-----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, MsNjXYeVX++6xM669/LKIT/8n48mszOH+9H5fZxcT79q32rVqxHzmcbVlD4dIy5s dejJqiKGumAjJXGGB5e/Kg== 0000893220-95-000855.txt : 19951205 0000893220-95-000855.hdr.sgml : 19951205 ACCESSION NUMBER: 0000893220-95-000855 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19951204 EFFECTIVENESS DATE: 19951223 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ONCOGENE SCIENCE INC CENTRAL INDEX KEY: 0000729922 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 133159796 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-64713 FILM NUMBER: 95598794 BUSINESS ADDRESS: STREET 1: 106 CHARLES LINDBERGH BLVD CITY: UNIONDALE STATE: NY ZIP: 11553 BUSINESS PHONE: 5162220023 MAIL ADDRESS: STREET 1: 106 CHARLES LINDBERGH BLVD CITY: UNIONDALE STATE: NY ZIP: 11553-3649 S-8 1 FORM S-8 ONCOGENE SCIENCE 1 As filed with the Securities and Exchange Commission on December 4, 1995 Registration No. ________ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 -------- ONCOGENE SCIENCE, INC. (Exact name of registrant as specified in its charter) -------- Delaware 13-3159796 ------------------------------ ---------------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 106 Charles Lindbergh Blvd. Uniondale, NY 11553 -------------------------------- ----------------------------- (Address of principal executive (Zip Code) offices) -------- ONCOGENE SCIENCE, INC. 1993 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN (Full title of the plan) -------- ROBERT L. VAN NOSTRAND ONCOGENE SCIENCE, INC. 106 CHARLES LINDBERGH BLVD. UNIONDALE, NEW YORK 11553 (516) 222-0023 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------- Copy to: SPENCER W. FRANCK, JR., ESQUIRE SAUL, EWING, REMICK & SAUL 3800 CENTRE SQUARE WEST PHILADELPHIA, PENNSYLVANIA 19102 (215) 972-1955 -------- See next page for calculation of registration fee. -------- The prospectus included in this registration statement also relates to securities covered by the Registrant's registration statement on Form S-8 (File No. 33-8980) initially filed on September 24, 1986 and amended on December 21, 1990, and its registration statement on Form S-8 (File No. 33-38443) initially filed on December 21, 1990. 2 CALCULATION OF REGISTRATION FEE
========================================================================================================== Proposed Proposed Title of Amount to Maximum Maximum Amount of Registration Fee(4) Securities to be be Offering Price Aggregate Registered Registered(1) Per Share Offering Price(4) - ---------------------------------------------------------------------------------------------------------- Common Stock, Par 142,875(2) $3.50 $ 500,062.50 Value $.01 Per 413,500(2) 4.00 1,654,000.00 Share 321,500(2) 4.125 1,326,187.50 167,000(2) 4.375 730,625.00 555,125(3) 5.938 3,296,322.25 ---------- ------------ 1,600,000 $7,507,207.25 $2,588.69 ========= ============ ==========================================================================================================
(1) Pursuant to Rule 429 under the Securities Act of 1933, as amended, in addition to the shares reflected in the above table, the prospectus included as a part of this registration statement covers an aggregate of 1,800,000 shares of the Registrant's Common Stock (the "Previously Registered Shares") issuable pursuant to the Registrant's 1985 Stock Option Plan and 1989 Incentive and Non-Qualified Stock Option Plan, which were registered under the Registrant's registration statements on Form S-8 filed on September 24, 1986 (File No. 33-8980) and December 21, 1990 (File No. 33-38443). The Previously Registered Shares are not reflected in the above table, and no registration fee is being paid with respect thereto upon the filing of this registration statement. (2) Represents shares issuable upon exercise of options previously granted under the 1993 Incentive and Non-Qualified Stock Option Plan (the "Plan"). (3) Represents shares issuable in connection with options available for grant under the Plan. (4) The registration fee with respect to these shares has been computed in accordance with paragraph (c) and (h) of Rule 457, based upon, in the case of options previously granted, the stated exercise price of such options, and, in the case of options still available for grant, the average of the reported high and low sale prices of shares of the Common Stock on November 28, 1995. -2- 3 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION.(1) ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.(1) PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The documents listed in clauses (a), (b) and (c) below are incorporated herein by this reference thereto, and all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by this reference in this registration statement and to be a part hereof from the date of filing of such documents: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1994. (b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended December 30, 1994, and March 31 and June 30, 1995, and the Registrant's Current Reports on Form 8-K dated April 19, 1995 and August 2, 1995. (c) The description of the Common Stock contained in the registration statement filed by the Registrant to register such securities under Section 12 of the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. - ---------------------------------- (1) The information called for by Part I of Form S-8 is currently included in the description of the Registrant's 1993 Incentive and Non-Qualified Stock Option Plan (the "Plan") delivered to eligible persons under the Plan. Pursuant to the Note to Part I of Form S-8, this information is not being filed with or included in this Form S-8. Pursuant to General Instruction C of Form S-8, this Registration Statement contains a prospectus prepared in accordance with the requirements of Part I of Form S-3 relating to reofferings and resales of shares of the Registrant's common stock acquired pursuant to the Plan by persons who may be deemed to be "affiliates" of the Registrant. -3- 4 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the General Corporation Law of Delaware empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or another enterprise if serving at the request of the corporation. Depending on the character of the proceeding, a corporation may indemnify against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In the case of an action by or in the right of the corporation, no indemnification may be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine that despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the court shall deem proper. Section 145 further provides that to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to above, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred by him or her in connection therewith. The Registrant's Certificate of Incorporation provides that the Registrant shall, to the fullest extent permitted by law, indemnify all directors, officers, employees and agents of the Company. The Certificate of Incorporation also contains a provision eliminating the liability of directors of the Registrant to the Registrant or its stockholders for monetary damages, except under certain circumstances. The Certificate of Incorporation also permits the Registrant to maintain insurance to protect itself and any director, officer, employee or agent against any liability with respect to which the Corporation would have the power to indemnify such persons under the Delaware General Corporation Law. The Registrant maintains an insurance policy insuring its directors and officers against certain liabilities. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The following is a list of exhibits filed as part of the Registration Statement: 5 Opinion of Saul, Ewing, Remick & Saul. 10 1993 Incentive and Non-Qualified Stock Option Plan. 23.1 Consent of KPMG Peat Marwick LLP, independent public accountants. 23.2 Consent of Saul, Ewing, Remick & Saul (contained in Exhibit No. 5). 