<PAGE>
Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------------
Boston Life Sciences, Inc.
--------------------------
(Exact name of registrant as specified in its charter)
Delaware 87-0277826
------------------------------------------ ------------
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) identification no.)
31 Newbury Street, Suite 300
Boston, Massachusetts 02116
----------------------------------------------- -------------------
(Address of Principal Executive Offices) (Zip Code)
Boston Life Sciences, Inc.
1998 Omnibus Stock
Option Plan
------------------------------
(Full title of the plan)
S. David Hillson
President and Chief Executive Officer
Boston Life Sciences, Inc.
31 Newbury Street, Suite 300
Boston, Massachusetts 02116
-----------------------------------------
(Name and address of agent for service)
(617) 425-0200
-----------------------------
(Telephone number, including area code, of agent for service)
with copies to:
Raymond D. Agran, Esquire
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
CALCULATION OF REGISTRATION FEE
-------------------------------
<TABLE>
<CAPTION>
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered(1) Registered Share(2) Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 500,000 (2) $ 1,627,132 $ 453
value $.01 per shares
share
===================================================================================================================
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement shall also cover any
additional shares of Common Stock which may become issuable under the 1998
Omnibus 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 calculating the registration fee. In
accordance with Rules 457(c) and (h), the price shown is based upon (i)
496,000 shares offered pursuant to options outstanding exercisable at the
following prices: 22,000 shares at $ 4.53 per share, 441,000 shares at
$3.25 per share, 25,000 shares at $2.15 per share, and 8,000 shares at
$2.09 per share; and (ii) 4,000 shares reserved for issuance upon exercise
of options to be granted in the future, the proposed offering price of
which has been determined based upon the average of the high and low prices
reported for the Common Stock on the Nasdaq SmallCap Market on June 3,
1999, $5.938.
<PAGE>
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required to be included in
Part I of this Registration Statement will be given or sent to all persons who
participate in the Boston Life Sciences, Inc. 1998 Omnibus Stock Option Plan
(the "Plan"), as specified by Rule 428.
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents or portions of documents filed by the Company (File No.
0-06533) with the Commission are incorporated hereby by reference:
(i) Annual Report on Form 10-K, as amended by the Form 10-K/A, for the
fiscal year ended December 31, 1998.
(ii) Quarterly Report on Form 10-Q for the period ended March 31, 1999.
(iii) Current Reports on Form 8-K filed January 28, 1999, February 10,
1999, February 19, 1999 and March 23, 1999.
(iv) The description of certain of the Company's warrants to purchase
common stock and certain preferred stock purchase rights related to
the Company's Stockholder Rights Plan which are contained in the
Company's Registration Statements on Form 8-A filed under the
Exchange Act, including any amendment or reports filed for the
purpose of updating such descriptions.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of the filing of such reports or documents. Any
statement contained in a document, all or a portion of which is 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 or
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
<PAGE>
Item 4. Description of Securities.
-------------------------
GENERAL
Boston Life Sciences is authorized to issue 25,000,000 shares of
Common stock and 1,000,000 shares of preferred stock, each with a par value $.0l
per share. Under its certificate of incorporation, its Board of Directors is
authorized, without stockholder approval, to issue such preferred stock into
series with such voting rights, designations, preferences, limitations and
special rights as may be designated by the Board of Directors from time to time.
Shares of our common stock are being registered under this
registration statement. The following is a summary description of our
outstanding common stock and is qualified in its entirety by reference to our
certificate of incorporation and bylaws, which are exhibits to or incorporated
by reference in the registration statement of which this prospectus is a part.
Common Stock
Subject to the rights and preferences of our preferred stock, holders
of shares of the common stock are entitled to receive dividends, as and to the
extent dividends may be declared by our Board of Directors, out of funds legally
available therefor. In the event of a liquidation, dissolution or winding up of
Boston Life Sciences, holders of shares of the common stock are entitled to
share ratably in all assets remaining after payment of liabilities and
preferences to holders of preferred stock. Holders of shares of common stock are
entitled to one vote per share on all matters on which stockholders are entitled
to vote. The holders of a majority of the outstanding shares of common stock
entitled to vote constitutes a quorum for taking action by the stockholders.
Except for matters where a higher vote is required by law, the affirmative vote
of the holders of shares of common stock present or represented and entitled to
vote is required to take any such action. Holders of shares of the common stock
have no preemptive, conversion or other subscription rights. There are no
redemption, sinking fund or call provisions applicable to the common stock.
