIBIT 5.1
January 8, 1998
23855-0001
Via Federal Express
Neurobiological Technologies, Inc.
1387 Marina Way South
Richmond, California 94804
Re: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as counsel to Neurobiological Technologies, Inc., a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-8 (the "Registration Statement") which the Company proposes
to file with the Securities and Exchange Commission on January 9, 1997 for the
purpose of registering under the Securities Act of 1933, as amended, an
additional 500,000 shares of its Common Stock, par value $.01 (the "Shares").
The Shares are issuable under the Company's 1993 Stock Plan (the "Plan").
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies.
In rendering our opinion, we have examined the following records,
documents and instruments:
(a) The Certificate of Incorporation of the Company, certified by the
Delaware Secretary of State as of December 12, 1997, and certified to
us by an officer of the Company as being complete and in full force as
of the date of this opinion;
(b) The Bylaws of the Company certified to us by an officer of the Company
as being complete and in full force and effect as of the date of this
opinion;
<PAGE>
Neurobiological Technologies, Inc. Heller Ehrman White & McAuliffe
January 8, 1998 ATTORNEYS
Page 2
(c) A Certificate of an officer of the Company (i) attaching records
certified to us as constituting all records of proceedings and actions
of the Board of Directors, including any committee thereof, and
stockholders of the Company relating to the Shares, and the
Registration Statement, and (ii) certifying as to certain factual
matters;
(d) The Registration Statement;
(d) The Plan; and
(e) A letter from ChaseMellon Shareholder Services, LLC, the Company's
transfer agent, dated January 6, 1998, as to the number of shares of
the Company's common stock that were outstanding on December 12, 1997.
This opinion is limited to the federal law of the United States of
America and the General Corporation Law of the State of Delaware, and we
disclaim any opinion as to the laws of any other jurisdiction. We further
disclaim any opinion as to any other statute, rule, regulation, ordinance, order
or other promulgation of any other jurisdiction or any regional or local
governmental body or as to any related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law
as we have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered and issued, (ii) the full
consideration stated in the Plan is paid for each Share and that such
consideration in respect of each Share includes payment of cash or other lawful
consideration at least equal to the par value thereof, (iii) appropriate
certificates evidencing the Shares are executed and delivered by the Company,
and (iv) all applicable securities laws are complied with, it is our opinion
that when issued and sold by the Company, after payment therefore in the manner
provided in the Plan and the Registration Statement, the Shares will be legally
issued, fully paid and nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm, corporation
or other entity for any purpose, without our prior written consent. We disclaim
any obligation to advise you of any change of law that occurs, or any facts of
which we may become aware, after the date of this opinion.
<PAGE>
Neurobiological Technologies, Inc. Heller Ehrman White & McAuliffe
January 8, 1998 ATTORNEYS
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
EXHIBIT 10.1
AMENDED AND RESTATED
NEUROBIOLOGICAL TECHNOLOGIES, INC.
1993 STOCK PLAN
SECTION 1. ESTABLISHMENT AND PURPOSE.
The 1993 Stock Plan of Neurobiological Technologies, Inc. was adopted
by the Company's Board of Directors on November 18, 1993 and was subsequently
amended and restated, with stockholder approval, effective February 15, 1994. In
September 1994, the Board of Directors again amended the 1993 Stock Plan of
Neurobiological Technologies, Inc., with stockholder approval, effective
November 16, 1994. The 1993 Stock Plan of Neurobiological Technologies, Inc. was
subsequently amended and restated by the Board of Directors in September, 1997
and approved by the stockholders on November 4, 1997.
Its purpose is to offer directors and selected employees, advisors and
consultants an opportunity to acquire a proprietary interest in the success of
the Company, or to increase such interest, by purchasing Shares of the Company's
Common Stock. The Plan provides both for the direct award or sale of Shares and
for the grant of Options to purchase Shares. Options granted under the Plan may
include Nonstatutory Options as well as Incentive Stock Options intended to
qualify under section 422 of the Code.
The Plan is intended to comply in all respects with Rule 16b-3 (or its
successor) under the Exchange Act and shall be construed accordingly.
