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Exhibit 4.1
NABI
2000 EQUITY
INCENTIVE PLAN
(As adopted by the Shareholders
of Nabi on May 26, 2000)
Section 1. Purpose
The purpose of the 2000 Equity Incentive Plan (the "Plan") of NABI
(the "Company") is to enable the Company and its subsidiaries to attract, retain
and motivate their employees and consultants and to enable these employees and
consultants to participate in the long-term growth of the Company by providing
for or increasing the proprietary interests of such persons in the Company,
thereby assisting the Company to achieve its long-range performance goals.
Section 2. Definitions
As used in the Plan:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" means any Option, Stock Appreciation Right, Performance
Share, Restricted Stock or Stock Unit awarded under the Plan.
"Board" means the Board of Directors of the Company.
"Committee" means the Compensation Committee of the Board or any
successor thereto appointed by the Board and consisting of at least
two or more "non-employee directors" as that term is defined in Rule
16b-3 promulgated under the Act.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Common Stock" or "Stock" means the Common Stock, $0.10 par
value, of the Company.
"Fair Market Value" means, with respect to Common Stock or any
other property, the fair market value of such property as determined
by the Committee in good faith or in the manner established by the
Committee from time to time.
"Incentive Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under the Plan which is intended
to meet the requirements of Section 422 of the Code or any successor
provision.
"Nonconforming Awards" shall mean any Award permitted under the
provisos set forth in Sections 6(b) and 9(b).
"Non-qualified Stock Option" means an option to purchase shares
of Common Stock awarded to a Participant under the Plan which is not
intended to be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Non-qualified Stock
Option.
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"Participant" means a person selected by the Committee to receive
an Award under the Plan.
"Performance Cycle" or "Cycle" means the period of time selected
by the Committee during which performance is measured for the purpose
of determining the extent to which an award of Performance Shares has
been earned.
"Performance Shares" means shares of Common Stock awarded to a
Participant under Section 8.
"Restricted Period" means the period of time selected by the
Committee during which an award of Restricted Stock may be forfeited
to the Company.
"Restricted Stock" means shares of Common Stock awarded to a
Participant under Section 9 which are subject to forfeiture.
"Stock Appreciation Right" or "SAR" means a right awarded to a
Participant under Section 7.
"Stock Unit" means a share of Common Stock or a unit is valued in
whole or in part by reference to, or otherwise based on, the value of
a share of Common Stock, awarded to a Participant under Section 10.
Section 3. Administration
The Plan shall be administered by the Committee. The Committee shall
have the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the operating of the Plan as it shall from
time to time consider advisable, to interpret the provisions of the Plan and any
Award, and to decide all disputes arising in connection with the Plan. The
Committee's decisions and interpretations shall be final and binding.
Section 4. Eligibility
All employees and consultants of the Company or any of its
subsidiaries, including any director who is an employee or consultant of the
Company, shall be eligible to be Participants in the Plan.
Section 5. Stock Available for Awards
(a) Awards may be made under the Plan for up to 1,696,922 shares of
Common Stock. If any Award in respect of shares of Common Stock expires or is
terminated before exercise or is forfeited for any reason or settled in a manner
that results in fewer shares of Common Stock outstanding than were initially
awarded, including without limitation the surrender of shares of Common Stock in
payment for the Award or any tax obligation thereon, the shares of Common Stock
subject to such Award or so surrendered, as the case may be, to the extent of
such expiration, termination, forfeiture or decrease, shall again be available
for award under the Plan. Shares of Common Stock issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury
shares.