The holders of the common stock have rights under a stockholder rights
plan which has been adopted by the Board of Directors. Under the rights plan,
the holders of common stock received one right (the "right") to purchase a
fractional share of a new class of preferred stock for each share of common
stock owned by such holder. If a person or a group acquires fifteen percent or
more of the outstanding shares of the common stock, the rights may separate from
the shares of common stock and become exercisable. Once the rights are
exercised, the rights plan may allow holders of the rights to purchase common
stock (other than the person or group acquiring fifteen percent of the common
stock) at a substantial discount. The rights will expire in September 2001
unless exercised by the holders or redeemed or exchanged by us. The rights plan
could make it more difficult, and therefore discourage attempts, to acquire
control of Boston Life Sciences. This description of the rights plan is
qualified by reference to the registration statement on Form 8-A relating to the
rights plan, which is incorporated herein by reference and made a part hereof.
2
<PAGE>
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Company has adopted the provisions of Section 102(b)(7) of the
Delaware General Corporation Law (the "DGCL") which eliminate or limit the
personal liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty under certain circumstances. Furthermore,
under Section 145 of the DGCL, the Company shall indemnify each of its directors
and officers against expenses (including reasonable costs, disbursements, and
counsel fees) in connection with any proceeding involving such person by reason
of having been an officer or director of the Company. The DGCL authorizes the
Company to grant indemnities to directors and officers in terms sufficiently
broad to permit indemnification of such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933. In addition, the Company has obtained Directors' and
Officers' Liability Insurance, which insures its officers and directors against
certain liabilities such persons may incur in their capacities as officers or
directors of the Company.
Article 6 of the Company's Amended and Restated Certificate of
Incorporation provides as follows:
SIXTH: No director of the Corporation shall be personally liable to
the Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, as the same
exists or hereafter may be amended, or (iv) for any transaction from
which the director derived an improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then
the liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to
the fullest extent permitted by the amended Delaware General
Corporation Law. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or
modification.
3
<PAGE>
Article VI of the Company's Amended and Restated By-Laws provides in
relevant part as follows:
SECTION 1. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalents, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
SECTION 2. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
4
<PAGE>
Item 8. Exhibits.
--------------
Exhibit
Sequential
Number Description
- ---------- -----------
4 Specimen copy of Stock Certificate for shares of Common Stock of
the Registrant (filed as an exhibit to the Company's Registration
Statement on Form S-3 filed with the Security and Exchange
Commission, Registration Number 33-25955)
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in
its opinion filed as Exhibit 5 hereto).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on signature page).
99 Boston Life Sciences, Inc. 1998 Omnibus Stock Option Plan
Item 9. Undertakings.
------------
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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 the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
- -------- -------
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment
5
<PAGE>
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
(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
offering.
B. Filings Incorporating Subsequent Exchange Act Documents by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration 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. Request for Acceleration of Effective Date or Filing of Registration
Statement or Form S-8
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on June 4,
1999.
6
<PAGE>
BOSTON LIFE SCIENCES, INC.
By: /s/ S. David Hillson
_____________________
S. David Hillson
President and Chief Executive Officer
We, the undersigned directors and officers of Boston Life Sciences, Inc.,
do hereby constitute and appoint each of S. David Hillson and Joseph P. Hernon,
each with full power of substitution, our true and lawful attorney-in-fact and
agent to do any and all acts and things in our names and in our behalf in our
capacities stated below, which acts and things either of them may deem necessary
or advisable to enable Boston Life Sciences, Inc. to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but not limited to, power and authority to
sign for any or all of us in our names, in the capacities stated below, any and
all amendments (including post-effective amendments) hereto; and we do hereby
ratify and confirm all that they shall do or cause to be done by virtue hereof.
7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------------ ---------------------------------- --------------
<S> <C> <C>
/s/ S. David Hillson President and Chief Executive June 4, 1999
- --------------------------------- Officer and Director (Principal
S. David Hillson Executive Officer)
/s/ Joseph P. Hernon Executive Vice President, June 4, 1999
- --------------------------------- Chief Financial Officer and
Joseph P. Hernon Secretary (Principal Financial
Officer and Principal Accounting
Officer)
/s/ Colin B. Bier, Ph.D. Director June 4, 1999
- ---------------------------------
Colin B. Bier, Ph.D.
