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0000949699-02-000004.txt : 20020414
0000949699-02-000004.hdr.sgml : 20020414
ACCESSION NUMBER: 0000949699-02-000004
CONFORMED SUBMISSION TYPE: S-8 POS
PUBLIC DOCUMENT COUNT: 3
FILED AS OF DATE: 20020206
EFFECTIVENESS DATE: 20020206
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PHARMACYCLICS INC
CENTRAL INDEX KEY: 0000949699
STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834]
IRS NUMBER: 943148201
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0630
FILING VALUES:
FORM TYPE: S-8 POS
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-81870
FILM NUMBER: 02528924
BUSINESS ADDRESS:
STREET 1: 995 EAST ARQUES AVE
CITY: SUNNYVALE
STATE: CA
ZIP: 94085
BUSINESS PHONE: 4087740330
MAIL ADDRESS:
STREET 1: 995 EAST ARQUES AVENUE
CITY: SUNNYVALE
STATE: CA
ZIP: 94085
S-8 POS
1
s8posbdy.htm
FORM S-8 POS
02062002 S8 POS DOC
As filed with the Securities and Exchange Commission on February 6, 2002
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 POS
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8 REGISTRATION STATEMENT
Under
The Securities Act of 1933
PHARMACYCLICS, INC.
(Exact name of registrant as specified in its charter)
Delaware
|
94-3148201
|
(State or other jurisdiction of incorporation or organization)
|
(IRS Employer Identification No.)
|
995 East Arques Avenue
Sunnyvale, California 94085-4521
(Address of principal executive offices, including zip code)
PHARMACYCLICS, INC.
1995 STOCK OPTION PLAN
(Full title of the Plan)
Cynthia J. Ladd, Esq.
Senior Vice President and General Counsel
Pharmacyclics, Inc.
995 East Arques Avenue, Sunnyvale, CA 94085-4521
(Name and address of agent for service)
(408) 774-0330
(Telephone number, including area code, of agent for service)
This Registration Statement shall become effective immediately upon filing
with the Securities and Exchange Commission and sales of the
registered securities will begin as soon as reasonably
practicable after such effective date.
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
Amount to be
Registered(1) |
Offering Price
per Share |
Aggregate
Offering Price(2) |
Amount of Registration Fee(3) |
1995 Stock Option Plan |
|
|
|
|
Common Stock |
560,000 shares |
$8.35 |
$4,676,000.00 |
$430.19 |
(1) This Registration Statement shall also
cover any additional shares of Registrant's Common Stock which become issuable
under the 1995 Stock Option Plan and Non-Employee Directors Stock Option Plan by
reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration which
results in an increase in the number of the outstanding shares of Registrant's
Common Stock.
(2) Calculated solely for purposes of this offering under
Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the
average of the high and low selling prices per share of Registrant's Common
Stock on January 25, 2002 as reported by the Nasdaq National Market.
(3) Previously paid.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Securities and Exchange Commission ("SEC"):
(a) |
The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 2001, filed with the SEC on September 14, 2001; |
(b) |
The Registrant's Quarterly Report on Form 10-Q for the period ending September 30,
2001, filed with the SEC on November 8, 2001;
and |
(b) |
The Registrant's Registration Statement No. 00-27066 on Form 8-A
filed with the SEC on October 20, 1995 pursuant to Section 12 of the
Securities Exchange Act of 1934 (the "1934 Act"), which describes the terms,
rights and provisions applicable to the Registrant's outstanding Common
Stock. |
All reports and definitive proxy or information
statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Cynthia J. Ladd, Senior Vice President and General
Counsel of Registrant is an officer of Registrant and is eligible to participate in
the 1995 Stock Option Plan.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation
Law, the Registrant has broad powers to indemnify its directors and officers
against liabilities they may incur in such capacities, including liabilities
under the Securities Act of 1933, as amended (the "1933 Act"). The Registrant's
Bylaws (the "Bylaws") provide that the Registrant shall indemnify its directors
and officers if such officer or director acted (i) in good faith, (ii) in a
manner reasonably believed to be in or not opposed to the best interests of the
Registrant, and (iii) with respect to any criminal action or proceeding, had no
reasonable cause to believe such conduct was unlawful. The Registrant believes
that indemnification under its Bylaws covers at least negligence and gross
negligence, and requires the Registrant to advance litigation expenses in the
case of stockholder derivative actions or other actions, against an undertaking
by the directors and officers to repay such advances if it is ultimately
determined that the director is not entitled to indemnification. The Bylaws
further provide that rights conferred under such Bylaws shall not be deemed to
be exclusive of any other right such persons may have or acquire under any
agreement, vote of stockholders or disinterested directors, or otherwise.
In addition, the Registrant's Certificate of Incorporation
(the "Certificate of Incorporation") provides that, pursuant to Delaware law,
none of its directors shall be liable for monetary damages for breach of his or
her fiduciary duty of care to the Registrant and its stockholders. This
provision in the Certificate of Incorporation does not eliminate the duty of
care, and in appropriate circumstances equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Registrant for acts or omissions not in
good faith or involving intentional misconduct, for knowing violations of law,
for actions leading to improper personal benefit to the director, and for
payment of dividends or approval of stock repurchases or redemptions that are
unlawful under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Certificate of Incorporation further
provides that the Registrant shall indemnify its directors and officers to the
fullest extent permitted by law and requires the Registrant to advance
litigation expenses in the case of stockholder derivative actions or other
actions, against an undertaking by the director to repay such advances if it is
ultimately determined that the director is not entitled to indemnification. The
Certificate of Incorporation also provides that rights conferred under such
Certificate of Incorporation shall not be deemed to be exclusive of any other
right such persons may have or acquire under any statute, the Certificate of
Incorporation, the Bylaws, agreement, vote of stockholders or disinterested
directors, or otherwise.
The Registrant has obtained a liability insurance policy for
the officers and directors that, subject to certain limitations, terms and
conditions, will insure them against losses arising from wrongful acts (as
defined by the policy) in their capacity as directors or officers.
In addition, the Registrant has entered into agreements to
indemnify its directors and certain of its officers in addition to the
indemnification provided for in the Certificate of Incorporation and Bylaws.
