Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIMRx PHARMACEUTICALS INC.
(Exact name of registrant as specified in its character)
Delaware 06-1192468
(State or other jurisdiction of incorporation (I.R.S. employer identification
or organization) no.)
2751 Centerville Road 19808
Suite 210 (Zip Code)
Little Falls II
Wilmington, Delaware
(Address of principal executive offices)
Amended and Restated 1990 Incentive and Non-Incentive Stock Option Plan
(Full title of the plan)
SIDNEY TODRES, ESQ.
Epstain Becker & Green, P.C.
250 Park Avenue
New York, New York 10177
(Name and address of agent for service)
(212) 351-4500
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of securtiesAmount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price peraggregate offering reg. fee
share (1) price (1)
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Common Stock, 2,311,400 $2,57 $5,940,298 $1,800
$.001 par value shares
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(1)Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(h), based on (I) the weighted average exercise price of
$2.40 per share with respect to the 1,737,500 shares underlying options granted
under the Amended and Restated 1990 Incentive and Non-Incentive Stock Option
Plan (the "Plan") and (ii) $3.09 per share, the average of the high and low sale
prices of the Common Stock on the Nasdaq Stock Market (Small-Cap) on November 1,
1996 with respect to the 573,900 balance of the shares reserved for issuance
under the Plan.
PROSPECTUS
VIMRx PHARMACEUTICALS INC.
162,000 Shares of Common Stock
($.001 par value)
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A maximum of 162,000 shares of Common Stock, $.001 par value, of VIMRx
Pharmaceuticals Inc. (the "Company") to which this Prospectus relates (the
"Shares") will be sold by F. Donald Hudson and William I. Bergman (the "Selling
Stockholders"), former directors and, with respect to Mr. Hudson, a former
executive officer, of the Company, from time to time, or at one time, on The
Nasdaq Stock Market at prices then prevailing, or in negotiated transactions at
negotiated prices, or a combination thereof. The Shares were purchased by the
Selling Stockholders upon exercise of stock options granted under the Company's
Amended and Restated 1990 Incentive and Non-Incentive Stock Option Plan (the
"Plan"). See "Selling Stockholders."
The Common Stock is traded on The Nasdaq Stock Market (Small-Cap) under the
symbol "VMRX". On November 5, 1996, the closing price of the Common Stock, as
reported by The Nasdaq Stock Market, was $3 1/32 per share.
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THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is November 6, 1996.
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No dealer, salesman, or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offering herein contained and, if given or
made, such information or representations must not be relied upon as having been
authorized by the Company or the Selling Stockholders. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy, the
securities offered hereby in any jurisdiction to any person to whom it is
unlawful to make an offer or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create an
implication that there has been no change in the facts herein set forth since
the date hereof.
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files periodic reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such material can be
inspected and copied at the regional offices of the Commission at 7 World Trade
Center, Suite 1300, New York, New York 10048, and at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago Illinois 60661-2511. This material can also
be inspected and copied at and, upon written request, copies obtained at
prescribed rates from, the Public Reference Section of the Commission at Room
1024 at its principal office, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Additionally, the Company files such reports, proxy
statements and other information electronically with the Commission pursuant to
the EDGAR system. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants
that file pursuant to the EDGAR system. The address of the Commission's Web site
is http:/www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents (or portions thereof) which have heretofore been
filed by the Company with the Commission are hereby incorporated by reference in
this Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996 and June 30, 1996, respectively.
3. The Company's definitive Proxy Statement dated May 13, 1996 for its
June 20, 1996 Annual
Meeting of Stockholders.
4. The Company's Current Reports on Form 8-K filed on January 11, 1996,
March 25, 1996, April 9, 1996, April 15, 1996, April 22, 1996, April
30, 1996 and June 12, 1996 (as amended on Form 8-K/A on August 15,
1996), respectively.
5. The description of the Company's Common Stock contained in its
Registration Statement on Form
8-A (No. 0-19153) under "Item 1. Description of Registrant's
Securities to be Registered."
All reports and proxy statements filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Prospectus and prior to termination of the offering of the Shares
to which this Prospectus relates shall likewise be deemed incorporated herein
and made a constituent part hereof by reference from their respective dates of
filing.
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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 Prospectus to the extent that a statement contained herein
or in any subsequently filed document that is also incorporated by reference
herein modifies or replaces such statement. Any statements so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Upon oral or written request, the Company will provide without charge a
copy of any document incorporated in this Prospectus by reference, exclusive of
exhibits, to each person to whom this Prospectus is delivered. Requests for such
documents should be directed to the Chief Financial Officer of the Company, 2751
Centerville Road, Suite 210, Little Falls II, Wilmington, Delaware 19808
(telephone no.
302-998-1734).
THE COMPANY
This Prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the "Securities Act") and
Section 21E of the Securities Exchange Act of 1934, as amended, which are not
historical facts, and involve risks and uncertainties that could cause actual
results to differ materially from those expected or projected. Such risks and
uncertainties include, but are not limited to, the risk factors set forth under
the caption "Risk Factors" herein.
VIMRx Pharmaceuticals Inc. (the "Company") is engaged in developing
therapeutic and related products from (i) synthetic hypericin principally for
the treatment of viral and retroviral diseases and (ii) synthetic catalytic
oligonucleotide compounds for other indications. The Company's principal
product, VIMRxyn, is comprised of chemically synthesized hypericin and, in
laboratory tests, has inhibited the infection of normal cells by human immune
deficiency virus ("HIV"), the retrovirus responsible for Acquired Immune
Deficiency Syndrome ("AIDS"). Hypericin is a natural compound found in plants of
the genus Hypericum, commonly known as Saint John's Wort. The Company is
investigating utilizing VIMRxyn as a treatment for viral and retroviral
diseases, including AIDS, and as a means of inactivating HIV and other
retroviruses in blood collected for transfusions under a worldwide exclusive
license to commercialize and exploit synthetic hypericin compounds for
enumerated purposes acquired from New York University and Yeda Research and
Development Co., Ltd., an Israeli corporation engaged in the commercial
exploitation of scientific developments by scientists at a Weizmann Institute of
Science in Israel, (New York University and YEDA, collectively, the "Hypericin
Licensors").
The Company has not established the efficacy of VIMRxyn in human clinical
trials. In 1994, the Company completed data analysis of Phase I/Phase II human
clinical trials sponsored by the National Institute of Health, (the "NIH"), to
determine the maximum tolerated dose and any side effects of VIMRxyn as a
treatment for AIDS. The clinical trials were designed to run for 24 consecutive
weeks. Other than two patients who completed 24 non-consecutive weeks of
treatment, none of the remaining 25 patients enrolled in the trials completed
the 24-week treatment protocol. From the data collected, the results showed a
favorable pharmacological profile with no major organ or hematological toxicity,
and with skin photosensitivity as the primary dose-limiting side effect. All of
the patients enrolled in the trials experienced varying levels of skin
photosensitivity and several experienced non-life threatening acute skin
photosensitivity which required medical treatment.
