EXHIBIT 10.05
MEDGENESIS INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
Section 1. Purpose: This Employee Stock Purchase Plan ("Plan") is
intended to advance the interests of MEDGENESIS INC. ("Company") and its
shareholders by enabling the Company attract and retain in its employ men and
women of training, experience and ability. The Plan will give employees an
opportunity to acquire a proprietary interest in the success of the Company the
purchase of Common Stock on a favorable basis and thereby furnish an additional
incentive to such employees in the successful conduct and development of the
business of the Company. It is intended that options issued pursuant to this
Plan shall constitute options issued pursuant to an "employee stock purchase
plan" within the meaning of Section 423 of the Code as defined below.
Section 2. Definitions: For purposes of the Plan, the terms set forth
below shall have the following respective meanings:
2.01 Common Stock - "Common Stock" shall mean the Company's
common stock, $.01 par value per share.
2.02 Offering - "Offering" shall mean a payroll deduction
period of fixed duration (not to exceed two years), at the beginning of
which Options are granted by the Company to eligible employees under a
set of terms established for such Offering pursuant to Section 5. A
document adopted by the Board of Directors setting forth the duration
of an Offering and the terms of Options granted during the Offering is
referred to herein as an Offering Statement.
2.03 Option - "Option" shall mean the right to purchase Common
Stock granted pursuant to the terms of an Offering and the Plan.
2.04 Optionee - "Optionee" shall mean the person to whom an
Option has been granted.
2.05 Code - "Code" shall mean the Internal Revenue Code of
1986, as amended, and the governmental rules and regulations issued
thereunder.
Section 3. Authorized Stock and Term of Plan: The aggregate number of
shares of Common Stock that may be optioned and sold under one or more Offerings
to be made under this Plan by the Board of Directors shall be 100,000 shares;
such shares may be either authorized and unissued or reacquired shares,
including shares purchased in the open market. The Plan shall continue until the
maximum number of authorized shares of Common Stock has been issued pursuant to
one or more Offerings, or until prior termination of the Plan by action of the
Board of Directors or shareholders.
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Section 4. Eligibility: Any Offering under the Plan may be made to
employees of the Company and employees of its majority owned subsidiaries
(including companies that become subsidiaries after the effective date of this
Plan), subject to the right of the Board of Directors of the Company to limit
any Offering to employees of a particular company or companies or to particular
categories or groups of employees, within the limits permitted by the Code. The
status of a person as an employee shall be determined in accordance with the
rules contained in Section 3401(c) of the Code.
No employee shall be granted an Option if immediately after such Option
is granted, he or she owns stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Company or
any parent corporation or subsidiary corporation of the Company, as the terms
"parent corporation" and "subsidiary corporation" are defined in Section 424(e)
and (f) of the Code. In determining whether the stock ownership of an employee
equals or exceeds this five percent (5%) limit, the rules of Section 424(d) of
the Code shall apply, and stock that the employee may purchase under outstanding
options (whether or not such options qualify for the special tax treatment
afforded by Section 421 (a) of the Code) shall be treated as stock owned by the
employee.
Section 5. Terms and Conditions of Offerings: Each Offering under the
Plan shall be established pursuant to an Offering Statement, which shall contain
such terms and conditions as the Board of Directors may determine, consistent
with the terms of the Plan, provided that all employees granted Options under a
particular Offering shall have the same rights and privileges, and provided
further, that each Offering shall comply with and be subject to the following
terms and conditions:
5.01 Number of Shares: The Board of Directors shall specify
the total number of shares available for purchase under each Offering
and the maximum number of shares, proportionate to total compensation,
or basic or regular rate of compensation, that any employee may elect
to purchase under such Offering. If the total number of shares that
employees elect to purchase under an Offering exceeds the shares
available, the Board of Directors of the Company shall allocate the
shares among such employees in as nearly a uniform manner as shall be
practicable and as it shall determine to be equitable. In that event an
employee's election shall be canceled with respect to any shares in
excess of the number of shares allocated to him or her.
5.02 Option Price: The option price under any Offering may be
a percentage (not less than 85% nor more than 100%) of (a) the fair
market value of the Common Stock on the day the Option is exercised;
(b) the fair market value on the day the Option is granted; or (c) the
lesser of (i) the fair market value of the Common Stock on the day the
Option is exercised or (ii) the fair market value on the day the Option
is granted. In conjunction with one of the foregoing methods of
determining the option price, the Board of Directors may also specify a
fixed minimum price per share.