These agreements, among other things, indemnify the Registrant's directors and
certain of its officers for certain expenses (including attorneys fees),
judgments, fines and settlement amounts incurred by such person in any action or
proceeding, including any action by or in the right of the Registrant, on
account of services as a director or officer of the Registrant or as a director
or officer of any subsidiary of the Registrant, or as a director or officer of
any other company or enterprise that the person provides services to at the
request of the Registrant.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number |
Exhibit |
4 |
Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 00-27066 on Form 8-A, which is
incorporated herein by reference pursuant to Item 3(c). |
5 |
Opinion and consent of Cynthia J. Ladd, Esq. |
23.1 |
Consent of Independent Accountants.(*) |
23.2 |
Consent of Cynthia J. Ladd, Esq. is contained in Exhibit
5. |
24 |
Power of Attorney. Reference is made to signature pages of this
Registration Statement.(*) |
99.1 |
1995 Stock Option Plan |
99.2 |
Non-Employee Directors Stock Option Plan.(*) |
------------------
Item 9. Undertakings.
- The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement (i) to include any
prospectus required by Section 10(a)(3) of the 1933 Act, (ii) to
reflect in the prospectus any facts or events arising after the effective date
of this 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 this Registration Statement and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; provided, however, that
clauses (1)(i) and (1)(ii) shall not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any
liability under the 1933 Act 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 and (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 Registrant's 1995 Stock Option Plan or
Non-Employee Directors Stock Option Plan.
- The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the 1934 Act that is incorporated by reference into this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
- Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 POS, and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sunnyvale, State of
California, on this 6th day of February, 2002.
|
|
|
|
|
Cynthia J. Ladd, Esq.
|
|
Senior Vice President and General Counsel
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of
Pharmacyclics, Inc., a Delaware corporation, do hereby constitute and appoint
Richard A. Miller, M.D. and Cynthia J. Ladd and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required
to enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms that all said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has
executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature |
Title |
*
Richard A. Miller, M.D.
|
President and Chief
Executive Officer and
Director (Principal
Executive Officer)
|
*
Leiv Lea
|
Vice President, Finance
and Administration and
Chief Financial and
Accounting Officer
(Principal Accounting
Officer)
|
*
Miles R. Gilburne
|
Director
|
*
Loretta M. Itri, M.D.
|
Director
|
*
Richard M. Levy, Ph.D.
|
Director
|
*
William R. Rohn
|
Director
|
*
Craig C. Taylor
|
Director
|
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8 POS
UNDER
SECURITIES ACT OF 1933
PHARMACYCLICS, INC.
EXHIBITS INDEX
Exhibit Number |
Exhibit |
4 |
Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 00-27066 on Form 8-A, which is
incorporated herein by reference pursuant to Item 3(c). |
5 |
Opinion and consent of Cynthia J. Ladd, Esq. |
23.1 |
Consent of Independent Accountants.(*) |
23.2 |
Consent of Cynthia J. Ladd, Esq. is contained in Exhibit
5. |
24 |
Power of Attorney. Reference is made to signature pages of this
Registration Statement.(*) |
99.1 |
1995 Stock Option Plan |
99.2 |
Non-Employee Directors Stock Purchase Plan.(*) |
------------------
EX-5
4
s8posopn.htm
OPINION
02062002 S8 POS OPINION
Exhibit 5
February 6, 2002
Pharmacyclics, Inc.
995 East Arques Avenue
Sunnyvale, CA 94085
Re: Pharmacyclics, Inc. -- Post-Effective Amendment No. 1 to
Form S-8, Registration Statement No. 81870
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of
Pharmacyclics, Inc. (the "Company"). In connection with providing this opinion,
I have reviewed the Company's Post-Effective Amendment No. 1 to Registration
Statement on Form S-8, registration number 333-81870 (the "Registration
Statement") to be filed with the Securities and Exchange Commission
covering the offering of 560,000 shares of the Company's Common Stock, par value
$0.0001 per share (the "Shares"), the Company's charter documents, the
corporate proceedings taken by the Company in connection with the 1995 Stock
Option Plan (the "Plan"), the Registration Statement, and such other documents,
records, certificates, memoranda and other instruments as I deem necessary as a
basis for this opinion. Based on such review, I am of the opinion that if, as
and when the Shares are issued and sold (and the consideration therefore
received) pursuant to the provisions of option agreements duly authorized under
the Plan and in accordance with the Registration Statement and related
prospectus, such Shares will be duly authorized, legally issued, fully paid and
nonassessable.
This opinion is being furnished in accordance with the
requirements of Item 8 of Form S-8 POS and Item 601(b)(5)(i) of Regulation S-
K.
I consent to the filing of this opinion letter as Exhibit 5
to the Registration Statement.
This opinion letter is rendered as of the date first written
above and I disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to my attention and which
may alter, affect or modify the opinion expressed herein. I am admitted to
practice only in the State of California. The opinion set forth herein is
limited to matters of the General Corporation Law of the State of Delaware and
the federal securities law of the United States.
|
|
|
|
|
Cynthia J. Ladd
|
|
Senior Vice President and General Counsel
|
EX-99.1
5
s8pospln.htm
EXHIBIT 99.1
02082002 95PLAN
Exhibit 99.1
PHARMACYCLICS, INC.
1995 STOCK OPTION PLAN
(As Amended and Restated through October 31, 2001)
ARTICLE ONE
GENERAL PROVISIONS
- PURPOSE
OF THE PLAN
This 1995 Stock Option Plan is intended to promote
the interests of Pharmacyclics, Inc., a Delaware corporation, by providing
eligible persons with the opportunity to acquire a proprietary interest, or
otherwise increase their proprietary interest, in the Corporation as an
incentive for them to remain in the service of the Corporation.
Capitalized terms shall have the meanings assigned to such
terms in the attached Appendix.
- STRUCTURE OF THE PLAN
Under the Plan, eligible persons may, at the
discretion of the Plan Administrator, be granted options to purchase shares of
Common Stock.
ADMINISTRATION OF THE PLAN
The Primary Committee shall have sole and
exclusive authority to administer the Plan with respect to Section 16
Insiders.
