<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 1999
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
IMMUNEX CORPORATION
(Exact name of Registrant as specified in its charter)
WASHINGTON 51-0346580
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
51 UNIVERSITY STREET
SEATTLE, WASHINGTON 98101
(Address of principal executive offices, including zip code)
IMMUNEX CORPORATION 1999 STOCK OPTION PLAN
IMMUNEX CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
SCOTT G. HALLQUIST
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
IMMUNEX CORPORATION
51 UNIVERSITY STREET
SEATTLE, WASHINGTON 98101
(206) 587-0430
(Name, address and telephone number, including area code, of agent for service)
----------------------
COPY TO:
J. SUE MORGAN
PERKINS COIE LLP
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE(2) AGGREGATE OFFERING REGISTRATION FEE
PRICE(2)
<S> <C> <C> <C> <C>
COMMON STOCK, $0.01 PAR VALUE
PER SHARE, UNDER THE:
IMMUNEX CORPORATION 1999
STOCK OPTION PLAN 6,000,000 $97.50 $585,000,000.00 $162,630.00
IMMUNEX CORPORATION 1999
EMPLOYEE STOCK PURCHASE PLAN 500,000 $97.50 $ 48,750,000.00 $ 13,553.00
TOTAL: 6,500,000 $633,750,000.00 $ 176,183.00
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
such employee benefit plans as the result of any future stock split, stock
dividend or similar adjustment of the Registrant's outstanding Common
Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended. The
price per share is estimated to be $97.50 based on the average of the
high ($101.00) and low ($94.00) sales prices for the Common Stock on
April 23, 1999 as reported on the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, filed on March 19, 1999, which contains audited
financial statements for the most recent fiscal year for which such statements
have been filed;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the Annual Report
on Form 10-K referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed on May 12, 1983, under Section
12(g) of the Exchange Act, including any amendments or reports filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that the securities offered
hereby have been sold or which deregisters the securities covered hereby then
remaining unsold shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Under the WBCA, a corporation has the power to indemnify a
director or officer made a party to a proceeding, or advance or reimburse
expenses incurred in a proceeding, under any circumstances, except that no such
indemnification may be allowed on account of (i) acts or omissions of a director
or officer finally adjudged to be intentional misconduct or a knowing violation
of the law, (ii) conduct of a director or officer finally adjudged to be an
unlawful distribution or (iii) any transaction with respect to which it was
finally adjudged that such director or officer personally received a benefit in
money, property or services to which the director or officer was not legally
entitled. Article 12 of the Registrant's Articles of Incorporation and Section
10 of the Registrant's Bylaws provide for indemnification of the Registrant's
directors and officers to the fullest extent permitted by Washington law.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, self-dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article 11 of the Registrant's Articles of Incorporation contains
provisions implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the Registrant and its shareholders.
Any amendment or repeal of such Article 11 may not adversely affect any right or
protection of a director of the Registrant for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal. The
affirmative vote of 80% of the voting stock of the Registrant is required to
amend, or to adopt any provision inconsistent with, such Article 11.
II-1
<PAGE>
The Registrant has entered into separate indemnification agreements
with each of its directors and officers. These agreements require the
Registrant to, among other things, indemnify such directors and officers against
certain liabilities that may arise by reason of their status or service as
directors or officers, and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
Officers and directors of the Registrant are covered by insurance
(with certain exceptions and limitations) that indemnifies them against losses
and liabilities arising from certain alleged "wrongful acts," including alleged
errors or misstatements, or certain other alleged wrongful acts or omissions
constituting neglect or breach of duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ----------------- ---------------------------------------------------------------------------------
<S> <C>
5.1 Opinion of Perkins Coie LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 Immunex Corporation 1999 Stock Option Plan
99.2 Immunex Corporation 1999 Employee Stock Purchase Plan
</TABLE>
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;
(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 paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities 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.
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the
II-2
<PAGE>
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
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 Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
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 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Seattle, State of Washington, on the 28th day of
April, 1999.
IMMUNEX CORPORATION
By: /s/ DAVID A. MANN
------------------------------------
David A. Mann
Vice President and Interim Chief
Financial Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Scott G. Hallquist as attorney-in-fact with full power of substitution, to
execute in the name and on the behalf of each person, individually and in each
capacity stated below, and to file, any and all amendments to this Registration
Statement, including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 28th day of April, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ EDWARD V. FRITZKY Chief Executive Officer and Chairman of
- --------------------------------- the Board (Principal Executive Officer)
Edward V. Fritzky
/s/ DAVID A. MANN Vice President and Interim Chief Financial
- --------------------------------- Officer (Principal Financial and Accounting Officer)
David A. Mann
/s/ JOSEPH J. CARR Director
- ---------------------------------
Joseph J. Carr
/s/ KIRBY L. CRAMER Director
- ---------------------------------
Kirby L. Cramer
/s/ ROBERT I. LEVY Director
- ---------------------------------
Robert I. Levy
Director
- ---------------------------------
John E. Lyons
/s/ JOSEPH M. MAHADY Director
- ---------------------------------
Joseph M. Mahady
/s/ EDITH W. MARTIN Director
- ---------------------------------
Edith W. Martin
/s/ PEGGY V. PHILLIPS Director
- ---------------------------------
Peggy V. Phillips
/s/ DOUGLAS E. WILLIAMS Director
- ---------------------------------
Douglas E. Williams
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ----------------- ------------------------------------------------
<S> <C>
5.1 Opinion of Perkins Coie LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 Immunex Corporation 1999 Stock Option Plan
99.2 Immunex Corporation 1999 Employee Stock Purchase Plan
</TABLE>
<PAGE>
EXHIBIT 5.1
PERKINS COIE LLP
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
1201 THIRD AVENUE, 40TH FLOOR, SEATTLE, WASHINGTON 98101-3099
TELEPHONE: 206 583-8888 FACSIMILE: 206 583-8500
April 28, 1999
Immunex Corporation
51 University Street
Seattle, Washington 98101
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), which you are filing with the
Securities and Exchange Commission with respect to 6,500,000 shares of Common
Stock, par value $0.01 per share (the "Shares"), which may be issued as follows:
6,000,000 shares pursuant to the Immunex Corporation 1999 Stock Option Plan and
500,000 shares pursuant to the Immunex Corporation 1999 Employee Stock Purchase
Plan (the "Plans").
We have examined the Registration Statement and such documents and
records of the Company and other documents as we have deemed relevant and
necessary for the purpose of this opinion. In giving this opinion, we are
assuming the authenticity of all instruments presented to us as originals,
the conformity with originals of all instruments presented to us as copies
and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that any
original issuance Shares that may be issued pursuant to the Plans have been duly
authorized and that, upon the due execution by the Company and the registration
by its registrar of such Shares and the sale thereof by the Company in
accordance with the terms of the Plans, and the receipt of consideration
therefor in accordance with the terms of the Plans, such Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ PERKINS COIE LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
--------------------------------------------------
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Immunex Corporation 1999 Stock Option Plan and
the Immunex Corporation 1999 Employee Stock Purchase Plan of our report dated
January 29, 1999, with respect to the consolidated financial statements and
schedule of Immunex Corporation included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Seattle, Washington
April 27, 1999
<PAGE>
EXHIBIT 99.1
IMMUNEX CORPORATION
1999 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purpose of the Immunex Corporation 1999 Stock Option Plan (the "Plan")
is to enhance the long-term shareholder value of Immunex Corporation, a
Washington corporation (the "Company"), by offering opportunities to selected
employees, officers and directors to participate in the Company's growth and
success, and to encourage them to remain in the service of the Company and its
Related Corporations (as defined in Section 2) and to acquire and maintain stock
ownership in the Company.
SECTION 2. DEFINITIONS
For purposes of the Plan, the following terms shall be defined as set forth
below:
"BOARD" means the Board of Directors of the Company.
"CAUSE" means dishonesty, fraud, misconduct, unauthorized use or disclosure
of confidential information or trade secrets, or conviction or confession of a
crime punishable by law (except minor violations), in each case as determined by
the Plan Administrator, and its determination shall be conclusive and binding.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMON STOCK" means the common stock, par value $.01 per share, of the
Company.
"DISABILITY," unless otherwise defined by the Plan Administrator, means a
mental or physical impairment of the Optionee that is expected to result in
death or that has lasted or is expected to last for a continuous period of 12
months or more and that causes the Optionee to be unable, in the opinion of the
Company and one independent physician selected by the Company, to perform his or
her duties for the Company or a Related Corporation or to be engaged in any
substantial gainful activity.