(b) In the event that the Committee determines in its sole discretion
that any stock dividend, extraordinary cash dividend, creation of a class of
equity securities, recapitalization, reorganization, merger, consolidation,
split-up, spin-off, combination, exchange of shares, warrants or rights offering
to purchase Common Stock at a price substantially below fair market value, or
other similar transaction affects the Common Stock such that an adjustment is
required in order to preserve the benefits or potential benefits intended to be
made available under the Plan, the Committee shall have the right to adjust
equitably any or all of (i) the number and kind of shares of stock or securities
in respect of which Awards may be made under the Plan, (ii) the number and kind
of shares subject to outstanding Awards, and (iii) the award, exercise or
conversion price with respect to any of the foregoing, and if considered
appropriate, the Committee may make provision for a cash payment with
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respect to an outstanding Award, provided that the number of shares subject to
any Award shall always be a whole number.
(c) Subject to Section 6(a) below, the Company may make Awards under
the Plan in substitution for stock and stock-based awards held by employees of
another corporation who concurrently become employees of the Company or a
subsidiary of the Company as the result of a merger or consolidation of the
employing corporation with the Company or a subsidiary of the Company or the
acquisition by the Company or a subsidiary of the Company of property or stock
of the employing corporation. The Committee may direct that the substitute
awards be granted on such terms and conditions as the Committee considers
appropriate in the circumstances. The shares which may be delivered under such
substitute Awards shall be in addition to the maximum number of shares provided
for in section (a) above.
(d) In no event shall any Participant receive in any calendar year
Awards under the Plan and any other grants for more than Two Hundred Fifty
Thousand (250,000) shares of Common Stock.
Section 6. Options
(a) Subject to the provisions of the Plan, the Committee may award
Incentive Stock Options and Non-qualified Stock Options and determine the number
of shares to be covered by each Option, the option price therefor, the term of
the Option, and the other conditions and limitations applicable to the exercise
of the Option. The terms and conditions of Incentive Stock Options shall be
subject to and comply with Section 422 of the Code, or any successor provision,
and any regulations thereunder. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to Incentive Stock Options shall
be interpreted, amended or altered, nor shall any discretion or authority
granted to the Committee under the Plan be so exercised, so as to disqualify the
Plan or, without the consent of the optionee, any Incentive Stock Option granted
under the Plan, under Section 422 of the Code.
(b) The option price per share of Common Stock purchasable under an
Option shall not be less than 100% of the Fair Market Value of the Common Stock
on the date of award with respect to Incentive Stock Options and not less than
85% of the Fair Market Value of the Common Stock on the date of award with
respect to Non-qualified Stock Options; provided, however, that with respect to
Non-qualified Stock Options, the option price per share of Common Stock
purchasable under such Options may be less than 85% (but never less than 50%) of
the Fair Market Value of the Common Stock on the date of award of the Non-
qualified Stock Option so long as any such Non-Conforming Awards, together with
all other Non-Conforming Awards outstanding at the time, do not cover shares of
Common Stock aggregating more than five percent of the shares of Common Stock
reserved for issuance under the Plan at the time. If the Participant owns or is
deemed to own (by reason of the attribution rules applicable under Section
424(d) of the Code) more than 10% of the combined voting power of all classes of
stock of the Company or any subsidiary or parent corporation of the Company and
an Incentive Stock Option is granted to such Participant, the option price shall
be not less than 110% of Fair Market Value of the Common Stock on the date of
award.
(c) No Incentive Stock Option shall be exercisable more than ten
years after the date the option is awarded and no Non-Qualified Stock Option
shall be exercisable more than ten years and one day after the date the option
is awarded. If a Participant owns or is deemed to own (by reason of the
attribution rules of Section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of stock of the Company or any subsidiary
or parent corporation of the Company and an Incentive Stock Option is awarded to
such Participant, the term of such option shall be no more than five years from
the date of award.
(d) No shares shall be delivered pursuant to any exercise of an
Option until payment in full of the option price therefor is received by the
Company. Such payment may be made in whole or in part in cash or by certified or
bank check or, to the extent permitted by the Committee at or after the award of
the Option, by delivery of a note or shares of Common Stock owned by the
optionee, including Restricted Stock, valued at their Fair Market Value on the
date of delivery, or such other lawful consideration as the Committee may
determine. The Committee may permit a Participant to elect to pay the exercise
price upon the exercise of an Option by
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authorizing a third party to sell Shares (or a sufficient portion of the Shares)
acquired upon exercise of the Option and remit to the Company a sufficient
portion of the sale proceeds to pay the entire exercise price and any tax
withholding resulting from such exercise.
