<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998.
REGISTRATION NO._________________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
VYREX CORPORATION
(Exact name of Registrant as specified in its charter)
NEVADA 88-0271190
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2159 AVENIDA DE LA PLAYA, LA JOLLA, CALIFORNIA 92037
(Address of principal executive offices) (Zip Code)
VYREX CORPORATION
1993 STOCK OPTION PLAN
(Full title of the plan)
CORPORATION TRUST COMPANY OF NEVADA
ONE EAST FIRST STREET, RENO, NEVADA 89501
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (702) 688-3061
---------------------
COPIES TO:
FISHER THURBER LLP
DAVID A. FISHER
TIMOTHY J. FITZPATRICK
4225 Executive Square, Suite 1600
La Jolla, CA 92037-1483
Tel. (619) 535-9400
Fax (619) 535-1616
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE (2) PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share . . . . . . . . . 2,875,000 shares $5.63 $16,186,250 $4,774.94
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Vyrex Corporation 1993 Stock
Option 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 Company's outstanding
shares of Common Stock.
(2) Estimated solely for the purpose of computing the amount of the
registration fee under Rule 457(h) of the Securities Act of 1933, as
amended, based on the average of the high and low prices of the Company's
Common Stock as reported on the Nasdaq Stock Market on April 16, 1998.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Commission:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997, filed with the Commission pursuant to Section
13(a) of the Securities Exchange Act of 1934 as amended (the "Exchange
Act").
(b) The Registrant's Quarterly Report on Form 10-QSB for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997.
(c) The Registrant's Proxy Statement dated May 9, 1997 in connection with
the Annual Meeting of Shareholders held on June 27, 1997.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange 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 hereof to the extent that a statement contained in any other
subsequently filed document which also is or 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 part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the issuance of the securities
offered hereby have been passed upon for the Company by Fisher Thurber LLP, La
Jolla, California. Partners, associates and employees of Fisher Thurber
beneficially own an aggregate of 43,667 shares of the Company's Common Stock,
warrants to purchase 35,916 shares of Common Stock exercisable at $8.00 per
share and an option to purchase 50,000 shares of Common Stock exercisable at
$3.00 per share, all of which were acquired on or before November 1996 for
services rendered.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The statutes, charter provisions, Bylaws, Indemnification Agreement, or
other arrangement under which any controlling person, director or officer of the
Registrant is insured or indemnified in any manner against any liability which
he may incur in his capacity as such, are as follows:
<PAGE>
(a) Section 78.751 of the Nevada Corporation Law provides for the
indemnification of officers and directors of the Company against expenses,
judgments, fines and amounts paid in settlement under certain conditions
and subject to certain limitations.
(b) Article VII of the Bylaws of the Company provides that the Company shall
have power to indemnify any person who was or is a party or is threatened
to be made a party to any proceeding by reason of the fact that such person
is or was an agent of the corporation, against expense, judgments, fines,
settlements and other amounts, actually and reasonably incurred in
connection with such proceeding if the person acted in good faith,
reasonably believing the acts to be in the best interest of the
corporation, and acted having no reason to believe the conduct unlawful.
The corporation shall advance the expenses reasonably expected to be
incurred by such agent in defending any such proceeding upon receipt of the
undertaking required by Corporation Code section 78.751(5).
(c) Article Twelve of the Company's Articles of Incorporation provides that the
liability of the directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under Nevada law.
Accordingly, a director will not be liable for monetary damages for breach
of duty to the Company or its shareholders in any action brought by or in
the right of the Company. However, a director remains liable to the extent
required by law (i) for the acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, and (ii) for the
payment of distributions in violation of Nevada law. The effect of the
provisions in the Articles of Incorporation is to eliminate the rights of
the Company and its shareholders (through shareholders' derivative suites
on behalf of the Company) to recover monetary damages against a director
for breach of duty as a director, including breaches resulting form
negligent behavior in the context of transactions involving a change of
control of the Company or otherwise, except in the situations described in
clauses (i) and (ii) above. These provisions will not alter the liability
of directors under federal securities laws.
(d) Pursuant to authorization provided under the Articles of Incorporation, the
Company has entered into indemnification agreements with each of its
directors and officers. Generally, the indemnification agreements with
each of its directors and officers. Generally, the indemnification
agreements attempt to provide the maximum protection permitted by Nevada
law as it may be amended from time to time. Moreover, the indemnification
agreements provide for certain additional indemnification. Under such
additional indemnification provisions, however, an individual will not
receive indemnification for judgments, settlements or expenses if he or she
is found liable to the Company (except to the extent the court determines
he or she is fairly and reasonably entitled to indemnity for expenses), for
settlements not approved by the Company or for settlements and expenses if
the settlement is not approved by the court. The indemnification
agreements provide for the Company to advance to the individual any and all
reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding. In order
to receive an advance of expenses, the individual must repay such advances
upon a final judicial decision that he or she is not entitled to
indemnification. The Company's Bylaws contain a provision of similar
effect relating to advancement of expenses to a director or officer,
subject to an undertaking to repay if it is ultimately determined that
indemnification is unavailable.
(e) There is directors and officers liability insurance now in effect which
insures directors and officers of the Company. Such policy expires on
December 29, 1998 and provides limits of $3 million per policy year.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
2
<PAGE>
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibits
- -------- ----------
<S> <C>
4.1 1993 Stock Option Plan(1)
4.2 Form of Incentive Stock Option Agreement(2)
4.3 Form of Nonstatutory Stock Option Agreement(2)
5 Opinion and Consent of Fisher Thurber LLP(2)
23.1 Independent Auditors' Consent - Ernst & Young LLP(2)
23.2 Consent of Fisher Thurber LLP (contained in Exhibit 5)
24 Power of Attorney. Reference is made to the signature page of
this Registration Statement.
