<PAGE> 1
As filed with the Securities and Exchange Commission on August 20, 1996
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ONCORMED, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-1842781
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
205 PERRY PARKWAY
GAITHERSBURG, MARYLAND 20877
(Address of principal executive offices) (Zip code)
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
TIMOTHY J. TRICHE, M.D., PH.D.
CHIEF EXECUTIVE OFFICER
ONCORMED, INC.
205 PERRY PARKWAY
GAITHERSBURG, MARYLAND 20877
(Name and address, including zip code, of agent for service)
(301) 208-1888
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
----- ------- ------ -------- -------
<S> <C> <C> <C> <C>
Employee Stock Purchase Plan
Common Stock $0.01 par value 200,000 $3.375 $675,000 $233.00
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the OncorMed, Inc. Employee
Stock Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock of OncorMed, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low selling prices per share of Common Stock of OncorMed,
Inc. on August 15, 1996, as reported on the American Stock Exchange.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
OncorMed, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, filed with the
SEC on March 29, 1996;
b) The Registrant's Quarterly Reports on Form 10-Q for
the fiscal quarters ended March 31, 1996 and June 30,
1996, filed with the SEC on May 14, 1996 and August
13, 1996, respectively.
c) The Registrant's Registration Statement No. 00-113768
on Form 8-A filed with the SEC on May 11, 1995, in
which there is described the terms, rights and
provisions applicable to the Registrant's outstanding
Common Stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act") after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
<PAGE> 3
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes
a court to award or a corporation's Board of Directors to grant indemnification
to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred), arising under the Securities Act of 1933,
as amended, (the "1933 Act"). Articles Nine and Ten of the Registrant's
Certificate of Incorporation provide for indemnification of its directors and
officers and permissible indemnification of employees and other agents to the
maximum extent permitted by the Delaware General Corporation Law. In addition,
the Registrant has obtained liability insurance for its officers and directors.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
4 Instruments Defining the Rights of Stockholders. Reference
is made to the Registrant's Registration Statement No.
00-024722 on Form 8-A which is incorporated herein by
reference pursuant to Item 3(d) of this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Public Accountants - Arthur
Andersen LLP
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
99.1 Employee Stock Purchase Plan
99.2 Form of Stock Purchase Agreement
99.3 Form of Enrollment/Change Form
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 Act each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the Registrant's
Restated 1993 Stock Option Plan.
II-2
<PAGE> 4
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the 1933 Act, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 5
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 Gaithersburg, State of Maryland, on
this 7th day of August, 1996.
ONCORMED, INC.
By: /s/ Timothy J. Triche
--------------------------------
Timothy J. Triche, M.D., Ph.D.
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of OncorMed, Inc.,
a Delaware corporation, do hereby constitute and appoint Timothy J. Triche,
M.D., Ph.D. and Lee Robert Johnston, Jr. and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and either one of them, determine may be necessary or advisable or
required to enable said corporation to comply with the Securities Act of 1933,
as amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms that all said attorneys and agents, or either one of them, shall do
or cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Timothy J. Triche Chief Executive Officer and August 7, 1996
- ------------------------------ Chairman of the Board
Timothy J. Triche, M.D., Ph.D. (Principal Executive Officer)
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Lee Robert Johnston, Jr. Chief Financial Officer, August 7, 1996
- ------------------------------ Vice President, Secretary
Lee Robert Johnston, Jr. and Treasurer (Principal
Financial and Accounting Officer)
/s/ Douglas Dolginow President, Chief Operating August 7, 1996
- ------------------------------ Officer and Director
Douglas Dolginow, M.D.
/s/ John W. Colloton Director August 7, 1996
- ------------------------------
John W. Colloton
/s/ John Pappajohn Director August 7, 1996
- ------------------------------
John Pappajohn
/s/ Stephen Turner Director August 7, 1996
- ------------------------------
Stephen Turner
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
Exhibit
Number Exhibit
4 Instruments Defining the Rights of Stockholders. Reference
is made to the Registrant's Registration Statement No.