SECTION 2. DEFINITIONS.
(a) "Board of Directors" shall mean the Board of Directors of the
Company, as constituted from time to time.
(b) "Change in Control" shall mean the occurrence of either of the
following events:
(i) A change in the composition of the Board of Directors, as
a result of which fewer than one-half of the incumbent
directors are directors who either:
(A) Had been directors of the Company 24 months prior
to such change; or
(B) Were elected, or nominated for election, to the
Board of Directors with the affirmative votes of at
least a majority of the directors who had been
directors of the Company 24 months prior to such
change and who were still in office at the time of
the election or nomination; or
(ii) Any "person" (as such term is used in sections 13(d) and
14(d) of the Exchange Act) by the acquisition or aggregation
of securities is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 30
percent or more of the combined voting power of the Company's
then outstanding securities ordinarily (and apart from rights
accruing under special circumstances) having the right to vote
at elections of directors (the "Base Capital Stock"); except
that any change in the relative beneficial ownership of the
Company's securities by any person resulting solely from a
reduction in the aggregate number of outstanding shares of
Base Capital Stock, and any decrease thereafter in such
person's ownership of securities, shall be disregarded until
such person increases in any manner, directly or indirectly,
such person's beneficial ownership of any securities of the
Company.
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(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Committee" shall mean a committee of the Board of Directors, as
described in Section 3(a).
(e) "Company" shall mean Neurobiological Technologies, Inc., a Delaware
corporation.
(f) "Employee" shall mean (i) any individual who is a common-law
employee of the Company or of a Subsidiary, (ii) an Outside Director
and (iii) an independent contractor who performs services for the
Company or a Subsidiary and who is not a member of the Board of
Directors.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Exercise Price" shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee in
the applicable Stock Option Agreement.
(i) "Fair Market Value" shall mean the market price of Stock,
determined by the Committee as follows:
(i) If Stock was traded over-the-counter on the date in
question but was not traded on the Nasdaq Stock Market or the
Nasdaq National Market, then the Fair Market Value shall be
equal to the mean between the last reported representative bid
and asked prices quoted for such date by the principal
automated inter-dealer quotation system on which Stock is
quoted or, if the Stock is not quoted on any such system, by
the "Pink Sheets" published by the National Quotation Bureau,
Inc.;
(ii) If Stock was traded over-the-counter on the date in
question and was traded on the Nasdaq Stock Market or the
Nasdaq National Market, then the Fair Market Value shall be
equal to the last-transaction price quoted for such date by
the Nasdaq Stock Market or the Nasdaq National Market;
(iii) If Stock was traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the
closing price reported by the applicable
composite-transactions report for such date; and
(iv) If none of the foregoing provisions is applicable, then
the Fair Market Value shall be determined by the Committee in
good faith on such basis as it deems appropriate.
Whenever possible, the determination of Fair Market Value by
the Committee shall be based on the prices reported in the
Western Edition of The Wall Street Journal. Such determination
shall be conclusive and binding on all persons.
(j) "ISO" shall mean an employee incentive stock option described in
section 422(b) of the Code.
(k) "Nonstatutory Option" shall mean a stock option not described in
sections 422(b) or 423(b) of the Code.
(l) "Offeree" shall mean an individual to whom the Committee has
offered the right to acquire Shares under the Plan (other than upon
exercise of an Option).
(m) "Option" shall mean an ISO or Nonstatutory Option granted under the
Plan and entitling the holder to purchase Shares.
(n) "Optionee" shall mean an individual who holds an Option.
(o) "Outside Director" shall mean a member of the Board of Directors
who is not a common-law employee of the Company or of a Subsidiary.
(p) "Plan" shall mean this 1993 Stock Plan of Neurobiological
Technologies, Inc., as amended from time to time.
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(q) "Purchase Price" shall mean the consideration for which one Share
may be acquired under the Plan (other than upon exercise of an Option),
as specified by the Committee.
(r) "Service" shall mean service as an Employee.