"EFFECTIVE DATE" means the date on which the Plan is adopted by the Board,
so long as it is approved by the Company's shareholders at any time within 12
months of such adoption.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE STOCK" has the meaning set forth in Section 11.3.
"FAIR MARKET VALUE" shall be as established in good faith by the Plan
Administrator or (a) if the Common Stock is listed on the Nasdaq National
Market, the closing per share sales prices for the Common Stock as reported by
the Nasdaq National Market for a single trading day or (b) if the Common Stock
is listed on the New York Stock Exchange or the American Stock Exchange, the
closing per share sales prices for the Common Stock as such price is officially
quoted in the composite tape of transactions on such exchange for a single
trading day. If there is no such reported price for the Common Stock for the
date in question, then such price on the last preceding date for which such
price exists shall be determinative of Fair Market Value.
"GOVERNANCE AGREEMENT" means the Amended and Restated Governance Agreement
among American Cyanamid Company, Lederle Oncology Corporation and Immunex
Corporation dated as of December 15, 1992.
<PAGE>
"GRANT DATE" means the date on which the Plan Administrator completes the
corporate action relating to the grant of an Option and all conditions precedent
to the grant have been satisfied, provided that conditions to the exercisability
or vesting of Options shall not defer the Grant Date.
"INCENTIVE STOCK OPTION" means an Option to purchase Common Stock granted
under Section 7 with the intention that it qualify as an "incentive stock
option" as that term is defined in Section 422 of the Code.
"NONQUALIFIED STOCK OPTION" means an Option to purchase Common Stock
granted under Section 7 other than an Incentive Stock Option.
"OPTION" means the right to purchase Common Stock granted under Section 7.
"OPTIONEE" means (a) the person to whom an Option is granted; (b) for an
Optionee who has died, the personal representative of the Optionee's estate, the
person(s) to whom the Optionee's rights under the Option have passed by will or
by the applicable laws of descent and distribution, or the beneficiary
designated in accordance with Section 10; or (c) the person(s) to whom an Option
has been transferred in accordance with Section 10.
"OPTION TERM" has the meaning set forth in Section 7.3.
"PARENT," except as provided in Section 8.3 in connection with Incentive
Stock Options, means any entity, whether now or hereafter existing, that
directly or indirectly controls the Company.
"PLAN ADMINISTRATOR" means the Board or any committee or committees
designated by the Board or any person to whom the Board has delegated authority
to administer the Plan under Section 3.1.
"RELATED CORPORATION" means any Parent or Subsidiary of the Company.
"RETIREMENT" means retirement as of the individual's normal retirement date
under the Company's 401(k) Plan or other similar successor plan applicable to
salaried employees, unless otherwise defined by the Plan Administrator from time
to time for purposes of the Plan.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY," except as provided in Section 8.3 in connection with
Incentive Stock Options, means any entity that is directly or indirectly
controlled by the Company.
"TERMINATION DATE" has the meaning set forth in Section 7.6.
SECTION 3. ADMINISTRATION
3.1 PLAN ADMINISTRATOR
The Plan shall be administered by the Board and/or the Stock Option Plan
Administration Committee or a committee or committees (which term includes
subcommittees) appointed by, and consisting of two or more members of, the Board
(a "Plan Administrator"). If and so long as the Common Stock is registered
under Section 12(b) or 12(g) of the Exchange Act, the Board shall consider in
selecting the members of any committee acting as Plan Administrator, with
respect to any persons subject or likely to become subject to Section 16 of the
Exchange Act, the provisions regarding (a) "outside directors" as contemplated
by Section 162(m) of the Code and (b) "nonemployee directors" as contemplated by
Rule 16b-3 under the Exchange Act. The Board may delegate the responsibility
for administering the Plan with respect to designated classes of eligible
persons to different committees consisting of two or more members of the Board,
subject to such limitations as the Board deems appropriate. Committee members
shall serve for such term as the Board may determine, subject to removal by the
Board at any time. To the extent consistent with applicable law, the Board may
authorize a senior executive officer
<PAGE>
of the Company to grant Options to specified eligible persons, within the limits
specifically prescribed by the Board. All delegations of authority by the Board
pursuant to this Section 3.1 shall be subject to the procedural requirements of
Section 4.03 of the Governance Agreement.
3.2 ADMINISTRATION AND INTERPRETATION BY PLAN ADMINISTRATOR
Except for the terms and conditions explicitly set forth in the Plan, the
Plan Administrator shall have exclusive authority, in its discretion, to
determine all matters relating to Options under the Plan, including the
selection of individuals to be granted Options, the type of Options, the number
of shares of Common Stock subject to an Option, all terms, conditions,
restrictions and limitations, if any, of an Option and the terms of any
instrument that evidences the Option. The Plan Administrator shall also have
exclusive authority to interpret the Plan and may from time to time adopt, and
change, rules and regulations of general application for the Plan's
administration. The Plan Administrator's interpretation of the Plan and its
rules and regulations, and all actions taken and determinations made by the Plan
Administrator pursuant to the Plan, shall be conclusive and binding on all
parties involved or affected. The Plan Administrator may delegate
administrative duties to such of the Company's officers as it so determines.
SECTION 4. STOCK SUBJECT TO THE PLAN
4.1 AUTHORIZED NUMBER OF SHARES
Subject to adjustment from time to time as provided in Section 11.1, a
maximum of 6,000,000 shares of Common Stock shall be available for issuance
under the Plan. Shares issued under the Plan shall be drawn from authorized and
unissued shares or shares now held or subsequently acquired by the Company.
4.2 LIMITATIONS
Subject to adjustment from time to time as provided in Section 11.1, not
more than 200,000 shares of Common Stock may be made subject to Options under
the Plan to any individual in the aggregate in any one fiscal year of the
Company, except that the Company may make additional one-time grants of up to
200,000 shares to newly hired individuals, such limitation to be applied in a
manner consistent with the requirements of, and only to the extent required for
compliance with, the exclusion from the limitation on deductibility of
compensation under Section 162(m) of the Code.
4.3 REUSE OF SHARES
Any shares of Common Stock that have been made subject to an Option that
cease to be subject to the Option (other than by reason of exercise of the
Option to the extent it is exercised for shares) shall again be available for
issuance in connection with future grants of Options under the Plan; provided,
however, that for purposes of Section 4.2, any such shares shall be counted in
accordance with the requirements of Section 162(m) of the Code.
SECTION 5. ELIGIBILITY
Options may be granted under the Plan to those officers, directors and
employees of the Company and its Related Corporations as the Plan Administrator
from time to time selects.
SECTION 6. ACQUIRED COMPANY OPTIONS
Notwithstanding anything in the Plan to the contrary, the Plan
Administrator may grant Options under the Plan in substitution for awards issued
under other plans, or assume under the Plan awards issued under other plans, if
the other plans are or were plans of other acquired entities ("Acquired
Entities") (or the parent of the Acquired Entity) and the new Option is
substituted, or the old option is assumed, by reason of a merger,
<PAGE>
consolidation, acquisition of property or of stock, reorganization or
liquidation (the "Acquisition Transaction"). In the event that a written
agreement pursuant to which the Acquisition Transaction is completed is approved
by the Board and said agreement sets forth the terms and conditions of the
substitution for or assumption of outstanding options of the Acquired Entity,
said terms and conditions shall be deemed to be the action of the Plan
Administrator without any further action by the Plan Administrator, except as
may be required for compliance with Rule 16b-3 under the Exchange Act, and the
persons holding such awards shall be deemed to be Optionees.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS
7.1 GRANT OF OPTIONS
The Plan Administrator is authorized under the Plan, in its sole
discretion, to issue Options as Incentive Stock Options or as Nonqualified Stock
Options, which shall be appropriately designated.
7.2 OPTION EXERCISE PRICE
The exercise price for shares purchased under an Option shall be as
determined by the Plan Administrator, but shall not be less than 100% of the
Fair Market Value of the Common Stock on the Grant Date with respect to
Incentive Stock Options and not less than 85% of the Fair Market Value of the
Common Stock on the Grant Date with respect to Nonqualified Stock Options. For
Incentive Stock Options granted to a more than 10% shareholder, the Option
exercise price shall be as specified in Section 8.2.