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Between January and September 1996, human clinical trials were conducted in
Thailand by a Dutch company retained by the Company under a protocol submitted
with the U.S. Food and Drug Administration (the "FDA") under the Company's
existing investigational new drug application to identify a potentially
efficacious lower dose of VIMRxyn, with minimal skin photosensitivity, as a
treatment for AIDS. Under the trial, VIMRxyn was administered once daily for 28
days to 12 HIV-infected patients at a dosage level of 0.05 mg/kg. Such dosage
was well-tolerated by the patients and did not result in untoward toxicity or
skin photosensitivity and, based on the measurement criteria used, produced
evidence of anti-HIV activity in 10 out of the 12 patients. The Company intends
to utilize the safety and dosage data obtained from such trial to assist in the
design of a protocol for a Phase II human clinical trial to test the efficacy of
VIMRxyn as a treatment for AIDS. Combination therapy, which utilizes a multiple
drug regimen, has become the standard for AIDS treatment, and the Phase II
trial, anticipated to commence in mid-1997, will test VIMRxyn in combination
with other drug products and will involve longer dosing regimens.
Since 1995, the Company has continued to explore developing hypericin as a
means of inactivating viruses and retroviruses in blood collected for
transfusions, and has also conducted initial studies as to hypericin's potential
antiviral effect with respect to hepatitis C virus and malignant brain glioma.
In August 1996, the Company received approval from the Institutional Review
Board of the University of North Dakota of its clinical protocol to test VIMRxyn
as a treatment for recurrent malignant brain glioma, and in October 1996, the
Company commenced a Phase I human clinical trial in which 16 patients receive
oral doses of VIMRxyn; the Phase I clinical trial and data analysis thereof is
anticipated to be completed by the third quarter of 1997.
In 1995, to complement and diversify its potential hypericin-based product
line, the Company acquired rights to commercialize and exploit synthetic
catalytic oligonucleotide compounds for pharmaceutical and diagnostic products
under a worldwide exclusive license from Ribonetics GmbH ("Ribonetics"), a
German company. In laboratory tests, such synthetic catalytic oligonucleotide
compounds have demonstrated the ability to modify messenger RNA molecules which
trigger the production of specific disease-causing proteins, thereby blocking
the production of such proteins. VIMRx provided Ribonetics with funding for
research and development with respect to the rights acquired through 1995 and
acquired Ribonetics in May 1996. In 1995, VIMRx acquired control of CambES,
Ltd., a Delaware corporation with facilities in the United Kingdom, whose sole
asset is technology relating to the development of transgenic cell and animal
based disease models for use by the pharmaceutical and bionutrition industries.
VIMRx is in the development stage, has earned no revenues from operations
and has incurred a cumulative loss of $28,412,689 from its inception through
June 30, 1996 in its research and development activities and in conducting its
operations.
The Company's executive offices are located at 2751 Centerville Road, Suite
210, Little Falls II, Wilmington, Delaware 19808 (telephone no. 302-998-1734)
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RISK FACTORS
An investment in the Shares involves a high degree of risk. Prospective
investors should give careful consideration, among other items, to the following
factors:
1. Development Stage Company; Accumulated Deficit. The Company is in the
development stage and has not realized any operating revenues. From commencement
of its operations in January 1987 through June 30, 1996, the Company incurred a
cumulative loss of $28,412,689 in funding its research and development programs
and in conducting its operations. Potential investors should be aware of the
problems, delays, expense and difficulties encountered by any company in the
development stage, many of which may be beyond the Company's control. These
include, but are not limited to, unanticipated problems and additional costs
relating to development, testing, regulatory compliance, production, marketing
and competition. The Company expects to continue to incur losses for the
foreseeable future and there can be no assurance that the Company will
successfully complete the transition from a development stage company to
profitability.
2. Dependence on Hypericin. VIMRx's development efforts relate principally
to hypericin and structurally related compounds (analogues) and potential
applications thereof. Although the Company is currently also exploring
non-hypericin products for the treatment of viral and retroviral diseases and
proliferative disorders, most of the Company's resources currently are focused
on investigating hypericin as a treatment for AIDS and AIDS-related conditions
and as a means of inactivating HIV and other retroviruses and viruses in blood
collected for transfusions and as a treatment for hepatitis C and malignant
brain glioma, and the Company's success depends upon the success of these
efforts, as to which there can be no assurance. VIMRx's data analysis of the
Phase I/Phase II human clinical trials sponsored by the NIH to determine the
maximum tolerated dose and any side effects of hypericin as a treatment of AIDS
resulted in a favorable pharmacological profile with no major organ toxicity,
although acute skin photosensitivity was experienced by a number of patients.
Based on the results of a trial conducted in Thailand in which a lower dosage of
VIMRxyn was utilized producing no untoward skin photosensitivity and evidence of
anti-HIV activity, the Company intends to design a protocol for a Phase II human
clinical trial to determine the efficacy of VIMRxyn as a treatment for AIDS. The
Phase II trial, anticipated to commence in mid-1997, will involve longer dosing
regimens and will test VIMRxyn in combination with other drug products. There
can be no assurance that the Phase II clinical trial will prove successful, or
that a more effective and/or less costly treatments for AIDS and AIDS-related
conditions and of means of inactivating HIV and other retroviruses and viruses
in blood collected for transfusions, and of treatments for hepatitis C and
malignant brain glioma will not be developed by others.
3. No Assurance of Success of Non-Hypericin Products. To complement and
diversify its potential hypericin-based product line, VIMRx has initiated
investigating a number of non-hypericin products for the treatment of viral and
retroviral diseases and proliferative disorders. Research and development in
these areas are in early stages, and there can be no assurance that any of the
Company's potential non-hypericin products will be successful.
4. Government Regulation. The manufacturing and marketing of therapeutic
products is subject to extensive regulation by the FDA, as well as by state and
foreign authorities. Prior to the release of hypericin for marketing as a
therapeutic product or agent, its tolerance, safety and efficacy as a treatment
must be established in human clinical trials and approval of a new drug
application ("NDA") obtained and, prior to its commercialization as a means of
inactivating HIV and other retroviruses and viruses in blood collected for
transfusions, a product license application or an NDA must be obtained. These
are long-term and costly processes as to the successful completion of which
there can be no assurance. Non-hypericin products for the treatment of viral and
retroviral diseases and proliferative disorders are also subject to extensive
government regulation.