Administration of the Plan with respect to all other
persons, may at the Board's discretion, be vested in the Primary Committee or a
Secondary Committee, or the Board may retain the power to administer the Plan
with respect to all such persons who are not Section 16 Insiders. The members
of the Secondary Committee may be Board members who are Employees eligible to
receive discretionary option grants or direct stock issuances under the Plan or
any stock option, stock appreciation, stock bonus or other stock plan of the
Corporation (or any Parent or Subsidiary).
Members of the Primary Committee or any Secondary
Committee shall serve for such period of time as the Board may determine and
shall be subject to removal by the Board at any time. The Board may also at any
time terminate the functions of any Secondary Committee and reassume all powers
and authority previously delegated to such committee.
The Plan Administrator shall, within the scope of its
administrative functions under the Plan, have full power and authority to
establish such rules and regulations as it may deem appropriate for proper
administration of the Plan and to make such determinations under, and issue such
interpretations of, the provisions of the Plan and any outstanding options
thereunder as it may deem necessary or advisable. Decisions of the Plan
Administrator within the scope of its administrative functions under the Plan
shall be final and binding on all parties who have an interest in the Plan under
its jurisdiction or any option thereunder.
Service on the Primary Committee or the Secondary
Committee shall constitute service as a Board member, and members of each such
committee shall accordingly be entitled to full indemnification and
reimbursement as Board members for their service on such committee. No member
of the Primary Committee or the Secondary Committee shall be liable for any act
or omission made in good faith with respect to the Plan or any option grants
made under the Plan.
ELIGIBILITY
The persons eligible to participate in the
Plan are as follows:
- Employees,
- non-employee members of the Board or the board of
directors of any Parent or Subsidiary, and
- consultants and other independent advisors who provide
services to the Corporation (or any Parent or Subsidiary).
The Plan Administrator shall, within the scope of its
administrative jurisdiction under the Plan, have full authority (subject to the
provisions of the Plan) to determine, with respect to the option grants, which
eligible persons are to receive option grants, the time or times when such
option grants are to be made, the number of shares to be covered by each such
grant, the status of the granted option as either an Incentive Option or a Non-
Statutory Option, the time or times at which each option is to become
exercisable and the vesting schedule (if any) applicable to the option shares
and the maximum term for which the option is to remain outstanding.
STOCK SUBJECT TO THE PLAN
The stock issuable under the Plan shall be
shares of authorized but unissued or reacquired Common Stock, including shares
repurchased by the Corporation on the open market. The maximum number of shares
of Common Stock which may be issued over the term of the Plan shall not exceed
4,859,159 shares, subject to adjustment from time to time in accordance with the
provisions of this Section V. Such authorized share reserve is comprised of (i)
the number of shares which remained available for issuance, as of the Plan
Effective Date, under the Predecessor Plan as last approved by the Corporation's
stockholders prior to such date, including the shares subject to the outstanding
options incorporated into the Plan and any other shares which would have been
available for future option grants under the Predecessor Plan, (ii) the
automatic increase of 85,178 shares effected on January 2, 1996, the automatic
increase of 91,503 shares effected in January 1997, the automatic increase of
102,042 shares effected in January, 1998, the automatic increase of 123,856
shares effected in January 1999, the automatic increase of 151,001 shares
effected in January 2000 and the automatic increase of 160,698 shares effected
in January 2001 pursuant to Section V.B. below, (iii) the 750,000-share
increase approved by the Board on August 1, 1996 and approved by the
stockholders at the 1996 Annual Meeting, (iv) the 500,000-share increase
approved by the Board on September 11, 1997 and approved by the stockholders at
the 1997 Annual Meeting, (v) the 400,000-share increase approved by the Board on
September 24, 1998 and approved by the stockholders at the 1998 Annual Meeting,
(vi) the 500,000 share increase approved by the Board on October 14, 1999 and
approved by the stockholders at the 1999 Annual Meeting, (vii) the 600,000 share
increase approved by the Board on September 7, 2000 and approved by the
stockholders at the 2000 Annual Meeting, and (viii) the 560,000 share increase
approved by the Board on September 7, 2001 and approved by the stockholders at
the 2001 Annual Meeting.
The number of shares of Common Stock available for
issuance under the Plan shall automatically increase on the first trading day of
each calendar year during the term of the Plan, beginning with the 1996 calendar
year, by an amount equal to one percent (1%) of the shares of Common Stock
outstanding on December 31 of the immediately preceding calendar year; but in no
event shall any such annual increase exceed 500,000 shares. No Incentive
Options may be granted on the basis of the additional shares of Common Stock
resulting from such annual increases.
No one person participating in the Plan may receive
options and separately exercisable stock appreciation rights for more than
750,000 shares of Common Stock in the aggregate over the term of the
Plan.
Shares of Common Stock subject to outstanding options
shall be available for subsequent issuance under the Plan to the extent (i) the
options (including any options incorporated from the Predecessor Plan) expire or
terminate for any reason prior to exercise in full or (ii) the options are
cancelled in accordance with the cancellation-regrant provisions of Article Two.
Unvested shares issued under the Plan (including unvested shares issued under
the Predecessor Plan) and subsequently repurchased by the Corporation, at the
original exercise price paid per share, pursuant to the Corporation's repurchase
rights under the Plan, shall be added back to the number of shares of Common
Stock reserved for issuance under the Plan and shall accordingly be available
for reissuance through one or more subsequent options under the Plan. Shares
subject to any stock appreciation rights exercised under the Plan and all shares
issued under the Plan (included shares issued upon exercise of options
incorporated from the Predecessor Plan), shall reduce on a share-for-share basis
the number of shares of Common Stock available for subsequent issuance under the
Plan. However, should the exercise price of an option under the Plan (including
any option incorporated from the Predecessor Plan) be paid with shares of Common
Stock or should shares of Common Stock otherwise issuable under the Plan be
withheld by the Corporation in satisfaction of the withholding taxes incurred in
connection with the exercise of an option under the Plan, then the number of
shares of Common Stock available for issuance under the Plan shall be reduced by
the gross number of shares for which the option is exercised, and not by the net
number of shares of Common Stock issued to the holder of such option.