/s/ Edson D. de Castro Director and Chairman June 4, 1999
- ---------------------------------
Edson D. de Castro
/s/ Adrian M. Gerber Director June 4, 1999
- ---------------------------------
Adrian M. Gerber
/s/ Marc E. Lanser, M.D. Director, Executive Vice President June 4, 1999
- --------------------------------- and Chief Scientific Officer
Marc E. Lanser, M.D.
/s/ Ira W. Lieberman, Ph.D. Director June 4, 1999
- ---------------------------------
Ira W. Lieberman, Ph.D.
/s/ E. Christopher Palmer, CPA Director June 4, 1999
- ---------------------------------
E. Christopher Palmer, CPA
</TABLE>
8
<PAGE>
EXHIBIT INDEX
Number Exhibit
------ -------
4 Specimen copy of Stock Certificate for shares of Common Stock of the
Registrant (filed as an exhibit to the Company's Registration Statement
on Form S-3 filed with the Security and Exchange Commission,
Registration Number 33-25955)
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in its
opinion filed as Exhibit 5 hereto).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on signature page).
99 Boston Life Sciences, Inc. 1998 Omnibus Stock Option Plan
<PAGE>
EXHIBIT 5
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP
APPEARS HERE]
June 4, 1999
Boston Life Sciences, Inc.
31 Newbury Street
Suite 300
Boston, Massachusetts 02116
Re: Boston Life Sciences, Inc. 1998 Omnibus Stock Option Plan (the "Plan")
Registration Statement on Form S-8
---------------------------------------------------------------------
Gentlemen:
We have acted as counsel to Boston Life Sciences, Inc. (the "Company")
in connection with the registration under the Securities Act of 1933, as
amended, of 500,000 shares of common stock of the Company, par value $.01 per
share (the "Shares"), issuable under the Plan.
The opinion expressed below is based on the assumption that the
Registration Statement on Form S-8 with respect to the Shares issuable upon the
exercise of the options granted under the Plan will have been filed by the
Company with the Securities and Exchange Commission before any of the Shares are
issued and that the persons acquiring the Shares will receive a prospectus
containing all of the information required by Part I of Form S-8 before
acquiring such Shares.
In rendering our opinion, we have reviewed the Plan and such
certificates, documents, corporate records and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinion
expressed below. In giving this opinion, we are assuming the authenticity of
all instruments presented to us as originals, the conformity with the originals
of all instruments presented to us as copies and the genuineness of all
signatures.
Based upon the foregoing, we are of the opinion that the Shares, when
issued in accordance with the terms of the Plan, will be legally issued, fully
paid and non-assessable.
<PAGE>
Boston Life Sciences, Inc.
June 4, 1999
Page 2
This opinion is limited to the matters expressly stated herein. No
implied opinion may be inferred to extend this opinion beyond the matters
expressly stated herein. We do not undertake to advise you or anyone else of
any changes in the opinions expressed herein resulting from changes in law,
changes in facts or any other matters that hereafter might occur or be brought
to our attention.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this registration
statement of Boston Life Sciences, Inc. (the "Company") on Form S-8 for 500,000
shares of common stock for the 1998 Omnibus Stock Option Plan of our report
dated March 11, 1999, relating to the consolidated financial statements of the
Company, which appears in the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1998.
PricewaterhouseCoopers LLP
Boston, Massachusetts
June 4, 1999
<PAGE>
EXHIBIT 99
BOSTON LIFE SCIENCES, INC.
1998 OMNIBUS STOCK OPTION PLAN
1. Purpose; Types of Options Construction.
--------------------------------------
The purpose of the Boston Life Sciences, Inc. 1998 Omnibus Stock Option
Plan is to afford an incentive to selected employees, consultants, independent
contractors, directors and Scientific Advisors of Boston Life Sciences, Inc.
(the "Company"), or any Subsidiary which now exists or hereafter is organized or
acquired, to acquire a proprietary interest in the Company, to continue as
employees, independent contractors, consultants, directors or Scientific
Advisors, as the case may be, to increase their efforts on behalf of the Company
and to promote the success of the Company's business. The Plan provides for
grants of stock options (including "incentive stock options" and "nonqualified
stock options").