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5. Limited Personnel -- Reliance on Third Parties. VIMRx has eight
full-time U.S. employees and sixteen full-time non-U.S. employees, and is
substantially dependent upon third parties, with all of the risks attendant
thereto, to develop additional applications for hypericin, to manufacture
hypericin for its needs, including its requirements for the human clinical
trials, and to develop and produce the therapeutic formulations of hypericin for
use in such clinical trials. VIMRx is also dependent upon third parties for the
development of non-hypericin products.
6. Competition. Competition to develop new therapeutics is extremely
intense and the search for a treatment for AIDS is one of the highest priority
projects throughout the world. Among the entities engaged in AIDS research are
governmental agencies and major pharmaceutical, chemical and biotechnology firms
with extensive financial resources, research and development staffs and
manufacturing and marketing capabilities. The discovery of a cure or
preventative for AIDS may render the Company's hypericin program for treating
AIDS obsolete or non-competitive. Even if the Company obtains FDA approval for
the marketing of hypericin for the treatment of AIDS, the Company has no
experience in marketing therapeutics and therefore may be at a competitive
disadvantage with respect to existing or subsequently developed products that
are approved for marketing. In addition, impure forms of hypericin derived from
plant extracts are being used as lay treatments for a variety of disorders,
including AIDS. The Company is similarly subject to substantial competition from
pharmaceutical, chemical and biotechnology firms in the attempt to develop a
means of inactivating HIV and other retroviruses and viruses in blood collected
for transfusions and with respect to its development of non- hypericin products.
7. Patents and Licenses. Although VIMRx has been granted an exclusive
license for the worldwide rights to hypericin for viral and retroviral
applications by the Hypericin Licensors (which have been granted five U.S.
patents for anti-viral and anti-retroviral applications and manufacturing
processes), there can be no assurance that such patents, or pending patents if
issued, will provide adequate protection in the event hypericin proves
efficacious as a treatment for AIDS or as a means of inactivating HIV and other
retroviruses and viruses in blood collected for transfusions, or as treatments
for hepatitis C or malignant brain glioma. Infringement claims may be asserted
against VIMRx and/or the Hypericin Licensors against which VIMRx has agreed to
indemnify the Hypericin Licensors and which, if affirmed, might require VIMRx to
acquire licenses from others. There can be no assurance that such licenses, if
required, could be obtained on terms satisfactory to the Company. In addition,
the exclusive license granted to the Company is subject to cancellation in the
event VIMRx does not comply with its terms and conditions. Further, the
utilization of hypericin as a therapeutic agent for certain other applications,
such as dermatological disorders (with which VIMRx is currently not involved but
may be in the future) is not covered by the Company's exclusive license and,
accordingly, such applications may be exploited by others. The Company is also
aware of patents in the United States and Europe and related pending patent
applications in other countries held by an unaffiliated third party with
substantially greater resources than the Company which may be infringed by the
Company's synthetic catalytic oligonucleotide compounds, in which event a
license from such third party would be required. There can be no assurance that
the Company would be able to attain such license on reasonable terms, if at all,
which would materially adversely affect the Company's synthetic catalytic
oligonucleotide compound activities.
8. Absence of Product Liability Insurance Coverage. The testing, marketing
and sale of pharmaceutical products entails a risk of product liability claims
by consumers and others and such claims may be asserted against the Company. The
Company does not maintain product liability insurance coverage other than a
$2,000,000 product/professional liability policy applicable only to its human
clinical trials, and although it will attempt to obtain such coverage prior to
marketing any product, there can be no assurance it will be able to obtain such
insurance at a reasonable cost or in an amount sufficient to cover all possible
liabilities. In the event of a successful product liability suit against the
Company, lack or insufficiency of insurance coverage could have a material
adverse effect on the Company. Further, VIMRx is required under its license
agreement with the Licensors to have $5,000,000 of product liability insurance
coverage naming the Licensors as additional insureds prior to marketing
hypericin (or an indemnity to the Licensors by an entity satisfactory to the
Licensors).
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9. No Cash Dividends. The Company does not anticipate paying cash
dividends on its Common Stock in the foreseeable future.
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of the Company's Common Stock by the Selling Stockholders
prior to and after this offering, assuming all of the Shares being offered are
sold:
After Offering
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Name Shares Owned Shares Percent of
Prior to Offering Being Offered Shares Owned Outstanding
F. Donald Hudson 150,000 150,000 0 0%
William I. Bergman 12,000 12,000 0 0%
Messrs. Hudson and Bergman acquired the Shares set forth opposite their
names on December 21, 1995 and October 3, 1996, respectively, at $.4375 and
$1.16 per share, respectively, upon exercise of stock options granted under the
Plan. Mr. Hudson served as President and Chief Executive Officer of the Company
from December 16, 1994 until August 31, 1995, and as a director of the Company
from May 1989 until August 31, 1995. Mr. Bergman served as a director of the
Company from October 1991 to June 20, 1996.
PLAN OF DISTRIBUTION
All sales of Shares by the Selling Stockholders will be made from time to
time, or at one time, on The Nasdaq Stock Market at prices then prevailing, or
in negotiated transactions at negotiated prices, or a combination thereof.
The cost of registering the Shares under the Securities Act of 1993, as
amended (the "Securities Act"), estimated at $12,000, will be paid by the
Company.
The Selling Stockholders and any dealer participating in the distribution
of any of the Shares or any broker executing selling orders on behalf of the
Selling Stockholders may be deemed to be "underwriters" within the meaning of
the Securities Act, in which event any profit on the sale of any or all of the
Shares by them and any discounts or commissions received by any such brokers or
dealers may be deemed to be underwriting discounts and commissions under the
Securities Act. Furthermore, any broker or dealer participating in any
distribution of the Shares will be required to deliver a copy of this
Prospectus, including a Prospectus Supplement, if required, to any person who
purchases any of the Shares from or through such broker or dealer.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold only through registered or licensed brokers
or dealers. In addition, in certain states, the Shares may not be sold unless
they have been registered or qualified for sale in such state or an exemption
from such registration or qualification requirement is available and is complied
with.
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LEGAL MATTERS
The validity of the Shares offered hereby is being passed upon for the
Company by Epstein Becker & Green, P.C., New York, New York.
EXPERTS
The financial statements incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 1995
have been audited by Richard A. Eisner & Company, LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon such reports given upon the authority of
such firm as experts in accounting and auditing.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents (or portions thereof) which have heretofore
been filed by VIMRx Pharmaceuticals Inc. (the "Registrant") with the Securities
and Exchange Commission (the "Commission") are hereby incorporated by reference
in this Registration Statement: (i) the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995; (ii) the Registrant's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1996 and June 30, 1996,
respectively, (iii) the Registrant's definitive Proxy Statement dated May 13,
1996 for its Annual Meeting of Stockholders held on June 20, 1996; (iv) the
Registrant's Current Reports on Form 8-K filed on January 11, 1996, March 25,
1996, April 9, 1996, April 15, 1996, April 22, 1996, April 30, 1996 and June 12,
1996 (as amended on Form 8-K/A on August 15, 1996), respectively, and (v) the
description of the Registrant's Common Stock, $.001 par value ("Common Stock"),
contained in the Registration Statement on Form 8-A (No. 0-19153) under "Item 1.