00-024722 on Form 8-A which is incorporated herein by
reference pursuant to Item 3(d) of this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Public Accountants - Arthur
Andersen LLP
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
99.1 Employee Stock Purchase Plan
99.2 Form of Stock Purchase Agreement
99.3 Form of Enrollment/Change Form
<PAGE> 8
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
ONCORMED, INC.
<PAGE> 1
EXHIBIT 5
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
August 20, 1996
OncorMed, Inc.
205 Perry Parkway
Gaithersburg, MD 20877
Re: OncorMed, Inc. (the "Company")
Registration Statement for the
Employee Stock Purchase Plan
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of the 200,000 shares of Common
Stock available for issuance under the Company's Employee Stock Purchase Plan.
We advise you that, in our opinion, when such shares have been issued and sold
pursuant to the applicable provisions of the Company's Employee Stock Purchase
Plan issued in accordance with the Registration Statement, such shares will be
validly issued, fully paid and nonassessable shares of the Company's Common
Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 29, 1996,
included in OncorMed, Inc.'s Form 10-K for the year ended December 31, 1995, and
to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Washington, D.C.
August 14, 1996
<PAGE> 1
EXHIBIT 99.1
ONCORMED, INC.
EMPLOYEE STOCK PURCHASE PLAN
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the
interests of OncorMed, Inc. by providing eligible employees with the opportunity
to acquire a proprietary interest in the Corporation through participation in a
payroll-deduction based employee stock purchase plan designed to qualify under
Section 423 of the Code.
Capitalized terms herein shall have the meanings assigned to
such terms in the attached Appendix.
II. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full authority to interpret
and construe any provision of the Plan and to adopt such rules and regulations
for administering the Plan as it may deem necessary in order to comply with the
requirements of Code Section 423. Decisions of the Plan Administrator shall be
final and binding on all parties having an interest in the Plan.
III. STOCK SUBJECT TO PLAN
A. The stock purchasable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares of Common
Stock purchased on the open market. The maximum number of shares of Common Stock
which may be issued over the term of the Plan shall not exceed 200,000 shares.
B. Should any change be made to the Common Stock by reason of
any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the outstanding Common Stock as a
class without the Corporation's receipt of consideration, appropriate
adjustments shall be made to (i) the maximum number and class of securities
issuable under the Plan, (ii) the maximum number and class of securities
purchasable per Participant on any one Purchase Date and (iii) the number and
class of securities and the price per share in effect under each outstanding
purchase right in order to prevent the dilution or enlargement of benefits
thereunder.
IV. PURCHASE PERIODS
A. Shares of Common Stock shall be offered for purchase under
the Plan through a series of successive purchase periods until such time as (i)
the maximum number
<PAGE> 2
of shares of Common Stock available for issuance under the Plan shall have been
purchased or (ii) the Plan shall have been sooner terminated.
B. Each purchase period shall have a duration of six (6)
months. Purchase periods shall run from the first business day in August to the
last business day in January and from the first business day in February to the
last business day in July. The first purchase period shall begin on the
Effective Date and end on the last business day in January 1997.
V. ELIGIBILITY
A. Each individual who is an Eligible Employee on the
Effective Date shall be eligible to participate in the Plan for the initial
purchase period or any subsequent purchase period.
B. Each individual who becomes an Eligible Employee after the
Effective Date shall be eligible to participate in any purchase period
commencing after the individual's completion of ninety (90) days of Service.
C. To participate in the Plan for a particular purchase
period, the Eligible Employee must complete the enrollment forms prescribed by
the Plan Administrator (including a stock purchase agreement and a payroll
deduction authorization form) and file such forms with the Plan Administrator
(or its designate) on or before the start date of the purchase period.