24 Power of Attorney (included on signature page of the registration statement). -4- 5 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; (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 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 liability (other than 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- 6 PROSPECTUS 1,204,500 SHARES ONCOGENE SCIENCE, INC. COMMON STOCK ---------------------- This Prospectus relates to the offer and sale by certain stockholders (the "Selling Stockholders") of Oncogene Science, Inc., a Delaware corporation (the "Company"), of up to 1,204,500 shares (the "Shares") of common stock, par value $.01 per share ("Common Stock"), of the Company, which may be acquired from time to time by the Selling Stockholders upon their exercise of options under the Company's 1985 Stock Option Plan, 1989 Incentive and Non-Qualified Stock Option Plan and 1993 Incentive and Non-Qualified Stock Option Plan (the "Option Plans"). The distribution of the Shares may be effected in one or more transactions through one or more brokers or dealers, through privately negotiated transactions or otherwise, at market prices prevailing at the time of sale or at prices otherwise negotiated. None of the proceeds from the resale of the Shares will be received by the Company. The Company's Common Stock is included for quotation on the NASDAQ National Market System (the "NMS") under the symbol "ONCS." On November 28, 1995, the closing sales price of the Company's Common Stock as quoted on the NMS was $5.875 per share. ---------------------- INVESTMENT IN THE COMMON STOCK OFFERED HEREBY INVOLVES CERTAIN RISKS. SEE "RISK FACTORS" ON PAGE 2 HEREOF. ---------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ---------------------- The date of this Prospectus is December 4, 1995 7 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports and other information with the Securities and Exchange Commission (the "Commission"). The reports, proxy and information statements and other information filed by the Company may be inspected and copied at the public reference facilities maintained by the Commission located at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the public reference facilities in the regional offices of the Commission located at 7 World Trade Center, Suite 1300, New York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. This Prospectus is part of a registration statement that the Registrant has filed with the Commission covering securities issuable pursuant to the Registrant's 1993 Incentive and Non-Qualified Stock Option Plan. This Prospectus also relates to securities issuable pursuant to the Registrant's 1985 Stock Option Plan and 1989 Incentive and Non-Qualified Stock Option Plan, which securities were covered by the Registrant's registration statements initially filed on September 24, 1986 (File No. 33-8980) and December 21, 1990 (File No. 33-38443), respectively. A copy of any document (but not exhibits thereto) incorporated by reference in the registration statement of which this Prospectus forms a part (or the registration statements covering the securities issuable pursuant to the Registrant's 1985 Stock Option Plan or 1989 Incentive and Non-Qualified Stock Option Plan), but which is not delivered with this Prospectus, will be provided by the Company without charge to any person to whom this Prospectus has been delivered, upon the oral or written request of such person. Such requests should be directed to Robert L. Van Nostrand, Vice President, Finance and Administration, Oncogene Science, Inc., 106 Charles Lindbergh Boulevard, Uniondale, New York 11553; telephone (516) 222-0023. RISK FACTORS IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, THE FOLLOWING RISK FACTORS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING THE COMPANY AND ITS BUSINESS BEFORE PURCHASING SHARES OF THE COMMON STOCK OFFERED HEREBY. UNCERTAINTIES RELATED TO CLINICAL TRIALS. Before obtaining regulatory approvals for the commercial sale of any of its products under development, the Company must demonstrate through preclinical studies and clinical trials that the product is safe and effective for use in each target indication. The results from preclinical studies and early clinical trials may not be predictive of results that will be obtained in large-scale testing, and there can be no assurance that the Company's clinical trials will demonstrate sufficient safety and efficacy to obtain the requisite regulatory approvals or will result in marketable products. In addition, clinical trials are often conducted with patients having the most advanced stages of the disease. During the course of treatment, these patients can die or suffer other adverse medical effects for reasons that may not be related to the pharmaceutical agent being tested but which can nevertheless affect clinical trial results. A number of companies in the pharmaceutical industry have suffered significant setbacks in advanced clinical trials, even after promising results in earlier trials. The rate of completion of the Company's clinical trials is dependent upon, among other factors, the rate of patient enrollment. Patient enrollment is a function of many factors, including the size of the patient population, the nature of the protocol, the proximity of patients to clinical sites and the eligibility A-2 8 criteria for the study. Delays in planned patient enrollment may result in increased costs and delays, which could have a material adverse effect on the Company. There can be no assurance that any proposed clinical trial schedules will be met or that any of the Company's products in development will receive marketing approval in any country on a timely basis, or at all. If the Company is unable to complete clinical trials or demonstrate the safety and efficacy of any particular product it is seeking to develop, the Company's business, financial condition and results of operation could be materially and adversely affected. See "Business -- Government Regulation." UNCERTAINTIES RELATED TO THE EARLY STAGE OF DEVELOPMENT; TECHNOLOGICAL UNCERTAINTIES. Nearly all of the Company's product candidates are in the research or development stage and only one proposed product has progressed to the clinical trial stage. There can be no assurance that product revenues will be realized on a timely basis, if ever. The development of new pharmaceutical products is highly uncertain and subject to a number of significant risks. Potential products that appear to be promising at early stages of development may not reach the market for a number of reasons. Potential products may be found ineffective or cause harmful side effects during preclinical testing or clinical trials, fail to receive necessary regulatory approvals, be difficult to manufacture on a large scale, be uneconomical, fail to achieve market acceptance or be precluded from commercialization by proprietary rights of third parties. There can be no assurance that the Company's product development efforts will be successfully completed, that required regulatory approvals can be obtained or that any products, if introduced, will be successfully marketed or achieve customer acceptance. Commercial availability of any of the Company's products, is not expected for a number of years, if at all. HISTORY OF LOSSES. The Company has sustained net losses from operations in each fiscal year since its inception, and anticipates that such losses will continue for some time. The Company has been, and will continue to be, dependent upon collaborative research revenues, government research grants, interest income and cash balances until products developed from its technology are commercially marketed. While the Company currently is involved in certain collaborative research programs with major pharmaceutical companies, there can be no assurance that such programs will not be terminated, that such programs will lead to the development of marketable or profitable products, that the Company will be able to secure additional collaborative research contracts in the future or that any future contracts, if any, will be profitable or will lead to the development of marketable or profitable products. NEED FOR FUTURE FUNDING; UNCERTAINTY OF ACCESS TO CAPITAL. The Company will require substantial additional funding in order to continue its research, product development, preclinical testing and clinical trials of its product candidates. The Company will also require additional funding for operating expenses and the pursuit of regulatory approvals for its product candidates. The Company's future capital requirements will depend on many factors, including continued scientific progress in its research and development programs, the size and complexity of these programs, progress with preclinical testing and clinical trials, the time and costs involved in obtaining regulatory approvals, the costs involved in filing, prosecuting and enforcing patent claims, competing technological and market developments, the establishment of additional collaborative arrangements, the cost of manufacturing arrangements, commercialization