7.3 TERM OF OPTIONS
The term of each Option (the "Option Term") shall be as established by the
Plan Administrator or, if not so established, shall be 10 years from the Grant
Date. For Incentive Stock Options, the maximum Option Term shall be as
specified in Sections 8.2 and 8.4.
7.4 EXERCISE OF OPTIONS
The Plan Administrator shall establish and set forth in each instrument
that evidences an Option the time at which, or the installments in which, the
Option shall vest and become exercisable, which provisions may be waived or
modified by the Plan Administrator at any time. If not so established in the
instrument evidencing the Option, the Option shall vest and become exercisable
according to the following schedule, which may be waived or modified by the Plan
Administrator at any time:
<TABLE>
<CAPTION>
PERIOD OF OPTIONEE'S CONTINUOUS EMPLOYMENT
OR SERVICE WITH THE COMPANY OR ITS RELATED PERCENT OF TOTAL OPTION
CORPORATIONS FROM THE OPTION GRANT DATE THAT IS VESTED AND EXERCISABLE
--------------------------------------- ------------------------------
<S> <C>
After one year 20%
After two years 40%
After three years 60%
After four years 80%
After five years 100%
</TABLE>
The Plan Administrator may adjust the vesting schedule of an Option held by
an Optionee who works less than "full-time" as that term is defined by the Plan
Administrator.
To the extent that the right to purchase shares has accrued thereunder, an
Option may be exercised from time to time by delivery to the Company of a stock
option exercise agreement or notice, in a form and in
<PAGE>
accordance with procedures established by the Plan Administrator, setting forth
the number of shares with respect to which the Option is being exercised, the
restrictions imposed on the shares purchased under such exercise agreement, if
any, and such representations and agreements as may be required by the Company,
accompanied by payment in full as described in Section 7.5. An Option may not
be exercised as to less than a reasonable number of shares at any one time, as
determined by the Plan Administrator.
7.5 PAYMENT OF EXERCISE PRICE
The exercise price for shares purchased under an Option shall be paid in
full to the Company by delivery of consideration equal to the product of the
Option exercise price and the number of shares purchased. Such consideration
must be paid in cash or by check or, unless the Plan Administrator in its sole
discretion determines otherwise, either at the time the Option is granted or at
any time before it is exercised, in any combination of
(a) cash or check;
(b) tendering (either actually or, if and so long as the Common Stock is
registered under Section 12(b) or 12(g) of the Exchange Act, by attestation)
shares of Common Stock already owned by the Optionee for at least six months (or
any shorter period necessary to avoid a charge to the Company's earnings for
financial reporting purposes) having a Fair Market Value on the day prior to the
exercise date equal to the aggregate Option exercise price;
(c) if and so long as the Common Stock is registered under Section 12(b)
or 12(g) of the Exchange Act, delivery of an exercise notice, together with
irrevocable instructions, to a brokerage firm designated by the Company to
deliver promptly to the Company the aggregate amount of sale or loan proceeds to
pay the Option exercise price and any withholding tax obligations that may arise
in connection with the exercise and to the Company to deliver the certificates
for such purchased shares directly to such brokerage firm, all in accordance
with the regulations of the Federal Reserve Board; or
(d) such other consideration as the Plan Administrator may permit.
In addition, to assist an Optionee (including an Optionee who is an officer
or a director of the Company) in acquiring shares of Common Stock pursuant to an
Option granted under the Plan, the Plan Administrator, in its sole discretion,
may authorize, either at the Grant Date or at any time before the acquisition of
Common Stock pursuant to the Option, (i) the payment by the Optionee of a
full-recourse promissory note, (ii) the payment by the Optionee of the purchase
price, if any, of the Common Stock in installments, or (iii) the guarantee by
the Company of a loan obtained by the Optionee from a third party. Subject to
the foregoing, the Plan Administrator shall in its sole discretion specify the
terms of any loans, installment payments or loan guarantees, including the
interest rate and terms of and security for repayment.
7.6 POST-TERMINATION EXERCISES
The Plan Administrator shall establish and set forth in each instrument
that evidences an Option whether the Option shall continue to be exercisable,
and the terms and conditions of such exercise, if an Optionee ceases to be
employed by, or to provide services to, the Company or its Related Corporations,
which provisions may be waived or modified by the Plan Administrator at any
time. If not so established in the instrument evidencing the Option, the Option
shall be exercisable according to the following terms and conditions, which may
be waived or modified by the Plan Administrator at any time:
(a) Any portion of an Option that is not vested and exercisable on the
date of termination of the Optionee's employment or service relationship (the
"Termination Date") shall expire on such date, unless the Plan Administrator
determines otherwise.
<PAGE>
(b) Any portion of an Option that is vested and exercisable on the
Termination Date shall expire upon the earliest to occur of:
(i) the last day of the Option Term;
(ii) if the Optionee's Termination Date occurs for reasons other than
Cause, Disability, death or Retirement, the three-month anniversary of such
Termination Date; and
(iii) if the Optionee's Termination Date occurs by reason of
Disability, death or Retirement, the one-year anniversary of such Termination
Date.
Notwithstanding the foregoing, if the Optionee dies after the Termination
Date while the Option is otherwise exercisable, the Option shall expire upon the
earlier to occur of (y) the last day of the Option Term and (z) the first
anniversary of the date of death.
Also notwithstanding the foregoing, in case of termination of the
Optionee's employment or service relationship for Cause, the Option shall
automatically expire upon first notification to the Optionee of such
termination, unless the Plan Administrator determines otherwise. If an
Optionee's employment or service relationship with the Company is suspended
pending an investigation of whether the Optionee shall be terminated for Cause,
all the Optionee's rights under any Option likewise shall be suspended during
the period of investigation.
An Optionee's transfer of employment or service relationship between or
among the Company and its Related Corporations, or a change in status from an
employee to a consultant that is evidenced by a written agreement between an
Optionee and the Company or a Related Corporation, shall not be considered a
termination of employment or service relationship for purposes of this Section
7. Employment or service relationship shall be deemed to continue while the
Optionee is on a bona fide leave of absence, if such leave was approved by the
Company or a Related Corporation in writing and if continued crediting of
service for purposes of this Section 7 is expressly required by the terms of
such leave or by applicable law (as determined by the Company). The effect of a
Company-approved leave of absence on the terms and conditions of an Option shall
be determined by the Plan Administrator, in its sole discretion.
SECTION 8. INCENTIVE STOCK OPTION LIMITATIONS
To the extent required by Section 422 of the Code, Incentive Stock Options
shall be subject to the following additional terms and conditions:
8.1 DOLLAR LIMITATION
To the extent the aggregate Fair Market Value (determined as of the Grant
Date) of Common Stock with respect to which Incentive Stock Options are
exercisable for the first time during any calendar year (under the Plan and all
other stock option plans of the Company) exceeds $100,000, such portion in
excess of $100,000 shall be treated as a Nonqualified Stock Option. In the
event the Optionee holds two or more such Options that become exercisable for
the first time in the same calendar year, such limitation shall be applied on
the basis of the order in which such Options are granted.
8.2 MORE THAN 10% SHAREHOLDERS
If an individual owns more than 10% of the total voting power of all
classes of the Company's stock, then the exercise price per share of an
Incentive Stock Option shall not be less than 110% of the Fair Market Value of
the Common Stock on the Grant Date and the Option Term shall not exceed five
years. The determination of more than 10% ownership shall be made in accordance
with Section 422 of the Code.
<PAGE>
8.3 ELIGIBLE EMPLOYEES
Individuals who are not employees of the Company or one of its parent
corporations or subsidiary corporations may not be granted Incentive Stock
Options. For purposes of this Section 8.3, "parent corporation" and "subsidiary
corporation" shall have the meanings attributed to those terms for purposes of
Section 422 of the Code.
8.4 TERM
Except as provided in Section 8.2, the Option Term shall not exceed 10
years.
8.5 EXERCISABILITY
An Option designated as an Incentive Stock Option shall cease to qualify
for favorable tax treatment as an Incentive Stock Option to the extent it is
exercised (if permitted by the terms of the Option) (a) more than three months
after the Termination Date for reasons other than death or Disability, (b) more
than one year after the Termination Date by reason of Disability, or (c) after
the Optionee has been on leave of absence for more than 90 days, unless the
Optionee's reemployment rights are guaranteed by statute or contract.