The Board of Directors shall determine the fair market value
or provide the procedures for determining the fair market value in
accordance with the Code.
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5.03 Payment: Payment for shares by an employee participating
in an Offering shall be made on an installment basis by payroll
deductions over the period of the Offering. The payroll deduction
contributions shall be credited to an account maintained by the Company
for each Optionee.
At the end of an Offering, the contributions credited to an
Optionee's account will be used, unless the Optionee has withdrawn from
the Offering as provided below, to purchase the greatest possible
number of whole shares of Common Stock at the option price (but not in
excess of the number of shares for which Options have been granted to
the Optionee pursuant to Section 5.01). Any remaining balance in the
account shall be carried over to the next Offering; provided, however,
that if no more Offerings will be made under this Plan or if the
Committee determines that amounts will not be carried over, the
remaining balance shall be refunded to the Optionee. An Optionee may
withdraw from the Offering by providing written notice to the Committee
at least 10 days prior to the last day of the Offering and, if such
notice is timely given, the full amount credited to the Optionee's
account will be paid to the Optionee in cash within 15 days after the
last day of the Offering. An Optionee who withdraws from an Offering in
accordance with this paragraph may not participate in the immediately
following Offering, if any, under this Plan.
The Company shall have the power and the right to deduct or
withhold, or require an Optionee to remit to the Company, an amount
sufficient to satisfy Federal, state, and local taxes (including the
Optionee's FICA obligation, if any), required by law to be withheld
with respect to any grant, exercise, or payment made under or as a
result of the Plan.
5.04 Term of Option: No Option may be exercised after the
expiration of the Offering to which it relates; except, however, that
an Option granted to an Optionee who dies prior to the expiration of an
Offering may be exercised at any time within 27 months from the date
the Option is granted, or such shorter period as the Board of Directors
may specify.
5.05 Accrual Limitation: No Option shall permit the rights of
an Optionee to purchase stock under all "employee stock purchase plans"
of the Company and any parent corporation or subsidiary corporation (as
the terms "parent corporation" and "subsidiary corporation" are defined
in Section 424(e) and (f) of the Code) to accrue at a rate that exceeds
$25,000 in fair market value of such stock (determined at the time the
Option is granted) for each calendar year in which the Option is
outstanding at any time. This limitation shall be interpreted in
accordance with the Code.
5.06 Termination of Employment Except Death: In the event that
an Optionee shall cease to be employed by the Company or a subsidiary
for any reason other than his or her death, retirement or disability
and shall be no longer in the employ of any of them, the Optionee's
participation in the Plan shall terminate immediately and the amount
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credited to the Optionee's account shall be paid to the Optionee in
cash within 15 days after the date of termination. Whether authorized
leaves of absence for military or governmental service or otherwise
shall constitute termination of employment, for purposes of the Plan,
shall be determined by the Committee.
If the Optionee's employment terminates due to retirement or
disability, the Optionee's payroll deduction contributions shall cease,
but participation in the Plan shall continue until the last day of the
Offering during which the termination occurs or, if earlier, the date
three months after the termination of employment. The provisions of
Section 5.03 relating to the purchase of Common Stock shall continue to
apply to the Optionee to the extent of the contributions accumulated in
the Optionee's account at the time employment terminates. In applying
the provisions of Section 5.03 to a retired or disabled Optionee, the
date that participation terminates under this paragraph shall be
treated as the last day of the Offering with respect to the Optionee.
5.07 Death of Optionee and Transfer of Option: If an Optionee
shall die while in the employ of the Company or a subsidiary and shall
not have exercised an outstanding Option issued under an Offering, such
Option may be exercised (to the extent that the Optionee's right to
exercise such Option had accrued pursuant to this Plan at the time of
his or her death) by the beneficiaries designated by the Optionee or,
if none, by the executors or administrators of the Optionee's estate or
by any person or persons who shall have acquired the Option directly
from the Optionee by bequest or inheritance, within such period after
the Optionee's death as may be determined by the Committee; provided,
however, that no Option shall be exercisable more than 27 months from
the day it is granted.
No Option granted hereunder shall be transferable by the
Optionee otherwise than by a beneficiary designation filed with the
Committee, by will or by the laws of descent and distribution.
5.08 Adjustments: In the event there are any changes in the
Common Stock of the Company through merger, consolidation,
recapitalization, stock dividend, stock split or other increase or
reduction of the number of shares of Common Stock outstanding for which
compensation in the form of money, services or property is not
received, the Board of Directors in its discretion may proportionately
increase or decrease the aggregate number of shares of Common Stock
subject to the Plan and the number of shares and the price per share of
stock subject to outstanding Options.