2. Definitions.
-----------
For purposes of the Plan, the following terms shall be defined as
set forth below:
(a) "Beneficiary" means the person, persons, trust or trusts which have
been designated by an Optionee in his or her most recent written beneficiary
designation filed with the Company to receive the benefits specified under the
Plan upon his or her death, or, if there is no designated Beneficiary or
surviving designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive such
benefits.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Committee" means the committee established by the Board to
administer the Plan, the composition of which shall at all times satisfy, the
provisions of Rule 16b-3.
(e) "Company" means Boston Life Sciences, Inc., a corporation organized
under the laws of the State of Delaware, or any successor corporation.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and as now or hereafter construed, interpreted and
applied by regulations, rulings and cases.
(g) "Fair Market Value" per share of Stock as of a particular date
shall mean (i) the closing price per share of Stock on the national securities
exchange or National Market System of the
<PAGE>
National Association of Securities Dealers Automated Quotation System ("NASDAQ")
on which the Stock is principally traded, for the last preceding date on which
there was a sale of such Stock on such exchange or system, or (ii) if the shares
of Stock are not then traded on any such exchange or system, the average of the
closing bid and asked prices for the shares of Stock quoted on NASDAQ for the
last preceding date on which a sale of Stock was reported, or (iii) if the
shares of Stock are not then traded on an exchange or system or quoted on
NASDAQ, such value as the Committee, in its sole discretion, shall determine.
(h) "ISO" means any Option intended to be and designated as an
incentive stock option within the meaning of Section 422 of the Code.
(i) "NSO" means any Option that is designated as a nonqualified stock
option or that does not meet the requirements to be an ISO.
(j) "Option" means a right, granted to a Optionee under Section 6(b),
to purchase shares of Stock. An Option may be either an ISO or an NSO, provided
that ISO's may not be granted to independent contractors or Scientific Advisors.
(k) "Option Agreement" means any written agreement, contract, or other
instrument or document evidencing the grant of an Option.
(l) "Optionee" means a person who, as an employee, Scientific Advisor,
director, consultant or independent contractor of the Company or a Subsidiary
has been granted an Option under the Plan.
(m) "Plan" means this Boston Life Sciences, Inc. 1998 Omnibus Stock
Option Plan, as amended from time to time.
(n) "Rule 16b-3" means Rule 16b-3, as from time to time in effect
promulgated by the Securities and Exchange Commission under Section 16 of the
Exchange Act, including any successor to such Rule.
(o) "Scientific Advisor" means any member of the Scientific Advisory
Board who neither (i) is an employee of the Company, nor (ii) receives
compensation from the Company pursuant to a research, sponsored research or
similar agreement with the Company (other than a Scientific Advisory and
Consulting Agreement entered into generally by the Company and members of the
Scientific Advisory Board which may provide for compensation for each meeting of
the Scientific Advisory Board which the Scientific Advisor attends and for the
reimbursement of certain expenses), nor (iii) is the discoverer of, or a
principal investigator or researcher with respect to, any technology subject to
the Company's research and development programs as determined by the Committee
in its sole discretion.
2
<PAGE>
(p) "Scientific Advisory Board" means the Board of Scientific Advisors
of the Company.
(q) "Stock" means shares of the common stock, par value $.01 per share,
of the Company.
(r) "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of granting of an
Option, each of the corporations (other than the last corporation in the
unbroken chain) owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain.
(s) "Ten Percent Stockholder" shall mean a prospective optionee of the
Company who, at the time an ISO is to be granted to such optionee, owns (within
the meaning of Section 422(b)(6) of the Code) stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company.
3 Administration.
--------------
The Plan shall be administered by the Committee. The Committee shall
have the authority in its discretion, subject to and not inconsistent with the
express provisions of the Plan, to administer the Plan and to exercise all the
powers and authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan, including, without
limitation, the authority to grant Options; to determine the persons to whom and
the time or times at which Options shall be granted; to determine the type and
number of Options to be granted, the number of shares of Stock to which an
Option may relate and the terms and conditions relating to any Option; and to
determine whether, to what extent, and under what circumstances an Option may be
settled, cancelled, forfeited, exchanged, or surrendered; to make adjustments in
the terms and conditions of Options in recognition of unusual or nonrecurring
events affecting the Company or any Subsidiary or the financial statements of
the Company or any Subsidiary, or in response to changes in applicable laws,
regulations, or accounting principles; to construe and interpret the Plan and
any Option Agreement; to prescribe, amend and rescind rules and regulations
relating to the Plan; to determine the terms and provisions of the Option
Agreements (which need not be identical for each Optionee); and to make all
other determinations deemed necessary or advisable for the administration of the
Plan.