VI. PAYROLL DEDUCTIONS
A. The payroll deduction authorized by the Participant for
purposes of acquiring shares of Common Stock under the Plan may be any multiple
of one percent (1%) of the Eligible Earnings paid to the Participant during each
purchase period, up to a maximum of fifteen percent (15%). The deduction rate so
authorized shall continue in effect for the entire purchase period. The
Participant may not increase or decrease his or her rate of payroll deduction
during a purchase period other than as set forth in Section VII.F. herein.
B. Payroll deductions shall begin on the first pay day
following the start date of the purchase period and shall (unless sooner
terminated by the Participant) continue through the pay day ending with or
immediately prior to the last day of the purchase period. The amounts so
collected shall be credited to the Participant's book account under the Plan,
but no interest shall be paid on the balance from time to time outstanding in
such account. The amounts collected from the Participant shall not be held in
any segregated account or trust fund and may be commingled with the general
assets of the Corporation and used for general corporate purposes.
2.
<PAGE> 3
C. Payroll deductions shall automatically cease upon the
termination of the Participant's purchase right in accordance with the
provisions of the Plan.
D. The Participant's acquisition of Common Stock under the
Plan on any Purchase Date shall neither limit nor require the Participant's
acquisition of Common Stock on any subsequent Purchase Date.
VII. PURCHASE RIGHTS
A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a
separate purchase right on the start date of each purchase period in which he or
she participates. The purchase right shall provide the Participant with the
right to purchase shares of Common Stock on the Purchase Date upon the terms set
forth below. The Participant shall execute a stock purchase agreement embodying
such terms and such other provisions (not inconsistent with the Plan) as the
Plan Administrator may deem advisable.
Under no circumstances shall purchase rights be granted under
the Plan to any Eligible Employee if such individual would, immediately after
the grant, own (within the meaning of Code Section 424(d)) or hold outstanding
options or other rights to purchase, stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Corporation or any Corporate Affiliate.
B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall
be automatically exercised on the Purchase Date, and shares of Common Stock
shall accordingly be purchased on behalf of each Participant (other than any
Participant whose payroll deductions have previously been refunded in accordance
with the Termination of Purchase Right provisions below) on such date. The
purchase shall be effected by applying the Participant's payroll deductions for
the purchase period ending on such Purchase Date to the purchase of shares of
Common Stock (subject to the limitation on the maximum number of shares
purchasable per Participant on any one Purchase Date) at the purchase price in
effect for that purchase period.
C. PURCHASE PRICE. The purchase price per share at which
Common Stock will be purchased on the Participant's behalf on each Purchase Date
shall be equal to eighty-five percent (85%) of the lower of (i) the Fair Market
Value per share of Common Stock on the start date of the purchase period or (ii)
the Fair Market Value per share of Common Stock on that Purchase Date.
D. NUMBER OF PURCHASABLE SHARES. The number of shares of
Common Stock purchasable by a Participant on each Purchase Date shall be the
number of shares obtained by dividing the amount collected from the Participant
through payroll deductions during the purchase period ending with that Purchase
Date by the purchase price in effect for that Purchase Date. However, the
maximum number of shares of Common Stock
3.
<PAGE> 4
purchasable per Participant on any one Purchase Date shall not exceed 750
shares, subject to periodic adjustments in the event of certain changes in the
Corporation's capitalization.
E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not
applied to the purchase of Common Stock by reason of the limitation on the
maximum number of shares purchasable by the Participant on the Purchase Date
shall be promptly refunded.
F. TERMINATION OF PURCHASE RIGHT. The following provisions
shall govern the termination of outstanding purchase rights:
(i) A Participant may, at any time prior to the last
day of the purchase period, terminate his or her outstanding purchase
right by filing the appropriate form with the Plan Administrator (or
its designate), and no further payroll deductions shall be collected
from the Participant with respect to the terminated purchase right. Any
payroll deductions collected during the purchase period in which such
termination occurs shall be immediately refunded.