</TABLE>
- --------------------
(1) Incorporated by reference to Exhibit 10.22 to Registrant's Form SB-2 filed
on December 1, 1995.
(2) Filed herewith.
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 Securities Act of 1933, as amended (the "Securities 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 paragraphs (a)(1)(i)
and (a)(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 Exchange Act that are incorporated
herein by reference;
(2) That, for the purpose of determining any liability under the
Securities 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 1993 Stock Option Plan.
3
<PAGE>
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of a
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange 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 in the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the 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 Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of La Jolla, State of California, on this 21st day,
April, 1998.
Vyrex Corporation
By: /s/ Sheldon S. Hendler
-------------------------------------
Sheldon S. Hendler, Chairman and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Sheldon S. Hendler, as his or her true and lawful
attorney-in-fact and agents, with full power of substitution, for him or her and
in his or her 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 attorney-in-fact and agents, 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 or she might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or their substitutes may lawfully do or cause to be
done by virtue hereof.
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.
SIGNATURES
/s/ Sheldon S. Hendler /s/ Dennis J. Carlo
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Sheldon S. Hendler Dennis J. Carlo
Chief Executive Officer and Director
Director April 21, 1998
April 21, 1998
/s/ Carl M. Lewis /s/ Nolan N. Penn
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Carl M. Lewis Nolan N. Penn
Executive Vice President, Director
Secretary, General Counsel April 21, 1998
and Director
April 21, 1998
/s/ Joyce M. Hendler /s/ Gregory F. Gilbert
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Joyce M. Hendler Gregory F. Gilbert
Director Director
April 21, 1998 April 21, 1998
/s/ Steven J. Kemper /s/ Thomas T. Tierney
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Steven J. Kemper Thomas T. Tierney
Chief Financial Officer Director
April 21, 1998 April 21, 1998
5
<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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EXHIBITS
TO FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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VYREX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
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<PAGE>
INDEX TO EXHIBITS TO FORM S-8
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 1993 Stock Option Plan(1)
4.2 Form of Incentive Stock Option Agreement(2)
4.3 Form of Nonstatutory Stock Option Agreement(2)
5 Opinion and Consent of Fisher Thurber LLP(2)
23.1 Independent Auditors' Consent - Ernst & Young LLP(2)
23.2 Consent of Fisher Thurber LLP (contained in Exhibit 5)
24 Power of Attorney. Reference is made to the signature page of
this Registration Statement.
</TABLE>
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(1) Incorporated by reference to Exhibit 10.22 to Registrant's Form SB-2
filed on December 1, 1995.
(2) Filed herewith.
6
<PAGE>
EXHIBIT 4.2
FORM OF INCENTIVE STOCK OPTION AGREEMENT
<PAGE>
INCENTIVE
STOCK OPTION AGREEMENT
PARTIES
This Agreement is entered into effective as of OPTION DATE by and
between VYREX CORPORATION, a Nevada corporation, ("Corporation"), and
EMPLOYEE ("Employee" or "Optionee").
RECITALS
A. The Corporation has adopted a 1993 Stock Option Plan ("1993 Plan")
that provides for the grant of incentive stock options meeting the requirements
of IRC Section 422, and other forms of non-statutory stock options to purchase
shares of the Corporation's common stock ("Shares").
B. The Employee is now employed by the Corporation, and the Corporation
desires to have the Employee remain in the employment of the Corporation, and to
afford the Employee the opportunity to obtain share ownership in the Corporation
so that the Employee may have a significant proprietary interest in the
Corporation's success.
C. The Compensation Committee ("Committee") or the Board of Directors of
the Corporation ("Board") has granted to the Employee certain incentive stock
options ("Options") upon and subject to the terms and conditions of the 1993
Plan and this Agreement.
NOW THEREFORE, specifically incorporating these recitals herein, it is
agreed as follows:
AGREEMENT
SECTION 1
GRANT OF OPTION
1.1 NUMBER OF SHARES. Subject to the terms and conditions of this
Agreement and the 1993 Plan, Corporation grants to Optionee the Option to
purchase from Corporation NUMBER OF SHARES (# SHARES,000) shares of
Stock ("Option Shares").
1.2 EXERCISE PRICE. The Option Shares are exercisable at EXERCISE PRICE
dollars ($$$$.00) per share ("Option Price"). The Option Price has been
determined by the Board not to be less than one hundred percent (100%) of the
fair market value (as defined in the 1993 Plan) of the Stock on the date this
Option is granted.
-1-
<PAGE>
1.3 TERM. The Expiration Date for all Options shall be ten (10) years
from the date this Option is granted.
1.4 VESTING. The Option granted herein vests at the rate of 1/48th per
month for forty-eight (48) months, starting on the date this Option is granted,
with the first 3/48th vesting at the conclusion of Optionee's initial ninety
(90) days of employment with Vyrex.
1.5 CONDITIONS OF OPTION. Each Option may only be exercised during the
period commencing on the date it may initially be exercised as set forth in
Section 2 hereinbelow, and otherwise subject to the terms and conditions as set
forth in this Agreement and the 1993 Plan.
SECTION 2
EXERCISE OF OPTIONS
2.1 DATE EXERCISABLE. The Option shall become exercisable by Optionee in
accordance with Section 1.4 above.
2.2 MANNER OF EXERCISE OF OPTIONS AND PAYMENT FOR COMMON STOCK. The
Option Shares may be exercised by the Optionee, (or in the case of his death, by
his or her legatee(s) of such Option Shares under his or her last will or by his
or her executors, personal representatives or distributes) by giving written
notice to the Secretary of the Company, setting forth the number of Shares with
respect to which the Option is being exercised. Except as otherwise provided in
the Plan, the purchase price of common stock upon exercise of any Option by an
optionee may be paid in full (i) in cash or (ii) by such other medium of payment
as the Committee, in its discretion, shall authorize. As soon as reasonably
possible following such exercise, a certificate representing Shares purchased,
registered in the name of the Optionee, shall be delivered to the Optionee.