For purposes of this Section 8.5, Disability shall mean "disability" as
that term is defined for purposes of Section 422 of the Code.
8.6 TAXATION OF INCENTIVE STOCK OPTIONS
In order to obtain certain tax benefits afforded to Incentive Stock Options
under Section 422 of the Code, the Optionee must hold the shares issued upon the
exercise of an Incentive Stock Option for two years after the Grant Date and one
year from the date of exercise. An Optionee may be subject to the alternative
minimum tax at the time of exercise of an Incentive Stock Option. The Optionee
shall give the Company prompt notice of any disposition of shares acquired by
the exercise of an Incentive Stock Option prior to the expiration of such
holding periods.
8.7 PROMISSORY NOTES
The amount of any promissory note delivered pursuant to Section 7.5 in
connection with an Incentive Stock Option shall bear interest at a rate
specified by the Plan Administrator, but in no case less than the rate required
to avoid imputation of interest (taking into account any exceptions to the
imputed interest rules) for federal income tax purposes.
SECTION 9. WITHHOLDING
The Company may require the Optionee to pay to the Company the amount of
any withholding taxes that the Company is required to withhold with respect to
the grant, vesting or exercise of any Option. Subject to the Plan and
applicable law, the Plan Administrator may, in its sole discretion, permit the
Optionee to satisfy withholding obligations (up to the maximum rate), in whole
or in part, by paying cash, by electing to have the Company withhold shares of
Common Stock or by transferring shares of Common Stock to the Company, in such
amounts as are equivalent to the Fair Market Value of the withholding
obligation. The Company shall have the right to withhold from any Option or any
shares of Common Stock issuable pursuant to an Option or from any cash amounts
otherwise due or to become due from the Company to the Optionee an amount equal
to such taxes. The Company may also deduct from any Option any other amounts
due from the Optionee to the Company or a Related Corporation.
<PAGE>
SECTION 10. ASSIGNABILITY
Options granted under the Plan and any interest therein may not be
assigned, pledged or transferred by the Optionee and may not be made subject to
attachment or similar proceedings otherwise than by will or by the applicable
laws of descent and distribution, and, during the Optionee's lifetime, such
Options may be exercised only by the Optionee. Notwithstanding the foregoing,
and to the extent permitted by Section 422 of the Code, the Plan Administrator,
in its sole discretion, may permit such assignment, transfer and exercisability
and may permit an Optionee to designate a beneficiary who may exercise the
Option or receive compensation under the Option after the Optionee's death;
provided, however, that any Option so assigned or transferred shall be subject
to all the same terms and conditions contained in the instrument evidencing the
Option.
SECTION 11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
11.1 ADJUSTMENT OF SHARES
The aggregate number and class of shares for which Options may be granted
under the Plan, the number and class of shares covered by each outstanding
Option and the exercise price per share thereof (but not the total price), shall
all be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a split-up or consolidation of
shares or any like capital adjustment, or the payment of any stock dividend (not
including the stock dividend approved by the Board on February 23, 1999).
11.2 CASH, STOCK OR OTHER PROPERTY FOR STOCK
Except as provided in Section 11.3, upon a merger (other than a merger of
the Company in which the holders of Common Stock immediately prior to the merger
have the same proportionate ownership of Common Stock in the surviving
corporation immediately after the merger), consolidation, acquisition of
property or stock, separation, reorganization (other than a mere reincorporation
or the creation of a holding company) or liquidation of the Company, as a result
of which the shareholders of the Company receive cash, stock or other property
in exchange for or in connection with their shares of Common Stock, any Option
granted hereunder shall terminate, but the Optionee shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, liquidation or reorganization to exercise such Option in whole or in part
whether or not the vesting requirements set forth in the Option agreement have
been satisfied.
11.3 CONVERSION OF OPTIONS ON STOCK FOR STOCK EXCHANGE
If the shareholders of the Company receive capital stock of another
corporation ("Exchange Stock") in exchange for their shares of Common Stock in
any transaction involving a merger (other than a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, liquidation
or reorganization (other than a mere reincorporation or the creation of a
holding company), the Company and the corporation issuing the Exchange Stock, in
their sole discretion, may determine that all Options granted hereunder shall be
converted into options to purchase shares of Exchange Stock instead of
terminating in accordance with the provisions of Section 11.2. The amount and
price of converted options shall be determined by adjusting the amount and price
of the Options granted hereunder in the same proportion as used for determining
the number of shares of Exchange Stock the holders of the Common Stock receive
in such merger, consolidation, acquisition of property or stock, liquidation or
reorganization. Unless accelerated by the Board, the vesting schedule set forth
in the Option agreement shall continue to apply to the options granted for the
Exchange Stock.
<PAGE>
11.4 FRACTIONAL SHARES
In the event of any adjustment in the number of shares covered by any
Option, any fractional shares resulting from such adjustment shall be
disregarded and each such Option shall cover only the number of full shares
resulting from such adjustment.
11.5 DETERMINATION OF BOARD TO BE FINAL
All Section 11 adjustments shall be made by the Plan Administrator, and its
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. Unless an Optionee agrees otherwise,
any change or adjustment to an Incentive Stock Option shall be made in such a
manner so as not to constitute a "modification" as defined in Section 424(h) of
the Code and so as not to cause his or her Incentive Stock Option issued
hereunder to fail to continue to qualify as an "incentive stock option" as
defined in Section 422(b) of the Code.
11.6 LIMITATIONS
The grant of Options shall in no way affect the Company's right 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.
SECTION 12. AMENDMENT AND TERMINATION OF PLAN
12.1 AMENDMENT OF PLAN
The Plan may be amended only by the Board in such respects as it shall deem
advisable; provided, however, that to the extent required for compliance with
Section 422 of the Code or any applicable law or regulation, shareholder
approval shall be required for any amendment that would (a) increase the total
number of shares available for issuance under the Plan, (b) modify the class of
persons eligible to receive Options, or (c) otherwise require shareholder
approval under any applicable law or regulation. Any amendment made to the Plan
that would constitute a "modification" to Incentive Stock Options outstanding on
the date of such amendment shall not, without the consent of the Optionee, be
applicable to such outstanding Incentive Stock Options but shall have
prospective effect only.
12.2 TERMINATION OF PLAN
The Board may suspend or terminate the Plan at any time. The Plan shall
have no fixed expiration date; provided, however, that no Incentive Stock
Options may be granted more than 10 years after the later of (a) the Plan's
adoption by the Board and (b) the adoption by the Board of any amendment to the
Plan that constitutes the adoption of a new plan for purposes of Section 422 of
the Code.
12.3 CONSENT OF OPTIONEE
The amendment or termination of the Plan or the amendment of an outstanding
Option shall not, without the Optionee's consent, impair or diminish any rights
or obligations under any Option theretofore granted to the Optionee under the
Plan. Except as otherwise provided in the Plan, no outstanding Option shall be
terminated without the consent of the Optionee. Any change or adjustment to an
outstanding Incentive Stock Option shall not, without the consent of the
Optionee, be made in a manner so as to constitute a "modification" that would
cause such Incentive Stock Option to fail to continue to qualify as an Incentive
Stock Option.
<PAGE>
SECTION 13. GENERAL
13.1 EVIDENCE OF OPTIONS
Options granted under the Plan shall be evidenced by a written instrument
that shall contain such terms, conditions, limitations and restrictions as the
Plan Administrator shall deem advisable and that are not inconsistent with the
Plan.
13.2 NO INDIVIDUAL RIGHTS
Nothing in the Plan or any Option granted under the Plan shall be deemed to
constitute an employment contract or confer or be deemed to confer on any
Optionee any right to continue in the employ of, or to continue any other
relationship with, the Company or any Related Corporation or limit in any way
the right of the Company or any Related Corporation of the Company to terminate
an Optionee's employment or other relationship at any time, with or without
Cause.
13.3 REGISTRATION
Notwithstanding any other provision of the Plan, the Company shall have no
obligation to issue or deliver any shares of Common Stock under the Plan or make
any other distribution of benefits under the Plan unless such issuance, delivery
or distribution would comply with all applicable laws (including, without
limitation, the requirements of the Securities Act), and the applicable
requirements of any securities exchange or similar entity.