Description of Registrant's Securities to be Registered." All reports and proxy
statements filed by the Registrant with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all of the shares to which this
Registration Statement relates have been sold or which deregisters all of the
shares then remaining unsold shall likewise be deemed incorporated herein and
made a constituent part hereof by reference from the respective dates of the
filings.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law grants
corporations the power to indemnify their directors, officers, employees and
agents in accordance with the provisions thereof. Article SEVENTH of the
Registrant's Amended and Restated Certificate of Incorporation and Article VII,
Section 6 of the Registrant's By-Laws, as amended, provide for indemnification
of the Registrant's directors, officers, agents and employees to the fullest
extent permissible under applicable law.
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Item 7. Exemption from Registration Claimed.
The Shares to be reoffered by the Selling Stockholders pursuant to
this Registration Statement were issued by the Registrant to the Selling
Stockholders upon the Selling Stockholders' respective exercises of stock
options under the Plan. Such issuances were exempt from the registration
requirements of the Securities Act under Section 4(2) thereof.
Item 8. Exhibits.
The following are filed as exhibits to this Registration Statement:
Exhibit
No. Description
5 - Opinion of Epstein Becker & Green, P.C.
10.11 - Copy of the Registrant's Amended and Restated 1990 Incentive
and Non-Incentive Stock Option Plan (as amended July 15, 1991,
August 31, 1995 and May 13, 1996)
23(a) - Consent of Richard A. Eisner & Company, LLP.
23(b) - Consent of Epstein Becker & Green, P.C. (included in Exhibit 5).
24 - Power of Attorney (included in signature page of this
Registration Statement).
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; and
iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
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(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.
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 this
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act"), may be permitted to directors,
officers or controlling persons of the Registrant pursuant to the provisions of
Registrant's Restated Certificate of Incorporation or By-Laws, as amended, or
the provisions of the Florida 1989 Business Corporation Act or otherwise, the
Registrant has been advised that in the opinion of the 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.
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POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Richard L. Dunning and Francis
M. O'Connell, and each of them, with full power to act without the other, his
true and lawful attorney-in-fact and agent for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same, as fully,
for all intents and purposes, as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
The Registrant. 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 Wilmington, State of Delaware, on this 1st day
of November, 1996.
VIMRx PHARMACEUTICALS INC.
By: /s/ Richard L. Dunning_________
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities set forth and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Richard L. Dunning President and Chief ExecutiNovember 1,1996
- -------------------------------------- - - -
Richard L. Dunning Officer (Principal Executive
Officer)
/s/ Donald G. Drapkin Chairman of the Board and November 1,1996
- ----------------------
Donald G. Drapkin Director
/s/ Francis M. O'Connell Chief Financial Officer(PriNovember 1,1996
- -------------------------------------- - -
Francis M. O'Connell Financial and Accounting
Officer)
/s/ Laurence D. Fink Director November 1,1996
- -------------------------------------- -------------------
Laurence D. Fink
/s/ Jerome Groopman, M.D. Director November 1,1996
- -------------------------------------- -------------------
Jerome Groopman, M.D.
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12
/s/ Linda G. Robinson Director November 1, 1996
- -------------------------------------- -------------------
Linda G. Robinson
/s/ Lindsay A. Rosenwald, M.D. Director November 1, 1996
- -------------------------------------- ------------------- - -
Lindsay A. Rosenwald, M.D.
/s/ Eric A. Rose, M.D. Director November 1, 1996
- -------------------------------------- -------------------
Eric A. Rose, M.D.
/s/ Michael Weine , M.D. Director November 1, 1996
- -------------------------------------- -------------------
Michael Weiner, M.D.
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13
INDEX TO EXHIBITS
Exhibit Page
No. Description Number
5 Opinion of Epstein Becker & Green, P.C. 15
10.11 Copy of the Registrant's Amended and Restated 1990 Incentive and
Non-Incentive Stock Option Plan (as amended July 15, 1991,
August
31, 1995 and May 13, 1996) 16
23(a) Consent of Richard A. Eisner & Company, LLP 29
23(b) Consent of Epstein Becker & Green, P.C. (included in Exhibit 5).
24 Power of Attorney (included in signature page of this
Registration
Statement).
AEC0510A.W51
14
EXHIBIT 5
(212) 351-4735
November 4, 1996
The Board of Directors of
VIMRx Pharmaceuticals, Inc.
2751 Centerville Road, Suite 210
Little Falls II
Wilmington, DE 19808
Re: Amended and Restated 1990 Incentive and Non-Incentive Stock
Option Plan
Gentlemen:
We have acted as counsel to VIMRx Pharmaceuticals Inc. (the "Company")
in connection with its filing of a Registration Statement on Form S-8 (the
"Registration Statement") covering an aggregate of 2,311,400 shares (the
"Shares") of the Company's authorized shares of Common Stock, $.001 par value,
consisting of 2,149,400 Shares (the "Unissued Shares") issuable upon exercise of
options granted or to be granted under the Company's Amended and Restated 1990
Incentive and Non-Incentive Stock Option Plan (the "Plan"), and 162,000 Shares
issued upon exercise of stock options granted under the Plan (the "Issued
Shares").
As such counsel, we have examined original copies, or copies certified
to our satisfaction, of the corporate records of the Company, agreements and
other instruments, certificates of public officials and such other documents as
we deemed necessary as a basis for the opinion hereinafter set forth.
On the basis of the foregoing, we are of the opinion that the Shares
have been validly authorized and that the Issued Shares are, and the Unissued
Shares, when issued upon due and valid exercise of options granted under the
Plan will be, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
aforesaid Registration Statement.
Very truly yours,
EPSTEIN BECKER & GREEN, P.C.
By: /s/ Sidney Todres
Sidney Todres
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15
AMENDED AND RESTATED
1990 INCENTIVE AND NON-INCENTIVE
STOCK OPTION PLAN
OF
VIMRx PHARMACEUTICALS INC.
(AS AMENDED JULY 15, 1991, AUGUST 31, 1995 AND MAY 13, 1996)
1. Purpose of Plan.
The purpose of this Incentive and Non-Incentive Stock Option Plan
("Plan") is to further the growth and development of VIMRx Pharmaceuticals Inc.
("Company") and any subsidiaries thereof by encouraging selected employees,
directors and other persons who contribute and are expected to contribute
materially to the Company's success to obtain a proprietary interest in the
Company through the ownership of stock, thereby providing such persons with an
added incentive to promote the best interests of the Company and affording the
Company a means of attracting to its service persons of outstanding ability.