Should any change be made to the Common Stock by reason
of any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the outstanding Common Stock as a
class without the Corporation's receipt of consideration, appropriate
adjustments shall be made to (i) the maximum number and/or class of securities
issuable under the Plan, (ii) the maximum number and/or class of securities for
which the share reserve is to increase automatically each year, (iii) the number
and/or class of securities for which any one person may be granted options and
separately exercisable stock appreciation rights over the term of the Plan, and
(iv) the number and/or class of securities and the exercise price per share in
effect under each outstanding option (including any option incorporated from the
Predecessor Plan) in order to prevent the dilution or enlargement of benefits
thereunder. The adjustments determined by the Plan Administrator shall be
final, binding and conclusive.
ARTICLE TWO
GRANT OF OPTIONS
- OPTION TERMS
Each option shall be evidenced by one or more documents in
the form approved by the Plan Administrator; provided, however, that each
such document shall comply with the terms specified below. Each document
evidencing an Incentive Option shall, in addition, be subject to the provisions
of the Plan applicable to such options.
- Exercise Price.
- The exercise price per share shall be fixed by the Plan
Administrator but shall not be less than eighty-five percent (85%) of the Fair
Market Value per share of Common Stock on the option grant date.
- The exercise price shall become immediately due upon
exercise of the option and shall, subject to the provisions of Section I of
Article Three and the documents evidencing the option, be payable in one or
more of the forms specified below:
- cash or check made payable to the
Corporation,
- shares of Common Stock held for the requisite period
necessary to avoid a charge to the Corporation's earnings for financial
reporting purposes and valued at Fair Market Value on the Exercise Date, or
- to the extent the option is exercised for vested
shares, through a special sale and remittance procedure pursuant to which the
Optionee shall concurrently provide irrevocable written instructions to (a) a
Corporation-designated brokerage firm to effect the immediate sale of the
purchased shares and remit to the Corporation, out of the sale proceeds
available on the settlement date, sufficient funds to cover the aggregate
exercise price payable for the purchased shares plus all applicable Federal,
state and local income and employment taxes required to be withheld by the
Corporation by reason of such exercise and (b) the Corporation to deliver
the certificates for the purchased shares directly to such brokerage firm in
order to complete the sale.
Except to the extent such sale and remittance procedure is
utilized, payment of the exercise price for the purchased shares must be made on
the Exercise Date.
- Exercise and Term of Options. Each option shall
be exercisable at such time or times, during such period and for such number of
shares as shall be determined by the Plan Administrator and set forth in the
documents evidencing the option. However, no option shall have a term in excess
of ten (10) years measured from the option grant date.
- Effect of Termination of Service.
- The following provisions shall govern the exercise of
any options held by the Optionee at the time of cessation of Service or
death:
- Any option outstanding at the time of the Optionee's
cessation of Service for any reason shall remain exercisable for such period of
time thereafter as shall be determined by the Plan Administrator and set forth
in the documents evidencing the option, but no such option shall be exercisable
after the expiration of the option term.
- Any option exercisable in whole or in part by the
Optionee at the time of death may be subsequently exercised by the personal
representative of the Optionee's estate or by the person or persons to whom the
option is transferred pursuant to the Optionee's will or in accordance with the
laws of descent and distribution.
- During the applicable post-Service exercise period,
the option may not be exercised in the aggregate for more than the number of
vested shares for which the option is exercisable on the date of the Optionee's
cessation of Service. Upon the expiration of the applicable exercise period or
(if earlier) upon the expiration of the option term, the option shall terminate
and cease to be outstanding for any vested shares for which the option has not
been exercised. However, the option shall, immediately upon the Optionee's
cessation of Service, terminate and cease to be outstanding to the extent it is
not exercisable for vested shares on the date of such cessation of Service.
- Should the Optionee's Service be terminated for
Misconduct, then all outstanding options held by the Optionee shall terminate
immediately and cease to be outstanding.
- In the event of a Corporate Transaction, the
provisions of Section III of this Article Two shall govern the period for which
the outstanding options are to remain exercisable following the Optionee's
cessation of Service and shall supersede any provisions to the contrary in this
section.
- The Plan Administrator shall have the discretion,
exercisable either at the time an option is granted or at any time while the
option remains outstanding, to:
- extend the period of time for which the option is to
remain exercisable following the Optionee's cessation of Service from the period
otherwise in effect for that option to such greater period of time as the Plan
Administrator shall deem appropriate, but in no event beyond the expiration of
the option term, and/or
- permit the option to be exercised, during the
applicable post-Service exercise period, not only with respect to the number of
vested shares of Common Stock for which such option is exercisable at the time
of the Optionee's cessation of Service but also with respect to one or more
additional installments in which the Optionee would have vested under the option
had the Optionee continued in Service.
- Stockholder Rights. The holder of an option
shall have no stockholder rights with respect to the shares subject to the
option until such person shall have exercised the option, paid the exercise
price and become a holder of record of the purchased shares.
- Repurchase Rights. The Plan Administrator shall
have the discretion to grant options which are exercisable for unvested shares
of Common Stock. Should the Optionee cease Service while holding such unvested
shares, the Corporation shall have the right to repurchase, at the exercise
price paid per share, any or all of those unvested shares. The terms upon which
such repurchase right shall be exercisable (including the period and procedure
for exercise and the appropriate vesting schedule for the purchased shares)
shall be established by the Plan Administrator and set forth in the document
evidencing such repurchase right.
- Limited Transferability of Options. During the
lifetime of the Optionee, the option shall be exercisable only by the Optionee
and shall not be assignable or transferable other than by will or by the laws of
descent and distribution following the Optionee's death. However, a Non-
Statutory Option may, in connection with the Optionee's estate plan, be assigned
in whole or in part during the Optionee's lifetime to one or more members of the
Optionee's immediate family or to a trust established exclusively for one or
more such family members. The assigned portion may only be exercised by the
person or persons who acquire a proprietary interest in the option pursuant to
the assignment. The terms applicable to the assigned portion shall be the same
as those in effect for the option immediately prior to such assignment and shall
be set forth in such documents issued to the assignee as the Plan Administrator
may deem appropriate.