activities, and the cost of product in-licensing and strategic acquisitions, if any. There can be no assurance that the Company's cash reserves and other liquid assets, including the net proceeds of this offering and funding that may be received from the Company's commercial partners and interest income earned thereon, will be adequate to satisfy its capital and operating requirements. A-3 9 The Company intends to seek additional funding through arrangements with corporate collaborators and through public or private sales of the Company's securities, including equity securities. There can be no assurance, however, that additional funding will be available on reasonable terms, if at all. Any additional equity financings would be dilutive to the Company's stockholders. If adequate funds are not available, the Company may be required to curtail significantly one or more of its research and development programs and/or obtain funds through arrangements with collaborative partners or others that may require the Company to relinquish rights to certain of its technologies or product candidates. DEPENDENCE ON COLLABORATIVE RELATIONSHIPS. The Company has established collaborative arrangements with various pharmaceutical companies with respect to the discovery and development of drugs for various disease targets. The Company will be dependent upon these outside partners to conduct preclinical testing and clinical trials and to provide adequate funding for the Company's development programs. Under certain of these arrangements, the Company's commercial partners may have all or a significant portion of the development and regulatory approval responsibilities. Failure of the commercial partners to develop marketable products or to gain the appropriate regulatory approvals would have a material adverse effect on the Company's business, financial condition and results of operations. In most cases, the Company cannot control the amount and timing of resources its commercial partners devote to the Company's programs or potential products. If any of the Company's commercial partners were to breach or terminate its agreements with the Company or otherwise fail to conduct its collaborative activities in a timely manner, the preclinical or clinical development or commercialization of product candidates or research programs would be delayed, and the Company would be required to devote additional resources to product development and commercialization, or terminate certain development programs. The termination of collaborative arrangements would have a material adverse effect on the Company's business, financial condition and results of operations. There can be no assurance that disputes will not arise in the future with respect to the ownership of rights to any technology developed with third parties. These and other possible disagreements between collaborators and the Company could lead to delays in the result in the collaborative research, development or commercialization of certain product candidates or could require or result in litigation or arbitration, which would be time-consuming and expensive, and would have a material adverse effect on the Company's business, financial condition and results of operations. NO ASSURANCE OF PROTECTION OF IMPORTANT PATENTS AND PROPRIETARY TECHNOLOGY. The Company's success depends in part on its ability to obtain patents, maintain trade secret protection and operate without infringing on the proprietary rights of third parties. The Company has filed or acquired more than 95 applications for United States patents and over 110 applications for foreign patents. The Company currently owns 17 issued United States patents and 23 granted foreign patents. There can be no assurance that any of the Company's pending patent applications will be approved, that the Company will develop additional proprietary technologies that are patentable, that any patents issued to the Company or its licensors will provide a basis for commercially viable products or will provide the Company with any competitive advantages or will not be challenged by third parties, or that the patents of others will not have an adverse effect on the ability of the Company to do business. In addition, patent law relating to the scope of claims in which the technology fields in which the Company operates is still evolving. Consequently, the degree of future protection for the Company's proprietary rights is uncertain. Furthermore, there can be no assurance that others will not independently develop similar or alternative technologies, duplicate any of the Company's technologies, or, if patents are issued to the Company, design around the patented technologies developed by the Company. In addition, the Company could A-4 10 incur substantial costs in litigation if it is required to defend itself in patent suits brought by third parties or if it initiates such suits. The Company is aware of patent applications filed by, or patents issued to, other entities with respect to technology potentially useful to the Company and, in some cases, related to the products and processes being used or developed by the Company. The Company currently cannot assess the effect, if any, that these applications and/or patents may have on its future operations. The extent to which efforts by other researchers have resulted or will result in patents and the extent to which the issuance of patents to others would have a material adverse effect on the Company or would force the Company to obtain licenses from others, if available, currently is unknown. The Company is aware of several patents and patent applications owned by others who may allege infringement by the Company with respect to products the Company is seeking to develop. Although the Company does not believe that its operations or technology infringes upon any valid claim contained in any patent owned by any other person, there can be no assurance that the Company's operations or technology will not infringe upon the rights of any third party. The Company relies on secrecy to protect technology where patent protection is not believed to be appropriate or obtainable. The Company has entered, and will continue to enter, into confidentiality agreements with its employees, consultants, licensors and collaborative partners. There can be no assurance, however, that others will not independently develop substantially equivalent proprietary information and techniques or otherwise gain access to the Company's trade secrets, that such obligations of confidentiality will be honored or that the Company will be able to effectively protect its rights to proprietary information. GOVERNMENT REGULATION; NO ASSURANCE OF REGULATORY APPROVAL. The Company's research, preclinical testing and clinical trials of its product candidates are, and the manufacturing and marketing of its products will be, subject to extensive and rigorous regulation by numerous governmental authorities in the United States and in other countries where the Company intends to test and market its product candidates. Prior to marketing, any product developed by the Company must undergo an extensive regulatory approval process. This regulatory process, which includes preclinical testing and clinical trials, and may include post-marketing surveillance, of each compound to establish its safety and efficacy, can take many years and require the expenditure of substantial resources. Data obtained from preclinical and clinical activities are susceptible to varying interpretations which could delay, limit or prevent regulatory approval. In addition, delays or rejections may be encountered based upon changes in FDA policy for drug approval during the period of product development and FDA regulatory review of each submitted new drug application ("NDA"). Similar delays may also be encountered in foreign countries. There can be no assurance that regulatory approval will be obtained for any drugs developed by the Company. Moreover, regulatory approval may entail limitations on the indicated use of the drug. Further, even if regulatory approval is obtained, a marketed drug and its manufacturer are subject to continuing review. Discovery of previously unknown problems with a product or manufacturer may have adverse effects on the Company's business, financial condition and results of operations, including withdrawal of the product from the market. Violations of regulatory requirements at any stage,including preclinical testing and clinical trials, the approval process or post-approval, may result in various adverse