-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RNfc9QG1Q+wOmMhFyf+bBj6KogiGjEa6HdPNeQYPUMhkrnc7Zur5c6HfDUFzcSwG p1w1SNqiu5iyY1Yidjg/4w== 0000896415-96-000125.txt : 19961113 0000896415-96-000125.hdr.sgml : 19961113 ACCESSION NUMBER: 0000896415-96-000125 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19961112 EFFECTIVENESS DATE: 19961112 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENOME THERAPEUTICS CORP CENTRAL INDEX KEY: 0000356830 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 042297484 STATE OF INCORPORATION: MA FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-15935 FILM NUMBER: 96659440 BUSINESS ADDRESS: STREET 1: 1OO BEAVER ST CITY: WALTHAM STATE: MA ZIP: 02154 BUSINESS PHONE: 6178935007 MAIL ADDRESS: STREET 1: 100 BEAVER STREET CITY: WALTHAM STATE: MA ZIP: 02154 FORMER COMPANY: FORMER CONFORMED NAME: COLLABORATIVE RESEARCH INC DATE OF NAME CHANGE: 19920703 S-8 1 GENOME THERAPEUTICS CORP. Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 GENOME THERAPEUTICS CORP. (Exact name of issuer as specified in its charter) MASSACHUSETTS 04-2297484 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 100 Beaver Street Waltham, Massachusetts 02154 (Address of Principal Executive offices including zip code) 1995 STOCK OPTION PLAN AND STOCK OPTION AGREEMENTS (Full title of the Plan) Fenel M. Eloi Genome Therapeutics Corp. 100 Beaver Street Waltham, Massachusetts 02154 (Name and address of agent for service) (617) 893-5007 (Telephone number, including area code, of agent for service) Please send copies of all communications to: David C. Chapin, Esq. Ropes & Gray One International Place Boston, Massachusetts 02110-2624 Telephone: (617) 951-7371
Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of To Be To Be Price Per Offering Registration Registered Registered Share Price Fee Common Stock, 1,730,000 $8.188 $14,165,240 $4,292.49 $.10 par value. - ------------------------- Estimated solely for the purpose of calculating the registration fee on the basis of the average high and low prices of the Common Stock as reported by the National Association of Securities Dealers Automated Quotation System on November 11, 1996. Exhibit Index can be found on page 8.
This is page 1 of 22 pages. -1- Part II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference The Company's Annual Report on Form 10-K for the fiscal year ended August 31, 1995, the Company's amended Annual Report on Form 10-K/A-3 for the fiscal year ended August 31, 1995, the Company's Quarterly Report on Form 10-Q for the quarter ended November 25, 1995, the Company's amended Quarterly Report on Form 10-Q/A for the quarter ended November 25, 1996, the Company's Quarterly Report on Form 10-Q for the quarter ended February 24, 1996, the Company's amended Quarterly Report on Form 10-Q/A for the quarter ended February 24, 1996, the Company's Quarterly Report on Form 10-Q for the quarter ended May 25, 1996, all the reports filed by the Company with the Securities and Exchange Commission pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the Company's Annual Report referred to above, and the description of the Company's Common Stock contained in its Form 10/A, File No. 0-10824 are incorporated by reference and made a part of this registration statement. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Item 4. Description of Securities Not Required. Item 5. Interests of Named Experts and Counsel Not Applicable. Item 6. Indemnification of Directors and Officers The Company is organized under the laws of The Commonwealth of Massachusetts. The Massachusetts Business Corporation Law provides that indemnification of directors, officers, employees, and other agents of another organization, or who serve at its request is any capacity with respect to any employee benefit plan, may be provided by the corporation to whatever extent specified in its charter documents or votes adopted by its shareholders, except that no indemnification may be provided for any person with respect to any matter as to which the person shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the corporation. Under Massachusetts law, a corporation can purchase and maintain insurance on behalf of any person against any liability incurred as a director, officer, employee, agent, or person serving at the request of the corporation as a director, officer, employee, or other agent of another organization or with respect to any employee benefit plan, in his capacity as such, whether or not the corporation would have power to itself indemnify him against such liability. -2- The Company's Articles of Organization provide that its 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 the exculpation from liabilities is not permitted under the Massachusetts Business Corporation Law as in effect at the time such liability is determined. The By-Laws provide that the Company shall indemnify its directors and officers to the full extent permitted by the laws of The Commonwealth of Massachusetts. In addition, the Company holds a Directors and Officer Liability and Corporate Indemnification Policy. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits. Exhibit 4(a). The Company's 1995 Stock Option Plan. Exhibit 4(b). Form of Stock Option Agreements and Schedule of Agreements. Exhibit 4(c). The Company's Restated Articles of Organi- zation (filed as an exhibit to the Company's Registration Statement on Form S-1 (No. 2-75230) and incorporated herein by reference). Exhibit 4(d). Amendment dated January 5, 1982 to Restated Articles of Organization (filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended February 27, 1982 and incorporated herein by reference). Exhibit 4(e). Amendment dated January 24, 1983 to Restated Articles of Organization (filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended February 26, 1983 and incorporated herein by reference). Exhibit 4(f). Amendment dated January 17, 1984 to Restated Articles of Organization (filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended February 25, 1984 and incorporated herein by reference). Exhibit 4(g). Amendment dated December 9, 1987 to Restated Articles of Organization (filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended November 28, 1987 and incorporated herein by reference). Exhibit 4(h). Amendment dated January 24, 1994 to Restated Articles of Organization (filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended August 31, 1994 and incorporated herein by reference). -3- Exhibit 4(i). Amendment dated August 31, 1994 to Restated Articles of Organization (filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended August 31, 1994 and incorporated herein by reference). Exhibit 4(j). The Company's By-laws (filed as an exhibit to the Company's Registration Statement on Form S-1 (No. 2-75230) and incorporated herein by reference). Exhibit 4(k). Amendment dated October 20, 1987 to the By-laws (filed as an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended August 31, 1987 and incorporated herein by reference). Exhibit 4(l). Amendment dated October 16, 1989 to the By-laws (filed as an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended August 31, 1989 and incorporated herein by reference). Exhibit 5. Opinion of Ropes & Gray. Exhibit 23(a). Consent of Ropes & Gray (contained in Exhibit 5). Exhibit 23(b). Consent of Arthur Andersen LLP. Exhibit 24. Power of Attorney (included as part of the signature pages to this Registration Statement). 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; (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; -4- provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) will not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) 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 any employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration 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 foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. -5- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Waltham, Commonwealth of Massachusetts, on this 1st day of November, 1996. Genome Therapeutics Corp. By:/s/Fenel M. Eloi ------------------------- Title: Vice President, Treasurer and Chief Financial Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert J. Hennessey and Fenel M. Eloi and each of them, with full power to act without the other, his true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities to sign any or all amendments to this registration statement, including post-effective amendments, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, 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, as fully to 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 substitutes lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Name Title Date /s/ Robert J. Hennessey Chairman of the Board; November 1, 1996 - -------------------------- President and Chief Robert J. Hennessey Executive Officer (Principal Executive Officer) /s/ Orrie M. Friedman Director November 1, 1996 - ------------------------- Orrie M. Friedman /s/ Lawrence Levy Director November 1, 1996 Lawrence Levy /s/ Donald J. McCarren Director November 1, 1996 - ---------------------------- Donald J. McCarren -6- Name Title Date /s/ Steven M. Rauscher Director November 1, 1996 - ------------------------------ Steven M. Rausher /s/ Philip Leder Director November 1, 1996 - ------------------------------ Philip Leder /s/ Fenel M. Eloi Vice President; Treasurer and November 1, 1996 - ------------------------------ Chief Financial Officer Fenel M. Eloi (Principal Financial and Accounting Officer) -7-
EXHIBIT INDEX Number Title of Exhibit Page 4(a). The Company's 1995 Stock Option Plan 9 4(b). Form of Stock Option Agreements and Schedule 15 of Agreements 5. Opinion of Ropes & Gray 20 23(a). Consent of Ropes & Gray Contained in Exhibit 5 23(b). Consent of Arthur Andersen LLP 22 24. Power of Attorney Included as Part of Signature Pages to this Registration -8-
EX-99 2 EXHIBIT 4(A) 1995 STOCK OPTION PLAN EXHIBIT 4(A) GENOME THERAPEUTICS CORP. 1995 STOCK OPTION PLAN 1. PURPOSE The purpose of the 1995 Stock Option Plan (the "Plan") is to advance the interests of Genome Therapeutics Corp. (the "Company") by enhancing the ability of the Company and its subsidiaries to attract and retain employees, consultants or advisers who are in a position to make significant contributions to the success of the Company; to reward such individuals for their contributions; and to encourage such individuals to take into account the long-term interests on the Company through interests in shares of the Company's common stock ("Stock"). Any employee, consultant or adviser designated to participate in the Plan is referred to as a "participant." The proceeds received from the sale of stock pursuant to the Plan shall be used for general corporate purposes. Options granted pursuant to the Plan may be incentive stock options as defined in Section 422 of the Code (any option that is intended so to qualify as an incentive stock option being referred to herein as an "incentive option"), or options that are not incentive options, or both. Except as otherwise expressly provided with respect to an option grant, no option granted pursuant to the Plan shall be an incentive option. 