- Beneficiary Designation. An Optionee may file a
written beneficiary designation indicating the person entitled to exercise
Optionee's outstanding options on the Optionee's behalf at the time of his/her
death. Such beneficiary designation may be changed by the Optionee at any time
by filing the appropriate form with the Plan Administrator.
- INCENTIVE OPTIONS
The terms specified below shall be applicable to all
Incentive Options. Except as modified by the provisions of this Section II, all
the provisions of Articles One, Two and Three shall be applicable to Incentive
Options. Options which are specifically designated as Non-Statutory Options when
issued under the Plan shall not be subject to the terms of this Section
II.
- Eligibility. Incentive Options may only be
granted to Employees.
- Exercise Price. The exercise price per share
shall not be less than one hundred percent (100%) of the Fair Market Value per
share of Common Stock on the option grant date.
- Dollar Limitation. The aggregate Fair Market
Value of the shares of Common Stock (determined as of the respective date or
dates of grant) for which one or more options granted to any Employee under the
Plan (or any other option plan of the Corporation or any Parent or Subsidiary)
may for the first time become exercisable as Incentive Options during any one
(1) calendar year shall not exceed the sum of One Hundred Thousand Dollars
($100,000). To the extent the Employee holds two (2) or more such options which
become exercisable for the first time in the same calendar year, the foregoing
limitation on the exercisability of such options as Incentive Options shall be
applied on the basis of the order in which such options are granted.
- 10% Stockholder. If any Employee to whom an
Incentive Option is granted is a 10% Stockholder, then the exercise price per
share shall not be less than one hundred ten percent (110%) of the Fair Market
Value per share of Common Stock on the option grant date, and the option term
shall not exceed five (5) years measured from the option grant date.
- CORPORATE TRANSACTION/CHANGE IN CONTROL
- In the event of any Corporate Transaction, each
outstanding option shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Corporate Transaction,
become fully exercisable for all of the shares of Common Stock at the time
subject to such option and may be exercised for any or all of those shares as
fully-vested shares of Common Stock. However, an outstanding option shall not
so accelerate if and to the extent: (i) such option is, in connection with the
Corporate Transaction, either to be assumed by the successor corporation (or
parent thereof) or to be replaced with a comparable option to purchase shares of
the capital stock of the successor corporation (or parent thereof), (ii) such
option is to be replaced with a cash incentive program of the successor
corporation which preserves the spread existing on the unvested option shares at
the time of the Corporate Transaction and provides for subsequent payout in
accordance with the same vesting schedule applicable to such option or (iii) the
acceleration of such option is subject to other limitations imposed by the Plan
Administrator at the time of the option grant. The determination of option
comparability under clause (i) above shall be made by the Plan Administrator,
and its determination shall be final, binding and conclusive.
- All outstanding repurchase rights shall also terminate
automatically, and the shares of Common Stock subject to those terminated rights
shall immediately vest in full, in the event of any Corporate Transaction,
except to the extent: (i) those repurchase rights are to be assigned to the
successor corporation (or parent thereof) in connection with such Corporate
Transaction or (ii) such accelerated vesting is precluded by other limitations
imposed by the Plan Administrator at the time the repurchase right is issued.
- The Plan Administrator shall have the discretion,
exercisable either at the time the option is granted or at any time while the
option remains outstanding, to provide for the automatic acceleration of one or
more outstanding options (and the automatic termination of one or more
outstanding repurchase rights with the immediate vesting of the shares of Common
Stock subject to those rights) upon the occurrence of a Corporate Transaction,
whether or not those options are to be assumed or replaced (or those repurchase
rights are to be assigned) in the Corporate Transaction.
- Immediately following the consummation of the Corporate
Transaction, all outstanding options shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or
parent thereof).
- Each option which is assumed in connection with a
Corporate Transaction shall be appropriately adjusted, immediately after such
Corporate Transaction, to apply to the number and class of securities which
would have been issuable to the Optionee in consummation of such Corporate
Transaction had the option been exercised immediately prior to such Corporate
Transaction. Appropriate adjustments shall also be made to (i) the number and
class of securities available for issuance under the Plan on both an aggregate
and per Optionee basis following the consummation of such Corporate Transaction
and (ii) the exercise price payable per share under each outstanding option,
provided the aggregate exercise price payable for such securities shall remain
the same.
- Any options which are assumed or replaced in the
Corporate Transaction and do not otherwise accelerate at that time, shall
automatically accelerate (and any of the Corporation's outstanding repurchase
rights which do not otherwise terminate at the time of the Corporate Transaction
shall automatically terminate and the shares of Common Stock subject to those
terminated rights shall immediately vest in full) in the event the Optionee's
Service should subsequently terminate by reason of an Involuntary Termination
within eighteen (18) months following the effective date of such Corporate
Transaction. Any options so accelerated shall remain exercisable for fully-
vested shares until the earlier of (i) the expiration of the option term or (ii)
the expiration of the one (1)-year period measured from the effective date of
the Involuntary Termination.
- The Plan Administrator shall have the discretion,
exercisable either at the time the option is granted or at any time while the
option remains outstanding, to (i) provide for the automatic acceleration of
one or more outstanding options (and the automatic termination of one or more
outstanding repurchase rights with the immediate vesting of the shares of Common
Stock subject to those rights) upon the occurrence of a Change in Control or
(ii) condition any such option acceleration (and the termination of any
outstanding repurchase rights) upon the subsequent Involuntary Termination of
the Optionee's Service within a specified period following the effective date of
such Change in Control. Any options accelerated in connection with a Change in
Control shall remain fully exercisable until the expiration or sooner
termination of the option term.
- The portion of any Incentive Option accelerated in
connection with a Corporate Transaction or Change in Control shall remain
exercisable as an Incentive Option only to the extent the applicable One Hundred
Thousand Dollar limitation is not exceeded. To the extent such dollar
limitation is exceeded, the accelerated portion of such option shall be
exercisable as a Non-Statutory Option under the Federal tax laws.