consequences including the FDA's delay in approving or its refusal to approve a product, withdrawal of an approved product from the market and the imposition of criminal penalties against the manufacturer and NDA holder. The A-5 11 Company has not submitted any Investigational New Drug application for any product candidate, and no product candidate has been approved for commercialization in the United States or elsewhere. No assurance can be given that the Company will be able to obtain FDA approval for any products. Failure to obtain requisite governmental approvals or failure to obtain approvals of the scope requested will delay or preclude the Company or its licensees or marketing partners from marketing the Company's products or limit the commercial use of the products and will have a material adverse effect on the Company's business, financial condition and results of operations. COMPETITION AND RISK OF TECHNOLOGICAL OBSOLESCENCE. The Company operates in a rapidly evolving field. New developments are expected to continue at a rapid pace in both industry and in academia. Competition in technology development from large pharmaceutical companies, biotechnology companies, joint ventures, research and academic institutions and others is intense and expected to increase. Many of these companies and institutions have substantially greater capital resources, research and development staffs, experience and facilities than the Company. These entities represent significant long-term competition for the Company. In addition, the Company's competitors might succeed in developing technologies that are more effective than those that are being developed by the Company or that otherwise would render the Company's technologies obsolete or noncompetitive. UNCERTAINTIES RELATED TO PHARMACEUTICAL PRICING AND REIMBURSEMENT. The Company's business, financial condition and results of operations may be materially adversely affected by the continuing efforts of government and third-party payors to contain or reduce the costs of health care through various means. For example, in certain foreign markets, pricing and/or profitability of prescription pharmaceuticals are subject to government control. In the United States, the Company expects that there will continue to be a number of federal and state proposals to implement similar government control. In addition, increasing emphasis on managed care in the United States will continue to put pressure on pharmaceutical pricing. Cost control initiatives could decrease the price that the Company or any of its licensees receives for any products it may develop and sell in the future and have a material adverse effect on the Company's business, financial condition and results of operations. Further, to the extent that cost control initiatives have a material adverse effect on the Company's commercial partners, the Company's ability to commercialize its products may be adversely affected. The Company's ability to commercialize pharmaceutical products may depend in part on the extent to which reimbursement for the products will be available from government and health administration authorities, private health insurers and other third-party payors. Significant uncertainty exists as to the reimbursement status of newly approved health care products, and third-party payors, including Medicare, are increasingly challenging the prices charged for medical products and services. There can be no assurance that any third-party insurance coverage will be available to patients for any products developed by the Company. Government and other third-party payors are increasingly attempting to contain health care costs by limiting both coverage and the level of reimbursement for new therapeutic products and by refusing in some cases to provide coverage for uses of approved products for disease indications for which the FDA has not granted labeling approval. If adequate coverage and reimbursement levels are not provided by government and other third-party payors for the Company's products, the market acceptance of these products would be adversely affected. NO MANUFACTURING EXPERIENCE; RELIANCE ON THIRD-PARTY MANUFACTURING. The Company's strategy for development and commercialization of certain of its products is dependent upon entering into various arrangements with research collaborators, commercial partners and others and upon the subsequent success of these third parties in performing their obligations. A-6 12 The Company has no experience in manufacturing products for commercial purposes and does not have manufacturing facilities. Consequently, the Company will be dependent on its commercial partners or contract manufacturers for the production of products for development and commercial purposes. The manufacture of the Company's products for clinical trials and commercial purposes is subject to current Good Manufacturing Practice ("GMP") regulations promulgated by the FDA. In the event that the Company is unable to obtain or retain third-party manufacturing, it will not be able to commercialize its products as planned. There can be no assurance that the Company will be able to enter into agreements for the manufacture of future products with manufacturers whose facilities and procedures comply with GMP and other regulatory requirements. The Company's current dependence upon others for the manufacture of its products may adversely affect its profit martin, if any, on the sale of future products and the Company's ability to develop and deliver products on a timely and competitive basis. POTENTIAL PRODUCT LIABILITY; UNCERTAINTIES RELATED TO INSURANCE. The use of any of the Company's potential products in clinical trials and the sale of any approved products, including the testing and commercialization of pimagedine, may expose the Company to liability claims resulting from the use of products or product candidates. These claims might be made directly by consumers, pharmaceutical companies or others. The Company maintains a limited amount of product liability insurance coverage for claims arising from the use of its products in clinical trials. However, coverage is becoming increasingly expensive, and no assurance can be given that the Company will be able to maintain insurance or, if maintained, that it will be sufficient to protect the Company against liability that could have a material adverse effect on the Company's business, financial conditions and results of operations. There can be no assurance that the Company will be able to obtain commercially reasonable product liability insurance for any product approved for marketing in the future or that insurance coverage and the resources of the Company would be sufficient to satisfy any liability resulting from product liability claims. A successful product liability claim or series of claims brought against the Company could have a material adverse effect on its business, financial condition and results of operations. ATTRACTION AND RETENTION OF KEY EMPLOYEES AND CONSULTANTS. The Company is highly dependent on the principal members of its management and scientific staff. The loss of services of any of these personnel could impede the achievement of the Company's development objectives. Furthermore, recruiting and retaining qualified scientific personnel to perform research and development work in the future will also be critical to the Company's success. There can be no assurance that the Company will be able to attract and retain personnel on acceptable terms given the competition between pharmaceutical and health care companies, universities and nonprofit research institutions for experienced scientists. In addition, the Company relies on consultants to assist the Company in formulating its research and development strategy. All of Oncogene Science's consultants are employed by employers other than the Company and may have commitments to or consulting or advisory contracts with other entities that may limit their availability to the Company. RISK OF HAZARDOUS MATERIAL CONTAMINATION. The activities of the Company involve and will involve the controlled use of hazardous materials. Although the Company believes that its safety procedures for handling and disposing of such materials comply with the standards prescribed by state and federal laws and regulations, the risk of accidental contamination or injury from these materials cannot be completely eliminated. In the event of such an accident, the Company could be held liable for damages that result, and any such liability could exceed its resources