2. ADMINISTRATION The Plan shall be administered by a Stock Option Committee appointed by, or in a manner authorized by, the Board of Directors (the "Board") of the Company or such other committee of the Board as the Board shall from time to time appoint or authorize to administer the Plan (the Stock Option Committee or such other committee being hereinafter referred to as the "Committee"). The Committee shall have authority, not inconsistent with the express provisions for the Plan, (a) to grant awards consisting of options or stock appreciation rights ("SARs"), or both, to such participants as the Committee may select; (b) to determine the time or times when awards shall be granted and the number of shares of Stock subject to each award; (c) to determine which options are, and which options are not, incentive options; (d) to determine the terms and conditions of each award; (e) to prescribe the form or forms of any instruments evidencing awards and any other instruments required under the Plan and to change such forms from time to time; (f) to adopt, amend and rescind rules and regulations for the administration of the Plan; and (g) to interpret the Plan and to decide any questions and settle all controversies and disputes that may arise in connection with the Plan. Such determinations of the Committee shall be conclusive and shall bind all parties. Subject to Section 8, the Committee shall also have the authority, both generally and in particular instances, to waive compliance by a participant with any obligation to be performed by him under an award, to waive any condition or provision of an award, and to amend or cancel any award (and if an award is canceled, to grant a new award on such terms as the Committee shall specify), except that the Committee may not take any action with respect to an outstanding award that would adversely affect the rights of the participant under such award without such participant's consent. Nothing in the preceding sentence shall be construed as limiting the power of the Board to make adjustments required by Section 4(c) and Section 6(j). The Committee shall consist of two or more members of the Board who are, at the time of their appointment and any time they exercise discretion in administering the Plan, "disinterested persons" within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, and "outside directors" within the meaning of sec.162(m) of the Code. A majority of the members of the Committee shall constitute a quorum, and all determinations of the Committee shall be made by a majority of its members. Any determination of the Committee under the Plan may be made without notice or meeting of the Committee by a writing signed by a majority of the Committee members. -9- 3. EFFECTIVE DATE AND TERM OF PLAN The Plan shall become effective on the date on which it is approved by the shareholders of the Company. Grants of awards under the Plan may be made prior to that date (but after Board adoption of the Plan), subject to approval of the Plan by such shareholders. No awards shall be granted under the Plan after the completion of ten years from the date on which the Plan was adopted by the Board, but awards previously granted may extend beyond that date. 4. SHARES SUBJECT TO THE PLAN a. Number of Shares. Subject to adjustment as provided in Section 4(c), the aggregate number of shares of Stock that may be delivered upon the exercise of awards granted under the Plan shall be 750,000. If any award granted under the Plan terminates without having been exercised in full, or upon exercise is satisfied other than by delivery of Stock, the number of shares of Stock as to which such award was not exercised shall be available for future grants within the limits set forth in this Section 4(a). b. Maximum Shares. Subject to Section 4(d), the maximum number of shares of Stock with respect to which an award may be granted to any participant during any single fiscal year is 500,000. For purposes of this paragraph, except as otherwise provided in regulations or other guidance issued under Section 162(m) of the Code, any repricing of an option or Stock Appreciation Right shall be treated as an additional grant. c. Shares to be Delivered. Shares delivered under the Plan will be common stock of the Company and shall be authorized but unissued Stock, or, if the Board so decides in its sole discretion, previously issued Stock acquired by the Company and held in its treasury. No fractional shares of Stock will be delivered under the Plan. d. Changes in Stock. In the event of a stock dividend or other distribution to common stock holders other than a normal cash dividend, stock split or combination of shares, recapitalization or other change in the Company's capital stock, the number and kind of shares of stock or securities of the Company subject to awards then outstanding or subsequently granted under the Plan, the exercise price of such awards, the maximum number of shares or securities that may be delivered under the Plan, and other relevant provisions shall be appropriately adjusted by the Board, whose determination shall be binding on all persons. The Board or Committee may also adjust the number of shares subject to outstanding awards, the exercise price of outstanding awards and the terms of outstanding awards, to take into consideration material changes in accounting practices or principles, extraordinary dividends, consolidations or mergers (except those described in Section 6(j)), acquisitions or dispositions of stock or property or any other event if it is determined by the Board or Committee in its sole discretion that such adjustment is appropriate to avoid distortion in the operation of the Plan, provided that no such adjustment shall be made in the case of an incentive option, without the consent of the participant, if it would constitute a modification, extension or renewal of the option within the meaning of section 424(h) of the Code. 5. ELIGIBILITY FOR AWARDS Those eligible to receive awards under the Plan ("Participants") will be employees of the Company or any of its subsidiaries ("Employees") and other persons or entities (including without limitation non-Employee directors of the Company or a subsidiary of the Company) who, in the opinion of the Committee, are in a position to make a significant contribution to the success of the Company and its subsidiaries. Incentive options shall be granted only to "employees" as defined in the provisions of the Code or regulations thereunder applicable to incentive stock options. A subsidiary for purposes of the Plan shall be a corporation (i) in which the Company owns, directly or indirectly, stock possessing 50% or more of the total combined voting power of all classes of stock or (ii) over which the Company has effective operating control; provided, however, that no corporation shall be deemed a subsidiary for the purpose of any -10- provisions applicable to incentive options, and no incentive options shall be granted to employees of such corporation, unless in each case such corporation shall constitute a subsidiary as defined in clause (i) above. 