- The grant of options under the Plan shall in no way
affect the right of the Corporation to adjust, reclassify, reorganize or
otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
- CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at
any time and from time to time, with the consent of the affected option holders,
the cancellation of any or all outstanding options under the Plan (including
outstanding options incorporated from the Predecessor Plan) and to grant in
substitution new options covering the same or different number of shares of
Common Stock but with an exercise price per share based on the Fair Market Value
per share of Common Stock on the new option grant date.
- STOCK APPRECIATION RIGHTS
- The Plan Administrator shall have full power and
authority to grant to selected Optionees tandem stock appreciation rights and/or
limited stock appreciation rights.
- The following terms shall govern the grant and exercise
of tandem stock appreciation rights:
- One or more Optionees may be granted the right,
exercisable upon such terms as the Plan Administrator may establish, to elect
between the exercise of the underlying option for shares of Common Stock and the
surrender of that option in exchange for a distribution from the Corporation in
an amount equal to the excess of (A) the Fair Market Value (on the option
surrender date) of the number of shares in which the Optionee is at the time
vested under the surrendered option (or surrendered portion thereof) over
(B) the aggregate exercise price payable for such shares.
- No such option surrender shall be effective unless it
is approved by the Plan Administrator. If the surrender is so approved, then
the distribution to which the Optionee shall be entitled may be made in shares
of Common Stock valued at Fair Market Value on the option surrender date, in
cash, or partly in shares and partly in cash, as the Plan Administrator shall in
its sole discretion deem appropriate.
- If the surrender of an option is rejected by the
Plan Administrator, then the Optionee shall retain whatever rights the Optionee
had under the surrendered option (or surrendered portion thereof) on the option
surrender date and may exercise such rights at any time prior to the later of
(A) five (5) business days after the receipt of the rejection notice or (B) the
last day on which the option is otherwise exercisable in accordance with the
terms of the documents evidencing such option, but in no event may such rights
be exercised more than ten (10) years after the option grant date.
- The following terms shall govern the grant and exercise
of limited stock appreciation rights:
- One or more Section 16 Insiders may be granted limited
stock appreciation rights with respect to their outstanding options.
- Upon the occurrence of a Hostile Take-Over, each
such individual holding one or more options with such a limited stock
appreciation right in effect shall have the unconditional right (exercisable for
a thirty (30)-day period following such Hostile Take-Over) to surrender each
such option to the Corporation, to the extent the option is at the time
exercisable for vested shares of Common Stock. In return for the surrendered
option, the Optionee shall receive a cash distribution from the Corporation in
an amount equal to the excess of (A) the Take-Over Price of the shares of Common
Stock which are at the time vested under each surrendered option (or surrendered
portion thereof) over (B) the aggregate exercise price payable for such shares.
Such cash distribution shall be paid within five (5) days following the option
surrender date.
- Neither the approval of the Plan Administrator nor
the consent of the Board shall be required in connection with such option
surrender and cash distribution.
- The balance of the option (if any) shall continue in
full force and effect in accordance with the documents evidencing such
option.
ARTICLE THREE
MISCELLANEOUS
- FINANCING
- The Plan Administrator may permit any Optionee to pay
the option exercise price under the Plan by delivering a promissory note payable
in one or more installments. The terms of any such promissory note (including
the interest rate and the terms of repayment) shall be established by the Plan
Administrator in its sole discretion. Promissory notes may be authorized with
or without security or collateral. In all events, the maximum credit available
to the Optionee may not exceed the sum of (i) the aggregate option exercise
price payable for the purchased shares plus (ii) any Federal, state and local
income and employment tax liability incurred by the Optionee in connection with
the option exercise.
- The Plan Administrator may, in its discretion,
determine that one or more such promissory notes shall be subject to forgiveness
by the Corporation in whole or in part upon such terms as the Plan Administrator
may deem appropriate.
- TAX WITHHOLDING
- The Corporation's obligation to deliver shares of
Common Stock upon the exercise of options or stock appreciation rights under the
Plan shall be subject to the satisfaction of all applicable Federal, state and
local income and employment tax withholding requirements.
- The Plan Administrator may, in its discretion, provide
any or all holders of Non-Statutory Options under the Plan with the right to
use shares of Common Stock in satisfaction of all or part of the Taxes incurred
by such holders in connection with the exercise of their options. Such right
may be provided to any such holder in either or both of the following
formats:
- Stock Withholding: The election to have the
Corporation withhold, from the shares of Common Stock otherwise issuable upon
the exercise of such Non-Statutory Option, a portion of those shares with an
aggregate Fair Market Value equal to the percentage of the Taxes (not to exceed
one hundred percent (100%)) designated by the holder.
- Stock Delivery: The election to deliver to
the Corporation, at the time the Non-Statutory Option is exercised, one or more
shares of Common Stock previously acquired by such holder (other than in
connection with the option exercise triggering the Taxes) with an aggregate Fair
Market Value equal to the percentage of the Taxes (not to exceed one hundred
percent (100%)) designated by the holder.
- EFFECTIVE DATE AND TERM OF THE PLAN
- The Plan was adopted by the Board on August 2, 1995 and
approved by the Corporation's stockholders on September 11, 1995. The Plan
became effective on the Plan Effective Date and serves as the successor to the
Predecessor Plan. On August 1, 1996, the Board authorized a 750,000-share
increase in the number of shares of Common Stock available for issuance under
the Plan; the increase was approved by the stockholders at the 1996 Annual
Stockholders Meeting.
- The Plan was amended and restated by the Board on
September 11, 1997 (the "1997 Restatement") to effect the following
changes: (i) increase the maximum number of shares of Common Stock authorized
for issuance over the term of the Plan by 500,000 shares, (ii) increase the
maximum number of shares of Common Stock for which options and separately
exercisable stock appreciation rights may be granted to any one individual to
750,000 shares, (iii) render the non-employee Board members who are serving on
the Primary Committee eligible to receive option grants under the Plan, (iv)
allow unvested shares issued under the Plan and subsequently repurchased by the
Corporation at the option exercise price paid per share to be reissued under the
Plan, (v) remove certain restrictions on the eligibility of non-employee Board
members to serve on the Primary Committee and (vi) effect a series of additional
changes to the provisions of the Plan (including the stockholder approval
requirements and the transferability of Non-Statutory Options) in order to take
advantage of the recent amendments to Rule 16b-3 of the Securities and Exchange
Commission which exempts certain officer and director transactions under the
Plan from the short-swing liability provisions of the federal securities laws.