or otherwise have a material adverse impact on the Company. A-7 13 IMPACT OF "IN-THE-MONEY" OPTIONS AND WARRANTS. The Company currently has outstanding, and may in the future issue, options and warrants to purchase shares of the Company's Common Stock. To the extent such options and warrants are in-the-money relative to the price of the Company's Common Stock as quoted on the NMS, the exercise of such options and warrants may have the effect of depressing the market price of the Company's Common Stock and reducing its liquidity. In addition, the existence of options and warrants that may be exercised for shares of the Company's Common Stock at less than its then current market value may make it more difficult or expensive for the Company to obtain equity capital in the future. VOLATILITY OF COMMON STOCK PRICE; MARKET FOR THE COMMON STOCK; NO DIVIDENDS. The market prices for securities of biotechnology and pharmaceutical companies, including Oncogene Science, have historically been highly volatile, and the market has from time to time experienced significant price and volume fluctuations that are unrelated to the operating performance of particular companies. Factors such as fluctuations in the Company's operating results, announcements of technological innovations or new therapeutic products by the Company or others, clinical trial results, developments concerning agreements with collaborators, governmental regulation, developments in patent or other proprietary rights, public concern as to the safety of drugs developed by the Company or others, future sales of substantial amounts of Common Stock by existing stockholders and general market conditions can have an adverse effect on the market price of the Common Stock. The realization of any of the risks described in these "Risk Factors" could have a dramatic and adverse impact on market prices. The Company has not paid any cash dividends on its Common Stock and does not anticipate paying any such dividends. USE OF PROCEEDS The Company will not receive any proceeds from the sale of the securities covered by this Prospectus. SELLING STOCKHOLDERS This Prospectus relates to the Shares that may be acquired by the Selling Stockholders pursuant to the exercise of options that have been, or may be in the future, granted pursuant to the Option Plans. The following table sets forth certain information with respect to Selling Stockholders who currently hold options to purchase Shares. The Company is unaware of whether the Selling Stockholders listed below presently intend to sell the Shares they may acquire upon exercise of options. The Company in the future may grant additional options to the persons listed below and to persons other than those listed below whose subsequent sale of Shares will be covered by this Prospectus, which, in such case, will be supplemented. A-8 14
Number of Shares (and Percentage of Number of Shares Number of Shares Offered Outstanding Shares) Beneficially Owned for Selling Beneficially Owned Name and Prior to this Stockholder's After Completion of Position with the Company Offering(1) Account(2) this Offering (3) ------------------------- ---------------------- ------------------------ ---------------------- G. Morgan Browne 60,116(4) 57,500(2) 42,150(*)(4) Director J. Gordon Foulkes, Ph.D. 111,889(5) 161,500 None Vice President, Chief Scientific Officer and Director Gary E. Frashier 192,270(6) 250,000 8,934(*) Chief Executive Officer and Director John H. French II 40,489(7) 63,000(2) 6,500(*) Director Edwin A. Gee, Ph.D. 117,966(5) 157,000(2) None Chairman of the Board and Director Colin Goddard 31,681(8) 93,000 800(*) Vice President, Pharmaceutical Operations Walter M. Lovenberg, Ph.D. 53,000(9) 70,000(2) 1,000(*) Director Steve M. Peltzman 113,844(10) 212,500 14,599(*) President, Chief Operating Officer and Director Ann H. Rose, Ph.D. 24,625(5) 70,000 None Vice President, TGF-Beta3 Program and Regulatory Affairs Robert L.Van Nostrand, 53,053(11) 70,000 450(*) Vice President, Finance and Administration
A-9 15 - ------------------- * Denotes less than 1% of class. (1) The number of shares of Common Stock beneficially owned by any Selling Stockholder includes shares subject to options or warrants held by the Selling Stockholder that are exercisable within 60 days of the date of this Prospectus. (2) Represents shares of Common Stock that may be acquired through the exercise of options granted pursuant to the Option Plans, without regard to whether such options are, or when they become, exercisable. For each of Messrs. Browne and French and Drs. Gee and Lovenberg, this number includes 20,000 shares subject to options granted contingent upon approval by the Company's stockholders at the 1996 annual meeting of stockholders of an amendment to the 1993 Incentive and Non-Qualified Stock Option Plan. (3) Computed in each case by assuming that all options (without regard to when such options become exercisable) granted to the Selling Stockholder under the Option Plans have been exercised and that the Shares acquired in connection with such exercise were disposed of by the Selling Stockholder. For purposes of computing the percentage of the Company's Common Stock owned by the Selling Stockholder after completion of this offering, it is assumed that the total number of shares of the Company's outstanding Common Stock includes such Shares. (4) Includes 400 shares owned by Mr. Browne's wife as to which Mr. Browne disclaims beneficial ownership. Includes (only as to the number of shares reflected as beneficially owned prior to this offering) 17,966 shares that may be acquired at or within 60 days of November 30, 1995 pursuant to the exercise of outstanding options. Also includes 21,750 shares owned by Cold Spring Harbor Laboratory, of which Mr. Browne is an executive officer. Mr. Browne disclaims beneficial ownership of the shares owned by Cold Spring Harbor Laboratory. (5) Consists entirely of shares that may be acquired at or within 60 days of November 30, 1995 pursuant to the exercise of outstanding options. (6) Includes (only as to the number of shares reflected as beneficially owned prior to this offering) 183,336 shares that may be acquired at or within 60 days of November 30, 1995 pursuant to the exercise of outstanding options. (7) Includes 33,989 shares that may be acquired at or within 60 days of November 30, 1995 pursuant to the exercise of outstanding options. (8) Includes 30,881 shares that may be acquired at or within 60 days of November 30, 1995 pursuant to the exercise of outstanding options. (9) Includes 52,000 shares that may be acquired at or within 60 days of November 30, 1995 pursuant to the exercise of outstanding options. (10) Includes 99,245 shares that may be acquired at or within 60 days of November 30, 1995 pursuant to the exercise of outstanding options. (11) Includes 52,603 shares that may be acquired at or within 60 days of November 30, 1995 pursuant to the exercise of outstanding options. PLAN OF DISTRIBUTION The Shares of Common Stock covered by this Prospectus are being registered by the Company for the account of the Selling Stockholders. The Company will pay all expenses of registering the Shares, but will not receive any of the proceeds from sales by any of the Selling Stockholders. The Company understands that none of such Shares will be offered through underwriters. The Shares may be sold from time to time by the Selling Stockholders either through one or more brokers or dealers, through privately negotiated transactions or otherwise, at market prices prevailing at the time of sale or at prices otherwise negotiated. In connection therewith, the Selling Stockholders and participating brokers or dealers may be deemed to be "underwriters" within the meaning of the Securities Act, and commissions or discounts or any profit realized on the sale of Shares received by a Selling Stockholder or any such broker or dealer may be deemed to be underwriting commissions or discounts within the meaning of the Securities Act. As of the date of this Prospectus, the Company understands A-10 16 that none of the Selling Stockholders has any agreement, arrangement or understanding with any brokers or dealers concerning the distribution of Shares. DOCUMENTS INCORPORATED BY REFERENCE Incorporated herein by reference and made a part hereof are: (1) the description of the Company's Common Stock contained in the registration statement filed by the Company to register such securities under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description, (2) the Company's Annual Report on Form 10-K for the year ended September 30, 1994, (3) the Company's Quarterly Reports on Form 10-Q for the quarters ended December 31, 1994, and March 31 and June 30, 1995, and (4) the Company's Current Reports on Form 8-K dated April 19, 1995 and August 2, 1995, which documents are on file with the Commission. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing such documents. INDEMNIFICATION Under the provisions of Article Six of the Company's By-laws, the Company is required to indemnify, to the fullest extent permitted by applicable law as it presently exists or hereafter may be amended, any person who was or is made or is threatened to be made a party to, or is otherwise involved in, any action, suit or other proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the Company, against all liability and loss suffered and expenses incurred by such person. The Company is required to indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Company. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. A-11 17 ================================================== TABLE OF CONTENTS Page ---- Available Information . . . . . . . . . . . . A-2 Risk Factors . . . . . . . . . . . . . . . . A-2 Use of Proceeds . . . . . . . . . . . . . . . A-8 Selling Stockholders . . . . . . . . . . . . A-8 Plan of Distribution . . . . . . . . . . . . A-10 Documents Incorporated by Reference . . . . . A-11 Indemnification . . . . . . . . . . . . . . . A-11 ------------------ No dealer, salesman or any other person has been authorized to give any information or to make any representation other than those contained in this Prospectus in connection with the offer contained in this Prospectus, and, if given or made, such information or representation must not be relied upon. 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 affairs of the Company since the date hereof or that the information contained or incorporated by reference herein is correct as of any time subsequent to its date. This Prospectus does not constitute an offer or a solicitation by anyone in any jurisdiction in which such offer or solicitation is not authorized, or in which the person making such offer or solicitation is not qualified to do so, or to anyone to whom it is unlawful to make such offer or solicitation. ================================================== ================================================== ONCOGENE SCIENCE, INC. --------------------- 1,204,500 Shares Common Stock --------------------- PROSPECTUS December 4, 1995 ================================================== A-12 18 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, thereunder duly authorized, in the City of Uniondale, State of New York, on December 1, 1995. ONCOGENE SCIENCE, INC. By: /s/ Gary E. Frashier --------------------- Gary E. Frashier, Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby makes, constitutes and appoints Gary E. Frashier and Robert L. Van Nostrand, and each of them, with full power to act without the other, his true and lawful attorney-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 and 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 or necessary to be done in connection therewith, 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 of them, or any substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Gary E. Frashier Chief Executive Officer December 1, 1995 --------------------------------- and Director Gary E. Frashier /s/ Steve M. Peltzman President, Chief Operating Officer and December 1, 1995 -------------------------------- Director Steve M. Peltzman /s/ J. Gordon Foulkes Vice President, Chief Scientific December 1, 1995 --------------------------------- Officer and Director J. Gordon Foulkes
II-1 19 /s/ Robert L. Van Nostrand Vice President, Finance and December 1, 1995 ------------------------------ Administration (Principal Financial Robert L. Van Nostrand and Accounting Officer) /s/ G. Morgan Browne Director December 1, 1995 ------------------------------ G. Morgan Browne /s/ John H. French, II Director December 1, 1995 --------------------------------- John H. French, II /s/ Edwin A. Gee, Ph.D. Director December 1, 1995 ------------------------------ Edwin A. Gee, Ph.D. /s/ Walter M. Lovenberg, Ph.D. Director December 1, 1995 ------------------------------ Walter M. Lovenberg, Ph.D. /s/ Walter M. Miller Director December 1, 1995 ----------------------------------- Walter M. Miller /s/ Gary Takata Director December 1, 1995 ----------------------------------- Gary Takata /s/ John P. White Director December 1, 1995 ----------------------------------- John P. White
II-2 20 EXHIBIT INDEX
EXHIBIT NO. EXHIBIT ----------- ------- 5 Opinion of Saul, Ewing, Remick & Saul. 10 1993 Incentive and Non-Qualified Stock Option Plan. 23.1 Consent of KPMG Peat Marwick LLP, independent public accountants. 23.2 Consent of Saul, Ewing, Remick & Saul (Contained in Exhibit No. 5). 24 Power of Attorney authorizing Gary E. Frashier and Robert L. Van Nostrand to sign the Registration Statement (included in signature page of the Registration Statement).
II-3 EX-5 2 OPINION OF SAUL, EWING, REMICK & SAUL 1 EXHIBIT 5 LAW OFFICES OF SAUL, EWING, REMICK & SAUL HARRISBURG, PENNSYLVANIA 3800 CENTRE SQUARE WEST PRINCETON, NEW JERSEY MALVERN, PENNSYLVANIA PHILADELPHIA, PA 19102 WESTMONT, NEW JERSEY NEW YORK, NEW YORK WILMINGTON, DELAWARE (215) 972-7777 Fax: (215) 972-7725 Internet Email: lawyers@saul.com World Wide Web: http://www.saul.com December 1, 1995 Oncogene Science, Inc. 106 Charles Lindbergh Blvd. Uniondale, NY 11553 Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") of Oncogene Science, Inc., a Delaware corporation (the "Company"), to be filed with the Securities and Exchange Commission covering the registration under the Securities Act of 1933, as amended (the "Securities Act"), of 1,600,000 shares of common stock, par value $.01 per share, of the Company (the "Shares"). We have examined the Registration Statement, the Certificate of Incorporation and By-laws of the Company and such records, certificates and other documents as we have considered necessary or appropriate for the purposes of this Opinion. Based on the foregoing, it is our opinion that: 1. the Company is duly organized, validly existing and in good standing under the laws of State of Delaware; and 2. the Shares to be issued in accordance with the terms described in the Registration Statement have been duly authorized and, when issued in accordance with the terms described in the Registration Statement, will be validly issued, fully paid and non-assessable. We hereby consent to use of our name in the Registration Statement as counsel who will pass upon the legality of the Shares for the Company and as having prepared this Opinion as an exhibit to the Registration Statement. In giving the foregoing consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, SAUL, EWING, REMICK & SAUL EX-10 3 1993 INCENTIVE AND NON-QULIFIED STOCK OPTION PLAN 1 EXHIBIT 10 ONCOGENE SCIENCE, INC. 1993 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN 1. Purpose The purpose of this 1993 Incentive and Non-Qualified Stock Option Plan (the "Plan" is to encourage and enable selected management, other key employees, directors (whether or not employees), and consultants of Oncogene Science, Inc. (the "Company") or a parent or subsidiary, of the Company to acquire a proprietary interest in the Company through the ownership of common stock, par value $.01 per share (the "Common Stock"), of the Company. Such ownership will provide such employees with a more direct stake in the future welfare of the Company, and encourage them to remain with the Company or a parent or subsidiary of the Company. It is also expected that the Plan will encourage qualified persons to seek and accept employment with the Company or a parent or subsidiary of the Company. Pursuant to the Plan, such employees will be offered the opportunity to acquire Common Stock through the grant of incentive stock options and "non-qualified" stock options. As used herein, the term "parent" or "subsidiary" shall mean any present or future corporation which is or would be a "parent corporation" or "subsidiary corporation" of the Company as the term is defined in Section 425 of the Internal Revenue Code of 1986, as amended (the "Code") (determined as if the Company were the employer corporation). 