(ii) The termination of such purchase right shall be
irrevocable, and the Participant may not subsequently rejoin the
purchase period for which the terminated purchase right was granted. In
order to resume participation in any subsequent purchase period, such
individual must re-enroll in the Plan (by making a timely filing of the
prescribed enrollment forms) on or before the start date of the new
purchase period.
(iii) Should the Participant cease to remain an
Eligible Employee for any reason (other than death or disability) while
his or her purchase right remains outstanding, then that purchase right
shall immediately terminate, and all of the Participant's payroll
deductions for the purchase period in which the purchase right so
terminates shall be immediately refunded. Should the Participant cease
to remain an Eligible Employee by reason of death or disability while
his or her purchase right remains outstanding, then that purchase right
shall immediately terminate and the Participant (or, in the event of
the Participant's death, the personal representative of the
Participant's estate) shall have the right to (a) withdraw the payroll
deductions collected during such purchase period or (b) have such funds
held for the purchase of shares at the next scheduled Purchase Date. If
no such election is made prior to the next Purchase Date, then the
payroll deductions collected with respect to the terminated right shall
be refunded as soon as possible.
(iv) Should the Participant cease to remain in active
service by reason of an approved unpaid leave of absence, then the
Participant shall have the right, exercisable up until the last
business day of
4.
<PAGE> 5
the purchase period in which such leave commences, to (a) withdraw the
payroll deductions collected during such purchase period or (b) have
such funds held for the purchase of shares at the next scheduled
Purchase Date. In no event, however, shall any further payroll
deductions be collected on the Participant's behalf during such leave.
Upon the Participant's return to active service, his or her payroll
deductions under the Plan shall automatically resume at the rate in
effect at the time the leave began.
G. CORPORATE TRANSACTION. Each outstanding purchase right
shall automatically be exercised, immediately prior to the effective date of any
Corporate Transaction, by applying the payroll deductions of each Participant
for the purchase period in which such Corporate Transaction occurs to the
purchase of shares of Common Stock at a purchase price per share equal to
eighty-five percent (85%) of the lower of (i) the Fair Market Value per share of
Common Stock on the start date of the purchase period in which such Corporate
Transaction occurs or (ii) the Fair Market Value per share of Common Stock
immediately prior to the effective date of such Corporate Transaction. However,
the applicable limitation on the number of shares of Common Stock purchasable
per Participant shall continue to apply to any such purchase.
The Corporation shall use its best efforts to provide at least
ten (10)-days prior written notice of the occurrence of any Corporate
Transaction, and Participants shall, following the receipt of such notice, have
the right to terminate their outstanding purchase rights prior to the effective
date of the Corporate Transaction.
H. PRORATION OF PURCHASE RIGHTS. Should the total number of
shares of Common Stock which are to be purchased pursuant to outstanding
purchase rights on any particular date exceed the number of shares then
available for issuance under the Plan, the Plan Administrator shall make a
pro-rata allocation of the available shares on a uniform and nondiscriminatory
basis, and the payroll deductions of each Participant, to the extent in excess
of the aggregate purchase price payable for the Common Stock pro-rated to such
individual, shall be refunded.
I. ASSIGNABILITY. The purchase right shall be exercisable only
by the Participant and shall not be assignable or transferable by the
Participant.
J. STOCKHOLDER RIGHTS. A Participant shall have no stockholder
rights with respect to the shares subject to his or her outstanding purchase
right until the shares are purchased on the Participant's behalf in accordance
with the provisions of the Plan and the Participant has become a holder of
record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A. No Participant shall be entitled to accrue rights to
acquire Common Stock pursuant to any purchase right outstanding under this Plan
if and to the extent such
5.