6. TERMS AND CONDITIONS OF OPTIONS AND SARs a. Exercise Price of Options. The exercise price of each option shall be determined by the Committee but in the case of an incentive option shall not be less than 100% (110%, in the case of an incentive option granted to a ten-percent shareholder) of the fair market value of the Stock at the time the option is granted; nor shall the exercise price be less, in the case of an original issue of authorized stock, than par value. For this purpose, "fair market value" in the case of incentive options shall have the same meaning as it does in the provisions of the Code and the regulations thereunder applicable to incentive options; and "ten-percent shareholder" shall mean any participant who at the time of grant owns directly, or by reason of the attribution rules set forth in section 424(d) of the Code is deemed to own, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of any of its parent or subsidiary corporations. b. Duration of Options. An option shall be exercisable during such period or periods as the Committee may specify. The latest date on which an option may be exercised (the "Final Exercise Date") shall be the date which is ten years (five years, in the case of an incentive option granted to a "ten-percent shareholder" as defined in (a) above) from the date the option was granted or such earlier date as may be specified by the Committee at the time the option is granted. c. Exercise of Options. i. An option shall become exercisable at such time or times and upon such conditions as the Committee shall specify. In the case of an option not immediately exercisable in full, the Committee may at any time accelerate the time at which all or any part of the option may be exercised. ii. Any exercise of an option shall be in writing, signed by the proper person and delivered or mailed to the Company, accompanied by (A) such documents as may be required by the Committee and (B) payment in full as specified below in Section 6(d) for the number of shares for which the option is exercised. iii. In the case of an option that is not an incentive option, the Committee shall have the right to require that the participant exercising the option remit to the Company an amount sufficient to satisfy any federal, state, or local withholding tax requirements (or make any other arrangements satisfactory to the Company with regard to such taxes) prior to the delivery of any Stock pursuant to the exercise of the option. If permitted by the Committee, either at the time of the grant of the option or the time of exercise, the participant may elect, at such time and in such manner as the Committee may prescribe, to satisfy such withholding obligation by (A) delivering to the Company Stock owned by such individual having a fair market value equal to such withholding obligation, or (B) requesting that the Company withhold from the shares of Stock to be delivered upon the exercise a number of shares of Stock having a fair market value equal to such withholding obligation. In the case of an incentive option, if at the time the option is exercised the Committee determines that under applicable law and regulations the Company could be liable for the withholding of any federal or state tax with respect to a disposition of the Stock received upon exercise, the Committee may require as a condition of exercise that the participant exercising the option agree (A) to inform the Company promptly of any disposition (within the meaning of section 424(c) of the Code and the regulations thereunder) of Stock received upon exercise, and (B) to give such security as the Committee deems adequate to meet the potential liability of the Company for the withholding of tax, and to augment such security from time to time in any amount reasonably deemed necessary by the Committee to preserve the adequacy of such security. iv. If an option is exercised by the executor or administrator of a deceased participant, or by the person or persons to whom the option has been transferred by the participant's will or the applicable laws of descent and distribution, the -11- Company shall be under no obligation to deliver Stock pursuant to such exercise until the Company is satisfied as to the authority of the person or persons exercising the option. d. Payment for and Delivery of Stock. Stock purchased upon exercise of an option under the Plan shall be paid for as follows: (i) in cash or by certified check or cashier's check, bank draft or money order payable to the order of the Company or (ii) if so permitted by the Committee (which, in the case of an incentive option, shall specify such method of payment at the time of grant), (A) through the delivery of shares of Stock (duly owned by the participant and for which the participant has good title, free and clear of any liens and encumbrances) having a fair market value on the last business day preceding the date of exercise equal to the purchase price or (B) by delivery of an unconditional and irrevocable undertaking by a broker to deliver promptly to the Company sufficient funds to pay the exercise price or (C) by any combination of the permissible forms of payment. e. Stock Appreciation Rights. The Committee in its discretion may grant SARs either in tandem with or independent of options awarded under the Plan. Except as hereinafter provided, each SAR will entitle the participant to receive upon exercise, with respect to each