This document contains 42 pages. The exhibit index is located on page 8.
As filed with the Securities and Exchange Commission on December 15, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NORTH AMERICAN BIOLOGICALS, INC.
(Exact name of issuer as specified in its charter)
Delaware 59-121226
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
5800 Park of Commerce Boulevard, N.W., Boca Raton, Florida 33487
(Address of principal executive offices)
-------------------------
1990 EQUITY INCENTIVE PLAN
1989 STOCK PLAN
AND
INFORMAL STOCK OPTION PROGRAM
(Full title of plans)
-------------------
Alfred J. Fernandez Copy to:
North American Biologicals, Inc. Constantine Alexander, Esq.
5800 Park of Commerce Boulevard, N.W. Nutter, McClennen & Fish
Boca Raton, Florida 33487 One International Place
(407) 989-5800 Boston, Massachusetts 02110-2699
(Name, address and telephone (617) 439-2000
number of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
maximum maximum
Title of each class of securities to Amount being offering price aggregate offering Amount of
be registered registered (1) per share price registration fee
- --------------------------------------------------------------------------------------------------------------------
Common Stock,
$.10 par value per share 1,500,000 Shares $9.25(2) $13,875,000 $4,784(2)
1,224,444 Shares 6.13(3) 7,505,842 2,588
258,725 Shares 2.03(3) 525,212 181
- --------------------------------------------------------------------------------------------------------------------
Total 2,983,169 Shares $21,906,054 $7,553
====================================================================================================================
(1) This Registration Statement covers (i) 1,500,000 shares of Common Stock
under the North American Biologicals, Inc. 1990 Equity Incentive Plan and
(ii) 1,224,444 shares of Common Stock under the Univax Biologics, Inc. 1989
Stock Plan (the "1989 Plan") and 258,725 shares of Common Stock under the
Univax Biologics, Inc. Informal Stock Option Program (the "Program"), which
have both been assumed by the registrant. In addition, this Registration
Statement also covers an indeterminate number of additional shares of
Common Stock which may be issued under said Plans and Program as a result
of a stock dividend, stock split or other recapitalization.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933 based
upon the average of the high and low prices per share of Common Stock
reported on NASDAQ on December 14, 1995.
(3) Calculated using the weighted average exercise price of outstanding options
under the 1989 Plan and the Program.
================================================================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
North American Biologicals, Inc. (the "Company") hereby incorporates by
reference in this Registration Statement the following documents and information
heretofore filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, June 30 and September 30, 1995 filed pursuant to Section 13(a) of the
Exchange Act;
(c) The Company's Current Reports on Form 8-K dated September 14, 1995 and
December 14, 1995 filed pursuant to Section 13(a) of the Exchange Act; and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 filed with the Commission on May 4,
1970, as amended, pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of any post-
effective amendment which indicates that all securities offered hereunder have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the shares of Common Stock offered hereunder has been
passed upon by Nutter, McClennen & Fish. Constantine Alexander, a partner in
the firm of Nutter, McClennen & Fish, is the Secretary of the Company.
-2-
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Company is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporation Law, as amended, which provides that a
corporation may indemnify any person who was or is a party to 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. Section 145 further
provides that a corporation similarly may 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, 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) 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 and 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 Delaware Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite an 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. The Company's Certificate of
Incorporation further provides that the Company shall indemnify its directors
and officers to the fullest extent permitted by the law of the State of
Delaware.
The Company's Certificate of Incorporation provides that the Company's
Directors shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except to the extent that
exculpation from liability is not permitted under the Delaware General
Corporation Law as in effect at the time such liability is determined.
The Company maintains an indemnification insurance policy covering all
directors and officers of the Company and its subsidiaries.
Item 7. Exemption from Registration.
---------------------------
Not applicable.
Item 8. Exhibits.
--------
See the exhibit index immediately preceding the exhibits attached hereto.
-3-
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;
(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; and
(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 (a)(1)(i) and (a)(1)(ii) 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 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 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) 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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions of the Delaware General Corporation
Law and the registrant's certificate of incorporation and by-laws, 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 a controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such
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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.
-5-
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boca Raton, State of Florida, on the 15th day of
December 1995.
NORTH AMERICAN BIOLOGICALS, INC.
By: /s/ David J. Gury
-------------------------------------------------
David J. Gury
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
behalf of the registrant in the capacities and on the dates indicated.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David J. Gury, Alfred J. Fernandez and
Constantine Alexander, and each of them singly, his or her attorneys-in-fact and
agents, each with full power of substitution, for him or her in any and all
capacities, to sign this registration statement and any amendments hereto, and
to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and any other regulatory
authority or body, granting unto each said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection with this registration statement, as fully as
he or she might or could do in person, hereby ratifying and confirming all that
each said attorney-in-fact and agent, or his substitute or substitutes, may do
or cause to be done by virtue hereof.
Signatures Title Date
---------- ----- ----
/s/ David J. Gury Chairman of the Board, President, December 15, 1995
- ---------------------------- Chief Executive Officer
David J. Gury
/s/ Alfred J. Fernandez Senior Vice President, December 15, 1995
- ---------------------------- Chief Financial Officer
Alfred J. Fernandez
/s/ Lorraine M. Breece Chief Accounting Officer December 15, 1995
- ----------------------------
Lorraine M. Breece
/s/ John C. Carlisle Senior Executive Vice President, December 15, 1995
- ---------------------------- Director
John C. Carlisle
/s/ Thomas P. Stagnaro Senior Executive Vice President, December 15, 1995
- ---------------------------- Director
Thomas P. Stagnaro
/s/ Joseph C. Cook, Jr. Director December 15, 1995
- ----------------------------
Joseph C. Cook, Jr.