<PAGE> 6
accrual, when aggregated with (i) rights to purchase Common Stock accrued under
any other purchase right granted under this Plan and (ii) similar rights accrued
under other employee stock purchase plans (within the meaning of Code Section
423) of the Corporation or any Corporate Affiliate, would otherwise permit such
Participant to purchase more than Twenty-Five Thousand Dollars ($25,000) worth
of stock of the Corporation or any Corporate Affiliate (determined on the basis
of the Fair Market Value of such stock on the date or dates such rights are
granted) for each calendar year such rights are at any time outstanding.
B. For purposes of applying such accrual limitations, the
following provisions shall be in effect:
(i) The right to acquire Common Stock under each
outstanding purchase right shall accrue on the Purchase Date in effect
for the purchase period for which such right is granted.
(ii) No right to acquire Common Stock under any
outstanding purchase right shall accrue to the extent the Participant
has already accrued in the same calendar year the right to acquire
Common Stock under one (1) or more other purchase rights at a rate
equal to Twenty-Five Thousand Dollars ($25,000) worth of Common Stock
(determined on the basis of the Fair Market Value per share on the date
or dates of grant) for each calendar year such rights were at any time
outstanding.
C. If by reason of such accrual limitations, any purchase
right of a Participant does not accrue for a particular purchase period, then
the payroll deductions which the Participant made during that purchase period
with respect to such purchase right shall be promptly refunded.
D. In the event there is any conflict between the provisions
of this Article and one or more provisions of the Plan or any instrument issued
thereunder, the provisions of this Article shall be controlling.
IX. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan was adopted by the Board on April 19, 1996 and
shall become effective on the Effective Date, subject to stockholder approval of
the Plan at the 1996 Annual Meeting. However, no purchase rights granted under
the Plan shall be exercised, and no shares of Common Stock shall be issued
hereunder, until the Corporation shall have complied with all applicable
requirements of the 1933 Act (including the registration of the shares of Common
Stock issuable under the Plan on a Form S-8 registration statement filed with
the Securities and Exchange Commission), all applicable listing requirements of
any stock exchange (or the Nasdaq National Market, if applicable) on which the
Common Stock is listed for trading and all other applicable requirements
established by law or regulation.
6.
<PAGE> 7
B. Unless sooner terminated by the Board, the Plan shall
terminate upon the earliest of (i) the last business day in July 2006, (ii) the
date on which all shares available for issuance under the Plan shall have been
sold pursuant to purchase rights exercised under the Plan or (iii) the date on
which all purchase rights are exercised in connection with a Corporate
Transaction. No further purchase rights shall be granted or exercised, and no
further payroll deductions shall be collected, under the Plan following such
termination.
X. AMENDMENT OF THE PLAN
The Board may alter, amend, suspend or discontinue the Plan at
any time to become effective immediately following the close of any purchase
period. However, the Board may not, without the approval of the Corporation's
stockholders, (i) materially increase the number of shares of Common Stock
issuable under the Plan or the maximum number of shares purchasable per
Participant on any one Purchase Date, except for permissible adjustments in the
event of certain changes in the Corporation's capitalization, (ii) alter the
purchase price formula so as to reduce the purchase price payable for the shares
of Common Stock purchasable under the Plan, or (iii) materially increase the
benefits accruing to Participants under the Plan or materially modify the
requirements for eligibility to participate in the Plan.
XI. GENERAL PROVISIONS
A. All costs and expenses incurred in the administration of
the Plan shall be paid by the Corporation.
B. Nothing in the Plan shall confer upon the Participant any
right to continue in the employ of the Corporation or any Corporate Affiliate
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Corporation (or any Corporate Affiliate employing such
person) or of the Participant, which rights are hereby expressly reserved by
each, to terminate such person's employment at any time for any reason, with or
without cause.
C. The provisions of the Plan shall be governed by the laws of
the State of Maryland without resort to that State's conflict-of-laws rules.
7.
<PAGE> 8
SCHEDULE A
CORPORATIONS PARTICIPATING IN
EMPLOYEE STOCK PURCHASE PLAN
AS OF THE EFFECTIVE DATE
OncorMed, Inc.