(s) "Share" shall mean one share of Stock, as adjusted in accordance
with Section 9 (if applicable).
(t) "Stock" shall mean the Common Stock of the Company.
(u) "Stock Option Agreement" shall mean the agreement between the
Company and an Optionee which contains the terms, conditions and
restrictions pertaining to his or her Option.
(v) "Stock Purchase Agreement" shall mean the agreement between the
Company and an Offeree who acquires Shares under the Plan which
contains the terms, conditions and restrictions pertaining to the
acquisition of such Shares.
(w) "Subsidiary" shall mean any corporation, if the Company and/or one
or more other Subsidiaries own not less than 50 percent of the total
combined voting power of all classes of outstanding stock of such
corporation. A corporation that attains the status of a Subsidiary on a
date after the adoption of the Plan shall be considered a Subsidiary
commencing as of such date.
(x) "Total and Permanent Disability" shall mean that the Optionee is
unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted, or can be expected to
last, for a continuous period of not less than one year.
SECTION 3. ADMINISTRATION.
(a) Committee Membership. The Plan shall be administered by the
Committee. The Committee shall consist of two or more disinterested
directors of the Company and shall meet such other requirements as may
be established from time to time by the Securities and Exchange
Commission for plans intended to qualify for exemption under Rule 16b-3
(or its successor) under the Exchange Act. The Board of Directors may
appoint a separate committee of the Board of Directors, composed of one
or more directors of the Company who need not be disinterested
directors, who may administer the Plan with respect to Employees who
are not officers or directors of the Company, may grant Shares and
Options under the Plan to such Employees and may determine the timing,
number of Shares and other terms of such grants.
(b) Disinterested Directors. A member of the Board of Directors shall
be deemed "disinterested" only if he or she satisfies:
(i) Such requirements as the Securities and Exchange
Commission may establish for disinterested administrators of
plans designed to qualify for exemption under Rule 16b-3 (or
its successor) under the Exchange Act; and
(ii) Such requirements as the Internal Revenue Service may
establish for outside directors acting under plans intended to
qualify for exemption under section 162(m)(4)(C) of the Code.
An Outside Director shall not fail to be "disinterested"
solely because he or she receives the Nonstatutory Options
described in Section 4(b).
(c) Committee Procedures. The Committee shall designate one of its
members as chairman. The Committee may hold meetings at such times and
places as it shall determine. The acts of a majority of the Committee
members present at meetings at which a quorum exists, or acts reduced
to or approved in writing by all Committee members, shall be valid acts
of the Committee.
(d) Committee Responsibilities. Subject to the provisions of the Plan,
the Committee shall have full authority and discretion to take the
following actions:
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(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms
relating to the Plan;
(iii) To authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of
the Plan;
(iv) To determine when Shares are to be awarded or offered for
sale and when Options are to be granted under the Plan;
(v) To select the Offerees and Optionees;
(vi) To determine the number of Shares to be offered to each
Offeree or to be made subject to each Option;
(vii) To prescribe the terms and conditions of each award or
sale of Shares, including (without limitation) the Purchase
Price, and to specify the provisions of the Stock Purchase
Agreement relating to such award or sale;
(viii) To prescribe the terms and conditions of each Option,
including (without limitation) the Exercise Price, to
determine whether such Option is to be classified as an ISO or
as a Nonstatutory Option, and to specify the provisions of the
Stock Option Agreement relating to such Option;
(ix) To amend any outstanding Stock Purchase Agreement or
Stock Option Agreement, subject to applicable legal
restrictions and to the consent of the Offeree or Optionee who
entered into such agreement;
(x) To prescribe the consideration for the grant of each
Option or other right under the Plan and to determine the
sufficiency of such consideration; and
(xi) To take any other actions deemed necessary or advisable
for the administration of the Plan.
All decisions, interpretations and other actions of the Committee shall be final
and binding on all Offerees, all Optionees, and all persons deriving their
rights from an Offeree or Optionee. No member of the Committee shall be liable
for any action that he or she has taken or has failed to take in good faith with
respect to the Plan, any Option, or any right to acquire Shares under the Plan.