share of Stock to which the SAR relates, the excess of (i) the share's value on the date of exercise, over (ii) the share's fair market value on the date it was granted. For purposes of clause (i), "value" shall mean fair market value; provided, that the Committee may adjust such value to take into account dividends on the Stock and may also grant SARs that provide, in such limited circumstances following a change in control of the Company (as determined by the Committee) as the Committee may specify, that "value" for purposes of clause (i) is to be determined by reference to an average value for the Stock during a period immediately preceding the change in control, all as determined by the Committee. The amount payable to a participant upon exercise of an SAR shall be paid either in cash or in shares of Stock, as the Committee determines. Each SAR shall be exercisable during such period or periods and on such terms as the Committee may specify. No SAR shall be exercisable after the date which is ten years from the date of grant. f. Delivery of Stock. A participant shall not have the rights of a shareholder with regard to awards under the Plan except as to Stock actually received by him under the Plan. The Company shall not be obligated to deliver any shares of Stock (i) until, in the opinion of the Company's counsel, all applicable federal and state laws and regulations have been complied with, (ii) if the outstanding Stock is at the time listed on any stock exchange, until the shares to be delivered have been listed or authorized to be listed on such exchange upon official notice of issuance, and (iii) until all other legal matters in connection with the issuance and delivery of such shares have been approved by the Company's counsel. If the sale of Stock has not been registered under the Securities Act of 1933, as amended, the Company may require, as a condition to exercise of the award, such representation or agreements as counsel of the Company may consider appropriate to avoid violation of such Act and may require that the certificates evidencing such Stock bear an appropriate legend restricting transfer. g. Nontransferability of Awards. Except as the Board may otherwise determine in connection with the gifts, no award may be transferred other than by will or by the laws of descent and distribution, and during a participant's lifetime, an award may be exercised only by him (or in the event of the participant's incapacity, the person or persons legally appointed to act on the participant's behalf). h. Death. If a participant dies, each award held by the participant immediately prior to death may be exercised, to the extent it was exercisable immediately prior to death, by his executor or administrator, or by the person or persons to whom the award is transferred by will or the applicable laws of descent and distribution, at any time within the three-year period ending with the third anniversary of the participant's death (or such shorter or longer period as the Board or Committee may determine) but in no event beyond the Final Exercise Date. All awards held by a participant immediately prior to death that are not then exercisable shall terminate on the date of death. i. Other Termination of Service. If an employee's employment with the Company and its subsidiaries terminates for any reason other than death, all awards held by the employee that are not then exercisable on the date employment terminates shall continue to be exercisable for a period of three months (or such longer period as the Committee may -12- determine, but in no event beyond the Final Exercise Date) unless the employee was discharged for cause which in the opinion of the Committee casts such discredit on him as to justify termination of his awards. After completion of that three-month period (or such shorter or longer period as the Board or Committee may determine) such awards shall terminate to the extent not previously exercised, expired or terminated. For purposes of this Section 6(i), employment shall not be considered terminated (i) in the case of sick leave or other bona fide leave of absence approved for purposes of the Plan by the Committee, so long as the employee's right to reemployment is guaranteed either by statute or by contract, or (ii) in the case of a transfer of employment between the Company and a subsidiary or between subsidiaries, or to the employment of a corporation (or a parent or subsidiary corporation of such corporation) issuing or assuming an award in a transaction to which section 424(a) of the Code applies. In the case of a participant who is not an employee, provisions relating to the exercisability of awards following termination of service shall be specified in the award. If not so specified, all awards held by such participant that are not then exercisable shall terminate upon termination of service. j. Mergers, etc. In the event of a consolidation or merger in which the Company is not the surviving corporation or which results in the acquisition of substantially all the Company's outstanding Stock by a single person or entity or by a group of persons and/or entities acting in concert, or in the event of the sale or transfer of substantially all the Company's assets, all outstanding awards shall thereupon terminate, provided that at least 20 days prior to the effective date of any such merger, consolidation or sale of assets, the Board or Committee shall either (i) make all outstanding awards exercisable immediately prior to consummation of such merger, consolidation or sale of assets or (ii) if there is a surviving or acquiring corporation, arrange, subject to consummation of the merger, consolidation or sale of assets, to have that corporation or an affiliate of that corporation grant to participants replacement awards which in the case of incentive awards satisfy, in the determination of the Board or Committee, the requirement of section 424(a) of the Code. The Board or Committee may grant awards under the Plan in substitution for awards held by employees, consultants or advisers of another corporation who concurrently becomes employees, consultants or advisers of the Company or a subsidiary of the Company as a result of a merger or consolidation of that corporation with the Company or a subsidiary of the Company, or as the result of the acquisition by the Company or a subsidiary of the Company of property or stock of that corporation. The Company may direct that substitute awards be granted on such terms and conditions as the Board or Committee considers appropriate in the circumstances. 