The Company shall be under no obligation to any Optionee to register for
offering or resale or to qualify for exemption under the Securities Act, or to
register or qualify under state securities laws, any shares of Common Stock,
security or interest in a security paid or issued under, or created by, the
Plan, or to continue in effect any such registrations or qualifications if made.
The Company may issue certificates for shares with such legends and subject to
such restrictions on transfer and stop-transfer instructions as counsel for the
Company deems necessary or desirable for compliance by the Company with federal
and state securities laws.
To the extent that the Plan or any instrument evidencing an Option provides
for issuance of stock certificates to reflect the issuance of shares of Common
Stock, the issuance may be effected on a noncertificated basis, to the extent
not prohibited by applicable law or the applicable rules of any stock exchange.
13.4 NO RIGHTS AS A SHAREHOLDER
No Option shall entitle the Optionee to any cash dividend, voting or other
right of a shareholder unless and until the date of issuance under the Plan of
the shares that are the subject of such Option.
13.5 COMPLIANCE WITH LAWS AND REGULATIONS
Notwithstanding anything in the Plan to the contrary, the Plan
Administrator, in its sole discretion, may bifurcate the Plan so as to restrict,
limit or condition the use of any provision of the Plan to Optionees who are
officers or directors subject to Section 16 of the Exchange Act without so
restricting, limiting or conditioning the Plan with respect to other Optionees.
Additionally, in interpreting and applying the provisions of the Plan, any
Option granted as an Incentive Stock Option pursuant to the Plan shall, to the
extent permitted by law, be construed as an "incentive stock option" within the
meaning of Section 422 of the Code.
13.6 OPTIONEES IN FOREIGN COUNTRIES
The Plan Administrator shall have the authority to adopt such
modifications, procedures and subplans as may be necessary or desirable to
comply with provisions of the laws of foreign countries in which the Company or
<PAGE>
its Related Corporations may operate to assure the viability of the benefits
from Options granted to Optionees employed in such countries and to meet the
objectives of the Plan.
13.7 NO TRUST OR FUND
The Plan is intended to constitute an "unfunded" plan. Nothing contained
herein shall require the Company to segregate any monies or other property, or
shares of Common Stock, or to create any trusts, or to make any special deposits
for any immediate or deferred amounts payable to any Optionee, and no Optionee
shall have any rights that are greater than those of a general unsecured
creditor of the Company.
13.8 SEVERABILITY
If any provision of the Plan or any Option is determined to be invalid,
illegal or unenforceable in any jurisdiction, or as to any person, or would
disqualify the Plan or any Option under any law deemed applicable by the Plan
Administrator, such provision shall be construed or deemed amended to conform to
applicable laws, or, if it cannot be so construed or deemed amended without, in
the Plan Administrator's determination, materially altering the intent of the
Plan or the Option, such provision shall be stricken as to such jurisdiction,
person or Option, and the remainder of the Plan and any such Option shall remain
in full force and effect.
13.9 CHOICE OF LAW
The Plan and all determinations made and actions taken pursuant hereto, to
the extent not otherwise governed by the laws of the United States, shall be
governed by the laws of the State of Washington without giving effect to
principles of conflicts of laws.
SECTION 14. EFFECTIVE DATE
The Effective Date is the date on which the Plan is adopted by the Board,
so long as it is approved by the Company's shareholders at any time within 12
months of such adoption.
ADOPTED BY THE BOARD ON FEBRUARY 23, 1999 AND APPROVED BY THE COMPANY'S
SHAREHOLDERS ON APRIL 29, 1999.
<PAGE>
EXHIBIT 99.2
IMMUNEX CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE
The purposes of the Immunex Corporation 1999 Employee Stock Purchase Plan
(the "Plan") are (a) to assist employees of Immunex Corporation, a Washington
corporation (the "Company"), and its designated subsidiaries in acquiring a
stock ownership interest in the Company pursuant to a plan that is intended to
qualify as an "employee stock purchase plan" under Section 423 of the Internal
Revenue Code of 1986, as amended, and (b) to encourage employees to remain in
the employ of the Company and its subsidiaries.
SECTION 2. DEFINITIONS
For purposes of the Plan, the following terms shall be defined as set forth
below.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the Company's Compensation Committee.
"COMMON STOCK" means the common stock, par value $0.01 per share, of the
Company.
"COMPANY" means Immunex Corporation, a Washington corporation.
"DESIGNATED SUBSIDIARY" has the meaning set forth under the definition of
"Eligible Employee" in this Section 2.
"ELIGIBLE COMPENSATION" means all salary and wages including overtime.
Regular cash compensation does not include cash bonuses, commissions, severance
pay, hiring and relocation bonuses, pay in lieu of vacations, sick leave, gain
from stock option exercises or any other special payments.
"ELIGIBLE EMPLOYEE" means any employee of the Company or any domestic
Subsidiary Corporation or any other Subsidiary Corporation designated by the
Board or the Committee (each a "Designated Subsidiary"), who is in the employ of
the Company (or any Designated Subsidiary) on one or more Offering Dates and who
meets the following criteria:
(a) the employee does not, immediately after the option is granted,
own stock (as defined by the Code) possessing 5% or more of the
total combined voting power or value of all classes of stock of
the Company or of a Parent Corporation or Subsidiary Corporation
of the Company;
(b) the employee's customary employment is for 20 hours or more per
week; provided, however, that the Plan Administrator may increase
or decrease this minimum requirement for any future Offering so
long as the maximum number of hours does not exceed 20;
<PAGE>
(c) if specified by the Plan Administrator for future Offerings, a
minimum requirement for customary employment of up to a maximum
of five months per year;
(d) the employee has been employed for at least three months as of
the Offering Date; provided, however, if specified by the Plan
Administrator for any future Offering, a minimum employment
period that does not exceed two years; and
(e) the employee is not a highly compensated employee. For purposes
of the Plan, a "highly compensated employee" is any employee of
the Company or a Designated Subsidiary who has a base salary in
excess of $175,000 per year; provided, however, that the Plan
Administrator may increase or decrease this amount for any future
Offering within the limitations imposed by Code Section 423.
If the Company permits any employee of a Designated Subsidiary to participate in
the Plan, then all employees of that Designated Subsidiary who meet the
requirements of this paragraph shall also be considered Eligible Employees.
"ENROLLMENT PERIOD" has the meaning set forth in Section 7.1.
"ESPP BROKER" has the meaning set forth in Section 10.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"OFFERING" has the meaning set forth in Section 5.1.
"OFFERING DATE" means the first day of an Offering.
"OPTION" means an option granted under the Plan to an Eligible Employee to
purchase shares of Common Stock.
"PARENT CORPORATION" means any corporation, other than the Company, in an
unbroken chain of corporations ending with the Company, if, at the time of the
granting of the Option, each of the corporations, other than the Company, owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
"PARTICIPANT" means any Eligible Employee who has elected to participate in
an Offering in accordance with the procedures set forth in Section 7.1 and who
has not withdrawn from the Plan or whose participation in the Plan is not
terminated.
"PLAN" means the Immunex Corporation 1999 Employee Stock Purchase Plan.
"PURCHASE DATE" means the last day of each Purchase Period.
"PURCHASE PERIOD" has the meaning set forth in Section 5.2.
"PURCHASE PRICE" has the meaning set forth in Section 6.
"SUBSCRIPTION" has the meaning set forth in Section 7.1.
"SUBSIDIARY CORPORATION" means any corporation, other than the Company, in
an unbroken chain of corporations beginning with the Company, if, at the time of
the granting of the Option, each of the corporations, other than the last
corporation in the unbroken chain, owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
<PAGE>
SECTION 3. ADMINISTRATION
3.1 PLAN ADMINISTRATOR
The Plan shall be administered by the Board or the Committee or, if and to
the extent the Board or the Committee designates an executive officer of the
Company to administer the Plan, by such executive officer (each, the "Plan
Administrator"). Any decisions made by the Plan Administrator shall be
applicable equally to all Eligible Employees.
3.2 ADMINISTRATION AND INTERPRETATION BY THE PLAN ADMINISTRATOR
Subject to the provisions of the Plan, the Plan Administrator shall have
the authority, in its sole discretion, to determine all matters relating to
Options granted under the Plan, including all terms, conditions, restrictions
and limitations of Options; provided, however, that all Participants granted
Options pursuant to the Plan shall have the same rights and privileges within
the meaning of Code Section 423. The Plan Administrator shall also have
exclusive authority to interpret the Plan and may from time to time adopt, and
change, rules and regulations of general application for the Plan's
administration. The Plan Administrator's interpretation of the Plan and its
rules and regulations, and all actions taken and determinations made by the Plan
Administrator pursuant to the Plan, unless reserved to the Board or the
Committee, shall be conclusive and binding on all parties involved or affected.