2.3 RULE 16b-3. Options granted herein subject to Section 16 of the
Securities Exchange Act of 1934 ("34 Act") shall, to the extent practicable,
desirable, or as determined by the Committee, comply with the applicable
provisions of Rule 16b-3 of the 34 Act and may, as determined by the Committee,
contain such additional conditions or restrictions as may be required thereunder
to qualify for the maximum exemption from Section 16 of the 34 Act with respect
to 1993 Plan transactions.
2.4 STOCK CERTIFICATES. Promptly after any exercise in whole or in part
of the Options by Employee, Corporation shall deliver to Employee a certificate
or certificates for the number of Shares with respect to which the Options were
so exercised, registered in Employee's name.
2.5 BUY-OUT PROVISIONS. The Committee may at any time offer on behalf of
the Corporation to buy out, for a payment in cash or stock, one or more of these
Options based on such terms and conditions as the Committee shall establish and
communicate to the Employee at the time that such offer is made; provided,
however, that buy-out offers made to
-2-
<PAGE>
officers, directors and ten percent (10%) shareholders may only be payable in
cash. Any such cash offer made to an Officer or Director shall, to the extent
practicable, desirable, or as determined by the Committee, comply with the
applicable provisions of Rule 16b-3, if any.
SECTION 3
DURATION OF OPTIONS
The Options, to the extent not previously exercised, shall terminate upon
the earliest of the following dates:
3.1 TERMINATION OF EMPLOYMENT. In the event Employee's employment is
terminated, as defined in the 1993 Plan, for any reason other than the
Employee's death or total disability, the Employee may exercise as incentive
stock options any Option, but only within three (3) months from the date of such
termination, and only to the extent that the Employee was entitled to exercise
them at the date of such termination, and in no event later than the expiration
of the term of such Option. To the extent that Employee was not entitled to
exercise an Options at the date of such termination, and to the extent the
Employee does not exercise such Option (to the extent otherwise so entitled)
within the three (3) month time specified hereinabove, the unexercised portion
of the Option shall be void.
Nothing in this Agreement shall affect in any manner whatsoever the right
or power of the Corporation, or a parent or subsidiary of the Corporation, to
terminate Employee's employment for any reason, with or without cause.
3.2 DISABILITY OF EMPLOYEE. In the event Employee's employment
relationship is terminated as a result of Employee's disability as defined in
the 1993 Plan, the Employee may exercise his or her Options as incentive stock
options, but only within twelve (12) months following the date of termination
due to disability, and only to the extent that the Employee was entitled to
exercise them at the date of such termination, but in no event later than the
Expiration Date. To the extent that Employee was not entitled to exercise an
Option at the date of such termination, and to the extent the Employee does not
exercise such Option (to the extent otherwise so entitled) within the time
specified herein, the Option shall continue in force as valid non-statutory
options in favor of Employee capable of being exercised until the Expiration
Date.
3.3 DEATH OF EMPLOYEE. In the event of an Employee's death, the
Employee's estate or a person who acquired the right to exercise the deceased
Employee's Options by bequest or inheritance may exercise the Options as
incentive stock options, but only within twelve (12) months following the date
of death, and only to the extent that the Employee was entitled to exercise them
at the date of death (but in no event later than the Expiration Date). To the
extent that Employee was not entitled to exercise an Option at the date of
death, and to the extent the Employee's estate or a person who acquired the
right to exercise such Option does not exercise such Option (to the extent
otherwise so entitled) within the time specified herein, the Option shall
continue in force as valid non-statutory options in favor of Employee capable of
being exercised until the Expiration Date.
-3-
<PAGE>
SECTION 4
NON-TRANSFERABILITY
4.1 RESTRICTION. The Options are not transferable by Employee otherwise
than by testamentary will or the laws of descent and distribution and, during
Employee's lifetime, may be exercised only by Employee or Employee's guardian or
legal representative. No assignment, sale, pledge, hypothecation, disposition
or transfer of the Options, whether voluntary, involuntary, or by operation of
law or otherwise, except by testamentary will or the laws of descent and
distribution, shall vest in the assignee or transferee any interest or right,
but immediately upon any attempt to assign or transfer one or more Options, the
Options shall terminate and be of no force or effect. No Option shall be made
subject to execution, attachment, or similar process.
4.2 EXERCISE IN EVENT OF DEATH OR DISABILITY. Whenever the word
"Employee" is used in any provision of this Agreement under circumstances when
the provision should logically be construed to apply to the Employee's guardian,
legal representative, executor, administrator, or the person or persons to whom
an Option(s) may be transferred by testamentary will or by the laws of descent
and distribution, the word "Employee" shall be deemed to include such person or
persons.
SECTION 5
NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE
Employee shall not be deemed for any purpose to be a shareholder of
Corporation with respect to any shares subject to the Options under this
Agreement to which the Options shall not have been exercised.