2. Administration of the Plan The Plan shall be administered by a Stock Option Committee (the "Committee") as appointed from time to time by the Board of Directors of the Company, which committee shall consist of not less than three members of the Board of Directors and each member of which shall be a "disinterested person," within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any successor rule or regulation ("Rule 16b-3"). Except as otherwise specifically provided herein, no person, other than members of the Committee, shall have any discretion as to decisions regarding the Plan. In administering the Plan, the Committee may adopt rules and regulations for carrying out the Plan. The interpretation and decision made by the Committee with regard to any question arising under the Plan shall be final and conclusive on all persons participating or eligible to participate in the Plan. Subject to the provisions of the Plan, the Committee shall determine the terms of all options granted pursuant to the Plan, including, but not limited to, the persons to whom, and the time or times at which, grants shall be made, the number of options to be included in the grants, the number of options which shall be treated as incentive stock options, and the option price. 3. Shares of Stock Subject to the Plan Except as provided in subparagraph 6 (h) and 6 (i) and paragraph 7, the number of shares that may be issued or transferred pursuant to the exercise of options granted under the Plan shall not exceed 1,600,000 shares of Common Stock. Such shares may be authorized and unissued shares or previously issued shares acquired or to be acquired by the Company and held in treasury. Any shares subject to an option which for any reason expires or is terminated unexercised as to such shares may again be subject to an option right under the Plan. The aggregate Fair Market Value (determined at the time the option is 2 granted) of the stock with respect to which incentive stock options are exercisable for the first time by an optionee during any calendar year (under the Plan and all plans of the Company and any parent and subsidiary of the Company) shall not exceed $100,000. 4. Eligibility Incentive stock options may be granted only to management and other key employees who are employed by the Company or a parent or subsidiary of the Company. An incentive stock option may be granted to a director of the Company or a parent or subsidiary of the Company, provided that the director is also an officer or key employee. Directors who are not officers or key employees, and consultants, may only be granted non-qualified stock options. 5. Granting of Options No options pursuant to this Plan may be granted after the expiration on January 14, 2003. The date of the grant of any option shall be the date on which the Committee authorizes the grant of such option. 6. Options Options shall be evidenced by stock option agreements in such form, not inconsistent with this Plan, as the Committee shall approve from time to time, which agreements need not be identical and shall be subject to the following terms and conditions: (a) Option Price. The purchase price under each incentive stock option shall be not less than 100% of the Fair Market Value of the Common Stock at the time the option is granted and not less than the par value of such Common Stock. In the case of an incentive stock option granted to an employee owning more than 10% of the total combined voting power of all classes of stock of the Company or of any parent or subsidiary of the Company (a "10% Stockholder"), actually or constructively under Section 425(d) of the Code, the option price shall not be less than 110% of the Fair Market Value of the Common Stock subject to the option at the time of its grant. The purchase price under each non-qualified stock option shall be specified by the Committee, but shall in no case be less than the greater of 50% of the Fair Market Value of the Common Stock at the time the option is granted and the par value of such Common Stock. The Fair Market Value of the Common Stock on any date shall be determined in a manner consistent with the requirements of the Code. (b) Medium and Time of Payment. Stock purchased pursuant to the exercise of an option shall at the time of purchase be paid for in full in cash, or, upon conditions established by the Committee, by delivery of shares of Common Stock owned by the recipient. If payment is made by the delivery of shares, the value of the shares delivered shall be the Fair Market Value of such shares on the date of exercise of the respective option. Upon receipt of payment and such documentation as the Company may deem necessary to establish compliance with the Securities Act of 1933, as amended (the "Securities Act"), the Company shall, without stock transfer tax to the optionee or other person entitled to exercise the option, deliver to the person exercising the option a -2- 3 certificate or certificates for such shares. It shall be a condition to the performance of the Company's obligation to issue or transfer Common Stock upon exercise of an option or options that the optionee pay, or make provision satisfactory to the Company for the payment of, any taxes (other than stock transfer taxes) which the Company is obligated to collect with respect to the issue or transfer of Common Stock upon such exercise, including any federal, state, or local withholding taxes. (c) Waiting Period. The waiting period and time for exercising an option shall be prescribed by the Committee in each particular case; provided, however, that no option may be exercised after 10 years from the date it is granted. In the case of an incentive stock option granted to a 10% Stockholder, such option, by its terms, shall be exercisable only within five years from the date of grant. (d) Rights to a Stockholder. A recipient of options shall have no rights as a stockholder with respect to any shares issuable or transferable upon exercise thereof until the date a stock certificate is issued to him for such shares. Except as otherwise expressly provided in the Plan, no adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued. (e) Non-Assignability of Options. No option shall be assignable or transferable by the recipient except by will or by the laws of descent and distribution. During the lifetime of a recipient, options shall be exercisable only by him. (f) Effect of Termination of Employment. If a recipient's employment (or service as an officer, director or consultant) shall terminate for any reason, other than death or Retirement, the right of the recipient to exercise any option otherwise exercisable on the date of such termination shall expire unless such right is exercised within a period of 90 days after the date of such termination. The term "Retirement" shall mean the voluntary termination of employment (or service as an officer, director or consultant) by a recipient who has attained the age of 55 and who has at least five years' service with the Company. If a recipient's employment (or service as an officer, director or consultant) shall terminate because of death or Retirement, the right of the recipient to exercise any option otherwise exercisable on the date of such termination shall be unaffected by such termination and shall continue until the normal expiration of such option. option rights shall not be affected by any change of employment as long as the recipient continues to be employed by either the Company or a parent or subsidiary of the Company. In no event, however, shall an option be exercisable after the expiration of its original term as determined by the Committee pursuant to subparagraph 6(c) above. The Committee may, if it determines that to do so would be in the Company's best interests, provide in a specific case or cases for the exercise of options which would otherwise terminate upon termination of employment with the Company for any reason, upon such terms and conditions as the Committee determines to be appropriate. Nothing in the Plan or in any option agreement shall confer any right to continue in the employ of the Company or any parent or subsidiary of the Company or interfere in any way with the right of the Company or any parent or subsidiary of the Company to terminate the employment of a recipient at any time. -3- 4 (g) Leave of Absence. In the case of a recipient on an approved leave of absence, the Committee may, if it determines that to do so would be in the best interests of the Company, provide in a specific case for continuation of options during such leave of absence, such continuation to be on such terms and conditions as the Committee determines to be appropriate, except that in no event shall an option be exercisable after 10 years from the date it is