The 1997 Restatement was approved by the stockholders at the 1997 Annual
Meeting.
- The Plan was amended and restated by the Board on
September 24, 1998 (the "1998 Restatement") to increase the maximum
number of shares of Common Stock authorized for issuance over the term of the
Plan by 400,000 shares. The 1998 Restatement was approved by the stockholders
at the 1998 Annual Meeting.
- The Plan was amended and restated by the Board on
October 14, 1999 (the "1999 Restatement") to increase the maximum
number of shares of Common Stock authorized for issuance over the term of the
Plan by 500,000 shares. The 1999 Restatement was approved by the stockholders
at the 1999 Annual Meeting.
- The Plan was amended and restated by the Board on
September 7, 2000 (the "2000 Restatement") to increase the maximum
number of shares of Common Stock authorized for issuance over the term of the
Plan by 600,000 shares. The 2000 Restatement was approved by the stockholders
at the 2000 Annual Meeting.
- The Plan was amended and restated by the Board on
September 7, 2001 (the "2001 Restatement") to increase the maximum
number of shares of Common Stock authorized for issuance over the term of the
Plan by 560,000 shares. The 2001 Restatement was approved by the stockholders
at the 2001 Annual Meeting.
- The Plan shall serve as the successor to the
Predecessor Plan, and no further option grants shall be made under the
Predecessor Plan after the Plan Effective Date. All options outstanding under
the Predecessor Plan as of such date shall be incorporated into the Plan and
treated as outstanding options under the Plan. However, each outstanding option
so incorporated shall continue to be governed solely by the terms of the
documents evidencing such option, and no provision of the Plan shall be deemed
to affect or otherwise modify the rights or obligations of the holders of such
incorporated options with respect to their acquisition of shares of Common
Stock.
- The option/vesting acceleration provisions of Article
Two relating to Corporate Transactions and Changes in Control may, in the Plan
Administrator's discretion, be extended to one or more options incorporated from
the Predecessor Plan which do not otherwise provide for such acceleration.
- The Plan shall terminate upon the earliest of
(i) August 1, 2005, (ii) the date on which all shares available for
issuance under the Plan shall have been issued pursuant to the exercise of the
options under the Plan, (iii) the termination of all outstanding options in
connection with a Corporate Transaction, or (iv) termination by the Board. Upon
such Plan termination, all options outstanding on such date shall thereafter
continue to have force and effect in accordance with the provisions of the
documents evidencing such options.
- AMENDMENT OF THE PLAN
- The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects. However, no such
amendment or modification shall adversely affect the rights and obligations with
respect to options or stock appreciation rights at the time outstanding under
the Plan unless the Optionee consents to such amendment or modification. In
addition, certain amendments shall be subject to stockholder approval as
required by applicable laws or regulations.
- Options to purchase shares of Common Stock may be
granted under the Plan that are in excess of the number of shares then available
for issuance under the Plan, provided any excess shares actually issued under
the Plan are held in escrow until there is obtained stockholder approval of an
amendment sufficiently increasing the number of shares of Common Stock available
for issuance under the Plan. If such stockholder approval is not obtained
within twelve (12) months after the date the first such excess issuances are
made, then (i) any unexercised options granted on the basis of such excess
shares shall terminate and cease to be outstanding and (ii) the Corporation
shall promptly refund to the Optionees the exercise price paid for any excess
shares issued under the Plan and held in escrow, together with interest (at the
applicable Short Term Federal Rate) for the period the shares were held in
escrow, and such shares shall thereupon be automatically cancelled and cease to
be outstanding.
- USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale
of shares of Common Stock under the Plan shall be used for general corporate
purposes.
- REGULATORY APPROVALS
- The implementation of the Plan, the granting of any
option or stock appreciation right under the Plan and the issuance of any shares
of Common Stock upon the exercise of any option or stock appreciation right
shall be subject to the Corporation's procurement of all approvals and permits
required by regulatory authorities having jurisdiction over the Plan, the
options and stock appreciation rights granted under it and the shares of Common
Stock issued pursuant to it.
- No shares of Common Stock or other assets shall be
issued or delivered under the Plan unless and until there shall have been
compliance with all applicable requirements of Federal and state securities
laws, including the filing and effectiveness of the Form S-8 registration
statement for the shares of Common Stock issuable under the Plan, and all
applicable listing requirements of any stock exchange (or the Nasdaq National
Market, if applicable) on which Common Stock is then listed for trading.
- NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee any right
to continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Corporation (or any Parent or
Subsidiary employing or retaining such person) or of the Optionee, which rights
are hereby expressly reserved by each, to terminate such person's Service at any
time for any reason, with or without cause.
APPENDIX
The following definitions shall be in effect under the
Plan:
- Board shall mean the Corporation's Board
of Directors.
- Change in Control shall mean a change in
ownership or control of the Corporation effected through either of the following
transactions:
- the acquisition, directly or indirectly, by any person
or related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by, or is under common control
with, the Corporation), of beneficial ownership (within the meaning of Rule 13d-
3 of the 1934 Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities pursuant
to a tender or exchange offer made directly to the Corporation's stockholders
which the Board does not recommend such stockholders to accept, or
- a change in the composition of the Board over a
period of thirty-six (36) consecutive months or less such that a majority of the
Board members ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who either (A) have been Board
members continuously since the beginning of such period or (B) have been elected
or nominated for election as Board members during such period by at least a
majority of the Board members described in clause (A) who were still in office
at the time the Board approved such election or nomination.
- Code shall mean the Internal Revenue Code
of 1986, as amended.
- Common Stock shall mean the Corporation's
common stock.
- Corporate Transaction shall mean either
of the following stockholder-approved transactions to which the Corporation is a
party:
- a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined voting power of
the Corporation's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to such
transaction; or
- the sale, transfer or other disposition of all or
substantially all of the Corporation's assets in complete liquidation or
dissolution of the Corporation.