The Committee may appoint a chairperson and a secretary and may make
such rules and regulations for the conduct of its business as it shall deem
advisable, and shall keep minutes of its meetings. All determinations of the
Committee shall be made by a majority of its members either present in person or
participating by conference telephone at a meeting or by written consent. The
Committee may delegate to one or more of its members or to one or more agents
such administrative duties as it may deem advisable, and the Committee or any
person to whom it has delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility the Committee or
such person may have under the Plan. All decisions, determinations and
interpretations of the Committee shall be final and binding on all persons,
including the Company, and any Subsidiary or Optionee (or any person claiming
any rights under the Plan from or through any Optionee) and any stockholder.
No member of the Board or Committee shall be liable for any action
taken or determination made in good faith with respect to the Plan or any Option
granted hereunder.
4 Eligibility.
-----------
Options may be granted to selected employees, Scientific Advisors,
directors, consultants and independent contractors of the Company and its
present or future Subsidiaries, in the discretion of the Committee.
5 Stock Subject to the Plan.
-------------------------
The maximum number of shares of Stock that may be issued under the Plan
shall be 500,000.
3
<PAGE>
In the event that the Committee shall determine that any dividend or
other distribution (whether in the form of cash, Stock, or other property),
recapitalization, stock split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Stock such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of Optionees under the Plan, then the Committee shall make such equitable
changes or adjustments as it deems necessary or appropriate to any or all of (i)
the number and kind of shares of Stock which may thereafter be issued in
connection with Options, (ii) the number and kind of shares of Stock issuable in
respect of outstanding Options, and (iii) the exercise price relating to any
Option; provided that, with respect to ISOs, such adjustment shall be made in
--------
accordance with Section 424(h) of the Code.
6 Specific Terms of Options.
-------------------------
a General. The Committee may impose on any Option or the exercise
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thereof, at the date of grant or thereafter, such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the Committee
shall determine.
b Options. The Committee is authorized to grant Options to Optionees
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on the following terms and conditions:
i) Type of Option. The Option Agreement evidencing the grant of
--------------
an Option under the Plan shall designate the Option as an ISO or an
NSO.
ii) Exercise Price. The exercise price per share of Stock
--------------
purchasable under an Option shall be determined by the Committee;
provided that, in the case of an ISO, except as set forth in Section
--------
6(c)(ii), such exercise price shall be not less than the Fair Market
Value of a share on the date of grant of such Option, and, in the case
of an NSO, such exercise price shall be not less than 50% of the Fair
Market Value of a share on the date of grant of such Option, but in no
event shall the exercise price for the purchase of shares be less than
par value. The exercise price for Stock subject to an Option may be
paid in cash or, at the discretion of the Committee, by an exchange of
Stock previously owned by the Optionee, or a combination of both, in an
amount having a combined value equal to such exercise price. An
Optionee may also elect to pay all or a portion of the aggregate
exercise price by having shares of Stock with a Fair Market Value on
the date of exercise equal to the aggregate exercise price withheld by
the Company or sold by a broker-dealer under circumstances meeting the
requirements of 12 C.F.R. (S)220 or any successor thereof.
iii) Term and Exercisability of Options . Except as set forth in
-----------------------------------
Section 6(c)(ii) hereof, the term of each Option shall be up to ten
(10) years from the date of grant of such Option. The date on which
the Committee adopts a resolution expressly granting an Option, or such
other date as is set forth in such resolution, shall be considered the
day on which such Option is granted. Options shall be exercisable over
the exercise period, at such times and upon such conditions as the
Committee may determine, as reflected in the Option Agreement; provided
--------
that, the Committee shall have the authority to accelerate the
----
exercisability of any outstanding Option at such time and under such
circumstances as it, in its sole discretion, deems appropriate. An
Option may be exercised to the extent of any or all full shares of
Stock as to which the Option has become exercisable, by giving written
notice of such exercise to the Committee or its designated agent;
provided that, no Option may be exercised for fewer than 10 shares of
-------- ----
Stock unless the number of shares with respect to which the Option is
exercised constitutes the total number of shares as to which the Option
is then exercisable.
4
<PAGE>
iv) Termination of Employment or Other Relationship.