SECTION 6
ADJUSTMENTS
6.1 NO EFFECT ON CHANGES IN CORPORATION'S CAPITAL STRUCTURE. The
existence of the Options shall not affect in any way the right or power of
Corporation or its shareholders to make or authorize any adjustments,
recapitalization, reorganization, or other changes in Corporation's capital
structure or its business, or any merger or consolidation of Corporation, or any
issue of bonds, debentures, preferred or preference stocks ahead of or affecting
the Option Shares, or the dissolution or liquidation of Corporation, or any sale
or transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
6.2 ADJUSTMENT TO OPTION SHARES. The Option Shares are subject to
adjustment upon changes in capitalization, dissolution, merger, asset sale or a
change in control as follows:
-4-
<PAGE>
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Corporation, the number of Shares covered by each
outstanding Option, and the number of Shares which have been authorized for
issuance under the 1993 Plan but as to which no options have yet been granted or
which have been returned to the 1993 Plan upon cancellation or expiration of an
option, as well as the price per Option Share covered by each such outstanding
Option, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of stock resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Shares, or any
other increase or decrease in the number of issued Shares effected without
receipt of consideration by the Corporation; provided, however, that conversion
of any convertible securities of the Corporation shall not be deemed to have
been "effected without receipt of consideration". Such adjustment shall be made
by the Board of Directors, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the
Corporation of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of Option Shares.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed dissolution
or liquidation of the Corporation, to the extent that an Option has not been
previously exercised, it will terminate immediately prior to the consummation of
such proposed action. The Board of Directors may, in the exercise of its sole
discretion in such instances, declare that any Option shall terminate as of a
date fixed by the Board of Directors and give each Employee the right to
exercise his Options as to all or any part of the Option Shares, including
Option Shares as to which an Option would not otherwise be exercisable.
(c) MERGER OR CONSOLIDATION. In the event of a merger of the Corporation
with or into another corporation, or the sale of substantially all of the assets
of the Corporation, outstanding Options shall be subject to the agreement of
merger or consolidation. Such agreement may provide for the assumption of
outstanding Options by the surviving corporation or its parent or for their
continuation by the Corporation (if the Corporation is the surviving
corporation). In the event the Corporation is not the surviving corporation and
the surviving corporation will not assume the outstanding Options, the agreement
of merger or consolidation shall provide for payment of a cash settlement for
Options equal to the difference between the amount to be paid for one Share
under such agreement and the Exercise Price.
In connection with any adjustment under this Section 6 resulting in a
fractional share interest, such interest may be rounded down to the nearest
whole share if such interest is less than 0.5 share; otherwise such fractional
share interest may be rounded up to the nearest whole share.
-5-
<PAGE>
SECTION 7
COMPLIANCE WITH SECURITIES LAWS
7.1 NO EXERCISE UNTIL COMPLIANCE. If the Committee at any time determines
that registration or qualification of the Option Shares or the Options under
state or federal law, or the consent or approval of any governmental regulatory
body is necessary or desirable, then the Options may not be exercised, in whole
or in part, until such registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not acceptable to the
Committee.
7.2 INVESTMENT REPRESENTATIONS RE: FEDERAL SECURITIES LAWS. The Shares,
as of the date hereof, have not been registered under the 33 Act and the
Corporation has no plans to register them. The Employee represents that one or
more of these Options are exercised in whole or in part at a time when there is
NOT in effect, under the 33 Act, a registration statement applicable to the
Option Shares issuable upon exercise, then the purchase of such Option Shares is
expressly conditioned upon the following representations, warranties and
covenants:
(a) Any Option Shares purchased upon exercise of these Options shall
be acquired for the Employee's account for investment only, and not with a view
to, or for sale in connection with, any distribution of the Option Shares in
violation of the 33 Act, or any rule or regulation under the 33 Act. Further,
the Employee either has a pre-existing personal or business relationship with
the Corporation or any of its officers, directors or controlling persons, and/or
by reason of Employee's business or financial experience, or the business or
financial experience of his professional advisors who are unaffiliated with and
not compensated by the Corporation, he could reasonably be assumed to have the
capacity to protect his own interests in connection with the grant, exercise and
sale of the Options and Option Shares.
(b) The Employee has had such opportunity as he has deemed adequate
to obtain from representatives of the Corporation such information as is
necessary to permit the Employee to evaluate the merits and risks of his or her
investment in the Corporation.
(c) The Employee is able to bear the economic risk of holding Shares
acquired pursuant to the exercise of the Options for an indefinite period.
(d) The Employee understands that:
(i) the Shares acquired pursuant to the exercise of the Option
will not be registered under the 33 Act or under any state securities laws and
are "restricted securities" within the meaning of Rule 144 under the 33 Act;
(ii) such Shares cannot be sold, transferred or otherwise
disposed of unless they are subsequently registered under the 33 Act;
-6-
<PAGE>
(iii) in any event, the exemption from registrations under
Rule 144 will not be available for at least two (2) years, and even then will
not be available unless a public market then exists for the Shares, adequate
information concerning the Corporation is then available to the public, and
other terms and conditions of Rule 144 are complied with; and
(iv) there is now no registration statement on file with the
Securities and Exchange Commission with respect to the 1993 Plan of the
Corporation and the Corporation has no obligation or current intention to
register any shares acquired pursuant to the exercise of these Options under the
33 Act.
By making payment upon exercise of these Options, the Employee shall
be deemed to have reaffirmed, as of the date of such payment, the
representations made in this Section 7.2.
SECTION 8
LEGEND ON STOCK CERTIFICATES
All stock certificates representing Shares issued to the Employee upon
exercise of these Options shall have affixed thereto a legend substantially in
the following form, in addition to any other legends required by applicable
state law:
The shares of stock represented by
this certificate have not been
registered under the Securities Act of
1933, or under the securities laws of
any state, and may not be transferred,
sold or otherwise disposed of in the
absence of an effective registration
statement with respect to the shares
evidenced by this certificate, filed
and made effective under the Securities
Act of 1933, and registration or exemption
under state securities laws, or an opinion
of counsel satisfactory to the Corporation
to the effect that registration under such
Act and state securities laws is not
required.
SECTION 9
MISCELLANEOUS PROVISIONS
9.1 VIOLATION. Any provision of this Agreement to the contrary
notwithstanding, the Options shall not be exercisable at any time, in whole or
in part, if issuance and delivery of the Option Shares would violate any law or
regulation.