2. Stock Subject to the Plan.
An aggregate of 2,400,000 shares of the Company's Common Stock, $.001
par value ("Common Stock") subject, however, to adjustment or change pursuant to
paragraph 12 hereof, shall be reserved for issuance upon the exercise of options
which may be granted from time to time in accordance with the Plan ("Options").
Such shares may be, in whole or in part, as the Stock Option Plan Committee
("Committee") shall from time to time determine, authorized but unissued shares
or issued shares which have been reacquired by the Company. If, for any reason,
an Option shall lapse, expire or terminate without having been exercised in
full, the unpurchased shares covered thereby shall again be available for
purposes of the Plan.
3. Administration.
(a) The Board of Directors shall appoint the Committee from among its
members. Such Committee shall be composed of two or more Directors who shall be
"disinterested persons" as defined by Regulation 240.16b-3 under the Securities
Exchange Act of 1934, as amended and "outside directors" as defined in
regulations under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"). Such Committee shall have and may exercise any and all of
the powers relating to the administration of the Plan and the grant of Options
thereunder as are set forth in subparagraph 3(b) hereof as the Board of
Directors shall confer and delegate. The Board of Directors shall have power at
any time to fill vacancies in, to change the membership of, or to discharge such
Committee. The Committee shall select one of its members as its chairman and
shall hold its meetings at such time and at such places as it shall deem
advisable. A majority of such Committee shall constitute a quorum and such
majority shall determine its action. Any action may be taken without a meeting
by written consent of all the members of the Committee. The Committee shall keep
minutes of its proceedings and shall report the same to the Board of Directors
at the meeting next succeeding.
(b) The Committee shall administer the Plan and, subject to the
provisions of the Plan, shall have sole authority in its discretion to determine
the persons to whom, and the time or times at which, Options shall be granted,
the number of shares to be subject to each such Option and whether all or any
portion of such Options shall be incentive stock options ("Incentive Options")
qualifying under Section 422A of the Code or stock options which do not so
qualify ("Non-Incentive Options"). Both Incentive Options and Non-Incentive
Options may be granted to the same person at the same time provided each type of
Option is clearly designated.
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16
In making such determinations, the Committee may take into account the nature of
the services rendered by such persons, their present and potential contribution
to the Company's success and such other factors as the Committee in its sole
discretion may deem relevant. Subject to the express provisions of the Plan, the
Committee shall also have authority to interpret the Plan, to prescribe, amend
and rescind rules and regulations relating thereto, to determine the terms and
provisions of the respective Option Agreements, which shall be substantially in
the forms attached hereto as Exhibit A and Exhibit B, and to make all other
determinations necessary or advisable for the administration of the Plan, all of
which determinations shall be conclusive and not subject to review.
4. Eligibility for Receipt of Options.
(a) Incentive Options. Incentive Options may be granted only to
employees (including officers) of the Company and/or any of its subsidiaries. A
director of the Company or any subsidiary who is not an employee of the Company
or of one of its subsidiaries is not eligible to receive Incentive Options under
the Plan. Further, Incentive Options may not be granted to any person who, at
the time the Incentive Option is granted, owns (or is considered as owning
within the meaning of Section 425(d) of the Code) stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company or any
subsidiary (10% Owner), unless at the time the Incentive Option is granted to
the 10% Owner, the option price is at least 110% of the fair market value of the
Common Stock subject thereto and such Incentive Option by its terms is not
exercisable subsequent to five years from the date of grant.
(b) Non-Incentive Options. Non-Incentive Options may be granted to any
employees (including employees who have been granted Incentive Options),
directors, consultants, agents, independent contractors and other persons whom
the Board of Directors (or Committee) determines will contribute to the
Company's success.
(c) The maximum number of shares that may be subject to options under
this Plan granted during any calendar year to any executive officer of the
Company is 800,000 shares.
5. Option Price.
The purchase price of the shares of Common Stock under each Option
shall be determined by the Committee, which determination shall be conclusive
and not subject to review, but in no event shall the purchase price be less than
100% of the fair market value of the Common Stock on the date of grant in the
case of Incentive Options (110% of fair market value in the case of Incentive
Options granted to a 10% Owner) and 50% of the fair market value of the Common
Stock on the date of the grant in the case of Non-Incentive Options.
In determining fair market value, the Committee shall consider the
closing price of the Common Stock on the date the Option is granted (if such
Common Stock is listed on a national securities exchange), the representative
closing bid price in the over-the-counter market as reported by NASDAQ or as
quoted by the National Quotation Bureau or a recognized dealer in the Common
Stock on the date of grant (if a public market exists for such Common Stock and
such Common Stock is not listed on such an exchange) and such other factors as
the Committee shall deem appropriate.
For purposes of the Plan, the date of grant of an Option shall be the
date on which the Committee shall by resolution duly authorize such Option.
6. Term of Options.
(a) Incentive Options. The term of each Incentive Option shall be
five years from the date of grant thereof, subject to earlier termination as
herein provided.
(b) Non-Incentive Options. The term of each Non-Incentive Option shall
be such number of years as the Committee shall determine, subject to earlier
termination as herein provided, but in no event more than ten years from the
date such Non-Incentive Option is granted.
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17
7. Exercise of Options.
(a) No Incentive Option granted under the Plan shall be exercisable
until at least one year from the date of grant. Thereafter, each Incentive
Option shall be exercisable as follows: at the end of one year from the date of
grant, up to 25% of the total shares subject to such Option; at the end of two
years from the date of grant, up to 50%; at the end of three years from the date
of grant, up to 75%; at the end of four years from the date of grant and until
termination of the Incentive Option, up to 100%. The aggregate fair market value
(determined as of the time an Incentive Option is granted) of the shares of the
Company's Common Stock purchasable thereunder exercisable for the first time by
an employee during any calendar year may not exceed $100,000.
(b) Each Non-Incentive Option shall be exercisable to the extent
determined by the Committee, but in no event shall a Non-Incentive Option be
exercisable until at least six months from the date of grant.
(c) An Option may not be exercised for fractional shares of the
Company's Common Stock.
(d) Except as provided in paragraphs 9, 10 and 11 hereof, no Option
shall be exercisable unless the holder thereof shall have been an employee,
director, consultant, agent, independent contractor or other person employed by
or engaged in performing services for the Company and/or a subsidiary
continuously from the date of grant to the date of exercise.
(e) The exercise of an Option shall be contingent upon receipt from
the holder thereof of a written representation that at the time of such exercise
it is the optionee's then present intention to acquire the Option shares for
investment and not with a view to the distribution or resale thereof (unless a
Registration Statement covering the shares purchasable upon exercise of the
Options shall have been declared effective by the Securities and Exchange
Commission) and upon receipt by the Company of cash, or a check to its order,
for the full purchase price of such shares.