7. EMPLOYMENT RIGHTS Neither the adoption of the Plan nor the grant of awards shall confer upon any participant any right to continue as an employee of, or consultant or adviser to, the Company or any parent or subsidiary or affect in any way the right of the Company or parent or subsidiary to terminate such participant at any time. Except as specifically provided by the Committee in any particular case, the loss of existing or potential profit in awards granted under this Plan shall not constitute an element of damages in the event of termination of the relationship of a participant even if the termination is in violation of an obligation of the Company to the participant by contract or otherwise. 8. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION Neither adoption of the Plan nor the grant of awards to a participant shall affect the Company's right to make awards to such participant that are not subject to the Plan, to issue to such participant Stock as a bonus or otherwise, or to adopt other plans or arrangements under which Stock may be issued. The Committee may at any time discontinue granting awards under the Plan. With the consent of the participant, the Committee may at any time cancel an existing award in whole or in part and grant another award for such number of shares as the Committee specified. The Board may at any time or times amend the Plan or any outstanding award for the purpose of satisfying the requirements of section 422 of the Code or of any changes in applicable laws or regulations or for any other purpose that may at the time be permitted by law, or may at any time terminate the Plan as to any further -13- grants of awards, provided that (except to the extent expressly required or permitted by the Plan) no such amendment shall, without the approval of the stockholders of the Company effectuate a change for which stockholder approval is required in order for the Plan to continue to qualify under Rule 16b-3 under the Securities Exchange Act of 1934 or Section 422 of the Code, and no such amendment shall adversely affect the rights of any participant (without his consent) under any award previously granted. -14- EX-99 3 EXHIBIT 4(B) STOCK OPTION AGREEMENT EXHIBIT 4(b) GENOME THERAPEUTICS CORP. STOCK OPTION AGREEMENT (Non-Statutory Option) Non-Statutory Stock Option granted by Genome Therapeutics Corp., a Massachusetts corporation (the "Company"), to [Optionee], a director of the Company (the "Optionee"). 1. Grant of Option This agreement evidences the grant by the Company to the Optionee of an option to purchase, on the terms provided herein, a total of ______ shares of the Company's Common Stock, $.10 par value ("Common Stock"), at a price of $____ per share. This option does not constitute an incentive stock option within the meaning of Section 422A of the Internal Revenue Code. This option shall terminate on November 16, 2005, and is subject to earlier termination as provided in Sections 5 and 6 below. Subject to the other terms hereof, this option is exercisable as follows: as to ______ if the average closing price of the Common Stock is, for a period of ten (10) out of twenty (20) consecutive trading days, $_____ or higher, as reported on the NASDAQ National Market ("NASDAQ") (or such principal securities exchange as the Common Stock may be traded; and as to an additional ______ shares if the average closing price of the Common Stock is, for a period of ten (10) out of twenty (20) consecutive trading days, $_____ or higher, as reported on NASDAQ (or such principal securities exchange as the Common Stock may be traded.. 2. Exercise of Option Each election to exercise this option shall be in writing, signed by the Optionee or by his executor or administrator or the person or persons to whom this option is transferred by will or the applicable laws of descent and distribution (the "Legal Representative"), and received by the Company at its principal office in Waltham, Massachusetts, accompanied by this agreement and payment in full as provided in Section 3 below. In the event the option is exercised by such Legal Representative, the Company shall be under no obligation to deliver stock hereunder unless and until the Company is satisfied that the person or persons exercising the option is or are the duly appointed executor or administrator of the deceased Optionee or the person or persons to whom this option has been transferred by Optionee's will or by the applicable laws of descent and distribution. 