SECTION 4. ELIGIBILITY.
(a) General Rules. Only Employees (including, without limitation,
independent contractors) shall be eligible for designation as Optionees
or Offerees by the Committee. In addition, only Employees who are
common-law employees of the Company or a Subsidiary shall be eligible
for the grant of ISOs.
(b) Outside Directors. Any other provision of the Plan notwithstanding,
the participation of Outside Directors in the Plan shall be subject to
the following restrictions:
(i) An Outside Director who first becomes a member of the
Board of Directors after February 15, 1994, shall receive a
one-time grant of a Nonstatutory Option (subject to adjustment
under Section 9). Such Nonstatutory Option shall be granted on
the date when such Outside Director first joins the Board of
Directors. The foregoing notwithstanding, no grant under this
Paragraph (i) shall be made to a new Outside Director if he or
she replaces a former Outside Director and the new and former
Outside Directors are both affiliated with the same investment
fund or similar entity.
(ii) Upon the conclusion of each regular annual meeting of the
Company's stockholders, each Outside Director who will
continue serving as a member of the Board of Directors
thereafter shall receive a Nonstatutory Option covering 1,000
Shares (subject to adjustment under Section 9),
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except that such Nonstatutory Option shall not be granted in
the calendar year in which the same Outside Director received
a Nonstatutory Option described in Paragraph (i) above.
(iii) All Nonstatutory Options granted to an Outside Director
under this Subsection (b) shall become exercisable in full on
the first anniversary of the date of grant. All such
Nonstatutory Options shall also become exercisable in full in
the event of (A) a Change in Control or (B) the termination of
the Outside Director's service because of death, Total and
Permanent Disability or retirement at or after age 65.
(iv) The Exercise Price under all Nonstatutory Options granted
to an Outside Director under this Subsection (b) shall be
equal to 100 percent of the Fair Market Value of a Share on
the date of grant, payable in one of the forms described in
Subsection (a), (b), (c) or (d) of Section 8.
(v) All Nonstatutory Options granted to an Outside Director
under this Subsection (b) shall terminate on the earliest of
(A) the 10th anniversary of the date of grant, (B) the date
three months after the termination of such Outside Director's
service for any reason other than death or Total and Permanent
Disability or (C) the date 12 months after the termination of
such Outside Director's service because of death or Total and
Permanent Disability.
(vi) A Nonstatutory Option grant to an Outside Director under
this Subsection (b) shall be invalid if such Outside Director
declines to execute a Stock Option Agreement pursuant to
Section 7(a).
The Committee may provide that the Nonstatutory Options that otherwise would be
granted to an Outside Director under this Subsection (b) shall instead be
granted to an affiliate of such Outside Director. Such affiliate shall then be
deemed to be an Outside Director for purposes of the Plan, provided that the
service-related vesting and termination provisions pertaining to the
Nonstatutory Options shall be applied with regard to the service of the Outside
Director.
(c) Ten-Percent Stockholders. An Employee who owns more than 10 percent
of the total combined voting power of all classes of outstanding stock
of the Company or any of its Subsidiaries shall not be eligible for the
grant of an ISO unless (i) the Exercise Price is at least 110 percent
of the Fair Market Value of a Share on the date of grant and (ii) such
ISO by its terms is not exercisable after the expiration of five years
from the date of grant.
(d) Attribution Rules. For purposes of Subsection (c) above, in
determining stock ownership, an Employee shall be deemed to own the
stock owned, directly or indirectly, by or for such Employee's
brothers, sisters, spouse, ancestors and lineal descendants. Stock
owned, directly or indirectly, by or for a corporation, partnership,
estate or trust shall be deemed to be owned proportionately by or for
its stockholders, partners or beneficiaries. Stock with respect to
which such Employee holds an option shall not be counted.
(e) Outstanding Stock. For purposes of Subsection (c) above,
"outstanding stock" shall include all stock actually issued and
outstanding immediately after the grant. "Outstanding stock" shall not
include shares authorized for issuance under outstanding options held
by the Employee or by any other person.