(f) The holder of an Option shall have none of the rights of a
stockholder with respect to the shares purchasable upon exercise of the Option
until a certificate for such shares shall have been issued to the holder upon
due exercise of the Option.
(g) The proceeds received by the Company upon exercise of an Option
shall be added to the Company's working capital and be available for general
corporate purposes.
8. Non-Transferability of Options.
No Option granted pursuant to the Plan shall be transferable otherwise
than by will or the laws of descent or distribution and an Option may be
exercised during the lifetime of the holder only by such holder.
9. Termination of Employment or Engagement.
In the event the employment of the holder of an Option shall be
terminated by the Company or a subsidiary for any reason other than by reason of
death or disability, or the engagement of a non-employee holder of a
Non-Incentive Option shall be terminated by the Company or a subsidiary for any
reason, such holder may, within three months from the date of such termination,
exercise such Option to the extent such Option was exercisable by such holder at
the date of such termination. Notwithstanding the foregoing, no Option may be
exercised subsequent to the date of its expiration. Absence on leave approved by
the employer corporation shall not be considered an interruption of employment
for any purpose under the Plan.
Nothing in the Plan or in any Option Agreement granted hereunder shall
confer upon any Optionholder any right to continue in the employ of the Company
or any subsidiary or obligate the Company or any subsidiary to continue the
engagement of any Optionholder or interfere in any way with the right of the
Company or any such subsidiary to terminate such Optionholder's employment or
engagement at any time.
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18
10. Disability of Holder of Option.
If the employment of the holder of an Option shall be terminated by
reason of such holder's disability, such holder may, within twelve months from
the date of such termination, exercise such option to the extent such Option was
exercisable by such holder at the date of such termination. Notwithstanding the
fore going, no Option may be exercised subsequent to the date of its expiration.
11. Death of Holder of Option.
If the holder of any Option shall die while in the employ of, or while
performing services for, the Company or one or more of its subsidiaries (or
within six months following termination of employment due to disability), the
Option theretofore granted to such person may be exercised, but only to the
extent such Option was exercisable by the holder at the date of death (or, with
respect to employees, the date of termination of employment due to disability)
by the legatee or legatees of such person under such person's Last Will, or by
such person's personal representative or distributees, within twelve months from
the date of death but in no event subsequent to the expiration date of the
Option.
12. Adjustments Upon Changes in Capitalization.
If at any time after the date of grant of an Option, the Company shall
by stock dividend, split-up, combination, reclassification or exchange, or
through merger or consolidation or otherwise, change its shares of Common Stock
into a different number or kind or class of shares or other securities or
property, then the number of shares covered by such Option and the price per
share thereof shall be proportionately adjusted for any such change by the
Committee whose determination thereon shall be conclusive. Upon the dissolution
or liquidation of the Company, or upon a reorganization, merger or consolidation
of the Company as a result of which the outstanding securities of the class then
subject to Options hereunder are changed into or exchanged for cash or property
or securities not of the Company's issue, or upon a sale of substantially all
the property of the Company to, or the acquisition of stock representing more
than eighty percent (80%) of the voting power of the stock of the Company then
outstanding by, another corporation or person, the Plan shall terminate, and all
Options theretofore granted hereunder shall terminate, unless provision be made
in writing in connection with such transaction for the continuance of the Plan
or for the assumption of Options theretofore granted, or the substitution for
such Options of options covering the stock of a successor employer corporation,
or a parent or a subsidiary thereof, with appropriate adjustments as to the
number and kind of shares and prices, in which event the Plan and Options
theretofore granted shall continue in the manner and under the terms so
provided. The Committee shall have the discretion to provide at the time of
granting any Option hereunder that in the event the Plan and Options then
outstanding shall terminate upon the effective date of any of the transactions
described in the foregoing sentence, the vesting of the then unexercisable
portion of such holder's Option shall be accelerated, in whole or in part as
determined by the Committee, so that such holder prior to the consummation of
the transaction shall be entitled to exercise such Option (to the extent thereby
exercisable) prior to consummation of such transaction. In the event that a
fraction of a share results from an adjustment pursuant to this paragraph 12,
said fraction shall be eliminated and the price per share of the remaining
shares subject to the Option adjusted accordingly.
13. Vesting of Rights Under Options.
Neither anything contained in the Plan nor in any resolution adopted
or to be adopted by the Committee, the Board of Directors or the stockholders of
the Company shall constitute the vesting of any rights under any Option. The
vesting of such rights shall take place only when a written Option Agreement,
substan tially in the form of the Incentive Stock Option Agreement attached
hereto as Exhibit A or the Non-Incentive Stock Option Agreement attached hereto
as Exhibit B, shall be duly executed and delivered by and on behalf of the
Company and the person to whom the Option shall be granted.
14. Termination and Amendment.
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19
The Plan, which was adopted by the Board of Directors on July 10, 1990
and approved by the shareholders of the Company, shall terminate on July 9, 2000
and no Option shall be granted under the Plan after such date. The Board of
Directors may at any time prior to such date terminate the Plan or make such
modifica tions or amendments thereto as it shall deem advisable provided,
however, that
(i) no change shall be made in the aggregate number of shares subject to
the Plan or the number of
shares which may be optioned to any employee;
(ii) no termination, modification or amendment shall adversely affect the
rights of a holder of an Option previously granted under the Plan;
(iii) no material modification shall be made to the requirements of
eligibility for participation in the Plan; and
(iv) no material increase shall be made in the benefits accruing to
participants under the Plan.
15. Lock-Up.
To the extent requested by the managing underwriter in respect of a
proposed offering of securities of the Company, the holder of any securities, or
options to purchase securities, of the Company shall refrain from selling or
offering to sell any securities of the Company within 180 days after the
effective date of the registration statement covering such securities of the
Company, or such lesser period as may be requested by the managing underwriter,
provided that at the time of such request the shares of Common Stock of the
Company issued to such holder upon exercise of any option granted pursuant to
the Plan or otherwise and then held by such holder and those shares then
currently issuable to such holder upon exercise of any option granted pursuant
to the Plan or otherwise exceed in the aggregate 50,000 shares.
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20
EXHIBIT A
VIMRx PHARMACEUTICALS INC.
INCENTIVE STOCK OPTION AGREEMENT
----------------------
To:
We are pleased to notify you that by the determination of the
Incentive and Non-Incentive Stock Option Plan Committee (hereinafter called the
"Committee") an incentive stock option to purchase shares of the Common Stock of
VIMRx Pharmaceuticals Inc. (herein called the "Company") at a price of $ per
share has this day of been granted to you under the Company's 1990 Incentive and
Non-Incentive Stock Option Plan (herein called the "Plan"). This option may be
exercised only upon the terms and conditions set forth below.