(e) Except to the extent the Committee shall otherwise determine,
whether at the time the Option is granted or thereafter, no Option shall be
transferable by the Participant otherwise than by will or by the laws of descent
and distribution, and all Options shall be exercisable, during the Participant's
lifetime, only by the Participant.
(f) The Committee may at any time accelerate the exercisability of
all or any portion of any Option.
(g) Once an Option is awarded, the price per share of Common Stock
purchasable under the Option shall not be reduced without the approval of the
stockholders of the Company.
(h) The Company may require each Participant who receives an ISO to
notify the Company in writing immediately after the Participant makes a
Disqualifying Disposition of any Shares received pursuant to the exercise of an
ISO. The term "Disqualifying Disposition" means any disposition (including any
sale) of Shares before the later of (a) two years after the Participant was
granted the ISO under which the Participant acquired such Shares, or (b) one
year after the Participant acquired the Shares by exercising the ISO.
Section 7. Stock Appreciation Rights
(a) A Stock Appreciation Right is an Award entitling the Participant
to receive an amount in cash or shares of Common Stock or a combination thereof
having a value equal to (or if the Committee shall so determine at time of
grant, less than) the excess of the Fair Market Value of a share of Common Stock
on the date of exercise over the Fair Market Value of a share of Common Stock on
the date of grant (or over the option exercise price, if the Stock Appreciation
Right was granted in tandem with a Stock Option) multiplied by the number of
shares with respect to which the Stock Appreciation Right shall have been
exercised.
(b) Subject to the provisions of the Plan, the Committee may award
SARs in tandem with an Option (at or after the award of the Option), or alone
and unrelated to an Option, and determine the terms and conditions applicable
thereto, including the form of payment. SARs granted in tandem with an Option
shall terminate to the extent that the related Option is exercised, and the
related Option shall terminate to the extent that the tandem SARs are exercised.
(c) An SAR related to an Option which can be exercised only during
limited periods following a change in control of the Company may entitle the
Participant to receive an amount based upon the highest price paid or offered
for Common Stock in any transaction relating to the change in control or paid
during the thirty-day period immediately preceding the occurrence of the change
in control in any transaction reported in the stock market in which the Common
Stock is normally traded.
(d) Notwithstanding that an Option at the time of exercise shall not
be accompanied by a related Stock Appreciation Right, if the market price of the
shares subject to such Option exceeds the exercise price of such Option at the
time of its exercise, the Committee may, in its discretion, cancel such Option,
in which event the Company shall pay to the person exercising such Option an
amount equal to the difference between the Fair Market Value of the Common Stock
to have been purchased pursuant to such exercise of such Option (determined on
the date the Option is canceled) and the aggregate consideration to have been
paid by such person upon such exercise. Such payment shall be by check, bank
draft or in Common Stock having a Fair Market Value (determined on the date the
payment is to be made) equal to the amount of such payments or any combination
thereof, as determined by the Committee. The Committee may exercise its
discretion under the first sentence of this paragraph (d) only in the event of a
written request of the person exercising the option, which request shall not be
binding on the Committee.
Section 8. Performance Shares
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(a) A Performance Share is an Award entitling the Participant to
acquire shares of Common Stock upon the attainment of specified performance
goals. Subject to the provisions of the Plan, the Committee may award
Performance Shares and determine the performance goals applicable to each such
Award, the number of such shares for each Performance Cycle, the duration of
each Performance Cycle and all other limitations and conditions applicable to
the awarded Performance Shares. There may be more than one Performance Cycle in
existence at any one time, and the duration of Performance Cycles may differ
from each other. The payment value of each Performance Share shall be equal to
the Fair Market Value of one share of Common Stock on the date the Performance
Share is earned or, in the discretion of the Committee, on the date the
Committee determines that the Performance Share has been earned.