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<PAGE>
9.2 DISPUTES. Any dispute or disagreement that may arise under or as a
result of this Agreement, or any question as to the interpretation of this
Agreement, may be determined by the Committee in its absolute and uncontrolled
discretion, and any such determination shall be final, binding, and conclusive
on all affected persons.
9.3 NOTICES. Any notice that a party may be required or permitted to give
to the other shall be in writing, and may be delivered personally or by
certified or registered mail, postage prepaid, addressed
If to the Company: Vyrex Corporation
2159 Avenida de la Playa
La Jolla, California 92037
Attn: Sheldon S. Hendler
With a copy to: Fisher Thurber, LLP
4225 Executive Square
Suite 1600
La Jolla, California 92037-1483
Attn: David A. Fisher
If to Employee: At such address as employee has
given to the Company as Employees
permanent residence.
or such other address as either party, by notice to the other, may designate in
writing from time to time;
9.4 TAX ELECTIONS. Employee acknowledges that he has considered the
advisability of all tax elections in connection with the exercise of the Options
and purchase of the Option Shares hereunder, and the execution and delivery of
this Agreement, including the making of an election under Section 83(b) of the
Internal Revenue Code of 1986, as amended, and any similar elections under
California or other applicable state law, and that the Corporation has no
responsibility for the making of any such election. Employee further
acknowledges he shall consult with his tax advisor, at his own expense,
regarding the tax consequences of the grant of the Options, the exercise of the
Options and the sale of the Option Shares prior to the signing of this
Agreement.
9.5 LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9.6 TITLES AND CAPTIONS. All section titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the context
nor effect the interpretation of this Agreement.
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<PAGE>
9.7 ENTIRE AGREEMENT. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
9.8 AGREEMENT BINDING. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
9.9 COMPUTATION OF TIME. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall be included, unless it is a Saturday, Sunday, or a
legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday, or legal holiday.
9.10 PRONOUNS AND PLURALS. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular, or plural as
the identity of the person or persons may require.
9.11 PRESUMPTION. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
9.12 FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
9.13 PARTIES IN INTEREST. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
9.14 SAVINGS CLAUSE. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
9.15 UNREGISTERED SHARES. Employee represents that he/she understands that
the Stock is not now registered under the Securities Act of 1933 or under any
state securities law and that the Stock may not be so registered in the
foreseeable future.
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<PAGE>
9.16 REPRESENTATION BY COUNSEL. Employee represents that she has been
advised that she is not being represented in this transaction by the
corporation's attorneys and that Employee has been advised to seek separate
legal counsel for advice in this matter, and Employee has done so to the extent
desired. Employee's legal counsel has reviewed this and related and unrelated
agreements between Employee and the Corporation, and has been involved in the
negotiation of the terms hereof, has advised Employee regarding this and the
other agreements, and Employee has relied solely thereon.
In witness whereof the parties have executed this Agreement.
VYREX CORPORATION
a Nevada corporation
By:
---------------------------
SHELDON S. HENDLER, PRESIDENT
The undersigned Employee hereby acknowledges receipt of this Incentive and
Non-Statutory Stock Option Agreement, accepts the Options granted thereunder,
agrees to the terms and conditions thereof, and acknowledges receipt of a copy
of the Corporation's 1993 Stock Option Plan.
------------------------------
EMPLOYEE NAME, Employee
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<PAGE>
VYREX CORPORATION
NOTICE OF EXERCISE OF STOCK OPTION
I hereby exercise one of the stock Options granted by Vyrex Corporation and
seek to purchase _____________ common shares of the Corporation pursuant to said
Option. I understand that this exercise is subject to all the terms and
provisions of the Incentive Stock Option Agreement and of the 1993 Stock Option
Plan referred to therein.
Enclosed is my check in the sum of $_____________ in payment for such
shares.
I hereby represent that the shares of common shares to be delivered to me
pursuant to the above-mentioned exercise of said Option are being acquired by me
as an investment and not with a view to, or for sale in connection with, the
distribution of any thereof.
Dated:
----------------------------
- ----------------------------------
Signature of Employee
Receipt is hereby acknowledged of the delivery to me by Vyrex Corporation of
certificates for __________ common shares of the Corporation purchased by me
pursuant to the terms and conditions of the Incentive Stock Option Agreement
and 1993 Stock Option Plan referred to above.
Date:
----------------------------
- ----------------------------------
Signature of Employee
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<PAGE>
EXHIBIT 4.3
FORM OF NONSTATUTORY STOCK OPTION AGREEMENT
<PAGE>
NONSTATUTORY
STOCK OPTION AGREEMENT
PARTIES
This Nonstatutory Stock Option Agreement is made as of OPTION DATE, by and
between VYREX CORPORATION, a Nevada Corporation ("Corporation"), and OPTIONEE
("Optionee").
RECITALS
A. The Corporation has adopted a 1993 Stock Option Plan ("1993 Plan")
that provides for the grant of incentive stock options meeting the requirements
of IRC Section 422 and other forms of non-statutory stock options to purchase
shares of the Corporation's common stock ("Shares").
B. Optionee is an employee, consultant, director and/or officer of the
Corporation, any parent or subsidiary of the Corporation and Corporation desires
to provide an incentive to eligible employees, consultants, directors and
officers whose present and potential contributions are important to the
Corporation, to afford Optionee the opportunity to obtain stock ownership in
Corporation so that Optionee may have a significant proprietary interest in
Corporation's success.
C. The Compensation Committee ("Committee") or by the Board of Directors
of the Corporation ("Board") has granted to Optionee a Nonstatutory Option
("Option") upon and subject to the terms and conditions of the 1993 Plan and
this Agreement.