SECTION 5. STOCK SUBJECT TO PLAN.
(a) Basic Limitation. Shares offered under the Plan shall be authorized
but unissued Shares or treasury Shares. The aggregate number of Shares
which is issued under the Plan to all Employees (upon exercise of
Options or other rights to acquire Shares) shall not exceed 2,000,000
Shares, subject to adjustment pursuant to Section 9. The number of
Shares which are subject to Options or other rights outstanding at any
time under the Plan shall not exceed the number of Shares which then
remain available for issuance under the Plan. The Company, during the
term of the Plan, shall at all times reserve and keep available
sufficient Shares to satisfy the requirements of the Plan.
(b) Additional Shares. In the event that any outstanding Option or
other right for any reason expires or is cancelled or otherwise
terminated, the Shares allocable to the unexercised portion of such
Option or other right shall again be available for the purposes of the
Plan. In the event that Shares issued under the Plan are
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reacquired by the Company pursuant to a forfeiture provision, a right
of repurchase or a right of first refusal, such Shares shall again be
available for the purposes of the Plan.
SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES.
(a) Stock Purchase Agreement. Each award or sale of Shares under the
Plan (other than upon exercise of an Option) shall be evidenced by a
Stock Purchase Agreement between the Offeree and the Company. Such
award or sale shall be subject to all applicable terms and conditions
of the Plan and may be subject to any other terms and conditions which
are not inconsistent with the Plan and which the Committee deems
appropriate for inclusion in a Stock Purchase Agreement. The provisions
of the various Stock Purchase Agreements entered into under the Plan
need not be identical.
(b) Duration of Offers and Nontransferability of Rights. Any right to
acquire Shares under the Plan (other than an Option) shall
automatically expire if not exercised by the Offeree within 30 days
after the grant of such right was communicated to the Offeree by the
Committee. Such right shall not be transferable and shall be
exercisable only by the Offeree to whom such right was granted.
(c) Purchase Price. The Purchase Price of Shares to be offered under
the Plan shall not be less than the par value of such Shares. Subject
to the preceding sentence, the Purchase Price shall be determined by
the Committee at its sole discretion. The Purchase Price shall be
payable in a form described in Section 8.
(d) Withholding Taxes. As a condition to the award, sale or vesting of
Shares, the Offeree shall make such arrangements as the Committee may
require for the satisfaction of any federal, state, local or foreign
withholding tax obligations that arise in connection with such Shares.
The Committee may permit the Offeree to satisfy all or part of his or
her tax obligations related to such Shares by having the Company
withhold a portion of any Shares that otherwise would be issued to him
or her or by surrendering any Shares that previously were acquired by
him or her. The Shares withheld or surrendered shall be valued at their
Fair Market Value on the date when taxes otherwise would be withheld in
cash. The payment of taxes by assigning Shares to the Company, if
permitted by the Committee, shall be subject to such restrictions as
the Committee may impose, including any restrictions required by rules
of the Securities and Exchange Commission.
(e) Restrictions on Transfer of Shares. Any Shares awarded or sold
under the Plan shall be subject to such special forfeiture conditions,
rights of repurchase, rights of first refusal and other transfer
restrictions as the Committee may determine. Such restrictions shall be
set forth in the applicable Stock Purchase Agreement and shall apply in
addition to any general restrictions that may apply to all holders of
Shares.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreement. Each grant of an Option under the Plan
shall be evidenced by a Stock Option Agreement executed by the Optionee
and the Company. Such Option shall be subject to all applicable terms
and conditions of the Plan and may be subject to any other terms and
conditions which are not inconsistent with the Plan and which the
Committee deems appropriate for inclusion in a Stock Option Agreement.
The provisions of the various Stock Option Agreements entered into
under the Plan need not be identical.
(b) Number of Shares. Each Stock Option Agreement shall specify the
number of Shares that are subject to the Option and shall provide for
the adjustment of such number in accordance with Section 9. The Stock
Option Agreement shall also specify whether the Option is an ISO or a
Nonstatutory Option. Options granted to any Optionee in a single fiscal
year shall in no event cover more than 250,000 Shares, subject to
adjustment in accordance with Section 9.