/s/ Richard A. Harvey, Jr. Director December 15, 1995
- ----------------------------
Richard A. Harvey, Jr.
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/s/ David L. Castaldi Director December 15, 1995
- ----------------------------
David L. Castaldi
/s/ David A. Thompson Director December 15, 1995
- ----------------------------
David A. Thompson
/s/ Paul Bogikes Director December 15, 1995
- ----------------------------
Paul Bogikes
/s/ George W. Ebright Director December 15, 1995
- ----------------------------
George W. Ebright
Director December 15, 1995
- ----------------------------
Brian H. Dovey
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EXHIBIT INDEX
Exhibit No. Title Page
- ---------- ----- ----
Exhibit 4.1 1990 Equity Incentive Plan *
Exhibit 4.2 1989 Stock Plan 9
Exhibit 4.3 Informal Stock Option Program 27
Exhibit 5 Opinion of Nutter, McClennen & Fish 41
Exhibit 23.1 Consent of Nutter, McClennen & Fish Contained in
Exhibit 5
Exhibit 23.2 Consent of Price Waterhouse LLP 42
Exhibit 24 Power of Attorney Contained in
Part II of the
Registration
Statement
- -----------------------------
*Incorporated by reference to the registrant's definitive Proxy
Statement/Prospectus dated October 27, 1995 for the Special Meeting of
Shareholders held on November 29, 1995 filed pursuant to Section 14 of the
Exchange Act.
EXHIBIT 4.2
-----------
1989 STOCK PLAN OF
---- ----- ---- --
UNIVAX CORPORATION
------ -----------
SECTION 1. ESTABLISHMENT AND PURPOSE.
- ------- -- ------------- --- -------
The Plan was established in 1989 to offer selected employees,
directors and consultants an opportunity to acquire a proprietary interest in
the success of the Company, or to increase such interest, by purchasing Shares
of the Company's Common Stock. The Plan provides both for the direct award or
sale of Shares and for the grant of Options to purchase Shares. Options granted
under the Plan may include Nonstatutory Options as well as ISOs intended to
qualify under section 422A of the Code.
SECTION 2. DEFINITIONS.
- ------- -- -----------
(a) "Board of Directors" shall mean the Board of Directors of the
--------------------
Company, as constituted from time to time.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended;
------
(c) "Committee" shall mean a committee of the Board of Directors, as
-----------
described in Section 3(a).
(d) "Company" shall mean Univax Corporation, a Delaware corporation.
---------
(e) "Employee" shall mean (i) any individual who is a common-law
----------
employee of the Company or of a Subsidiary, (ii) a member of the Board of
Directors and (iii) an
-1-
independent contractor who performs services for the Company or a Subsidiary.
Service as a member of the Board of Directors or as an independent contractor
shall be considered employment for all purposes of the Plan except the second
sentence of Section 4(a).
(f) "Exercise Price" shall mean the amount for which one Share may be
----------------
purchased upon exercise of an Option, as specified by the Committee in the
applicable Stock Option Agreement.
(g) "Fair Market Value" shall mean the fair market value of a Share,
----- ------ ------
as determined by the Committee in good faith. Such determination shall be
conclusive and binding on all persons.
(h) "ISO" shall mean an employee incentive stock option described in
-----
section 422A(b) of the Code.
(i) "Nonstatutory Option" shall mean an employee stock option not
------------- -------
described in sections 422(b), 422A(b), 423(b) or 424(b) of the Code.
(j) "Offeree" shall mean an individual to whom the Committee has
---------
offered the right to acquire Shares under the Plan (other than upon exercise of
an Option).
(k) "Option" shall mean an ISO or Nonstatutory Option granted under
--------
the Plan and entitling the holder to purchase Shares.
(1) "Optionee" shall mean an individual who holds an Option.
----------
-2-
(m) "Plan" shall mean this 1989 Stock Plan of Univax Corporation.
------
(n) "Purchase Price" shall mean the consideration for which one Share
--------- ------
may be acquired under the Plan (other than upon exercise of an Option), as
specified by the Committee.
(o) "Service" shall mean service as an Employee.
---------
(p) "Share" shall mean one share of Stock, as adjusted in accordance
-------
with Section 9 (if applicable).
(q) "Stock" shall mean the Common Stock of the
------
Company.
(r) "Stock Option Agreement" shall mean the agreement between the
-----------------------
Company and an Optionee which contains the terms, conditions and restrictions
pertaining to his Option.
(s) "Stock Purchase Agreement" shall mean the agreement between the
--------------------------
Company and an Offeree who acquires Shares under the Plan which contains the
terms, conditions and restrictions pertaining to the acquisition of such Shares.
(t) "Subsidiary" shall mean any corporation, if the Company and/or
------------
one or more other Subsidiaries own not less than 50 percent of the total
combined voting power of all classes of outstanding stock of such corporation. A
corporation that attains the status of a Subsidiary on a
-3-
date after the adoption of the Plan shall be considered a Subsidiary commencing
as of such date.
SECTION 3. ADMINISTRATION.
- ------- - --------------
(a) Committee Membership. The Plan shall be administered by the
--------- ----------
Committee, which shall consist of members of the Board of Directors. The members
of the Committee shall be appointed by the Board of Directors. If no
Committee has been appointed, the entire Board of Directors shall constitute the
Committee.
(b) Committee Procedures. The Board of Directors shall designate one
--------- ----------
of the members of the Committee as chairman. The Committee may hold meetings at
such times and places as it shall determine. The acts of a majority of the
Committee members present at meetings at which a quorum exists, or acts reduced
to or approved in writing by all Committee members, shall be valid acts of the
Committee.