<PAGE> 9
APPENDIX
The following definitions shall be in effect under the Plan:
A. BOARD shall mean the Corporation's Board of
Directors.
B. CODE shall mean the Internal Revenue Code of 1986, as
amended.
C. COMMON STOCK shall mean the Corporation's common
stock.
D. CORPORATE AFFILIATE shall mean any parent or
subsidiary corporation of the Corporation (as determined in accordance with Code
Section 424, whether now existing or subsequently established.
E. CORPORATE TRANSACTION shall mean either of the
following stockholder- approved transactions to which the Corporation is a
party:
(i) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities are transferred to a
person or persons different from the persons holding those securities
immediately prior to such transaction, or
(ii) the sale, transfer or other disposition of all
or substantially all of the assets of the Corporation in complete
liquidation or dissolution of the Corporation.
F. CORPORATION shall mean OncorMed, Inc., a Delaware
corporation, and any corporate successor to all or substantially all of the
assets or voting stock of OncorMed, Inc. which shall by appropriate action adopt
the Plan.
G. EFFECTIVE DATE shall mean August 1, 1996. Any
Corporate Affiliate which becomes a Participating Corporation after such
Effective Date shall designate a subsequent Effective Date with respect to its
employee-Participants.
H. ELIGIBLE EARNINGS shall mean the (i) regular base
salary paid to a Participant by one or more Participating Corporations during
such individual's period of participation in the Plan, plus (ii) any pre-tax
contributions made by the Participant to any Code Section 401(k) salary deferral
plan or any Code Section 125 cafeteria benefit program now or hereafter
established by the Corporation or any Corporate Affiliate, plus (iii) all of the
following amounts to the extent paid in cash: overtime payments, bonuses,
commissions, profit-sharing distributions and other incentive-type payments.
However, Eligible Earnings shall NOT include any contributions (other than Code
Section 401(k) or Code Section 125
A-1.
<PAGE> 10
contributions) made on the Participant's behalf by the Corporation or any
Corporate Affiliate to any deferred compensation plan or welfare benefit program
now or hereafter established.
I. ELIGIBLE EMPLOYEE shall mean any person who employed by a
Participating Corporation on a basis under which he or she is regularly expected
to render more than twenty (20) hours of service per week for more than five (5)
months per calendar year for earnings considered wages under Code Section
3401(a).
J. FAIR MARKET VALUE per share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the
Nasdaq National Market, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question, as
such price is reported by the National Association of Securities
Dealers on the Nasdaq National Market or any successor system. If there
is no closing selling price for the Common Stock on the date in
question, then the Fair Market Value shall be the closing selling price
on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any
Stock Exchange, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question on the Stock
Exchange determined by the Plan Administrator to be the primary market
for the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no closing
selling price for the Common Stock on the date in question, then the
Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
K. 1933 ACT shall mean the Securities Act of 1933, as amended.
L. PARTICIPANT shall mean any Eligible Employee of a
Participating Corporation who is actively participating in the Plan.
M. PARTICIPATING CORPORATION shall mean the Corporation and
such Corporate Affiliate or Affiliates as may be authorized from time to time by
the Board to extend the benefits of the Plan to their Eligible Employees. The
Participating Corporations in the Plan as of the Effective Date are listed in
attached Schedule A.
N. PLAN shall mean the Corporation's Employee Stock Purchase
Plan, as set forth in this document.
A-2.
<PAGE> 11
O. PLAN ADMINISTRATOR shall mean the committee of two (2) or
more Board members appointed by the Board to administer the Plan.
P. PURCHASE DATE shall mean the last business day of each
purchase period.
Q. SERVICE shall mean an individual's performance of services
for the Corporation or any Corporate Affiliate as an employee, subject to the
control and direction of the employer entity as to both the work to be performed
and the manner and method of performance.