(c) Exercise Price. Each Stock Option Agreement shall specify the
Exercise Price. The Exercise Price of an ISO shall not be less than 100
percent of the Fair Market Value of a Share on the date of grant,
except as otherwise provided in Section 4(c). The Exercise Price of a
Nonstatutory Option shall not be less than the par value of a Share.
Subject to the preceding two sentences, the Exercise Price under any
Option shall be
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determined by the Committee at its sole discretion. The Exercise Price
shall be payable in a form described in Section 8.
(d) Withholding Taxes. As a condition to the exercise of an Option, the
Optionee shall make such arrangements as the Committee may require for
the satisfaction of any federal, state, local or foreign withholding
tax obligations that arise in connection with such exercise. The
Optionee shall also make such arrangements as the Committee may require
for the satisfaction of any federal, state, local or foreign
withholding tax obligations that may arise in connection with the
disposition of Shares acquired by exercising an Option. The Committee
may permit the Optionee to satisfy all or part of his or her tax
obligations related to the Option by having the Company withhold a
portion of any Shares that otherwise would be issued to him or her or
by surrendering any Shares that previously were acquired by him or her.
Such Shares shall be valued at their Fair Market Value on the date when
taxes otherwise would be withheld in cash. The payment of taxes by
assigning Shares to the Company, if permitted by the Committee, shall
be subject to such restrictions as the Committee may impose, including
any restrictions required by rules of the Securities and Exchange
Commission.
(e) Exercisability. Each Stock Option Agreement shall specify the date
when all or any installment of the Option is to become exercisable. The
vesting of any Option shall be determined by the Committee at its sole
discretion. A Stock Option Agreement may provide for accelerated
exercisability in the event of a Change in Control, in the event of the
Optionee's death, Total and Permanent Disability or retirement or upon
other events.
(f) Term. Each Stock Option Agreement shall specify the term of the
Option. The term of an ISO shall not exceed 10 years from the date of
grant, except as otherwise provided in Section 4(c). Subject to the
preceding sentence, the Committee at its sole discretion shall
determine when an Option is to expire. A Stock Option Agreement may
provide that the Option will expire before the end of its normal term
in the event that the Optionee's Service terminates.
(g) Nontransferability. During an Optionee's lifetime, such Optionee's
Option(s) shall be exercisable only by him or her and shall not be
transferable. In the event of an Optionee's death, such Optionee's
Option(s) shall not be transferable other than by will, by written
beneficiary designation or by the laws of descent and distribution.
(h) No Rights as a Stockholder. An Optionee, or a transferee of an
Optionee, shall have no rights as a stockholder with respect to any
Shares covered by his or her Option until the date of the issuance of a
stock certificate for such Shares. No adjustments shall be made, except
as provided in Section 9.
(i) Modification, Extension and Renewal of Options. Within the
limitations of the Plan, the Committee may modify, extend or renew
outstanding Options or may accept the cancellation of outstanding
Options (to the extent not previously exercised) in return for the
grant of new Options at the same or a different price. The foregoing
notwithstanding, no modification of an Option shall, without the
consent of the Optionee, impair such Optionee's rights or increase his
or her obligations under such Option.
(j) Restrictions on Transfer of Shares. Any Shares issued upon exercise
of an Option may be subject to such special forfeiture conditions,
rights of repurchase, rights of first refusal and other transfer
restrictions as the Committee may determine. Such restrictions shall be
set forth in the applicable Stock Option Agreement and shall apply in
addition to any general restrictions that may apply to all holders of
Shares.
SECTION 8. PAYMENT FOR SHARES.
(a) General Rule. The entire Purchase Price or Exercise Price of Shares
issued under the Plan shall be payable in lawful money of the United
States of America at the time when such Shares are purchased, except as
follows:
(i) In the case of Shares sold under the terms of a Stock
Purchase Agreement subject to the Plan, payment shall be made
only pursuant to the express provisions of such Stock Purchase
Agreement.