1. Purpose of Option.
The purpose of the Plan under which this incentive stock option has
been granted is to further the growth and development of the Company and its
subsidiaries by encouraging key employees, directors, consultants, agents,
independent contractors and other persons who contribute and are expected to
contribute materially to the Company's success to obtain a proprietary interest
in the Company through the ownership of stock, thereby providing such persons
with an added incentive to promote the best interests of the Company, and
affording the Company a means of attracting to its service persons of
outstanding ability.
2. Acceptance of Option Agreement.
Your execution of this incentive stock option agreement will indicate
your acceptance of and your willingness to be bound by its terms; it imposes no
obligation upon you to purchase any of the shares subject to the option. Your
obligation to purchase shares can arise only upon your exercise of the option in
the manner set forth in paragraph 4 hereof.
3. When Option May Be Exercised.
(a) The option granted you hereunder may not be exercised for a period
of one year from the date of its grant by the Committee as set forth above.
Thereafter, this option shall be exercisable as follows:
(i) at the end of one year from the date of grant, up to
25% of the total shares
subject to the option;
(ii) at the end of the second year from the date of grant,
up to 50%;
(iii) at the end of the third year from the date of grant,
up to 75%;
(iv) at the end of the fourth year from the date of grant,
up to 100%.
This option may not be exercised for less than ten shares at any one time (or
the remaining shares then purchasable if less than ten) and expires at the end
of five years from the date of grant whether or not it has been duly exercised,
unless sooner terminated as provided in paragraphs 5, 6 or 7 hereof.
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21
4. How Option May Be Exercised.
This option is exercisable by a written notice signed by you and
delivered to the Company at its executive offices, signifying your election to
exercise the option. The notice must state the number of shares of Common Stock
as to which your option is being exercised, must contain a statement by you (in
a form acceptable to the Company) that such shares are being acquired by you for
investment and not with a view to their distribution or resale (unless a
Registration Statement covering the shares purchasable has been declared
effective by the Securities and Exchange Commission) and must be accompanied by
cash or a check to the order of the Company for the full purchase price of the
shares being purchased.
If notice of the exercise of this option is given by a person or
persons other than you, the Company may require, as a condition to the exercise
of this option, the submission to the Company of appropriate proof of the right
of such person or persons to exercise this option.
Certificates for shares of the Common Stock so purchased will be
issued as soon as practicable. The Company, however, shall not be required to
issue or deliver a certificate for any shares until it has complied with all
requirements of the Securities Act of 1933, the Securities Exchange Act of 1934,
any stock exchange on which the Company's Common Stock may then be listed and
all applicable state laws in connection with the issuance or sale of such shares
or the listing of such shares on said exchange. Until the issuance of the
certification for such shares, you or such other person as may be entitled to
exercise this option shall have none of the rights of a stockholder with respect
to shares subject to this option.
5. Termination of Employment.
If your employment with the Company (or a subsidiary thereof) is
terminated for any reason other than by death or disability, you may exercise,
within three months from the date of such termination, that portion of the
option which was exercisable by you at the date of such termination, provided,
however, that such exercise occurs within five years from the date this option
was granted to you.
6. Disability.
If your employment with the Company (or a subsidiary thereof) is
terminated by reason of your disability, you may exercise, within twelve months
from the date of such termination, that portion of this option which was
exercisable by you at the date of such termination, provided, however, that such
exercise occurs within five years from the date this option was granted to you.
7. Death.
If you die while employed by the Company (or a subsidiary thereof) or
within six months after termination of your employment due to disability, that
portion of this option which was exercisable by you at the date of your death
may be exercised by your legatee or legatees under your Will, or by your
personal representatives or distributees, within twelve months from the date of
your death, but in no event after five years from the date this option was
granted to you.
8. Non-Transferability of Option.
This option shall not be transferable except by Will or the laws of
descent and distribution, and may be exercised during your lifetime only by you.
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22
9. Adjustments upon Changes in Capitalization.
If at any time after the date of grant of this option, the Company
shall, by stock dividend, split-up, combination, reclassification or exchange,
or through merger or consolidation, or otherwise, change its shares of Common
Stock into a different number or kind or class of shares or other securities or
property, then the number of shares covered by this option and the price of each
such share shall be proportionately adjusted for any such change by the
Committee, whose determination shall be conclusive. Upon the dissolution or
liquidation of the Company, or upon a reorganization, merger or consolidation of
the Company as a result of which the outstanding securities of the class then
subject to options hereunder are changed into or exchanged for cash or property
or securities not of the Company's issue, or upon a sale of substantially all
the property of the Company to, or the acquisition of stock representing more
than eighty percent (80%) of the voting power of the stock of the Company then
outstanding by, another corporation or person, this option shall terminate,
unless provision be made in writing in connection with such transaction for the
continuance of the assumption of this option, or the substitution for this
option of an option covering the stock of a successor employer corporation, or a
parent or a subsidiary thereof, with appropriate adjustments as to the number
and kind of shares and purchase price, in which event this option shall continue
in the manner and under the terms set forth herein. Any fraction of a share
resulting from any adjustment shall be eliminated and the price per share of the
remaining shares subject to this option adjusted accordingly.
10. Lock-Up.
To the extent requested by the managing underwriter in respect of a
proposed offering of securities of the Company, you shall refrain from selling
or offering to sell any securities of the Company within 180 days after the
effective date of the registration statement covering such securites of the
Company, or such lesser period as may be so requested by the managing
underwriter, provided that at the time of such request the shares of Common
Stock of the Company issued upon exercise of this option or any other option and
then held by you and those shares then currently issuable to you upon exercise
of this option or any other option exceed in the aggregate 50,000 shares.
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23
11. Subject to Terms of the Plan.
This incentive stock option agreement shall be subject in all respects
to the terms and conditions of the Plan and in the event of any question or
controversy relating to the terms of the Plan, the decision of the Committee
shall be conclusive.
Sincerely yours,
VIMRx PHARMACEUTICALS INC.
By:
President
Agreed to and accepted this
day of , 199 .
Signature of Optionee
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24
EXHIBIT B
VIMRx PHARMACEUTICALS INC.
NON-INCENTIVE STOCK OPTION AGREEMENT
---------------------------------------
To:
We are pleased to notify you that by the determination of the
Incentive and Non-Incentive Stock Option Plan Committee (herein called the
"Committee") a non-incentive stock option to purchase shares of the Common Stock
of VIMRx Pharmaceuticals Inc. (herein called the "Company") at a price of $ per
share has this day of been granted to you under the Company's 1990 Incentive and
Non-Incentive Stock Option Plan (herein called the "Plan"). This option may be
exercised only upon the terms and conditions set forth below.