(c) Committee Responsibilities. Subject to the provisions of the
--------- ----------------
Plan, the Committee shall have full authority and discretion to take the
following actions:
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms relating
to the Plan;
-4-
(iii) To authorize any person to execute, on behalf of the Company,
any instrument required to carry out the purposes of the Plan;
(iv) To determine when Shares are to be awarded or offered for sale
and when Options are to be granted under the Plan;
(v) To select the Offerees and Optionees;
(vi) To determine the number of Shares to be offered to each Offeree
or to be made subject to each Option;
(vii) To prescribe the terms and conditions of each award or sale of
Shares, including (without limitation) the Purchase Price, and to specify the
provisions of the Stock Purchase Agreement relating to such award or sale;
(viii) To prescribe the terms and conditions of each Option, including
(without limitation) the Exercise Price, to determine whether such Option is to
be classified as an ISO or as a Nonstatutory Option, and to specify the
provisions of the Stock Option Agreement relating to such Option;
(ix) To amend any outstanding Stock Purchase Agreement or Stock Option
Agreement, subject to applicable legal restrictions and to the consent of the
Offeree or Optionee who entered into such agreement;
-5-
(x) To prescribe the consideration for the grant of each Option or
other right under the Plan and to determine the sufficiency of such
consideration; and
(xi) To take any other actions deemed necessary or advisable for the
administration of the Plan.
All decisions, interpretations and other actions of the Committee shall be final
and binding on all Offerees, all Optionees, and all persons deriving their
rights from an Offeree or Optionee. No member of the Committee shall be liable
for any action that he has taken or has failed to take in good faith with
respect to the Plan, any Option, or any right to acquire Shares under the Plan.
SECTION 4. ELIGIBILITY.
- ------- - -----------
(a) General Rule. Only Employees shall be eligible for designation as
------- ----
Optionees or Offerees by the Committee. In addition, only individuals who are
employed as common-law employees by the Company or a Subsidiary shall be
eligible for the grant of ISOs.
(b) Ten-Percent Stockholders. An Employee who
--- ------- ------------
owns more than 10 percent of the total combined voting power of all classes of
outstanding stock of the Company or any of its Subsidiaries shall not be
eligible for the grant of an ISO unless (i) the Exercise Price is at least 110
percent of
-6-
the Fair Market Value of a Share on the date of grant and (ii) such ISO by its
terms is not exercisable after the expiration of five years from the date of
grant.
(c) Attribution Rules. For purposes of Subsection (b) above, in
----------- -----
determining stock ownership, an Employee shall be deemed to own the stock
owned, directly or indirectly, by or for his brothers, sisters, spouse,
ancestors and lineal descendants. Stock owned, directly or indirectly, by or
for a corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its stockholders, partners or beneficiaries. Stock
with respect to which such Employee holds an option shall not be counted.
(d) Outstanding Stock. For purposes of Subsection (b) above,
----------- -----
"outstanding stock" shall include all stock actually issued and outstanding
immediately after the grant. "Outstanding stock" shall not include shares
authorized for issuance under outstanding options held by the Employee or by any
other person.
SECTION 5. STOCK SUBJECT TO PLAN.
- ------- - ---------------------
(a) Basic Limitation. Shares offered under the Plan shall be
----- ----------
authorized but unissued Shares or treasury Shares. The aggregate number of
Shares which may be issued under the Plan (upon exercise of Options or other
rights to acquire Shares) shall not exceed 2,500,000 Shares, subject to
adjustment pursuant to Section 9. The number of Shares
-7-
which are subject to Options or other rights outstanding at any time under the
Plan shall not exceed the number of Shares which then remain available for
issuance under the Plan. The Company, during the term of the Plan, shall at
all times reserve and keep available sufficient Shares to satisfy the
requirements of the Plan.
(b) Additional Shares. In the event that any outstanding Option or
---------- ------
other right for any reason expires or is cancelled or otherwise terminated, the
Shares allocable to the unexercised portion of such Option or other right shall
again be available for the purposes of the Plan. In the event that Shares issued
under the Plan are reacquired by the Company pursuant to a forfeiture provision,
a right of repurchase or a right of first refusal, such Shares shall again be
available for the purposes of the Plan.
SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES.
- ------- - ----- --- ---------- -- ------ -- -----
(a) Stock Purchase Agreement. Each award or sale of Shares under the
----- -------- ---------
Plan (other than upon exercise of an Option) shall be evidenced by a Stock
Purchase Agreement between the Offeree and the Company. Such award or sale
shall be subject to all applicable terms and conditions of the Plan and may be
subject to any other terms and conditions which are not inconsistent with the
Plan and which the Committee deems appropriate for inclusion in a Stock Purchase
Agreement. The provisions of the various Stock
-8-
Purchase Agreements entered into under the Plan need not be identical.
(b) Duration of Offers and Nontransferability of Rights. Any right to
-------- -- ------ --- ------------------ -- ------
acquire Shares under the Plan (other than an Option) shall automatically expire
if not exercised by the Offeree within 30 days after the grant of such right was
communicated to him by the Committee. Such right shall not be transferable and
shall be exercisable only by the Offeree to whom such right was granted.
(c) Purchase Price. The Purchase Price of Shares to be offered under
-------- -----
the Plan shall not be less than the par value of such Shares. Subject to the
preceding sentence, the Purchase Price shall be determined by the Committee at
its sole discretion. The Purchase Price shall be payable in a form described in
Section 8.
(d) Withholding Taxes. As a condition to the purchase of Shares,
----------- -----
the Offeree shall make such arrangements as the Committee may require for the
satisfaction of any federal, state or local withholding tax obligations that may
arise in connection with such purchase.
(e) Restrictions on Transfer of Shares. Any Shares awarded or sold
------------ -- -------- -- ------
under the Plan shall be subject to such special forfeiture conditions, rights of
repurchase, rights of first refusal and other transfer restrictions as the
Committee may determine. Such restrictions shall be set forth in the applicable
Stock Purchase Agreement and shall
-9-
apply in addition to any general restrictions that may apply to all holders of
Shares.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS.