NOW THEREFORE, specifically incorporating these recitals herein, it is
agreed as follows:
AGREEMENT
SECTION 1
GRANT OF OPTION
1.1 NUMBER OF SHARES. Subject to the terms and conditions of this
Agreement and the 1993 Plan, Corporation grants to Optionee the Option to
purchase from Corporation NUMBER OF SHARES (# SHARES,000) shares of Stock
("Option Shares").
1.2 EXERCISE PRICE. The Option Shares are exercisable at EXERCISE PRICE
dollars ($$$$.00) per share ("Option Price"). The Option Price has been
determined by the Board not to be less than one hundred percent (100%) of the
fair market value (as defined in the 1993 Plan) of the Stock on the date this
Option is granted.
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<PAGE>
1.3 TERM. The Expiration Date for all Options shall be ten (10) years
from the date this Option is granted.
1.4 VESTING. The Option granted herein vests at the rate of 1/48th per
month for forty-eight (48) months, starting on the date this Option is granted.
1.5 CONDITIONS OF OPTION. Each Option may only be exercised during the
period commencing on the date it may initially be exercised as set forth in
Section 2 hereinbelow, and otherwise subject to the terms and conditions as set
forth in this Agreement and the 1993 Plan.
SECTION 2
EXERCISE OF OPTION
2.1 DATE EXERCISABLE. The Option shall become exercisable by Optionee in
accordance with Section 1.4 above.
2.2 MANNER OF EXERCISE OF OPTION AND PAYMENT FOR COMMON STOCK. This
Option may be exercised by the Optionee, (or in the case of his death, by his or
her legatee(s) of such Option under his or her last will or by his or her
executors, personal representatives or distributees) by giving written notice to
the Secretary of the Corporation, setting forth the number of Shares with
respect to which the Option is being exercised. The purchase price of the
Option Shares upon exercise of the Option by the Optionee shall be paid in full
in cash, or (ii) by such other medium of payment as the Committee, in its
discretion, shall authorize, or by any combination of (i) and (ii), at the
discretion of the Committee. As soon as reasonably possible following such
exercise, a certificate representing the Shares purchased, registered in the
name of the Optionee, shall be delivered to the Optionee.
2.3 RULE 16b-3. Options granted to individuals subject to Section 16 of
the Securities Exchange Act of 1934 ("34 Act") shall, to the extent practicable,
desirable, or as determined by the Committee, comply with the applicable
provisions of Rule 16b-3 of the 34 Act and may, as determined by the Committee,
contain such additional conditions or restrictions as may be required thereunder
to qualify for the maximum exemption from Section 16 of the 34 Act with respect
to 1993 Plan transactions.
2.4 STOCK CERTIFICATES. Promptly after any exercise in whole or in part
of the Option by Optionee, Corporation shall deliver to Optionee a certificate
or certificates for the number of Shares with respect to which the Option was so
exercised, registered in Optionee's name.
2.5 BUY-OUT PROVISIONS. The Committee may at any time offer on behalf of
the Corporation to buy out, for a payment in cash or Stock, an Option previously
granted, based on such terms and conditions as the Committee shall establish and
communicate to the Optionee at the time that such offer is made; provided,
however, that buy-out offers made to
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<PAGE>
officers, directors and ten percent (10%) shareholders may only be payable in
cash. Any such cash offer made to an Officer or Director shall, to the extent
practicable, desirable, or as determined by the Committee, comply with the
applicable provisions of Rule 16b-3, if any.
SECTION 3
DURATION OF OPTIONS
The Option, to the extent not previously exercised, shall terminate as
follows:
3.1 DEATH OF OPTIONEE. In the event of an Optionee's death, the
Optionee's estate or a person who acquired the right to exercise the deceased
Optionee's Option by bequest or inheritance may exercise the Option, but only
within twelve (12) months following the date of death, and only to the extent
that the Optionee was entitled to exercise it at the date of death (but in no
event later than the expiration of the term of such option as determined
herein). To the extent that Optionee was not entitled to exercise an Option at
the date of death, and to the extent the Optionee's estate or a person who
acquired the right to exercise such Option does not exercise such Option (to the
extent otherwise so entitled) within the time specified herein, the Option shall
terminate.
SECTION 4
NONTRANSFERABILITY
4.1 RESTRICTION. The Option is not transferable by Optionee otherwise
than by testamentary will or the laws of descent and distribution and, during
Optionee's lifetime, may be exercised only by Optionee or Optionee's guardian or
legal representative. No assignment, sale, pledge, hypothecation, disposition
or transfer of the Option, whether voluntary, involuntary, or by operation of
law or otherwise, except by testamentary will or the laws of descent and
distribution, shall vest in the assignee or transferee any interest or right,
but immediately upon any attempt to assign or transfer the Option, the Option
shall terminate and be of no force or effect. No Option shall be made subject
to execution, attachment, or similar process.
4.2 EXERCISE IN EVENT OF DEATH OR DISABILITY. Whenever the word
"Optionee" is used in any provision of this Agreement under circumstances when
the provision should logically be construed to apply to the Optionee's guardian,
legal representative, executor, administrator, or the person or persons to whom
the Option may be transferred by testamentary will or by the laws of descent and
distribution, the word "Optionee" shall be deemed to include such person or
persons.
-3-
<PAGE>
SECTION 5
NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE
Optionee shall not be deemed for any purpose to be a shareholder of
Corporation with respect to any shares subject to the Option under this
Agreement to which the Option shall not have been exercised.