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However, the Committee (at its sole discretion) may specify in
the Stock Purchase Agreement that payment may be made in one
or both of the forms described in Subsections (e) and (f)
below.
(ii) In the case of an ISO granted under the Plan, payment
shall be made only pursuant to the express provisions of the
applicable Stock Option Agreement. However, the Committee (at
its sole discretion) may specify in the Stock Option Agreement
that payment may be made pursuant to Subsections (b), (c), (d)
or (f) below.
(iii) In the case of a Nonstatutory Option granted under the
Plan, the Committee (at its sole discretion) may accept
payment pursuant to Subsections (b), (c), (d) or (f) below.
(b) Surrender of Stock. To the extent that this Subsection (b) is
applicable, payment may be made all or in part with Shares which have
already been owned by the Optionee or his or her representative for
more than 12 months and which are surrendered to the Company in good
form for transfer. Such Shares shall be valued at their Fair Market
Value on the date when the new Shares are purchased under the Plan.
(c) Exercise/Sale. To the extent that this Subsection (c) is
applicable, payment may be made by the delivery (on a form prescribed
by the Company) of an irrevocable direction to a securities broker
approved by the Company to sell Shares and to deliver all or part of
the sales proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.
(d) Exercise/Pledge. To the extent that this Subsection (d) is
applicable, payment may be made by the delivery (on a form prescribed
by the Company) of an irrevocable direction to pledge Shares to a
securities broker or lender approved by the Company, as security for a
loan, and to deliver all or part of the loan proceeds to the Company in
payment of all or part of the Exercise Price and any withholding taxes.
(e) Services Rendered. To the extent that this Subsection (e) is
applicable, Shares may be awarded under the Plan in consideration of
services rendered to the Company or a Subsidiary prior to the award. If
Shares are awarded without the payment of a Purchase Price in cash, the
Committee shall make a determination (at the time of the award) of the
value of the services rendered by the Offeree and the sufficiency of
the consideration to meet the requirements of Section 6(c).
(f) Promissory Note. To the extent that this Subsection (f) is
applicable, a portion of the Purchase Price or Exercise Price, as the
case may be, of Shares issued under the Plan may be payable by a
full-recourse promissory note, provided that (i) the par value of such
Shares must be paid in lawful money of the United States of America at
the time when such Shares are purchased, (ii) the Shares are security
for payment of the principal amount of the promissory note and interest
thereon and (iii) the interest rate payable under the terms of the
promissory note shall be no less than the minimum rate (if any)
required to avoid the imputation of additional interest under the Code.
Subject to the foregoing, the Committee (at its sole discretion) shall
specify the term, interest rate, amortization requirements (if any) and
other provisions of such note.
SECTION 9. ADJUSTMENT OF SHARES.
(a) General. In the event of a subdivision of the outstanding Stock, a
declaration of a dividend payable in Shares, a declaration of a
dividend payable in a form other than Shares in an amount that has a
material effect on the value of Shares, a combination or consolidation
of the outstanding Stock (by reclassification or otherwise) into a
lesser number of Shares, a recapitalization, a spinoff or a similar
occurrence, the Committee shall make appropriate adjustments in one or
more of (i) the number of Shares available under Section 5 for future
grants to all Employees, (ii) the number of Nonstatutory Options to be
granted to Outside Directors under Section 4(b), (iii) the number of
Shares covered by each outstanding Option or (iv) the Exercise Price
under each outstanding Option.
(b) Reorganizations. In the event that the Company is a party to a
merger or other reorganization, outstanding Options shall be subject to
the agreement of merger or reorganization. Such agreement may provide,
without limitation, for the assumption of outstanding Options by the
surviving corporation or its parent, for their continuation by the
Company (if the Company is a surviving corporation), for payment of a
cash settlement equal to the difference between the amount to be paid
for one Share under such agreement
11
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and the Exercise Price, or for the acceleration of their exercisability
followed by the cancellation of Options not exercised, in all cases
without the Optionees' consent. Any cancellation shall not occur until
after such acceleration is effective and Optionees have been notified
of such acceleration. In the case of Options that have been outstanding
for less than 12 months, a cancellation need not be preceded by an
acceleration.