- ------- - ----- --- ---------- -- -------
(a) Stock Option Agreement. Each grant of an Option under the Plan
----- ------ ---------
shall be evidenced by a Stock Option Agreement between the Optionee and the
Company. Such Option shall be subject to all applicable terms and conditions of
the Plan and may be subject to any other terms and conditions which are not
inconsistent with the Plan and which the Committee deems appropriate for
inclusion in a Stock Option Agreement. The provisions of the various Stock
Option Agreements entered into under the Plan need not be identical.
(b) Number of Shares. Each Stock Option Agreement shall specify the
------ -- ------
number of Shares that are subject to the Option and shall provide for the
adjustment of such number in accordance with Section 9. The Stock Option
Agreement shall also specify whether the Option is an ISO or a Nonstatutory
Option.
(c) Exercise Price. Each Stock Option Agreement shall specify the
-------- -----
Exercise Price. The Exercise Price of an ISO shall not be less than 100 percent
of the Fair Market Value of a Share on the date of grant, except as otherwise
provided in Section 4(b). The Exercise Price of a Nonstatutory Option shall not
be less than 85 percent of the Fair
-10-
Market Value of a Share on the date of grant. Subject to the preceding two
sentences, the Exercise Price under any Option shall be determined by the
Committee at its sole discretion. The Exercise Price shall be payable in a form
described in Section 8.
(d) Withholding Taxes. As a condition to the exercise of an Option,
----------- -----
the Optionee shall make such arrangements as the Committee may require for the
satisfaction of any federal, state or local withholding tax obligations that may
arise in connection with such exercise. The Optionee shall also make such
arrangements as the Committee may require for the satisfaction of any federal,
state or local withholding tax obligations that may arise in connection with the
disposition of Shares acquired by exercising an Option.
(e) Exercisability and Term. Each Stock Option Agreement shall
-------------- --- ----
specify the date when all or any installment of the Option is to become
exercisable. The vesting of any Option shall be determined by the Committee at
its sole discretion. The Stock Option Agreement shall also specify the term of
the Option. The term of an ISO shall not exceed 10 years from the date of
grant, except as otherwise provided in Section 4(b). Subject to the preceding
sentence, the Committee at its sole discretion shall determine when an Option is
to expire. A Stock Option Agreement may provide for accelerated exercisability
in the event of the
-11-
Optionee's death, disability or retirement (or other events) and may provide for
expiration prior to the end of its term in the event of the termination of the
Optionee's employment for any reason.
(f) Nontransferability. During an Optionee's lifetime, his Option(s)
------------------
shall be exercisable only by him and shall not be transferable. In the event of
an Optionee's death, his Option(s) shall not be transferable other than by will
or by the laws of descent and distribution.
(g) No Rights as a Stockholder. An Optionee, or a transferee of an
-- ------ -- - -----------
Optionee, shall have no rights as a stockholder with respect to any Shares
covered by his Option until the date of the issuance of a stock certificate for
such Shares. No adjustments shall be made, except as provided in Section 9.
(h) Modification, Extension and Renewal of Options. Within the
------------ --------- --- ------- -- -------
limitations of the Plan, the Committee may modify, extend or renew outstanding
Options or may accept the cancellation of outstanding Options (to the extent not
previously exercised) in return for the grant of new Options at the same or a
different price. The foregoing notwithstanding, no modification of an Option
shall, without the consent of the Optionee, impair his rights or increase his
obligations under such Option.
(i) Restrictions on Transfer of Shares. Any Shares issued upon
------------ -- -------- -- ------
exercise of an Option shall be subject to
-12-
such special forfeiture conditions, rights of repurchase, rights of first
refusal and other transfer restrictions as the Committee may determine. Such
restrictions shall be set forth in the applicable Stock Option Agreement and
shall apply in addition to any general restrictions that may apply to all
holders of Shares.
SECTION 8. PAYMENT FOR SHARES.
- ------- - ------- --- ------
(a) General Rule. The entire Purchase Price or Exercise Price of
------- ----
Shares issued under the Plan shall be payable in lawful money of the United
States of America at the time when such Shares are purchased, except as provided
in Subsections (b) and (c) below.
(b) Surrender of Stock. To the extent that a Stock Option Agreement
--------- -- -----
so provides, payment may be made all or in part with Shares which have already
been owned by the Optionee or his representative for more than 12 months and
which are surrendered to the Company in good form for transfer. Such Shares
shall be valued at their Fair Market Value on the date when the new Shares are
purchase under the Plan.
(c) Services Rendered. At the discretion of the Committee, Shares may
-------- --------
be awarded under the Plan in consideration of services rendered to the Company
or a Subsidiary prior to the award. If Shares are awarded without the payment
of a Purchase Price in cash, the Committee shall
-13-
make a determination (at the time of the award) of the value of the services
rendered by the Offeree and the sufficiency of the consideration to meet the
requirements of Section 6(c).
SECTION 9. ADJUSTMENT OF SHARES.
- ------- - ---------- -- ------
(a) General. In the event of a subdivision of the outstanding Stock,
-------
a declaration of a dividend payable in Shares, a declaration of a dividend
payable in a form other than Shares in an amount that has a material effect on
the value of Shares, a combination or consolidation of the outstanding Stock (by
reclassification or otherwise) into a lesser number of Shares, a
recapitalization or a similar occurrence, the Committee shall make appropriate
adjustments in one or more of (i) the number of Shares available for future
grants under Section 5, (ii) the number of Shares covered by each outstanding
Option or (iii) the Exercise Price under each outstanding Option.