R. STOCK EXCHANGE shall mean either the American Stock
Exchange or the New York Stock Exchange.
A-3.
<PAGE> 1
EXHIBIT 99.2
ONCORMED, INC.
STOCK PURCHASE AGREEMENT
I hereby elect to participate in the Employee Stock Purchase Plan (the
"ESPP") effective with the purchase period specified below, and I hereby
subscribe to purchase shares of Common Stock of OncorMed, Inc. (the
"Corporation") in accordance with the provisions of this Agreement and the ESPP.
I hereby authorize payroll deductions from each of my paychecks following my
entry into the ESPP in the 1% multiple of my after-tax earnings (not to exceed a
maximum of 15%) specified in my attached Enrollment Form.
I understand that purchase periods will each be of six (6) months
duration and will run from the first business day of February to the last
business day of July each year and from the first business day of August each
year until the last business of January in the following year. My participation
will automatically remain in effect from one purchase period to the next in
accordance with this Agreement and my payroll deduction authorization, unless I
withdraw from the ESPP or change the rate of my payroll deduction or unless my
employment status changes. I may increase or decrease my rate of payroll
deduction to become effective at the beginning of any subsequent purchase period
within the purchase period.
My payroll deductions will be accumulated for the purchase of shares of
the Corporation's Common Stock on the last business day of each purchase period.
The purchase price per share will not be less than 85% of the lower of (i) the
fair market value per share of Common Stock on start date of the purchase period
or (ii) the fair market value per share on the purchase date. I will also be
subject to ESPP restrictions (i) limiting the maximum number of shares which I
may purchase on any one purchase date to 750 shares and (ii) prohibiting me from
purchasing more than $25,000 worth of Common Stock for each calendar year my
purchase right remains outstanding.
I may withdraw from the ESPP at any time prior to the last business day
of a purchase period and the Corporation will refund all my payroll deductions
for that purchase period. However, I may not rejoin that particular purchase
period at any later date. Upon the termination of my employment for any reason,
other than death or disability, or my loss of eligible employee status, my
participation in the ESPP will immediately cease and all my payroll deductions
for the purchase period in which my employment terminates or my loss of
eligibility occurs will automatically be refunded. Upon the termination of my
employment by reason of death or disability, my participation in the ESPP shall
cease and I or the personal representative of my estate shall have the right
either to have the Corporation refund all of my payroll deductions for that
purchase period or to have those payroll deductions applied to the purchase of
shares of the Corporation's Common Stock at the end of such period.
If I take an unpaid leave of absence, my payroll deductions will
immediately cease, and any payroll deductions for the purchase period in which
my leave begins will, at my election, either be refunded or applied to the
purchase of shares of Common Stock at the end of that purchase period. Upon my
return to active service, my payroll deductions will automatically resume at the
rate in effect when my leave began.
A stock certificate for the shares purchased on my behalf at the end of
each purchase period will automatically be deposited into a brokerage account
which the Corporation will open on my behalf. I will notify the Corporation of
any sale or disposition of my ESPP shares, and I will satisfy all applicable
income and employment tax withholding requirements at the time of such sale or
disposition. Further, any sale or disposition of any ESPP shares will be in
accord with the Corporation's insider trading policy.
The Corporation has the right, exercisable in its sole discretion, to
amend or terminate the ESPP at any time, with such amendment or termination to
become effective immediately following the exercise of outstanding purchase
rights at the end of any current purchase period. Should the Corporation elect
to terminate the ESPP, I will have no further rights to purchase shares of
Common Stock pursuant to this Agreement.
I have received a copy of the official Plan Prospectus summarizing the
major features of the ESPP. I have read this Agreement and the Prospectus and
hereby agree to be bound by the terms of both this Agreement and the ESPP. The
effectiveness of this Agreement is dependent upon my eligibility to participate
in the ESPP.