(c) Reservation of Rights. Except as provided in this Section 9, an
Optionee or Offeree shall have no rights by reason of any subdivision
or consolidation of shares of stock of any class, the payment of any
dividend or any other increase or decrease in the number of shares of
stock of any class. Any issue by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class,
shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or Exercise Price of Shares subject to an
Option. The grant of an Option pursuant to the Plan shall not affect in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structure, to merge or consolidate or to dissolve, liquidate,
sell or transfer all or any part of its business or assets.
SECTION 10. SECURITIES LAWS.
Shares shall not be issued under the Plan unless the issuance and
delivery of such Shares complies with (or is exempt from) all applicable
requirements of law, including (without limitation) the Securities Act of 1933,
as amended, the rules and regulations promulgated thereunder, state securities
laws and regulations, and the regulations of any stock exchange on which the
Company's securities may then be listed.
SECTION 11. NO RETENTION RIGHTS.
Neither the Plan nor any Option shall be deemed to give any individual
a right to remain an employee, consultant or director of the Company or a
Subsidiary. The Company and its Subsidiaries reserve the right to terminate the
service of any employee, consultant or director at any time, with or without
cause, subject to applicable laws, the Company's certificate of incorporation
and by-laws and a written employment agreement (if any).
SECTION 12. DURATION AND AMENDMENTS.
(a) Term of the Plan. The Plan, as set forth herein, shall become
effective as of November 16, 1994, subject to the approval of the
Company's stockholders. The Plan, if not extended, shall terminate
automatically on September 30, 2004. It may be terminated on any
earlier date pursuant to Subsection (b) below.
(b) Right to Amend or Terminate the Plan. The Board of Directors may
amend, suspend or terminate the Plan at any time and for any reason,
except that the provisions of Section 4(b) relating to the amount,
price and timing of grants to Outside Directors shall not be amended
more than once in any six-month period. An amendment of the Plan shall
be subject to the approval of the Company's stockholders only to the
extent required by applicable laws or regulations.
(c) Effect of Amendment or Termination. No Shares shall be issued or
sold under the Plan after the termination thereof, except upon exercise
of an Option granted prior to such termination. The termination of the
Plan, or any amendment thereof, shall not affect any Share previously
issued or any Option previously granted under the Plan.
SECTION 13. EXECUTION.
To record the amendment and restatement of the Plan by the Board of
Directors on November 4, 1997, the Company has caused its authorized officer to
execute the same.
NEUROBIOLOGICAL TECHNOLOGIES, INC.
By /s/ Paul E. Freiman
--------------------
President and Chief Executive Officer
12
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement of
Form S-8 pertaining to the Amended and Restated Neurobiological Technologies,
Inc. 1993 Stock Plan for the registration of 500,000 shares of its common stock
of our report dated July 25, 1997 with respect to the consolidated financial
statements of Neurobiological Technologies Inc. included in the Annual Report of
Form 10 KSB for the year ended June 30, 1997, as filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
San Francisco, California
January 7, 1998
13
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul E. Freiman his attorney-in-fact,
with power of substitution or him in any and all capacities, to sign any
amendments to this Registration Statement, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following person in the capacities
and on the date indicated:
Signature Title Date
- --------- ----- ----
/s/ Paul E. Freiman President, Chief Executive January 9, 1998
- --------------------------- Office,
Paul E. Freiman (Principal Executive and
Accounting Officer)
and Director
/s/ Abraham E. Cohen Director January 9, 1998
- ---------------------------
Abraham E. Cohen
/s/ Enoch Callaway Director January 9, 1998
- ---------------------------
Enoch Callaway, M.D.
/s/ Theodore L. Eliot, Jr. Director January 9, 1998
- ---------------------------
Theodore L. Eliot, Jr.
/s/ Abraham D. Sofaer Director January 9, 1998
- ---------------------------
Abraham D. Sofaer
/s/ John B. Stuppin Director January 9, 1998
- ---------------------------
John B. Stuppin