(b) Reorganizations. In the event that the Company is a party to a
---------------
merger or other reorganization, outstanding Options shall be subject to the
agreement of merger or reorganization. Such agreement may provide, without
limitation,for the assumption of outstanding Options by the surviving
corporation or its parent, for their continuation by the Company (if the Company
is a surviving corporation), for their settlement in cash, for the acceleration
of
-14-
their exercisability followed by the cancellation of Options not exercised or
for the cancellation of Options not exercised without an acceleration, in all
cases without the Optionees' consent.
(c) Reservation of Rights. Except as provided in this Section 9, an
----------- -- ------
Optionee or Offeree shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend or
any other increase or decrease in the number of shares of stock of any class.
Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to the Plan shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
SECTION 10. LEGAL REQUIREMENTS.
- ------- -- ----- ------------
(a) Securities Laws. Shares shall not be issued under the Plan
---------- ----
unless the issuance and delivery of such Shares complies with (or is exempt
from) all applicable
-15-
requirements of law, including (without limitation) the Securities Act of 1933,
as amended, the rules and regulations promulgated thereunder, state securities
laws and regulations, and the regulations of any stock exchange on which the
Company's securities may then be listed.
(b) S Corporation Status. In the event that the Company is an "S
- ----------- ------
corporation," as defined in section 1361(a) of the Code, Shares shall not be
issued under the Plan if the issuance or delivery of such Shares would cause the
Company to lose its status as an "S corporation."
SECTION 11. NO EMPLOYMENT RIGHTS.
- ------- -- -- ---------- ------
No provision of the Plan, nor any right or Option granted under the
Plan, shall be construed to give any person any right to become, to be treated
as, or to remain an Employee. The Company and its Subsidiaries reserve the
right to terminate any person's Service at any time and for any reason.
SECTION 12. DURATION AND AMENDMENTS.
- ------- -- -------- --- ----------
(a) Term of the Plan. The Plan, as set forth herein, shall become
---- -- --- ----
effective on the date of its adoption by the Board of Directors, subject to the
approval of the Company's stockholders. In the event that the stockholders fail
to approve the Plan within 12 months after its adoption by the Board of
Directors, any Option grants or Stock awards
-16-
already made shall be null and void, and no additional Option grants or Stock
awards shall be made after such date. The Plan shall terminate automatically 10
years after its adoption by the Board of Directors and may be terminated on any
earlier date pursuant to Subsection (b) below.
(b) Right to Amend or Terminate the Plan. The Board of Directors may
----- -- ----- -- --------- --- ----
amend, suspend or terminate the Plan at any time and for any reason; provided,
however, that any amendment of the Plan which increases the number of Shares
available for issuance under the Plan (except as provided in Section 9), or
which materially changes the class of persons who are eligible for the grant of
ISOs, shall be subject to the approval of the Company's stockholders.
Stockholder approval shall not be required for any other amendment of the Plan.
(c) Effect of Amendment or Termination. No Shares shall be issued or
------ -- --------- -- -----------
sold under the Plan after the termination thereof, except upon exercise of an
Option granted prior to such termination. The termination of the Plan, or any
amendment thereof, shall not affect any Share previously issued or any Option
previously granted under the Plan.
-17-
SECTION 13. EXECUTION.
- ------- -- ---------
To record the adoption of the Plan by the Board of Directors on
____________ __, 1989, the Company has caused its authorized officer to execute
the same.
UNIVAX BIOLOGICS, INC.
By /s/ Cabot R. Caskie
-------------------
Secretary
-18-
EXHIBIT 4.3
-----------
UNIVAX BIOLOGICS, INC.
----------------------
NONSTATUTORY STOCK OPTION AGREEMENT
-----------------------------------
THIS AGREEMENT, entered into as of , 19__, between
UNIVAX BIOLOGICS, INC., a Delaware corporation (the "Company"), and
____________________ (the "Optionee").
WITNESSETH:
Whereas the Company's Board of Directors has the authority to grant
-------
nonstatutory stock options in order to provide selected Employees, Directors,
and Consultants of the Company with an opportunity to acquire Common Stock of
the Company; and
Now Therefore, it is agreed as follows:
SECTION 1. GRANT OF OPTION.
- --------------------------
On the terms and conditions stated below, the Company hereby grants to the
Optionee the option to purchase ( ) Shares for the sum of
Fifteen Cents ($0.15) per share which is agreed to be (100%) of the fair market
value thereof on the Date of Grant. This option is not intended to be an
Incentive Stock Option.
SECTION 2. NO TRANSFER OR ASSIGNMENT OF OPTION.
- ----------------------------------------------
Except as otherwise provided in this Agreement, this option and the rights
and privileges conferred hereby shall not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall not
be subject to sale under execution, attachment or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this
option, or of any right or privilege conferred hereby, contrary to the
provisions hereof, or upon any attempted sale under any execution, attachment or
similar process upon the rights and privileges conferred hereby, this option and
the rights and privileges conferred hereby shall immediately become null and
void.
SECTION 3. RIGHT TO EXERCISE
- ----------------------------
(a) Vesting. Subject to the conditions stated herein, the right to
-------
exercise this option shall accrue in cumulative installments over a period of
four (4) years with 12.50% of the shares becoming exercisable six (6) months
from the date of this Agreement and 6.25% becoming exercisable every three (3)
months thereafter.