3. Payment for Stock -15- Shares shall be issued only upon receipt by the Company of full payment of the purchase price for the shares as to which the option is exercised. The purchase price is payable by the Optionee to the Company either (i) in cash or by certified check or cashier's check payable to the order of the Company; or (ii) through the delivery of shares of Common Stock (duly owned by the Optionee and as to which the Optionee has good title free and clear of any liens and encumbrances) having a fair market value (as determined by the Board of Directors of the Company) equal to the purchase price; or (iii) by a combination of cash and Common Stock as provided above. The Company will not be obligated to deliver any shares unless and until, in the opinion of the Company's counsel, all applicable federal and state laws and regulations have been complied with, nor, in the event the outstanding common stock is at the time listed upon any stock exchange, unless and until the shares to be delivered have been listed or authorized to be added to the list upon official notice of legal matters in connection with the issuance and delivery of shares have been approved by the Company's counsel. Without limiting the generality of the foregoing, the Company may require from the Optionee such investment representation or such agreement, if any, as counsel for the Company may consider necessary in order to comply with the Securities Act of 1933, as amended and may require that the Optionee agree that he will notify the Company when he makes any disposition of the shares whether by sale, gift or otherwise. The Company will use its best efforts to effect any such compliance or listing, and the Optionee will take any action reasonably requested by the Company in such connection. The Optionee will have the rights of a shareholder only as to shares actually acquired by him upon exercise of the option granted hereby. 4. Non-transferability of Option This option may not be transferred by the Optionee otherwise than by will or by the laws of descent and distribution; and during the Optionee's lifetime this option may be exercised only by him. 5. Termination of Service as a Director If the Optionee ceases to be a director of the Company for any reason other than his death, he may thereafter exercise this option to the extent he was entitled to exercise it on the date when his service as a director terminated, but only within three months after the date of such termination (unless a longer period is allowed by the Board of Directors of the Company). In no event, however, may the Optionee exercise this option at a time when the option would not be exercisable had the Optionee's service as a director continued. For purposes of this provision, the Optionee's service as a director will not be considered terminated in the case of a bona fide leave of absence approved by the Board of Directors of the Company. 6. Death If the Optionee dies at a time when he is entitled to exercise this option, then at any time or times within three years after his death (or such longer period as the Board of Directors of the Company may allow) such option may be exercised, as to all or any of the shares that the Optionee was -16- entitled to purchase immediately prior to his death, by his executor or administrator or the person or persons to whom the option is transferred by will or the applicable laws of descent and distribution, and except as so exercised such option will expire at the end of such period. In no event, however, may this option be exercised after the termination of the option. 7. Administration The option granted by this agreement will be administered by the Board of Directors of the Company which will have the authority to interpret this agreement and to decide all questions and settle all controversies and dispute which may arise in connection therewith. All decisions, determinations and interpretations of the Board of Directors will be binding on all parties concerned. A majority of the members of the Board of Directors will constitute a quorum, and all determinations of the Board of Directors will be made by a majority of its members. Any determination of the Board of Directors under this agreement may be made without notice or meeting of the Board of Directors by a written instrument signed by a majority of the members of the Board of Directors. 8. Stock to be Delivered Stock to be delivered upon exercised of this option will be common stock of the Company and may constitute an original issue of authorized but unissued stock or may consist of previously issued stock acquired by the Company as determined from time to time by the Board of Directors. The Board of Directors and the proper officers of the Company will take any appropriate action required for such delivery. 9. Changes in Stock In the event of a stock dividend, split-up or combination of shares, recapitalization or merger in which the Company is the surviving corporation, or other similar capital change, the number and kind of shares of stock or securities of the Company subject to the option granted hereby, the option price and other relevant provisions will be appropriately adjusted by the Board of Directors of the Company, whose determination will be binding on the Optionee. In the event of a consolidation or merger in which the Company is not the surviving corporation, or in the event of complete liquidation of the Company, the option granted hereby will thereupon terminate, provided that at least twenty days prior to the effective date of any such consolidation or merger, the Board of Directors shall either (a) make the option granted hereby immediately exercisable, or (b) arrange to have the surviving corporation grant a replacement option to the Optionee. 10. Amendments The Board of Directors of the Company may at any time or times amend the option granted hereby for the purpose of satisfying the requirements of any changes in applicable laws or regulations or -17- for any other purpose which may at the time be permitted by law, provided that (except to the extent explicitly required or permitted hereinabove) no such amendment will, without the approval of the stockholders of the Company, (a) increase the number of shares issuable upon exercise of the option, (b) reduce the exercise price of the option, (c) extend the period within which the option may be exercised, or (d) amend the provisions of this Section 10, and no such amendment will adversely affect the rights of the Optionee without his consent. 11. Governing Law This agreement shall be governed by and construed in accordance with the internal laws of The Commonwealth of Massachusetts. 12. Stockholder Approval This agreement shall not become effective unless and until the option granted hereby is approved by the stockholders of the Company. IN WITNESS WHEREOF, the Company has caused this agreement to be executed by its duly authorized officer, under its corporate seal. This option is granted at the Company's office, on the date stated below. GENOME THERAPEUTICS CORP. By:___________________________ President Date: As of February 16, 1996 Accepted and Agreed: - ----------------------------- [Optionee] -18-