granted. (h) Recapitalization. In the event that dividends payable in Common Stock during any fiscal year of the Company exceed in the aggregate five percent of the Common Stock issued and outstanding at the beginning of the year, or in the event there is during any fiscal year of the Company one or more splits, subdivisions, or combinations of shares of Common Stock resulting in an increase or decrease by more than five percent of the shares outstanding at the beginning of the year, the number of shares available under the Plan shall be increased or decreased proportionately, as the case may be, and the number of shares deliverable upon the exercise thereafter of any options theretofore granted shall be increased or decreased proportionately, as the case may be, without change in the aggregate purchase price. Common Stock dividends, splits, subdivisions, or combinations during any fiscal year which do not exceed in the aggregate five percent of the Common Stock issued and outstanding at the beginning of such year shall be ignored for purposes of the Plan. All adjustments shall be made as of the day such action necessitating such adjustment becomes effective. (i) Sale or Reorganization. In case the Company is merged or consolidated with another corporation, or in case the property of stock of the Company is acquired by another corporation, or in case of a separation, reorganization, or liquidation of the Company, the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company hereunder, shall either (i) make appropriate provisions for the protection of any outstanding options by the substitution on an equitable basis of appropriate stock of the Company, or appropriate stock of the merged, consolidated, or otherwise reorganized corporation, provided only that such substitution of options shall comply with the requirements of Section 425 of the Code, or (ii) give written notice to optionees that their options, which will become immediately exercisable notwithstanding any waiting period otherwise prescribed by the Committee, must be exercised within 30 days of the date of such notice or they will be terminated. (j) General Restrictions. Each option granted under the Plan shall be subject to the requirement that, if at any time the Board of Directors shall determine, in its discretion, that the listing, registration, or qualification of the shares issuable or transferable upon exercise thereof upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the granting of such option or the issue, transfer, or purchase of shares thereunder, such option may not be exercised in whole or in part unless such listing, registration, qualification, consent, or approval shall have been effected or obtained free of any conditions not acceptable to the Board of Directors. -4- 5 The Company shall not be obligated to sell or issue any shares of Common Stock in any manner in contravention of the Securities Act or any state securities law. The Board of Directors may, in connection with the granting of each option, require the individual to whom the option is to be granted to enter into an agreement with the Company stating that as a condition precedent to each exercise of the option, in whole or in part, he shall, if then required by the Company, represent to the Company in writing that such exercise is for investment only and not with a view to distribution, and also setting forth such other terms and conditions as the Committee may prescribe. Such agreements may also, in the discretion of the Committee, contain provisions requiring the forfeiture of any options granted and/or Common Stock held, in the event of the termination of employment or association, as the case may be, of the optionee with the Company. Upon any forfeiture of Common Stock pursuant to an agreement authorized by the preceding sentence, the Company shall pay consideration for such Common Stock to the optionee, pursuant to any such agreement, without interest thereon. "Fair Market Value" for all purposes under the Plan shall mean the closing price of shares, as reported in The Wall Street Journal, in the NASDAQ National Market Issues or similar successor consolidated transactions reports (or a similar consolidated transactions report for the exchange on which the shares are then trading) for the relevant date, or if no sales of shares were made on such date, the average of the high and low prices of shares as reported in such composite transaction report for the preceding day on which sales of shares were made. If the shares are not listed on a national securities exchange or the NASDAQ National Market System at the time Fair Market Value is to be determined, then Fair Market Value shall be determined by the Committee in good faith pursuant to such method as to the Committee deems appropriate and equitable. Under no circumstances shall the Fair Market Value of a Share be less than its par value. 7. Termination and Amendment of the Plan The Board of Directors shall have the right to amend, suspend, or terminate the Plan at any time; provided, however, that no such action shall affect or in any way impair the rights of a recipient under any option right theretofore granted under the Plan; and, provided, further, that unless first duly approved by the stockholders of the Company entitled to vote thereon at a meeting (which may be the annual meeting) duly called and held for such purpose, except as provided in subparagraphs 6(h) and 6(i), no amendment or change shall be made in the Plan: (a) increasing the total number of shares which may be issued or transferred under the Plan; (b) changing the purchase price hereinbefore specified for the shares subject to options; (c) extending the period during which options may be granted or exercised under the Plan; or (d) changing the designation of persons eligible to receive options under the Plan. 8. Restriction of Sale of Shares Without the written consent of the Company, no stock acquired by an optionee upon exercise of an incentive stock option granted hereunder may be disposed of by the optionee within two years from the date such incentive stock option was granted, nor within one year after the transfer of such stock to the optionee; provided, however, that a transfer to a trustee, receiver, or other fiduciary in any insolvency proceeding, as described in Section 422A(c)(3) of the Code, shall not be deemed to be such a disposition. The optionee shall make appropriate arrangements with the Company for any taxes which the Company is obligated to collect in connection with any such disposition, including any federal, state, or local withholding taxes. -5- 6 9. Effective Date of the Plan This Plan shall become effective January 15, 1993, the date of its adoption by the favorable vote of the majority of the Board of Directors of the Company, subject, however, to approval by the stockholders of the Company within 12 months next following such adoption by the Board of Directors; and if such approval is not obtained, the Plan shall terminate and any and all options granted during such interim period shall also terminate and be of no further force or effect. The Plan shall, in all events, terminate on January 14, 2003, or on such earlier date as the Board of Directors of the Company may determine. Any option outstanding at the termination date shall remain outstanding until it has either expired of has been exercised. 10. Compliance with Rule 16b-3 With respect to persons subject to Section 16 of the Exchange Act, transactions under this Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successors. To the extent any provision of the Plan or action by the Committee (or any other person on behalf of the Committee or the Company) fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Committee. -6- EX-23.1 4 CONSENT OF KPMG PEAT MARWICK 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Oncogene Science, Inc.: We consent to incorporation by reference in the registration statement dated December 1, 1995 on Form S-8 of Oncogene Science, Inc. of our reports dated December 9, 1994, relating to the consolidated balance sheets of Oncogene Science, Inc. and subsidiaries as of September 30, 1994 and 1993, and the related consolidated statements of operations, stockholders' equity and cash flows, and the related schedules for each of the years in the three-year period ended September 30, 1994, which reports appear in the September 30, 1994 annual report on Form 10-K of Oncogene Science, Inc. KPMG PEAT MARWICK LLP Jericho, New York November 29, 1995 -----END PRIVACY-ENHANCED MESSAGE-----