(b) Periods of Nonexercisability. Any other provision of this
----------------------------
Agreement notwithstanding, the Company shall have the right to designate one or
more periods of time, each of which shall not exceed eighteen (18) months in
length, during which this option shall not be exercisable if the Company
determines (in its sole discretion) that such limitation on exercise could in
any way facilitate a lessening of any restriction on transfer pursuant to the
Securities Act or any state securities laws with respect to any issuance of
securities by the Company, facilitate the registration or qualification of any
securities by the Company under the Securities Act or any state securities laws,
or facilitate the perfection of any exemption from the registration or
qualification requirements of the Securities Act or any applicable state
securities laws for the issuance or transfer of any securities. Such limitation
on exercise shall not alter the vesting schedule set forth in Section 3(a) other
than to limit the periods during which this option shall be exercisable. The
Optionee shall be notified in writing of any such designation by the Company.
SECTION 4. EXERCISE PROCEDURES.
- ------------------------------
(a) Notice of Exercise. The Optionee or the Optionee's representative may
------------------
exercise this option by giving written notice to the Secretary of the Company
pursuant to Section 12(d). The notice shall specify the election to exercise
this option, the number of Shares for which it is being exercised and the form
of payment. The notice shall be signed by the person or persons exercising this
option. In the event that this option is being exercised by the representative
of the Optionee, the notice shall be accompanied by proof (satisfactory to the
Company) of the representative's right to exercise this option. The Optionee or
the Optionee's representative shall deliver to the Secretary of the Company, at
the time of giving the notice, payment in a form permissible under Section 5 for
the full amount of the Purchase Price.
(b) Issuance of Shares. After receiving a proper notice of exercise, the
------------------
Company shall cause to be issued a certificate or certificates for the Shares as
to which this option has been exercised, registered in the name of the person
exercising this option (or in the names of such person and his or her spouse as
community property or as joint tenants with right of survivorship). The
Company shall cause such certificate or certificates to be delivered to or upon
the order of the person exercising this option.
SECTION 5. PAYMENT FOR STOCK.
- ----------------------------
The entire Purchase Price may be paid in lawful money of the United States
of America. Alternatively, all or part of the Purchase Price may be paid by
the surrender of Shares in good form for transfer. Such Shares must have been
owned for more than twelve (12) months by the Optionee or the Optionee's
representative and must have a fair market value (as determined by the Board of
Directors) on the date of exercise of this option which, together with any
amount paid in lawful money, is equal to the Purchase Price.
SECTION 6. TERM AND EXPIRATION.
- ------------------------------
(a) Basic Term. This option shall in any event expire on the date ten (10)
----------
years after the Date of Grant.
(b) Termination of Service (Except by Death). If the Optionee's service as
----------------------------------------
an Employee, Director, or Consultant terminates for any reason other than death,
then this option shall expire on the earliest of the following occasions:
(i) The expiration date determined pursuant to Subsection (a) above.
(ii) The date thirty (30) days after the termination of the Optionee's
service as an Employee, Director, or Consultant for any reason other than Total
and Permanent Disability; or
(iii) The date six (6) months after the termination of the Optionee's
service as an Employee, Director, or Consultant by reason of Total and Permanent
Disability.
The Optionee may exercise all or part of this option at any time before its
expiration under the preceding sentence, but only to the extent that this option
had become exercisable before the Optionee's service terminated. The
balance of this option shall lapse when the Optionee's service as an Employee,
Director, or Consultant terminates. In the event that the Optionee dies after
the termination of service but before the expiration of this option, all or part
of this option may be exercised (prior to expiration) by the executors or
administrators of the Optionee's estate or by any person who has acquired this
option directly from the Optionee by bequest or inheritance, but only to the
extent that this option had become exercisable before the Optionee's service
terminated.
(c) Death of Optionee. If the Optionee dies as an Employee, Director, or
-----------------
Consultant then this option shall expire on the earlier of the following dates:
(i) The expiration date determined pursuant to Subsection (a) above; or
(ii) The date six (6) months after the Optionee's death.
All or part of this option may be exercised at any time before its expiration
under the preceding sentence by the executors or administrators of the
Optionee's estate or by any person who has acquired this option directly from
the Optionee by bequest or inheritance, but only to the extent that this option
had become exercisable before the Optionee's death. The balance of this option
shall lapse when the Optionee dies.
SECTION 7. THE COMPANY'S RIGHT OF FIRST REFUSAL
- -----------------------------------------------
(a) Right of First Refusal. In the event that the Optionee or a Transferee
----------------------
proposes to sell, pledge or otherwise transfer to any person any Shares acquired
under this Agreement, or any interest in such Shares, the Company shall have the
Right of First Refusal with respect to such Shares. If the Optionee or
Transferee desires to transfer Shares acquired under this
Agreement, the Optionee or Transferee shall give a written Transfer Notice to
the Company describing fully the proposed transfer, including the number of
Shares proposed to be transferred, the proposed transfer price and the name and
address of the proposed Transferee. The Transfer Notice shall be signed both by
the Optionee or Transferee and by the proposed new Transferee and must
constitute a binding commitment of both parties to the transfer of the Shares.
The Company shall have the right to purchase the Shares on the terms of the
proposal described in the Transfer Notice (subject, however, to any change in
such terms permitted under Subsection (b) below) by delivery of a notice of
exercise of the Right of First Refusal within thirty (30) days after the date
when the Transfer Notice was received by the Company. The Company's rights
under this Subsection (a) shall be freely assignable, in whole or in part.
(b) Transfer of Shares. If the Company fails to exercise its Right of First
------------------
Refusal within thirty (30) days after the date when it received the Transfer
Notice, the Optionee or Transferee may, not later than ninety (90) days
following receipt of the Transfer Notice by the Company, conclude a transfer of
the Shares subject to the Transfer Notice on the terms and conditions described
in the Transfer Notice. Any proposed transfer on terms and conditions different
from those described in the Transfer Notice, as well as any subsequent proposed
transfer by the Optionee or Transferee, shall again be subject to the Right of
First Refusal and shall require compliance with the procedure described in
Subsection (a) above. If the Company exercises its Right of First Refusal, the
parties shall consummate the sale of the Shares on the terms set forth in the
Transfer Notice; provided, however, that in the event the Transfer Notice
provides that payment for the Shares is to be made in a form other than lawful
money paid at the time of transfer, the Company shall
have the option of paying for the Shares with lawful money equal to the present
value of the consideration described in the Transfer Notice.