The Plan Administrator may delegate administrative duties to such of the
Company's other officers or employees as the Plan Administrator so determines.
SECTION 4. STOCK SUBJECT TO PLAN
Subject to adjustment from time to time as provided in Section 20, the
maximum number of shares of Common Stock which shall be available for issuance
under the Plan shall be 500,000 shares. Shares issued under the Plan shall be
drawn from authorized and unissued shares or shares now held or subsequently
acquired by the Company.
SECTION 5. OFFERING DATES
5.1 OFFERINGS
(a) Except as otherwise set forth below, the Plan shall be implemented by
a series of Offerings (each, an "Offering"). Offerings shall commence on May 1
and November 1 of each year and end on the next October 31 and April 30,
respectively, occurring thereafter; provided, however, that the first Offering
shall begin on July 1, 1999 and shall end on October 31, 1999.
(b) Notwithstanding the foregoing, the Plan Administrator may establish
(i) a different term for one or more Offerings and (ii) different commencing and
ending dates for such Offerings; provided, however, that an Offering may not
exceed five years; and provided, further, that if the Purchase Price may be less
than 85% of the fair market value of the Common Stock on the Purchase Date, the
Offering may not exceed one year.
(c) In the event the first or the last day of an Offering is not a regular
business day, then the first day of the Offering shall be deemed to be the next
regular business day and the last day of the Offering shall be deemed to be the
last preceding regular business day.
5.2 PURCHASE PERIODS
(a) Each Offering shall consist of one or more consecutive purchase
periods (each, a "Purchase Period"). The last day of each Purchase Period shall
be the Purchase Date for such Purchase Period. Except as otherwise set forth
below, a Purchase Period shall commence on May 1 and November 1 of each year and
end on the next October 31 and April 30, respectively, occurring thereafter;
provided, however, that the Purchase Period for the first Offering shall begin
on July 1, 1999 and shall end on October 31, 1999.
<PAGE>
(b) Notwithstanding the foregoing, the Board may establish (i) a different
term for one or more Purchase Periods and (ii) different commencing and ending
dates for any such Purchase Period.
(c) In the event the first or last day of a Purchase Period is not a
regular business day, then the first day of the Purchase Period shall be deemed
to be the next regular business day and the last day of the Purchase Period
shall be deemed to be the last preceding regular business day.
5.3 GOVERNMENTAL APPROVAL; SHAREHOLDER APPROVAL
Notwithstanding any other provision of the Plan to the contrary, an Option
granted pursuant to the Plan shall be subject to (a) obtaining all necessary
governmental approvals and qualifications of the Plan and of the issuance of
Options and sale of Common Stock pursuant to the Plan and (b) obtaining
shareholder approval of the Plan.
SECTION 6. PURCHASE PRICE
The purchase price (the "Purchase Price") at which Common Stock may be
acquired in an Offering pursuant to the exercise of all or any portion of an
Option granted under the Plan (the "Offering Exercise Price") shall be 85% of
the lesser of (a) the fair market value of the Common Stock on the Offering Date
of such Offering and (b) the fair market value of the Common Stock on the
Purchase Date. The fair market value of the Common Stock on the Offering Date
or on the Purchase Date shall be the closing price for the Common Stock as
reported for such day by the Nasdaq Stock Market, the New York Stock Exchange or
other trading market on which the Company's Common Stock may then be traded (the
"Exchange"). If no sales of the Common Stock were made on the Exchange on such
day, fair market value shall mean the closing price for the Common Stock as
reported for the next preceding day on which sales of the Stock were made on the
Exchange. If the Common Stock is not listed on an Exchange, the Board shall
designate an alternative method of determining the fair market value of the
Common Stock.
SECTION 7. PARTICIPATION IN THE PLAN
7.1 INITIAL PARTICIPATION
An Eligible Employee shall become a Participant on the first Offering Date
after satisfying the eligibility requirements and delivering to the Plan
Administrator during the enrollment period established by the Plan Administrator
(the "Enrollment Period") a subscription (the "Subscription"):
(a) indicating the Eligible Employee's election to participate in the
Plan;
(b) authorizing payroll deductions and stating the amount to be deducted
regularly from the Participant's pay; and
(c) authorizing the purchase of Common Stock for the Participant in each
Purchase Period.
An Eligible Employee who does not deliver a Subscription as provided above
during the Enrollment Period shall not participate in the Plan for that Offering
or for any subsequent Offering unless such Eligible Employee subsequently
enrolls in the Plan by filing a Subscription with the Company during the
Enrollment Period for such subsequent Offering. The Company may, from time to
time, change the Enrollment Period for any future Offering as deemed advisable
by the Plan Administrator, in its sole discretion, for the proper administration
of the Plan.
Except as provided in Section 7.2, an employee who becomes eligible to
participate in the Plan after an Offering has commenced shall not be eligible to
participate in such Offering but may participate in any subsequent
<PAGE>
Offering, provided that such employee is still an Eligible Employee as of the
commencement of any such subsequent Offering. Eligible Employees may not
participate in more than one Offering at a time.
7.2 ALTERNATIVE INITIAL PARTICIPATION
Notwithstanding any other provisions of the Plan, the Board or the
Committee may provide for any future Offering that any employee of the Company
or any Designated Subsidiary who first meets the requirements of subparagraphs
(a) through (c) of the paragraph "Eligible Employee" in Section 2 during the
course of an Offering shall, on a date or dates specified in the Offering which
coincides with the day on which such person first meets such requirements or
occurs on a specified date thereafter, receive an Option under that Offering
which Option shall thereafter be deemed to be a part of that Offering. Such
Option shall have the same characteristics as any Options originally granted
under that Offering, except that:
(i) the date on which such Option is granted shall be the "Offering
Date" of such Option for all purposes, including determining the
Purchase Price of such Option; provided, however, that if the
fair market value of the Common Stock on the date on which such
Option is granted is less than the fair market value of Common
Stock on the first day of the Offering, then, solely for the
purpose of determining the Purchase Price of such Option, the
first day of the Offering shall be the "Offering Date" for such
Option;
(ii) the Purchase Period(s) for such Option shall begin on its
Offering Date and end coincident with the remaining Purchase
Date(s) for such Offering; and
(iii) the Board or the Committee may provide that if such person first
meets such requirements within a specified period of time before
the end of a Purchase Period for such Offering, he or she will
not receive any Option for that Purchase Period.
7.3 CONTINUED PARTICIPATION
A Participant shall automatically participate in the next Offering until
such time as such Participant withdraws from the Plan pursuant to Section 11.1
or 11.2 or terminates employment as provided in Section 12.
SECTION 8. LIMITATIONS ON RIGHT TO PURCHASE SHARES
8.1 NUMBER OF SHARES PURCHASED
The maximum number of shares of stock that may be offered to a Participant
on any Offering Date shall be equal to $15,000 divided by the fair market value
of one share of Common Stock of the Company on the applicable Offering Date.
Further, no Participant shall be entitled to purchase Common Stock under the
Plan (or any other employee stock purchase plan that is intended to meet the
requirements of Code Section 423 sponsored by the Company, a Parent Corporation
or a Subsidiary Corporation) with a fair market value exceeding $15,000,
determined as of the Offering Date for each Offering (or such other limit as may
be imposed by the Code), in any calendar year in which a Participant
participates in the Plan (or other employee stock purchase plan described in
this Section 8.1). For any future Offering, the Board or the Committee may
specify a maximum number of shares which may be purchased by any Participant as
well as a maximum aggregate number of shares which may be purchased by all
Participants pursuant to such Offering. In addition, for any future Offering
with more than one Purchase Date, the Board or the Committee may specify a
maximum aggregate number of shares which may be purchased by all Participants on
any given Purchase Date under the Offering.
8.2 PRO RATA ALLOCATION
In the event the number of shares of Common Stock that might be purchased
by all Participants in the Plan exceeds the number of shares of Common Stock
available in the Plan, the Plan Administrator shall make a
<PAGE>
pro rata allocation of the remaining shares of Common Stock in as uniform a
manner as shall be practicable and as the Plan Administrator shall determine to
be equitable. Fractional shares may not be issued under the Plan unless the
Plan Administrator determines otherwise for any future Offering.