SCHEDULE OF STOCK OPTION AGREEMENTS Price Per Grant Expiration Shares Exercise Optionee Share Date Date Granted Dates Robert J. Hennessey $8.87 12/21/95 12/21/05 300000 Philip Leder $7.25 11/16/95 11/16/05 20000 Lawrence Levy $7.25 11/16/95 11/16/05 20000 Donald J. McCarren $7.25 11/16/95 11/16/05 20000 Steven M. Rauscher $7.25 11/16/95 11/16/05 20000 Bernd R. Seizinger $7.44 7/12/96 7/12/06 600000 The options are exercisable by their terms on December 21, 2000 or earlier as follows: (i) 75,000 options are exercisable if the average closing price of the Common Stock for a period of 10 out of 20 consecutive trading days after the date of grant is $10.25 or higher; (ii) an additional 100,000 options shall be exercisable if the average closing price of the Common Stock for a period of 10 out of 20 consecutive trading days after the date of grant is $12.25 or higher and (iii) an additional 125,000 options shall be exercisable if the average closing price of the Common Stock for a period of 10 out of 20 consecutive trading days after the date of grant is $14.25 or higher. The options are exercisable by their terms on November 16, 2000, or earlier as follows: (i) 50% of the options are exercisable if the average closing price of the Common Stock for a period of 10 out of 20 consecutive trading days after the date of grant is $9.425 or higher; and (ii) an additional 50% of the options shall be exercisable if the average closing price of the Common Stock for a period of 10 out of 20 consecutive trading days after the date of grant is $11.60 or higher. The options are exercisable by their terms as follows: (i) an aggregate of 300,000 options are exercisable with respect to equal installments over four years, commencing on September 1, 1997; (ii) 100,000 options shall be exercisable if the closing price of the Common Stock for a period of 10 out of 20 consecutive trading days after the date of grant is $14.25 or higher; (iii) 100,000 options shall be exercisable if the closing price of the Common Stock for a period of 10 out of 20 consecutive trading days after the date of grant is $18.25 or higher; (iv) and the remaining 100,000 options shall be exercisable if the closing price of the Common Stock for a period of 10 out of 20 consecutive trading days after the date of grant is $20.25 or higher. -19-
EX-5 4 OPINION EXHIBIT 5 November 12, 1996 Genome Therapeutics Corp. 100 Beaver Street Waltham, Massachusetts 02154 Ladies and Gentlemen: We have acted as counsel for Genome Therapeutics Corp., a Massachusetts corporation (the "Company") in connection with the preparation of a registration statement on Form S-8 and all exhibits thereto (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of 1,730,000 shares of Common Stock, $.10 par value (the "Shares"). Of the shares being registered, 750,000 shares are issuable upon the exercise of options granted pursuant to the Company's 1995 Stock Option Plan (the "Plan") and 980,000 are issuable upon the exercise of options granted pursuant to certain stock option agreements (the "Agreements") between the Company and the respective holders. The Company has informed us that the Shares issuable upon the exercise of options granted under the Agreements may be authorized but unissued shares or shares held from time to time in its treasury. For purposes of this opinion, we have examined a copy of the Registration Statement; a copy of the Plan; copies of the Agreements; the Restated Articles of Organization of the Company, as amended to date; the By-laws of the Company, as amended to date; the votes of the Board of Directors and the stockholders of the Company approving and adopting the Plan and the Agreements; and such other documents and records as we deem necessary for purposes of this opinion. We have assumed that the Shares will be issued only against payment therefor as provided in the Plan and the Agreements and that the purchase price for such shares -20- will not be less than the par value per share of the Company's Common Stock. We have also assumed that the issuance of any such shares will not result in the issuance by the Company of more than its authorized shares of Common Stock. Based upon and subject to the foregoing, we are of the opinion that: 1. The Company is a duly organized and validly existing corporation under the laws of The Commonwealth of Massachusetts. 2. The Shares, when issued and paid for upon the exercise of options, pursuant to the terms and conditions of the Plan and the Agreements, will be validly issued and will be fully paid and nonassessable. In connection with any issue and sale of the Shares, steps should be taken to effect compliance with all applicable laws, rules and regulations of governmental authorities regulating sales and offerings of securities. We understand that this opinion is to be used in connection with the Registration Statement. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name therein. Very truly yours, /s/ Ropes & Gray Ropes & Gray -21- EX-23 5 EXHIBIT 23(B) CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23(b) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our reports dated October 4, 1995 (except with respect to the matter discussed in Note 10(b) as to which the date is December 6, 1995) in Genome Therapeutics Corp.'s Form 10-K for the year ended August 31, 1995 and to all references to our Firm included in this Registration Statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP November 7, 1996 -22- -----END PRIVACY-ENHANCED MESSAGE-----