SECTION 6
ADJUSTMENTS
6.1 NO EFFECT ON CHANGES IN CORPORATION'S CAPITAL STRUCTURE. The
existence of the Option shall not affect in any way the right or power of
Corporation or its shareholders to make or authorize any adjustments,
recapitalization, reorganization, or other changes in Corporation's capital
structure or its business, or any merger or consolidation of Corporation, or any
issue of bonds, debentures, preferred or preference stocks ahead of or affecting
the Option Shares, or the dissolution or liquidation of Corporation, or any sale
or transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
6.2 ADJUSTMENT TO OPTION SHARES. The Option Shares are subject to
adjustment upon changes in capitalization, dissolution, merger, asset sale or a
change in control as follows:
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Corporation, the number of Shares covered by each
outstanding Option, and the number of Shares which have been authorized for
issuance under the 1993 Plan but as to which no Options have yet been granted or
which have been returned to the 1993 Plan upon cancellation or expiration of an
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Shares, or any other increase or decrease
in the number of issued Shares effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board of Directors, whose
determination in that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Corporation of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of Option Shares.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Corporation, to the extent that an Option has
not been previously exercised, it will terminate immediately prior to the
consummation of such proposed action. The Board of Directors may, in the
exercise of its sole discretion in such instances, declare that any
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<PAGE>
Option shall terminate as of a date fixed by the Board of Directors and give
each Optionee the right to exercise his or her Option as to all or any part of
the Option Shares, including Stock as to which the Option would not otherwise be
exercisable.
(c) MERGER OR CONSOLIDATION. In the event of a merger of the
Corporation with or into another corporation, or the sale of substantially all
of the assets of the Corporation, outstanding Options shall be subject to the
agreement of merger or consolidation. Such agreement may provide for the
assumption of outstanding Options by the surviving corporation or its parent or
for their continuation by the Corporation (if the Corporation is the surviving
corporation). In the event the Corporation is not the surviving corporation and
the surviving corporation will not assume the outstanding Options, the agreement
of merger or consolidation may provide for payment of a cash settlement for
exercisable Options equal to the difference between the amount to be paid for
one share under such agreement and the Exercise Price and for the cancellation
of Options not exercised or settled, in either case without the Optionee's
consent.
In connection with any adjustment under this Section 6 resulting in a
fractional share interest, such interest may be rounded down to the nearest
whole share if such interest is less than 0.5 share; otherwise such fractional
share interest may be rounded up to the nearest whole share.
SECTION 7
COMPLIANCE WITH SECURITIES LAWS
7.1 NO EXERCISE UNTIL COMPLIANCE. If the Board or the Committee at any
time determines that registration or qualification of the Option Shares or the
Option under state or federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable, then the Option may not
be exercised, in whole or in part, until such registration, qualification,
consent, or approval shall have been effected or obtained free of any conditions
not acceptable to the Committee.
7.2 INVESTMENT REPRESENTATIONS RE: FEDERAL SECURITIES LAWS. The Option
Shares, as of the date hereof, have not been registered under the 34 Act and the
Corporation has no plans to register them. The Optionee represents that if this
Option is exercised in whole or in part at a time when there is NOT in effect,
under the 34 Act, a registration statement applicable to the Option Shares
issuable upon exercise, then the purchase of such Option Shares is expressly
conditioned upon the following representations, warranties and covenants:
(a) Any Option Shares purchased upon exercise of this Option shall be
acquired for the Optionee's account for investment only, and not with a view to,
or for sale in connection with, any distribution of the Option Shares in
violation of the 34 Act, or any rule or regulation under the 34 Act. Further,
the Optionee either has a pre-existing personal or business relationship with
the Corporation or any of its officers, directors or controlling
-5-
<PAGE>
persons, or by reason of Optionee's business or financial experience, or the
business or financial experience of their professional advisors who are
unaffiliated with and not compensated by the Corporation, they could reasonably
be assumed to have the capacity to protect their own interests in connection
with the grant, exercise and sale of the Option and the Option Shares.
(b) The Optionee has had such opportunity as he or she has deemed
adequate to obtain from representatives of the Corporation such information as
is necessary to permit the Optionee to evaluate the merits and risks of his or
her investment in the Corporation.
(c) The Optionee is able to bear the economic risk of holding shares
acquired pursuant to the exercise of the Option for an indefinite period.
(d) The Optionee understands that:
(i) the Shares acquired pursuant to the exercise of the
Option will not be registered under the 34 Act or under any state securities
laws and are "restricted securities" within the meaning of Rule 144 under the
34 Act;
(ii) such Shares cannot be sold, transferred or otherwise
disposed of unless they are subsequently registered under the 34 Act;
(iii) in any event, the exemption from registrations
under Rule 144 will not be available for at least two (2) years, and even then
will not be available unless a public market then exists for the Shares,
adequate information concerning the Corporation is then available to the public,
and other terms and conditions of Rule 144 are complied with; and
(iv) there is now no registration statement on file with
the Securities and Exchange Commission with respect to the 1993 Plan of the
Corporation and the Corporation has no obligation or current intention to
register any shares acquired pursuant to the exercise of this Option under the
34 Act.
By making payment upon exercise of this Option, the Optionee shall be
deemed to have reaffirmed, as of the date of such payment, the representations
made in this Section 7.2.
SECTION 8
LEGEND ON STOCK CERTIFICATES
All stock certificates representing Shares issued to the Optionee upon
exercise of this Option shall have affixed thereto a legend substantially in the
following form, in addition to any other legends required by applicable state
law:
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<PAGE>
The shares of stock represented by this
certificate have not been registered under the
Securities Act of 1933, or under the securities
laws of any state, and may not be transferred,
sold or otherwise disposed of in the absence of an
effective registration statement with respect to
the shares evidenced by this certificate, filed
and made effective under the Securities Act of
1933, and registration or exemption under state
securities laws, or an opinion of counsel
satisfactory to the Corporation to the effect that
registration under such Act and state securities
laws is not required.
SECTION 9
MISCELLANEOUS PROVISIONS
9.1 VIOLATION. Any provision of this Agreement to the contrary
notwithstanding, the Option shall not be exercisable at any time, in whole or in
part, if issuance and delivery of the Option Shares would violate any law or
regulation.