SECTION 9. PAYMENT OF PURCHASE PRICE
9.1 GENERAL RULES
Subject to Section 9.12, Common Stock that is acquired pursuant to the
exercise of all or any portion of an Option may be paid for only by means of
payroll deductions from the Participant's Eligible Compensation. Except as set
forth in this Section 9, the amount of compensation to be withheld from a
Participant's Eligible Compensation during each pay period shall be determined
by the Participant's Subscription.
9.2 CHANGES IN WITHHOLDING
Unless otherwise determined by the Plan Administrator for any future
Offering, a Participant may not elect to increase or decrease the amount to be
withheld from his or her Eligible Compensation for an Offering; provided,
however, that if such elections are permitted for any future Offering, notice of
such elections must be delivered to the Plan Administrator in such form and in
accordance with such terms as the Plan Administrator may establish for the
Offering.
9.3 PERCENT WITHHELD
The amount of payroll withholding for each Participant for purchases
pursuant to the Plan during any pay period shall be at least 1% but shall not
exceed 15% of the Participant's Eligible Compensation for such pay period, but
in no event shall exceed $15,000 per calendar year. Amounts shall be withheld
in whole percentages only.
9.4 PAYROLL DEDUCTIONS
Payroll deductions shall commence on the first payday following the
Offering Date and shall continue through the last payday of the Offering unless
sooner altered or terminated as provided in the Plan.
9.5 MEMORANDUM ACCOUNTS
Individual accounts shall be maintained for each Participant for memorandum
purposes only. All payroll deductions from a Participant's compensation shall
be credited to such account but shall be deposited with the general funds of the
Company. All payroll deductions received or held by the Company may be used by
the Company for any corporate purpose.
9.6 NO INTEREST
No interest shall be paid on payroll deductions received or held by the
Company.
9.7 ACQUISITION OF COMMON STOCK
On each Purchase Date of an Offering, each Participant shall automatically
acquire, pursuant to the exercise of the Participant's Option, the number of
shares of Common Stock arrived at by dividing the total amount of the
Participant's accumulated payroll deductions for the Purchase Period by the
Purchase Price; provided, however, that the number of shares of Common Stock
purchased by the Participant shall not exceed the number of whole shares of
Common Stock so determined, unless the Plan Administrator has determined for any
future Offering that fractional shares may be issued under the Plan; and
provided, further, that the number of shares of Common Stock purchased by the
Participant shall not exceed the number of shares for which Options have been
granted to the Participant pursuant to Section 8.1.
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9.8 REFUND OF EXCESS AMOUNTS
Any cash balance remaining in the Participant's account at the termination
of each Purchase Period shall be refunded to the Participant as soon as
practical after the Purchase Date without the payment of any interest; provided,
however, that if the Participant participates in the next Purchase Period, any
cash balance remaining in the Participant's account shall be applied to the
purchase of Common Stock in the new Purchase Period, provided such purchase
complies with Section 8.1.
9.9 WITHHOLDING OBLIGATIONS
At the time the Option is exercised, in whole or in part, or at the time
some or all of the Common Stock is disposed of, the Participant shall make
adequate provision for federal and state withholding obligations of the Company,
if any, that arise upon exercise of the Option or upon disposition of the Common
Stock. The Company may withhold from the Participant's compensation the amount
necessary to meet such withholding obligations.
9.10 TERMINATION OF PARTICIPATION
No Common Stock shall be purchased on behalf of a Participant on a Purchase
Date if his or her participation in the Offering or the Plan has terminated on
or before such Purchase Date.
9.11 PROCEDURAL MATTERS
The Company may, from time to time, establish (a) limitations on the
frequency and/or number of any permitted changes in the amount withheld during
an Offering, as set forth in Section 9.2, (b) an exchange ratio applicable to
amounts withheld in a currency other than U.S. dollars, (c) payroll withholding
in excess of the amount designated by a Participant in order to adjust for
delays or mistakes in the Company's processing of properly completed withholding
elections and (d) such other limitations or procedures as deemed advisable by
the Company in the Company's sole discretion that are consistent with the Plan
and in accordance with the requirements of Code Section 423.
9.12 LEAVES OF ABSENCE
During leaves of absence approved by the Company and meeting the
requirements of the applicable Treasury Regulations promulgated under the Code,
a Participant may elect to continue participation in the Plan by delivering cash
payments to the Plan Administrator on the Participant's normal paydays equal to
the amount of his or her payroll deduction under the Plan had the Participant
not taken a leave of absence. Currently, the Treasury Regulations provide that
a Participant may continue participation in the Plan only during the first
90 days of a leave of absence unless the Participant's reemployment rights are
guaranteed by statute or contract.
SECTION 10. COMMON STOCK PURCHASED UNDER THE PLAN
10.1 ESPP BROKER
If the Plan Administrator designates or approves a stock brokerage or other
financial services firm (the "ESPP Broker") to hold shares purchased under the
Plan for the accounts of Participants, the following procedures shall apply.
Promptly following each Purchase Date, the number of shares of Common Stock
purchased by each Participant shall be deposited into an account established in
the Participant's name with the ESPP Broker. Each Participant shall be the
beneficial owner of the Common Stock purchased under the Plan and shall have all
rights of beneficial ownership in such Common Stock. A Participant shall be
free to undertake a disposition of the shares of Common Stock in his or her
account at any time, but, in the absence of such a disposition, the shares of
Common Stock must remain in the Participant's account at the ESPP Broker until
the holding period set forth in Code Section 423 has been satisfied. With
respect to shares of Common Stock for which the holding period set forth above
has been satisfied, the Participant may move those shares of Common Stock to
another brokerage account of the Participant's choosing or request that a stock
certificate be issued and delivered to him or her.
<PAGE>
Dividends paid in the form of shares of Common Stock with respect to Common
Stock in a Participant's account shall be credited to such account. A
Participant who is not subject to payment of U.S. income taxes may move his or
her shares of Common Stock to another brokerage account of his or her choosing
or request that a stock certificate be delivered to him or her at any time,
without regard to the Code Section 423 holding period.
10.2 NOTICE OF DISPOSITION
By entering the Plan, each Participant agrees to promptly give the Company
notice of any Common Stock disposed of within the later of one year from the
Purchase Date and two years from the Offering Date for such Common Stock,
showing the number of such shares disposed of and the Purchase Date and Offering
Date for such Common Stock. This notice shall not be required if and so long as
the Company has a designated ESPP Broker.
SECTION 11. VOLUNTARY WITHDRAWAL
11.1 WITHDRAWAL FROM AN OFFERING
A Participant may withdraw from an Offering by signing and delivering to
the Company's Plan Administrator a written notice of withdrawal on a form
provided by the Company for such purpose. Such withdrawal must be elected at
least 10 days prior to the end of the Purchase Period for which such withdrawal
is to be effective or by any other date specified by the Plan Administrator for
any future Offering. If a Participant withdraws after the Purchase Date for a
Purchase Period of an Offering, the withdrawal shall not affect Common Stock
acquired by the Participant in any earlier Purchase Periods. Unless otherwise
indicated, withdrawal from an Offering shall not result in a withdrawal from the
Plan or any succeeding Offering therein. A Participant is prohibited from again
participating in the same Offering at any time upon withdrawal from such
Offering. The Company may, from time to time, impose a requirement that the
notice of withdrawal be on file with the Plan Administrator for a reasonable
period prior to the effectiveness of the Participant's withdrawal.
11.2 WITHDRAWAL FROM THE PLAN
A Participant may withdraw from the Plan by signing a written notice of
withdrawal on a form provided by the Company for such purpose and delivering
such notice to the Plan Administrator. Such notice must be delivered at least
10 days prior to the end of the Purchase Period for which such withdrawal is to
be effective or by any other date specified by the Plan Administrator for any
future Offering. In the event a Participant voluntarily elects to withdraw from
the Plan, the Participant may not resume participation in the Plan during the
same Offering, but may participate in any subsequent Offering under the Plan by
again satisfying the definition of Eligible Employee. The Company may impose,
from time to time, a requirement that the notice of withdrawal be on file with
the Plan Administrator for a reasonable period prior to the effectiveness of the
Participant's withdrawal.