(b) During any Performance Cycle, the Committee may adjust the
performance goals for such Performance Cycle as it deems equitable in
recognition of unusual or non-recurring events affecting the Company, changes in
applicable tax laws or accounting principles, or such other factors as the
Committee may determine.
(c) As soon as practicable after the end of a Performance Cycle, the
Committee shall determine the number of Performance Shares which have been
earned on the basis of performance in relation to the established performance
goals. The payment values of earned Performance Shares shall be distributed to
the Participant as soon as practicable thereafter. The Committee shall
determine, at or after the time of award, whether payment values will be settled
in whole or in part in cash or other property, including Common Stock or Awards.
Section 9. Restricted Stock
(a) A Restricted Stock Award is an Award entitling the Participant to
acquire shares of Common Stock for a purchase price (which may be zero) equal to
or less than their par value, subject to such conditions, including a Company
right during a specified period or periods to repurchase such shares at their
original purchase price (or to require forfeiture of such shares if the purchase
price was zero) upon the Participant's termination of employment.
(b) Subject to the provisions of the Plan, the Committee may award
shares of Restricted Stock and determine the purchase price (if any) therefor,
the duration of the Restricted Period during which, and the conditions under
which, the shares may be forfeited to or repurchased by the Company and the
other terms and conditions of such Awards. Shares of Restricted Stock may be
issued for no cash consideration or such minimum consideration as may be
required by applicable law. Restricted Stock Awards shall not permit the right
of the Company to repurchase shares of Restricted Stock or the requirement that
such shares be forfeited to the Company to lapse in less than three years;
provided, however, that such lapsing shall be permitted so long as any such Non-
Conforming Awards, together with all other Non-Conforming Awards outstanding at
the time, do not cover shares of Common Stock aggregating more than five percent
of the shares of Common Stock reserved for issuance under the Plan at the time.
(c) Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered, except as permitted by the
Committee, during the Restricted Period. Shares of Restricted Stock shall be
evidenced in such manner as the Committee may determine. Any certificates issued
in respect of shares of Restricted Stock shall be registered in the name of the
Participant and unless otherwise determined by the Committee, deposited by the
Participant, together with a stock power endorsed in blank, with the Company. At
the expiration of the Restricted Period, the Company shall deliver such
certificates to the Participant.
(d) A Participant shall have all the rights of a shareholder with
respect to the Restricted Stock including voting and dividend rights, subject to
nontransferability restrictions and Company repurchase or forfeiture rights
described in this Section and subject to any other conditions contained in the
Award.
Section 10. Stock Units
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(a) Subject to the provisions of the Plan, the Committee may award
Stock Units subject to such terms, restrictions, conditions, performance
criteria, vesting requirements and payment rules as the Committee shall
determine.
(b) Shares of Common Stock awarded in connection with a Stock Unit
shall be issued for no cash consideration or such minimum consideration as may
be required by applicable law.
Section 11. General Provisions Applicable to Awards
(a) Each Award under the Plan shall be evidenced by a writing
delivered to the Participant specifying the terms and conditions thereof and
containing such other terms and conditions not inconsistent with the provisions
of the Plan as the Committee considers necessary or advisable to achieve the
purposes of the Plan or comply with applicable tax regulatory laws and
accounting principles.
(b) Each Award may be made alone, in addition to or in relation to
any other award. The terms of each Award need not be identical, and the
Committee need not treat Participants uniformly. Except as otherwise provided by
the Plan or a particular Award, any determination with respect to an Award may
be made by the Committee at the time of award or at any time thereafter.
(c) The Committee shall determine whether Awards are settled in whole
or in part in cash, Common Stock, other securities of the Company, Awards or
other property. The Committee may permit a Participant to defer all or any
portion of a payment under the Plan, including the crediting of interest on
deferred amounts denominated in cash and dividend equivalents on amounts
denominated in Common Stock.