-----------------------------------------------
(a) If an Optionee ceases to be an employee, independent
contractor, consultant, Scientific Advisor or director
of the Company as the result of a termination without
cause (other than due to death or disability), his
options will continue to vest for a period of one year
pursuant to the vesting schedule established at the
time the Option was granted and (A) any Options held by
such Optionee that were exercisable on the date of such
termination may be exercised by the Optionee until the
later of: i) one year following the date of such
termination, or, ii) one year from the date any Option
vests in the twelve month period following such
termination and (B) any Options held by such Optionee
that vested during the 12 months following the date of
termination may be exercised by the Optionee for a
period of one year following the date of such vesting.
(b) If an Optionee ceases to be an employee, consultant,
independent contractor, Scientific Advisor or director
of the Company as the result of a voluntary resignation
(other than due to death or disability), his options
will continue to vest for a period of one year pursuant
to the vesting schedule established at the time the
Option was granted and provided that the Optionee has
been an employee, consultant, independent contractor,
Scientific Advisor or director of the Company for at
least three years and has signed a non-compete
agreement with the Company (such agreement to include
biotechnology companies, academic and/or research
organizations encompassing biotechnology, and venture
capital companies in the biotechnology sector), and (A)
any Options held by such Optionee that were exercisable
on the date of such resignation may be exercised by the
Optionee until the later of: i) one year following the
date of such resignation, or, ii) one year from the
date any Option vests in the twelve month period
following such resignation and (B) any Options held by
such Optionee that vested during the 12 months
following the date of resignation may be exercised by
the Optionee for a period of one year following the
date of such vesting.
provided, that, if the Optionee dies within such one-year period
-------- ----
following termination of employment or other relationship, the Option
(to the extent exercisable at the time of death) shall be exercisable
by the Optionee's Beneficiary for a period of one (1) year following
the Optionee's death (but in no event after the expiration date of the
Option), and shall thereafter terminate.
v) Death or Disability. If the Optionee's employment or other
-------------------
relationship with the Company is terminated because of death or
disability, the Optionee (or, where applicable, the Beneficiary) will
be entitled to exercise the Option with respect to the total number of
shares of Stock subject to such Option and without regard to the extent
to which such Option was exercisable at the time of the termination of
employment or other relationship due to death or disability for a
period of one (1) year following the Optionee's death or termination of
employment or other relationship due to death or disability (but in no
event after the expiration date of the Option), and the Option shall
thereafter terminate.
vi) Other Provisions. Options may be subject to such other
----------------
conditions including, but not limited to, restrictions on
transferability of the shares acquired upon exercise of such Options,
as the Committee may prescribe in its discretion.
5
<PAGE>
c Incentive Stock Options. Options granted as ISOs shall be subject
-----------------------
to the following special terms and conditions, in addition to the general terms
and conditions specified in this Section 6.
i) Value of Shares. The aggregate Fair Market Value (determined
---------------
as of the date the ISO is granted) of the shares of Stock with respect
to which ISOs granted under this Plan and all other plans of the
Company become exercisable for the first time by each Optionee during
any calendar year shall not exceed $100,000.
ii) Ten Percent Stockholder. In the case of an ISO granted to a
-----------------------
Ten Percent Stockholder, (x) the exercise price shall not be less than
one hundred ten percent (110%) of the Fair Market Value of the shares
of Stock on the date of grant of such ISO, and (y) the exercise period
shall not exceed five (5) years from the date of grant of such ISO.
7 General Provisions.
------------------
a Compliance with Local and Exchange Requirements. The Plan, the
-----------------------------------------------
granting and exercising of Options thereunder, and the other obligations of the
Company under the Plan and any Option Agreement or other agreement shall be
subject to all applicable federal and state laws, rules and regulations, and to
such approvals. by any regulatory or governmental agency as may be required.