11.3 RETURN OF PAYROLL DEDUCTIONS
Upon withdrawal from an Offering pursuant to Section 11.1 or from the Plan
pursuant to Section 11.2, the withdrawing Participant's accumulated payroll
deductions that have not been applied to the purchase of Common Stock shall be
returned as soon as practical after the withdrawal, without the payment of any
interest, to the Participant and the Participant's interest in the Offering
shall terminate. Such accumulated payroll deductions may not be applied to any
other Offering under the Plan.
SECTION 12. TERMINATION OF EMPLOYMENT
Termination of a Participant's employment with the Company for any reason,
including retirement, death or the failure of a Participant to remain an
Eligible Employee, shall immediately terminate the Participant's participation
in the Plan. The payroll deductions credited to the Participant's account since
the last Purchase Date shall, as soon as practical, be returned to the
Participant or, in the case of a Participant's death, to the Participant's
<PAGE>
legal representative or designated beneficiary as provided in Section 13.2, and
all of the Participant's rights under the Plan shall terminate. Interest shall
not be paid on sums returned to a Participant pursuant to this Section 12.
SECTION 13. RESTRICTIONS ON ASSIGNMENT
13.1 TRANSFERABILITY
An Option granted under the Plan shall not be transferable and such Option
shall be exercisable during the Participant's lifetime only by the Participant.
The Company will not recognize, and shall be under no duty to recognize, any
assignment or purported assignment by a Participant of the Participant's
interest in the Plan, of his or her Option or of any rights under his or her
Option.
13.2 BENEFICIARY DESIGNATION
The Plan Administrator may permit a Participant to designate a beneficiary
who is to receive any shares and cash, if any, from the Participant's account
under the Plan in the event the Participant dies after the Purchase Date for an
Offering but prior to delivery to such Participant of such shares and cash. In
addition, the Plan Administrator may permit a Participant to designate a
beneficiary who is to receive any cash from the Participant's account under the
Plan in the event that the Participant dies before the Purchase Date for an
Offering. Such designation may be changed by the Participant at any time by
written notice to the Plan Administrator.
SECTION 14. NO RIGHTS AS SHAREHOLDER UNTIL SHARES ISSUED
With respect to shares of Common Stock subject to an Option, a Participant
shall not be deemed to be a shareholder of the Company, and he or she shall not
have any of the rights or privileges of a shareholder. A Participant shall have
the rights and privileges of a shareholder of the Company when, but not until, a
certificate or its equivalent has been issued to the Participant for the shares
following exercise of the Participant's Option.
SECTION 15. LIMITATIONS ON SALE OF COMMON STOCK PURCHASED UNDER THE PLAN
The Plan is intended to provide Common Stock for investment and not for
resale. The Company does not, however, intend to restrict or influence any
Participant in the conduct of his or her own affairs. A Participant, therefore,
may sell Common Stock purchased under the Plan at any time he or she chooses,
subject to compliance with any applicable federal and state securities laws. A
Participant assumes the risk of any market fluctuations in the price of the
Common Stock.
SECTION 16. AMENDMENT OF THE PLAN
The Board may amend the Plan in such respects as it shall deem advisable;
provided, however, that, to the extent required for compliance with Code
Section 423 or any applicable law or regulation, shareholder approval will be
required for any amendment that will (a) increase the total number of shares as
to which Options may be granted under the Plan, (b) modify the class of
employees eligible to receive Options, or (c) otherwise require shareholder
approval under any applicable law or regulation.
SECTION 17. TERMINATION OF THE PLAN
The Plan shall have no fixed termination date. Notwithstanding the
foregoing, the Board may suspend or terminate the Plan at any time. During any
period of suspension or upon termination of the Plan, no Options shall be
granted; provided, however, that suspension or termination of the Plan shall
have no effect on Options granted prior thereto.
<PAGE>
SECTION 18. NO RIGHTS AS AN EMPLOYEE
Nothing in the Plan shall be construed to give any person (including any
Eligible Employee or Participant) the right to remain in the employ of the
Company or a Parent or Subsidiary Corporation or to affect the right of the
Company or a Parent or Subsidiary Corporation to terminate the employment of any
person (including any Eligible Employee or Participant) at any time with or
without cause.
SECTION 19. EFFECT UPON OTHER PLANS
The adoption of the Plan shall not affect any other compensation or
incentive plans in effect for the Company or any Parent or Subsidiary
Corporation. Nothing in this Plan shall be construed to limit the right of the
Company, any Parent Corporation or Subsidiary Corporation to (a) establish any
other forms of incentives or compensation for employees of the Company, a Parent
Corporation or Subsidiary Corporation or (b) grant or assume options otherwise
than under this Plan in connection with any proper corporate purpose, including,
but not by way of limitation, the grant or assumption of options in connection
with the acquisition, by purchase, lease, merger, consolidation or otherwise, of
the business, stock or assets of any corporation, firm or association.
SECTION 20. ADJUSTMENTS
20.1 ADJUSTMENT OF SHARES
In the event that, at any time or from time to time, a stock dividend,
stock split (but not including the stock dividend approved by the Board on
February 23, 1999), spin-off, combination or exchange of shares,
recapitalization, merger, consolidation, distribution to shareholders other than
a normal cash dividend, or other change in the Company's corporate or capital
structure results in (a) the outstanding shares, or any securities exchanged
therefor or received in their place, being exchanged for a different number or
kind of securities of the Company or of any other corporation or (b) new,
different or additional securities of the Company or of any other corporation
being received by the holders of shares of Common Stock, then (subject to any
required action by the Company's shareholders), the Board or the Committee, in
its sole discretion, shall make such equitable adjustments as it shall deem
appropriate in the circumstances in (i) the maximum number and kind of shares of
Common Stock subject to the Plan as set forth in Section 4 and (ii) the number
and kind of securities that are subject to any outstanding Option and the per
share price of such securities. The determination by the Board or the Committee
as to the terms of any of the foregoing adjustments shall be conclusive and
binding. Notwithstanding the foregoing, a dissolution, liquidation, merger or
asset sale of the Company shall not be governed by this Section 20.1 but shall
be governed by Sections 20.2 and 20.3, respectively.
20.2 MERGER OR ASSET SALE OF THE COMPANY
In the event of a proposed sale of all or substantially all of the assets
of the Company, or the merger of the Company with or into another corporation,
each outstanding Option shall be assumed or an equivalent option substituted by
the successor corporation or a parent or subsidiary corporation of the successor
corporation. In the event that the successor corporation refuses to assume or
substitute for the Option, the Offering then in progress shall be shortened by
setting a new Purchase Date. The new Purchase Date shall be a specified date
before the date of the Company's proposed sale or merger. The Board shall
notify each Participant in writing, at least 10 business days prior to the new
Purchase Date, that the Purchase Date for the Participant's Option has been
changed to the new Purchase Date and that the Participant's Option shall be
exercised automatically on the new Purchase Date, unless prior to such date the
Participant has withdrawn from the Offering or the Plan as provided in
Section 11 hereof.
20.3 DISSOLUTION OR LIQUIDATION OF THE COMPANY
In the event of the proposed dissolution or liquidation of the Company, the
Offering then in progress shall be shortened by setting a new Purchase Date and
shall terminate immediately prior to the consummation of such
<PAGE>
proposed dissolution or liquidation, unless provided otherwise by the Board.
The new Purchase Date shall be a specified date before the date of the Company's
proposed dissolution or liquidation. The Board shall notify each Participant in
writing, at least 10 business days prior to the new Purchase Date, that the
Purchase Date for the Participant's Option has been changed to the new Purchase
Date and that the Participant's Option shall be exercised automatically on the
new Purchase Date, unless prior to such date the Participant has withdrawn from
the Offering or the Plan as provided in Section 11 hereof.
20.4 LIMITATIONS
The grant of Options will in no way affect the Company's right 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.
SECTION 21. REGISTRATION; CERTIFICATES FOR SHARES
The Company shall be under no obligation to any Participant to register for
offering or resale under the Securities Act of 1933, as amended, or register or
qualify under state securities laws, any shares of Common Stock. The Company
may issue certificates for shares with such legends and subject to such
restrictions on transfer and stop-transfer instructions as counsel for the
Company deems necessary or desirable for compliance by the Company with federal
and state securities laws.
SECTION 22. EFFECTIVE DATE
The Plan's effective date is the date on which it is approved by the
Company's shareholders, which was April 29, 1999.