1. Purpose of Option.
The purpose of the Plan under which this non-incentive stock option
has been granted is to further the growth and development of the Company and its
subsidiaries by encouraging key employees, directors, consultants, agents,
independent contractors and other persons who contribute and are expected to
contribute materially to the Company's success to obtain a proprietary interest
in the Company through the ownership of stock, thereby providing such persons
with an added incentive to promote the best interests of the Company, and
affording the Company a means of attracting to its service persons of
outstanding ability.
2. Acceptance of Option Agreement.
Your execution of this non-incentive stock option agreement will
indicate your acceptance of and your willingness to be bound by its terms; it
imposes no obligation upon you to purchase any of the shares subject to the
Option. Your obligation to purchase shares can arise only upon your exercise of
the Option in the manner set forth in paragraph 4 hereof.
3. When Option May Be Exercised.
The option granted you hereunder shall be exercisable as follows: [set
forth terms and expiration date of Option, but in no event shall the Option be
exercisable until at least six months from the date of grant].
This option may not be exercised for less than ten shares at any one
time (or the remaining shares then purchasable if less than ten) and expires at
the end of five years from the date of grant whether or not it has been duly
exercised, unless sooner terminated as provided in paragraphs 5, 6 or 7 hereof.
4. How Option May Be Exercised.
This option is exercisable by a written notice signed by you and
delivered to the Company at its executive offices, signifying your election to
exercise the option. The notice must state the number of shares of Common Stock
as to which your option is being exercised, must contain a statement by you (in
a form acceptable to the Company) that such shares are being acquired by you for
investment and not with a view to their distribution or resale (unless a
Registration Statement covering the shares purchased has been declared effective
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by the Securities and Exchange Commission) and must be accompanied by cash or a
check to the order of the Company for the full purchase price of the shares
being purchased, plus such amount, if any, as is required for withholding taxes.
If notice of the exercise of this option is given by a person or
persons other than you, the Company may require, as a condition to the exercise
of this option, the submission to the Company of appropriate proof of the right
of such person or persons to exercise this option.
Certificates for shares of the Common Stock so purchased will be
issued as soon as practicable. The Company, however, shall not be required to
issue or deliver a certificate for any shares until it has complied with all
requirements of the Securities Act of 1933, the Securities Exchange Act of 1934,
any stock exchange on which the Company's Common Stock may then be listed and
all applicable state laws in connection with the issuance or sale of such shares
or the listing of such shares on said exchange. Until the issuance of the
certificate for such shares, you or such other person as may be entitled to
exercise this option shall have none of the rights of a stockholder with respect
to shares subject to this option.
5. Termination of Employment or Engagement.
If your employment with the Company (or a subsidiary thereof) is
terminated for any reason other than by death or disability, or if a
non-employee your engagement by the Company (or a subsidiary) is terminated for
any reason, you may exercise, within three months from the date of such
termination, that portion of this option which was exercisable by you at the
date of such termination, provided, however, that such exercise occurs prior to
the expiration date of this option set forth in paragraph 3 hereof.
6. Disability.
If your employment with the Company (or a subsidiary thereof) is
terminated by reason of your disability, you may exercise, within twelve months
from the date of such termination, that portion of this option which was
exercisable by you at the date of such termination, provided, however, that such
exercise occurs prior to the expiration date of this option set forth in
paragraph 3 hereof.
7. Death.
If you die while employed by the Company (or a subsidiary thereof) or
within six months after termination of your employment due to disability, that
portion of this option which was exercisable by you at the date of your death
may be exercised by your legatee or legatees under your Will, or by your
personal representatives or distributees, within twelve months from the date of
your death, but in no event after the expiration date of this option.
8. Non-Transferability of Option.
This option shall not be transferable except by Will or the laws of
descent and distribution, and may be exercised during your lifetime only by you.
9. Adjustments upon Changes in Capitalization.
If at any time after the date of grant of this option, the Company
shall, by stock dividend, split-up, combination, reclassification or exchange,
or through merger or consolidation, or otherwise, change its shares of Common
Stock into a different number or kind or class of shares or other securities or
property, then the
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number of shares covered by this option and the price of each such share shall
be proportionately adjusted for any such change by the Committee, whose
determination shall be conclusive. Upon the dissolution or liquidation of the
Company, or upon a reorganization, merger or consolidation of the Company as a
result of which the outstanding securities of the class then subject to options
hereunder are changed into or exchanged for cash or property or securities not
of the Company's issue, or upon a sale of substantially all the property of the
Company to, or the acquisition of stock representing more than eighty percent
(80%) of the voting power of the stock of the Company then outstanding by,
another corporation or person, this option shall terminate, unless provision be
made in writing in connection with such transaction for the continuance of the
assumption of this option, or the substitution for this option of an option
covering the stock of a successor employer corporation, or a parent or a
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares and purchase price, in which event this option shall continue in the
manner and under the terms set forth herein. Any fraction of a share resulting
from any adjustment shall be eliminated and the price per share of the remaining
shares subject to this option adjusted accordingly.
10. Lock-Up.
To the extent requested by the managing underwriter in respect of a
proposed offering of securities of the Company, you shall refrain from selling
or offering to sell any securities of the Company within 180 days after the
effective date of the registration statement covering such securites of the
Company, or such lesser period as may be so requested by the managing
underwriter, provided that at the time of such request the shares of Common
Stock of the Company issued upon exercise of this option or any other option and
then held by you and those shares then currently issuable to you upon exercise
of this option or any other option exceed in the aggregate 50,000 shares.
11. Subject to Terms of the Plan.
This non-incentive stock option agreement shall be subject in all
respects to the terms and conditions of the Plan and in the event of any
question or controversy relating to the terms of the Plan, the decision of the
Committee shall be conclusive.
12. Tax Status.
This option does not qualify as an "incentive stock option" under the
provisions of Section 422A of the Internal Revenue Code of 1986, as amended, and
the income tax implications
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27
of your receipt of a non-incentive stock option and your exercise of such an
option should be discussed with your tax counsel.
Sincerely yours,
VIMRx PHARMACEUTICALS INC.
By:
President
Agreed to and accepted this
day of , 199 .
Signature of Optionee
AGD00AA3
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EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement
on Form S-8 of VIMRx Pharmaceuticals Inc. and subsidiaries (the "Company") of
our report dated January 3, 1996 (with respect to the last paragraph of Note
3[b], January 26, 1996 and with respect to Note 10 [b], February 2, 1996)
relating to the consolidated balance sheets of the Company as of December 31,
1995 and December 31, 1994 and the related consolidated statements of
operations, changes in shareholders' equity and cash flows for each of the years
in the three-year period ended December 31, 1995 and the amounts for such years
included in the period December 30, 1986 (inception) to December 31, 1995,
included in the Company's annual report on Form 10-K for the fiscal year ended
December 31, 1995. We also consent to the reference to our firm under the
caption "Experts" in the prospectus.
RICHARD A. EISNER & COMPANY, LLP
New York, New York
November 1, 1996
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