Date: , 199__
Signature of Employee
<PAGE> 2
Printed Name:______________________
Entry Date: _____________, 199__
<PAGE> 3
STOCK CERTIFICATE ISSUANCE FORM
I WOULD LIKE EACH CERTIFICATE FOR THE ESPP SHARES PURCHASED ON MY BEHALF TO BE
ISSUED AS FOLLOWS: (PRINT NAME(S) EXACTLY AS THEY SHOULD APPEAR.)
/ / MY NAME ONLY, .
/ / MY NAME, ,
AND MY SPOUSE, ,
/ / AS COMMUNITY PROPERTY OR / / AS JOINT TENANTS
/ / ISSUED IN STREET NAME AND DELIVERED TO MY DESIGNATED BROKERAGE ACCOUNT.
DATE SIGNATURE OF EMPLOYEE
<PAGE> 1
EXHIBIT 99.3
ONCORMED, INC.
EMPLOYEE STOCK PURCHASE PLAN ("ESPP")
ENROLLMENT/CHANGE FORM
<TABLE>
<CAPTION>
Action Complete Sections:
<S> <C> <C>
SECTION 1:
ACTION / / New Enrollment 2, 3, 7 and sign attached
---
Stock Purchase Agreement
/ / Change Payroll Deductions 2, 4, 7
/ / Terminate Payroll Deductions 2, 5, 7
/ / Leave of Absence 2, 6, 7
===================================================================================================================================
SECTION 2:
PERSONNEL Name___________________________________________________________________________________________________
DATA Last First MI Dept.
Home Address___________________________________________________________________________________________
Street
____________________________________________________________________________________________________
City State Zip Code
Social Security #:/ // // /-/ // /-/ // // // /
===================================================================================================================================
SECTION 3:
NEW Effective with the Purchase
ENROLLMENT Period Beginning: Payroll Deduction Amount: _____% of cash earnings*
/ /February 1, 199__
/ /August 1, 199__ * Must be a multiple of 1% up to a maximum of 15% of
after-tax cash earnings
/ /Initial Purchase Period -- ______________, 1996
===================================================================================================================================
SECTION 4:
CHANGE Effective with the I authorize the following new level of payroll
PAYROLL Pay Period Beginning: ______________________________ deductions:_________% of cash earnings*
DEDUCTIONS Month, Day and Year
* Must be a multiple of 1% up to a maximum of 15% of
after-tax cash earnings
NOTE: You may increase or decrease your rate of payroll deductions to become effective as of the start
date of the next purchase period.
===================================================================================================================================
SECTION 5:
TERMINATE Effective with the Your election to terminate your payroll deductions
PAYROLL Pay Period Beginning: ______________________________ for the balance of the purchase period cannot be
DEDUCTIONS Month, Day and Year changed, and you may not rejoin the purchase period
at a later date. You will not be able to resume
participation in the ESPP until a new purchase
period begins.
Your ESPP payroll deductions collected to date for the purchase period in which you file this termination
notice will be refunded to you.
NOTE: If your employment terminates for any reason or your eligibility status changes (<20 hrs/wk or
<5 months/yr), you will immediately cease to participate in the ESPP, and your ESPP payroll
deductions collected in that purchase period will automatically be refunded to you.
===================================================================================================================================
SECTION 6
LEAVE OF In connection with my unpaid leave of absence, I elect the following action regarding my ESPP payroll
ABSENCE deductions to date in the current purchase period:
/ / Purchase shares of OncorMed, Inc. at end of the period
OR
/ / Refund ESPP payroll deductions collected
NOTE: If you take an unpaid leave of absence, your payroll deductions will immediately cease. Upon
your return to active service, your payroll deductions will automatically resume at the rate in
effect for you at the time you went on leave.
===================================================================================================================================
SECTION 7
AUTHORIZATION
I hereby authorize the specific action or actions indicated above.
_____________________________ __________________________________________________
Date Signature of Employee
</TABLE>