(d) In the discretion of the Committee, any Award under the Plan may
provide the Participant with (i) dividends or dividend equivalents payable
currently or deferred with or without interest, and (ii) cash payments in lieu
of or in addition to an Award.
(e) The Committee shall determine the effect on an Award of the
disability, death, retirement or other termination of employment of a
Participant and the extent to which, and the period during which, the
Participant's legal representative, guardian or designated beneficiary may
receive payment of an Award or exercise rights thereunder.
(f) In order to preserve a Participant's rights under an Award in the
event of a change in control of the Company, the Committee in its discretion
may, at the time an Award is made or at any time thereafter, take one or more of
the following actions with respect to any such change of control; (i) provide
for the acceleration of any time period relating to the exercise or realization
of the Award, (ii) provide for the Purchase of the Award upon the Participant's
request for an amount of cash or other property that could have been received
upon the exercise or realization of the Award had the Award been currently
exercisable or payable, (iii) adjust the terms of the Award in a manner
determined by the Committee, (iv) cause the Award to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other provision as the
Committee may consider equitable and in the best interests of the Company.
(g) The Participant shall pay to the Company, or make provision
satisfactory to the Committee for payment of, any taxes required by law to be
withheld in respect of Awards under the Plan no later than the date of the event
creating the tax liability. In the Committee's discretion, such tax obligations
may be paid in whole or in part in shares of Common Stock, including shares
retained from the Award creating the tax obligation, valued at their Fair Market
Value on the date of delivery. The Company may, to the extent permitted by law,
deduct any such tax obligations from any payment of any kind otherwise due to
the Participant.
(h) For purposes of the Plan, the following events shall not be
deemed a termination of employment of a Participant:
(i) a transfer to the employment of the Company from a
subsidiary or from the Company to a subsidiary, or from one subsidiary
to another; or
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(ii) an approved leave of absence for military service or
sickness, or for any other purpose approved by the Company, if the
Participant's right to reemployment is guaranteed either by a statute
or by contract or under the policy pursuant to which the leave of
absence was granted or if the Committee otherwise so provides in
writing.
For purposes of the Plan, employees of a subsidiary of the Company shall be
deemed to have terminated their employment on the date on which such subsidiary
ceases to be a subsidiary of the Company.
(i) The Committee may amend, modify or terminate any outstanding
Award, including substituting therefor another Award of the same or a different
type, changing the date of exercise or realization and converting an Incentive
Stock Option to a Non-qualified Stock Option, provided that the Participant's
consent to such action shall be required unless the Committee determines that
the action, taking into account any related action, would not materially and
adversely affect the Participant, and provided further that, notwithstanding the
foregoing, the Committee may not simultaneously terminate an Option and
substitute therefor another Option having a lower per share exercise price.
Section 12. Miscellaneous
(a) No person shall have any claim or right to be granted an Award,
and the grant of an Award shall not be construed as giving a Participant the
right to continued employment. The Company expressly reserves the right at any
time to dismiss a Participant free from any liability or claim under the Plan,
except as expressly provided in the applicable Award.
(b) Subject to the provisions of the applicable Award, no Participant
shall have any rights as a shareholder with respect to any shares of Common
Stock to be distributed under the Plan until he or she becomes the holder
thereof. A Participant to whom shares of Common Stock is awarded shall be
considered the holder of the Shares at the time of the Award except as otherwise
provided in the applicable Award.
(c) Subject to the approval of the shareholders of the Company, the
Plan shall be effective on May 26, 2000. Prior to such approval, Awards may be
made under the Plan expressly subject to such approval.
(d) The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, provided that no amendment shall be made without
shareholder approval if such approval is necessary to comply with any applicable
tax or regulatory requirement.
(e) Awards may not be made under the Plan after May 26, 2010, but
then outstanding Awards may extend beyond such date.
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