The Company, in its discretion, may postpone the issuance or delivery of Stock
under any Option until completion of such stock exchange listing or registration
or qualification of such Stock or other required action under any state, federal
or foreign law, rule or regulation as the Company may consider appropriate, and
may require any Optionee to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of Stock in compliance with applicable laws, rules and regulations.
b Nontransferability. Options shall not be transferable by an
------------------
Optionee except by will or the laws of descent and distribution or, if then
permitted under Rule 16b-3, pursuant to a qualified domestic relations order as
defined under the Code or Title I of the Employee Retirement Income Security Act
of 1974, as amended, or the rules thereunder, and shall be exercisable during
the lifetime of an Optionee only by such Optionee or his guardian or legal
representative.
c No Right to Continued Employment, etc. Nothing in the Plan or in
-------------------------------------
any Option granted or any Option Agreement or other agreement entered into
pursuant hereto shall confer upon any Optionee the right to continue in the
employ of or to continue as an independent contractor or Scientific Advisor of
the Company or any Subsidiary or to be entitled to any remuneration or benefits
not set forth in the Plan or such Option Agreement or other agreement or to
interfere with or limit in any way the right of the Company or any such
Subsidiary to terminate such Optionee's employment, independent contractor or
Scientific Advisor relationship.
d Taxes. The Company or any Subsidiary is authorized to withhold
-----
from any distribution of Stock, or any other payment to a Optionee, amounts of
withholding and other taxes due in connection with any transaction involving an
Option, and to take such other action as the Committee may deem advisable to
enable the Company and Optionees to satisfy obligations for the payment of
withholding taxes and other tax obligations relating to any Option. This
authority shall include authority to withhold or receive Stock or other property
and to make cash payments in respect thereof in satisfaction of a Optionee's tax
obligations.
e Amendment and Termination of the Plan. The Board may at any time
-------------------------------------
and from time to time alter, amend, suspend, or terminate the Plan in whole or
in part; provided that, the Company will seek stockholder approval if the Board
-------- ----
of Directors determines that it is necessary or desirable in order to comply
with the Code, federal or state securities law or any other applicable rules or
regulations in which case such amendment shall not be effective unless the same
shall be approved by the requisite vote of the stockholders of the Company
entitled to vote thereon.
6
<PAGE>
Notwithstanding the foregoing, no amendment shall affect adversely any of the
rights of any Optionee, without such Optionee's consent, under any Option
theretofore granted under the Plan.
f Change in Control. Notwithstanding any other provision of the Plan
-----------------
to the contrary, if, while any Options remain outstanding under the Plan, a
"Change in Control" of the Company (as defined in this Section 7(f)) shall
occur, all Options granted under the Plan that are outstanding at the time of
such Change in Control shall become immediately exercisable in full, without
regard to the years that have elapsed from the date of grant.
For purposes of this Section 7(f), a Change in Control of the Company
shall occur upon the happening of the earliest to occur of the following
(i) any "person," as such term is used in Sections 13(d) and 14(d)
of the Exchange Act other than (1) the Company, (2) any trustee or
other fiduciary holding securities under an employee benefit plan of
Company, or (3) any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as
their ownership of Stock (each an "excluded person"), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company (not including in
the securities beneficially owned by such person any securities
acquired directly from the Company or its affiliates) representing 30%
or more of the combined voting power of the Company's then outstanding
voting securities;
(ii) during any period of not more than two consecutive years,
individuals who at the beginning of such period constitute the Board,
and any new director (other than a director designated by a person who
has entered into an agreement with the Company to effect a transaction
described in clause (i), (iii), or (iv) of this paragraph (f)) whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved (other than approval given in connection
with an actual or threatened proxy or election contest), cease for any
reason to constitute at least a majority of the Board;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (A)
a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving or parent entity) 50% or more of the
combined voting power of the voting securities of the Company or such
surviving or parent entity outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquired 30% or more of the combined
voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets (or
any transaction having a similar effect).
g No Rights to Options; No Stockholder Rights. No Optionee shall
-------------------------------------------
have any claim to be granted any Option under the Plan, and there is no
obligation for uniformity of treatment of Optionees. Except as provided
specifically in the applicable Option Agreement, an Optionee or Beneficiary
shall have no rights as a stockholder with respect to any shares covered by the
Option until the date of exercise of the Option.
h No Fractional Shares. No fractional shares of Stock shall be
--------------------
issued or delivered pursuant to the Plan or any Option. The Committee shall
determine whether cash, other Options, or other property shall be issued
7
<PAGE>
or paid in lieu of such fractional shares or whether such fractional shares or
any rights thereto shall be forfeited or otherwise eliminated.
i Governing Law. The Plan and all determinations made and actions
-------------
taken pursuant hereto shall be governed by the laws of the State of Delaware
without giving effect to the conflict of laws principles thereof.
j Term of the Plan. The Plan shall terminate on April 23, 2008,
----------------
except with respect to Options outstanding on such date and no Option may be
granted thereafter
8