In the event that the Company is the surviving corporation in
any merger or consolidation, each outstanding Option shall pertain to
and apply to the securities to which a holder of the number of shares
of Common Stock subject to the Option would have been entitled. A
dissolution or liquidation of the Company, or a merger or consolidation
in which the Company is not the surviving corporation, shall cause each
outstanding Option to terminate, provided that each Optionee shall, in
such event, have
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the right immediately prior to such dissolution or liquidation, or
merger, or consolidation in which the Company is not the surviving
corporation, to exercise the Option.
Notwithstanding the foregoing, Options granted pursuant to
this Plan shall not be adjusted in a manner that causes the Options to
fail to continue to qualify as options issued pursuant to an "employee
stock purchase plan" within the meaning of Section 423 of the Code.
The granting of an Option pursuant to the Plan shall not
affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes in its
capital or business structure or to merge or to consolidate or to
dissolve, liquidate, sell or transfer all or any part of its business
or assets.
5.09 Rights as a Shareholder: No person shall have any rights
as a shareholder with respect to any shares covered by an Option owned
by him or her until the date of valid exercise of such Option, together
with payment of the full purchase price for such shares to the Company.
Section 6. Amendment of the Plan: The Board of Directors may suspend or
terminate the Plan or any portion thereof at any time and the Board may amend
the Plan from time to time as may be deemed to be in the best interests of the
Company; provided however, that shareholder approval shall be required for any
amendment, alteration, or discontinuation (a) that increases the number of
shares subject to the Plan (other than an increase reflecting a change in
capitalization pursuant to Subsection 5.08), (b) that causes Options issued
under the Plan to fail to meet the requirements of employee stock purchase
options under Section 423 of the Code, or (c) is necessary to comply with any
legal, tax, or regulatory requirement, including any approval requirement that
is a prerequisite for exemptive relief from Section 16(b) of the Securities and
Exchange Act of 1934, as amended.
Section 7. Application of Funds: Proceeds received by the Company from
the sale of Common Stock pursuant to Options may be used for general corporate
purposes.
Section 8. Approval of Shareholders: The Plan shall become effective
upon approval by the holders of a majority of the shares of Common Stock of the
Company voting in person or by proxy at a duly held shareholders' meeting, which
approval must occur within the period ending twelve months after the date the
Plan is adopted by the Board of Directors.
Section 9. Employment: Nothing in the Plan or in any Offering under the
Plan shall confer on any employee any right to continue in the employ of the
Company or subsidiary or affect in any way the right of the Company or
subsidiary to terminate his or her employment at any time.
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Section 10. Committee: The Plan shall be administered by the
Compensation Committee, or a duly appointed subcommittee thereof, (collectively,
the "Committee"), which shall be appointed by, and serve at the pleasure of, the
Board of Directors. The Committee shall supervise the administration and
enforcement of the Plan and, subject to the provisions of the Plan, shall have
all powers necessary to discharge its duties hereunder, including, but not
limited to, the power to (i) employ and compensate agents of the Committee for
the purpose of administering the accounts of participating employees, (ii)
construe and interpret the provisions of the Plan, (iii) determine all questions
of eligibility under the Plan, and (iv) establish, amend or waive rules and
regulations for the administration of the Plan. All the determinations by the
Committee and/or the Board of Directors under the Plan shall be in its sole
discretion and shall be binding upon all Optionees and employees.
A Committee shall consist of not fewer than two persons, all of whom shall be
officers, employees or directors of the Company. The Board of Directors may from
time to time remove members from or add members to the Committee. Vacancies on
the Committee, howsoever caused, shall be filled by the Board of Directors. The
Committee shall select one of its members as Chairman and shall hold meetings at
such times and places as it may determine. A majority of the Committee acting at
a meeting at which a quorum is present, or acts reduced to or approved in
writing by a majority of the members of the Committee, shall be the valid acts
of the Committee.
Section 11. Interpretation of Plan: The interpretation and construction
by the Committee of any provisions of the Plan, of an Offering statement, or of
any Option shall be final. No member of the Board of Directors or the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any Option.
Section 12. Indemnification and Expenses: The members of the Board of
Directors or of the Committee shall be indemnified by the Company, except to the
extent indemnification is specifically prohibited by the Company's Articles of
Incorporation, By-Laws or applicable law, for any action or failure to act under
or in connection with the Plan or any Option. The Company shall pay all of the
expenses of the Plan.
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Secretary
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