9.2 DISPUTES. Any dispute or disagreement that may arise under or as a
result of this Agreement, or any question as to the interpretation of this
Agreement, may be determined by the Committee in its absolute and uncontrolled
discretion, and any such determination shall be final, binding, and conclusive
on all affected persons.
9.3 NOTICES. Any notice that a party may be required or permitted to give
to the other shall be in writing, and may be delivered personally or by
certified or registered mail, postage prepaid, addressed c/o 2159 Avenida de la
Playa, La Jolla, California 92037, or such other address as either party, by
notice to the other, may designate in writing from time to time;
9.4 TAX ELECTIONS. Optionee acknowledges that he has considered the
advisability of all tax elections in connection with the exercise of the Option
and purchase of the Option Shares hereunder, and the execution and delivery of
this Agreement, including the making of an election under Section 83(b) of the
Internal Revenue Code of 1986, as amended, and any similar elections under
Nevada or applicable state law, and that the Corporation has no responsibility
for the making of any such election. Optionee further acknowledges he shall
consult with his tax advisor, at his own expense, regarding the tax consequences
of the grant of the Option, the exercise of the Option and the sale of the
Option Shares prior to the signing of this Agreement.
9.5 VIOLATION. Any provision of this Agreement to the contrary
notwithstanding, the Option shall not be exercisable at any time, in whole or in
part, if issuance and delivery of the Option Shares would violate any law or
regulation.
9.6 LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
-7-
<PAGE>
9.7 TITLES AND CAPTIONS. All section titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the context
nor effect the interpretation of this Agreement.
9.8 ENTIRE AGREEMENT. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
9.9 AGREEMENT BINDING. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
9.10 COMPUTATION OF TIME. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall be included, unless it is a Saturday, Sunday, or a
legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday, or legal holiday.
9.11 PRONOUNS AND PLURALS. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular, or plural as
the identity of the person or persons may require.
9.12 PRESUMPTION. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
9.13 FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
9.14 PARTIES IN INTEREST. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
9.15 SAVINGS CLAUSE. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
9.16 UNREGISTERED SHARES. Optionee represents that he/she understands that
the Stock is not now registered under the Securities Act of 1933 or under any
state securities law and that the Stock will not be so registered in the
foreseeable future.
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<PAGE>
9.17 REPRESENTATION BY COUNSEL. Optionee represents that he has been
advised that he is not being represented in this transaction by the
corporation's attorneys and that Optionee has been advised to seek separate
legal counsel for advice in this matter, he has access to independent legal
counsel, and he has done so to the extent desired.
EXECUTED at La Jolla, California by:
VYREX CORPORATION
a Nevada corporation
By:
---------------------------------
SHELDON S. HENDLER, President
The undersigned Optionee hereby acknowledges receipt of an executed
original of this Nonstatutory Stock Option Agreement, accepts the option granted
thereunder, agrees to the terms and conditions thereof, and acknowledges receipt
of a copy of the Corporation's 1993 Stock Option Plan.
Dated:
---------------------------------- --------------------------
OPTIONEE, Optionee
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<PAGE>
VYREX CORPORATION
NOTICE OF EXERCISE OF STOCK OPTION
I hereby exercise my Nonstatutory Stock Option granted by Vyrex Corporation
and seek to purchase ____________________ of common shares of the Corporation
pursuant to said Option. I understand that this exercise is subject to all the
terms and provisions of the Nonstatutory Stock Option Agreement dated OPTION
DATE and of the 1993 Stock Option Plan referred to therein.
Enclosed is my check in the sum of $_____________________ in payment for
such shares.
I hereby represent that the shares of common shares to be delivered to me
pursuant to the above-mentioned exercise of said Option are being acquired by me
as an investment and not with a view to, or for sale in connection with, the
distribution of any thereof.
- ----------------------------------- --------------------------------
Signature of Optionee Date
Receipt is hereby acknowledged of the delivery to me by Vyrex Corporation of
certificates for _______________ common shares of the Corporation purchased
by me pursuant to the terms and conditions of the Nonstatutory Stock Option
Agreement dated OPTION DATE and the 1993 Stock Option Plan referred to above.
- ----------------------------------- --------------------------------
Signature of Optionee Date
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<PAGE>
EXHIBIT 5
OPINION AND CONSENT OF FISHER THURBER LLP
<PAGE>
April 16, 1998
Vyrex Corporation
2159 Avenida de la Playa
La Jolla, CA 92037
Dear Sirs:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), on behalf of Vyrex Corporation,
a Nevada corporation (the "Company"), relating to 2,875,00 shares of the
Company's Common Stock, $.001 par value (the "Common Stock"), to be issued
pursuant to the Vyrex Corporation 1993 Stock Option Plan (the "Plan").
As counsel to the Company, we have examined such corporate records, other
documents and such questions of law as we have deemed necessary or appropriate
for the purposes of this opinion and, upon the basis of such examinations,
advise you that in our opinion all necessary corporate proceedings by the
Company have been duly taken to authorize the issuance of the Common Stock
pursuant to the Plan and the shares of Common Stock being registered pursuant to
the Registration Statement, when issued and paid for in accordance with the
terms of the Plan, will be duly authorized, validly issued, fully paid and
non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement. This consent is not to be construed as an admission that we are a
person whose consent is required to be filed with the Registration Statement
under the provisions of the Act.
Very truly yours,
/s/ David A. Fisher
David A. Fisher
DAF:nxm
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT - ERNST & YOUNG LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Vyrex Corporation for the registration of 2,875,000 shares of its common
stock and to the incorporation by reference therein of our report dated February
12, 1998, with respect to the financial statements of Vyrex Corporation included
in its Annual Report (Form 10-KSB) for the year ended December 31, 1997, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
April 15, 1998