- Corporation shall mean Pharmacyclics,
Inc., a Delaware corporation.
- Employee shall mean an individual who is
in the employ of the Corporation (or any Parent or Subsidiary), subject to the
control and direction of the employer entity as to both the work to be performed
and the manner and method of performance.
- Exercise Date shall mean the date on
which the Corporation shall have received written notice of the option
exercise.
- Fair Market Value per share of Common
Stock on any relevant date shall be determined in accordance with the following
provisions:
- If the Common Stock is at the time traded on the
Nasdaq National Market, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question, as such price is
reported by the National Association of Securities Dealers on the Nasdaq
National Market or any successor system. If there is no closing selling price
for the Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such quotation
exists.
- If the Common Stock is at the time listed on any
Stock Exchange, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question on the Stock Exchange
determined by the Plan Administrator to be the primary market for the Common
Stock, as such price is officially quoted in the composite tape of transactions
on such exchange. If there is no closing selling price for the Common Stock on
the date in question, then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation exists.
- For purposes of option grants made on the date the
Underwriting Agreement is executed and the initial public offering price of the
Common Stock is established, the Fair Market Value shall be deemed to be equal
to the established initial offering price per share.
- Hostile Take-Over shall mean a change in
ownership of the Corporation effected through the acquisition, directly or
indirectly, by any person or related group of persons (other than the
Corporation or a person that directly or indirectly controls, is controlled by,
or is under common control with, the Corporation) of beneficial ownership
(within the meaning of Rule 13d-3 of the 1934 Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities pursuant to a tender or exchange offer made directly to
the Corporation's stockholders which the Board does not recommend such
stockholders to accept.
- Incentive Option shall mean an option
which satisfies the requirements of Code Section 422.
- Involuntary Termination shall mean the
termination of the Service of any individual which occurs by reason of:
- such individual's involuntary dismissal or discharge
by the Corporation for reasons other than Misconduct, or
- such individual's voluntary resignation following (A)
a change in his or her position with the Corporation which materially reduces
his or her level of responsibility, (B) a reduction in his or her level of
compensation (including base salary, fringe benefits and participation in
corporate-performance based bonus or incentive programs) by more than fifteen
percent (15%) or (C) a relocation of such individual's place of employment by
more than fifty (50) miles, provided and only if such change, reduction or
relocation is effected by the Corporation without the individual's consent.
- Misconduct shall mean the commission of
any act of fraud, embezzlement or dishonesty by the Optionee, any unauthorized
use or disclosure by such person of confidential information or trade secrets of
the Corporation (or any Parent or Subsidiary), or any other intentional
misconduct by such person adversely affecting the business or affairs of the
Corporation (or any Parent or Subsidiary) in a material manner. The foregoing
definition shall not be deemed to be inclusive of all the acts or omissions
which the Corporation (or any Parent or Subsidiary) may consider as grounds for
the dismissal or discharge of any Optionee or other person in the Service of the
Corporation (or any Parent or Subsidiary).
- 1934 Act shall mean the Securities
Exchange Act of 1934, as amended.
- Non-Statutory Option shall mean an option
not intended to satisfy the requirements of Code Section 422.
- Optionee shall mean any person to whom an
option is granted under the Plan.
- Parent shall mean any corporation (other
than the Corporation) in an unbroken chain of corporations ending with the
Corporation, provided each corporation in the unbroken chain (other than the
Corporation) owns, at the time of the determination, stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
- Permanent Disability or Permanently
Disabled shall mean the inability of the Optionee to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment expected to result in death or to be of continuous duration of
twelve (12) months or more.
- Plan shall mean the Corporation's 1995
Stock Option Plan, as set forth in this document.
- Plan Administrator shall mean the
particular entity, whether the Primary Committee, the Board or the Secondary
Committee, which is authorized to administer the Plan with respect to one or
more classes of eligible persons, to the extent such entity is carrying out its
administrative functions under the Plan with respect to the persons under its
jurisdiction.
- Plan Effective Date shall mean October
23, 1995, the date on which the Underwriting Agreement was executed and the
initial public offering price of the Common Stock was established.
- Predecessor Plan shall mean the
Corporation's existing 1992 Stock Option Plan.
- Primary Committee shall mean the
committee of two (2) or more non-employee Board members appointed by the Board
to administer the Plan with respect to Section 16 Insiders.
- Secondary Committee shall mean a
committee of two (2) or more Board members appointed by the Board to administer
the Plan with respect to eligible persons other than Section 16 Insiders.
- Section 16 Insider shall mean an officer
or director of the Corporation subject to the short-swing profit liabilities of
Section 16 of the 1934 Act.
- Section 12(g) Registration Date shall
mean the first date on which the Common Stock is registered under Section 12(g)
of the 1934 Act.
- Service shall mean the provision of
services to the Corporation (or any Parent or Subsidiary) by a person in the
capacity of an Employee, or a consultant or independent advisor, except to the
extent otherwise specifically provided in the documents evidencing the option
grant.
- Stock Exchange shall mean either the
American Stock Exchange or the New York Stock Exchange.
- Subsidiary shall mean any corporation
(other than the Corporation) in an unbroken chain of corporations beginning with
the Corporation, provided each corporation (other than the last corporation) in
the unbroken chain owns, at the time of the determination, stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
- Take-Over Price shall mean the greater
of (i) the Fair Market Value per share of Common Stock on the date the option is
surrendered to the Corporation in connection with a Hostile Take-Over or (ii)
the highest reported price per share of Common Stock paid by the tender offeror
in effecting such Hostile Take-Over. However, if the surrendered option is an
Incentive Option, the Take-Over Price shall not exceed the clause (i) price per
share.
- Taxes shall mean the Federal, state and
local income and employment tax liabilities incurred by the holder of Non-
Statutory Options or unvested shares of Common Stock in connection with the
exercise of those options or the vesting of those shares.
- 10% Stockholder shall mean the owner of
stock (as determined under Code Section 424(d)) possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Corporation (or any Parent or Subsidiary).
- Underwriting Agreement shall mean the
agreement between the Corporation and the underwriter or underwriters managing
the initial public offering of the Common Stock.
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