(c) Binding Effect. The Company's Right of First Refusal shall inure to the
--------------
benefit of its successors and assigns and shall be binding upon any Transferee
of the Shares.
(d) Termination of Right of First Refusal. Any other provision of this
-------------------------------------
Section 7 notwithstanding, in the event that Stock is listed on an established
stock exchange or is quoted regularly on the NASDAQ System at the time when the
Optionee or Transferee desires to transfer Shares, the Company shall have no
Right of First Refusal, and the Optionee or Transferee shall have no obligation
to comply with the procedures prescribed by Subsections (a), (b) and (c) above.
SECTION 8. LEGALITY OF INITIAL ISSUANCE.
- ---------------------------------------
No Shares shall be issued upon the exercise of this option unless and until
the Company has determined that:
(a) It and the Optionee have taken any actions required to register the
Shares under the Securities Act or to perfect an exemption from the registration
requirements thereof;
(b) Any applicable listing requirement of any stock exchange on which
Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been
satisfied.
SECTION 9. NO REGISTRATION RIGHTS.
- ---------------------------------
The Company may, but shall not be obligated to, register or qualify the sale
of Shares under the Securities Act or any other applicable law. The Company
shall not be obligated to take any affirmative action in order to cause the sale
of Shares under this Agreement to comply with any law.
SECTION 10. RESTRICTIONS ON TRANSFER OF SHARES.
- ----------------------------------------------
(a) Restrictions. Regardless of whether the offering and sale of Shares have
------------
been registered under the Securities Act or have been registered or qualified
under the securities laws of any state, the Company may impose restrictions upon
the sale, pledge or other transfer of such Shares (including the placement of
appropriate legends on stock certificates) if, in the judgment of the Company
and its counsel, such restrictions are necessary or desirable in order to
achieve compliance with the provisions of the Securities Act, the securities
laws of any state or any other law.
(b) Investment Intent at Grant. The Optionee represents and agrees that
--------------------------
the Shares to be acquired upon exercising this option will be acquired for
investment, and not with a view to the sale or distribution thereof.
(c) Investment Intent at Exercise. In the event that the sale of Shares is
-----------------------------
not registered under the Securities Act but an exemption is available which
requires an investment representation or other representation, the Optionee
shall represent and agree at the time of exercise that the Shares being acquired
upon exercising this option are being acquired for investment, and not with a
view to the sale or distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by the Company and its
counsel.
(d) Legend. All certificates evidencing Shares acquired under this
------
Agreement in an unregistered transaction shall bear the following restrictive
legend (and such other restrictive legends as are required or deemed advisable
under the provisions of any applicable law):
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED."
(e) Removal of Legends. If, in the opinion of the Company and its counsel,
------------------
any legend placed on a stock certificate representing Shares sold under this
Agreement is no longer required, the holder of such certificate shall be
entitled to exchange such certificate for a certificate representing the same
number of Shares but lacking such legend.
(f) Administration. Any determination by the Company and its counsel in
--------------
connection with any of the matters set forth in this Section 10 shall be
conclusive and binding on the Optionee and all other persons.
SECTION 11. SHARES AND ADJUSTMENTS.
- ----------------------------------
(a) General. In the event of a subdivision of the outstanding Shares, a
-------
declaration of a dividend payable in Shares, a declaration of a dividend payable
in a form other than Shares in an amount that has a material effect on the value
of Shares, a combination or consolidation of the outstanding Shares (by
reclassification or otherwise) into a lesser number of Shares, a
recapitalization or a similar occurrence, the Committee shall make appropriate
adjustments in one or both of (i) the number of Shares covered by this option or
(ii) the Exercise Price.
(b) Reorganizations. In the event that the Company is a party to a merger or
---------------
other reorganization, this option shall be subject to the agreement of merger or
reorganization. Such agreement may provide, without limitation, for the
assumption of this option by the surviving corporation or its parent, for its
continuation by the Company (if the Company is a surviving corporation), for
its settlement in cash, for the acceleration of its exercisability followed by
its cancellation if not exercised or its cancellation (if not exercised) without
an acceleration, in all cases without the Optionee's consent.
(c) Reservation of Rights. Except as provided in this Section 11, the
---------------------
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class, the payment of any dividend or any other increase
or decrease in the number of shares of stock of any class. Any issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number or Exercise Price of the Shares
subject to this option. The grant of this option shall not affect in any way
the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
SECTION 12. MISCELLANEOUS PROVISIONS.
- ------------------------------------
(a) Withholding Taxes. In the event that the Company determines that it is
-----------------
required to withhold foreign, federal, state or local tax as a result of the
exercise of this option, the Optionee, as a condition to the exercise of this
option, shall make arrangements satisfactory to the Company to enable it to
satisfy all withholding requirements. The Optionee shall also make arrangements
satisfactory to the Company to enable it to satisfy any withholding requirements
that may arise in connection with the disposition of Shares purchased by
exercising this option.
(b) Rights as a Stockholder. Neither the Optionee nor the Optionee's
-----------------------
representative shall have any rights as a stockholder with respect to any Shares
subject to this option until such Shares have been issued in the name of the
Optionee or the Optionee's representative.
(c) No Employment Rights. Nothing in this Agreement shall be construed as
--------------------
giving the Optionee the right to be retained as an Employee, Director, or
Consultant. The Company reserves the right to terminate the Optionee's service
at any time, with or without cause.
(d) Notice. Any notice required by the terms of this Agreement shall be
------
given in writing and shall be deemed effective upon personal delivery or upon
deposit with the United States Postal Service, by registered or certified mail
with postage and fees prepaid and addressed to the party entitled to such notice
at the address shown below such party's signature on this Agreement, or at such
other address as such party may designate by ten (10) days' advance written
notice to the other party to this Agreement.
(e) Entire Agreement. This Agreement constitutes the entire contract
----------------
between the parties hereto with regard to the subject matter hereof.
(f) Choice of Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of Maryland, as such laws are applied to
contracts entered into and performed in such State.
SECTION 13. DEFINITIONS
- -----------------------
(a) "Agreement" shall mean this Nonstatutory Stock Option
---------
Agreement.
(b) "Board" shall mean the Board of Directors of the Company. as
-----
constituted from time to time.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(d) "Director" shall mean an elected member of the Company Board of
--------
Directors.
(e) "Date of Grant" shall mean the date on which the Committee
-------------
resolved to grant this option, which is also the date as of which this
Agreement is entered into.
(f) "Employee" shall mean any individual who is a common-law employee of the
--------
Company or of a Subsidiary.
(g) "Exercise Price" shall mean the amount for which one Share may be
--------------
purchased upon exercise of this option, as specified in Section l(a).
(h) "Incentive Stock Option" shall mean an employee incentive stock option
----------------------
described in section 422A(b) of the Code.
(i) "Purchase Price" shall mean the Exercise Price multiplied by the number
----------------
of Shares with respect to which this option is being exercised.
(j) "Right of First Refusal" shall mean the Company's right of first refusal
----------------------
described in Section 7.
(k) "Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
(l) "Share" shall mean one share of Stock, as adjusted in accordance with
-----
Section 11 (if applicable).
(m) "Stock" shall mean the Common Stock of the Company.
-----
(n) "Subsidiary" shall mean any corporation, if the Company and/or one or
----------
more other Subsidiaries own not less than fifty percent (50%) of the total
combined voting power of all classes or outstanding stock of such corporation.
(o) "Total and Permanent Disability" shall mean that the Optionee is
-------------------------------
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted, or can be expected to last, for a continuous period,
of not less than six (6) months.
(p) "Transferee" shall mean any person to whom the Optionee has directly or
------------
indirectly transferred any Share acquired under this Agreement.
(q) "Transfer Notice" shall mean the notice of a proposed transfer of Shares
-----------------
described in Section 7.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on
------------------
its behalf by its officer duly authorized to act on behalf of the Committee; and
the Optionee has personally executed this Agreement.
OPTIONEE UNIVAX BIOLOGICS, INC.
By
- -------------------------------- --------------------------------
Optionee's Address: Company's Address:
12280 Wilkins Avenue
- -------------------------------- Rockville, Maryland 20852
- --------------------------------
Exhibit 5
---------
NUTTER, McCLENNEN & FISH
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748
CAPE COD OFFICE DIRECT DIAL NUMBER
HYANNIS, MASSACHUSETTS
December 15, 1995
North American Biologicals, Inc.
5800 Park of Commerce Boulevard, N.W.
Boca Raton, FL 33487
Gentlemen/Ladies:
Reference is made to the registration statement on Form S-8 (the
"Registration Statement") which North American Biologicals, Inc. (the "Company")
is filing concurrently herewith with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, (the "Securities Act"), with
respect to (i) 1,500,000 shares of the Company's Common Stock, $0.10 par value
(the "Common Stock"), issuable pursuant to the Company's 1990 Equity Incentive
Plan as amended (the "1990 Plan"), (ii) 1,224,444 shares of the Company's Common
Stock issuable pursuant to the Univax Biologics, Inc. 1989 Stock Plan (the
"Stock Plan"), (iii) 258,725 shares of the Company's Common Stock issuable
pursuant to the Univax Biologics, Inc. Informal Stock Option Program (the "Stock
Program" and, together with the 1990 Plan and the Stock Plan, the "Plans"), and
(iv) an indeterminate number of shares of such Common Stock which may be issued
or become issuable under the Plans by reason of stock dividends, stock splits or
other recapitalizations executed hereafter.
We have acted as legal counsel for the Company in connection with the
amendment to the 1990 Plan and the assumption by the Company of the Stock Plan
and the Stock Program, are familiar with the Company's Restated Certificate of
Incorporation and By-Laws, both as amended to date, and have examined such other
documents as we deemed necessary for this opinion. Based upon the foregoing, we
are of the opinion that:
1. When issued and paid for in compliance with the terms of the
Plans, the 2,983,169 shares of Common Stock referred to above will be duly and
validly issued, fully paid and non-assessable; and
2. The additional shares of Common Stock which may become issuable
under the Plans by reason of stock dividends, stock splits or other
recapitalizations hereafter executed, if and when issued in accordance with the
terms of the Plans and upon compliance with the applicable provisions of law and
of the Company's Restated Certificate of Incorporation and By-Laws, both as
amended to date, will be duly and validly issued, fully paid and non-assessable.
We understand that this opinion letter is to be used in connection with the
Registration Statement and hereby consent to the filing of this opinion letter
with and as a part of the Registration Statement and of any amendments thereto.
It is understood that this opinion letter is to be used in connection with the
offer and sale of the aforesaid shares only while the Registration Statement, as
it may be amended from time to time as contemplated by Section 10(a)(3) of the
Securities Act, is effective under the Securities Act.
Very truly yours,
/s/ Nutter, McClennen & Fish
Nutter, McClennen & Fish
Exhibit 23.2
------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of North American Biologicals, Inc. of our report dated
March 7, 1995 appearing on page 28 of North American Biologicals, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1994.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Miami, Florida
December 15, 1995
