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Exhibit 4.2
NABI
EMPLOYEE STOCK PURCHASE PLAN
(as adopted by the Shareholders of Nabi
on May 26, 2000)
1. Purpose
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The Nabi Employee Stock Purchase Plan (the "Plan") is intended to
provide employees of Nabi (the "Company") an opportunity to acquire a
proprietary interest in the Company through the purchase of shares of the common
stock of the Company ("Common Stock" or "Stock"). It is the intention of the
Company to have the Plan qualify as an employee stock purchase plan under
Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). The
provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of such section of
the Code.
2. Eligibility
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Any employee of the Company is eligible to participate in the Plan
provided he or she (i) is employed by the Company on the Offering Commencement
Date (as defined in Section 3 of this Plan) or, if such date is not a regular
business day for the Company, the first regular business day of the Company
after the Offering Commencement Date, and (ii) is employed by the Company as of
the date(s) each payroll deduction made in accordance with Section 4 of this
Plan is made.
Notwithstanding the foregoing, no employee will be eligible to
participate in the Plan if (i) immediately after the grant of an option, the
employee would own stock or hold outstanding options to purchase stock
possessing five (5) percent or more of the total combined voting power or value
of all classes of stock of the Company, or (ii) the grant of the option would
permit the participant's rights to purchase stock under all employee stock
purchase plans of the Company to accrue at a rate which exceeds $25,000 of the
fair market value of the stock (determined at the time the option is granted)
for each calendar year in which such option is outstanding at any time.
For purposes of this Section 2, the rules of Section 424(d) of the
Code shall apply in determining stock ownership of an employee, and stock which
an employee may purchase under outstanding options shall be treated as stock
owned by the employee.
3. Offering Periods
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Under the Plan, there will be two six-month offering periods per year,
provided however that the initial offering period shall be five months in
duration. The initial offering of Common Stock under the Plan shall begin on
July 1, 2000 (and such date shall be deemed to be the Offering Commencement Date
for such initial offering) and will end on November 30, 2000 (and
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such date shall be deemed to be the Offering Termination Date for such initial
offering). Each subsequent offering of Common Stock (an "Offering") will begin
on June 1 and December 1 of a calendar year (each an "Offering Commencement
Date"), and will end on each of November 30 and May 31, respectively (each an
"Offering Termination Date"). The first such six-month Offering shall begin on
December 1, 2000.
4. Participation
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(a) An eligible employee may elect to participate
in any Offering by having payroll deductions made in
accordance with Section 4(b) hereof over the six-month
period commencing on the Offering Commencement Date (a "Plan
Period"). An eligible employee whose employment with the
Company commences after the Offering Commencement Date in
any Plan Period may elect to participate in the next
following Plan Period, but shall not be entitled to
participate in the Offering that is in progress on the date
his or her employment with the Company begins.
(b) An eligible employee may participate in any
Offering by completing an authorization form for payroll
deductions and filing it with the Company no later than a
date prior to the Offering Commencement Date for the
Offering designated by the Administrator (as defined in
Section 10) or, in the absence of such a designation, the
date five business days before the Offering Commencement
Date. Payroll deductions will be spread evenly over the Plan
Period or such shorter period during which an eligible
employee may participate in the Plan, as provided in this
Section 4. An eligible employee electing to participate in
the Plan by means of payroll deductions for a particular
Plan Period may not alter the rate of payroll deductions
more than one time during the period. All such payroll
deductions shall be credited to the participant's account
under the Plan. Employees on leave of absence for a period
not exceeding 90 days will be permitted to continue
participating in the Offering, if they continue making
periodic payments to the Company. Each authorization form
filed by an eligible employee is of a continuing nature and
shall apply to all subsequent Offerings for which the
employee is eligible unless and until revoked or replaced by
the employee.
(c) In no event shall the aggregate of all
payroll deductions made with respect to a single Plan Period
for an eligible employee be less than one percent (1%) or
more than ten percent (10%) of the employee's base pay
earned during the Plan Period. For purposes of the Plan,
"base pay" means regular salary or straight time earnings,
excluding commissions, overtime payments, bonuses,
nonrecurring payments, and incentive or contingent payments.
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5. Option Grant and Price
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(a) A participant's authorization for payroll
deductions for any Offering shall become effective as of the
Offering Commencement Date or, if applicable, the date upon
which he or she elects to participate as permitted in
Section 4, and the participant shall be deemed to have been
granted an option as of the applicable date to purchase as
many full shares of Common Stock as can be purchased with
the payroll deductions credited to his or her account during
the Offering.
(b) The option price of Common Stock for any
Offering will be equal to the lower of 85 percent of the
last sale price of the Stock on the Nasdaq National Market
on (i) the day immediately prior to the Offering
Commencement Date or (ii) the day immediately prior to the
Offering Termination Date for the Offering or, in either
case, if no trading occurred in the Stock on the Nasdaq
National Market on such date, then the next prior business
day on which trading occurred in the Stock on the Nasdaq
National Market.
6. Withdrawal
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(a) A participant may withdraw payroll deductions
credited to his or her account for any Offering by giving
written notice to the Company at any time up to a date prior
to the Offering Termination Date designated by the
Administrator (as defined in Section 10). Upon notice of
withdrawal, all of the participant's payroll deductions for
the offering will be paid promptly without interest, and no
further payroll deductions will be made. A participant who
withdraws from an Offering cannot participate again in that
Offering, but can participate in any other Offering for
which he or she is eligible.
(b) Upon termination of a participant's
employment for any reason other than death, the payroll
deductions credited to the participant's account will be
returned to the participant without interest. If the
participant dies after termination of employment, such
amount shall be returned to the person or persons entitled
thereto under Section 11.
(c) Upon termination of a participant's
employment because of death, the participant's beneficiary
will have the right to elect, by written notice given to the
Company within the 30-day period commencing with the date of
the death of the participant, either (i) to withdraw all of
the payroll deductions credited to the participant's account
under the Plan, or (ii) to exercise the participant's option
on the Offering Termination Date
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for the purchase of the number of full shares of Common
Stock which the accumulated payroll deductions in his or her
account will purchase at the applicable option price. In
lieu of any fractional shares, any excess in such account
will be returned to the participant's beneficiary without
interest. In the event that no written notice of election is
received by the Company, the beneficiary will be deemed to
have elected to withdraw the accumulated payroll deductions
credited to the participant's account at the date of the
participant's death and such amount will be paid promptly to
the beneficiary without interest.
7. Exercise of Option
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Unless a participant gives written notice to the Company as provided in
Section 6(a), an option for the purchase of Common Stock with payroll deductions
for any Offering will be deemed to have been exercised automatically on the
Offering Termination Date for the Offering for the number of full shares of
Common Stock which the accumulated payroll deductions in the participant's
account on that date will purchase at the applicable option price. In lieu of
fractional shares, any excess in the account will be applied to the
participant's account for the next Offering; provided, however, that if the
participant does not elect to participate in such next Offering, then this
account credit will be distributed to the participant in cash without interest.
8. Delivery
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As promptly as practicable after the Offering Termination Date for any
Offering, the Company will deliver to each participant, as appropriate, the
Common Stock purchased upon the exercise of his or her option.
9. Stock
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(a) The maximum number of shares of Common Stock which may be
made available for purchase under the Plan shall be 500,000
shares, subject to adjustment upon changes in the capitalization
of the Company. Shares shall be made available from authorized,
unissued and reserved Common Stock of the Company. If the total
number of shares for which options are exercised for any Offering
exceeds the number of shares available, the Company will make a
pro rata allocation of the shares available in as nearly uniform
a manner as practicable and as the Company may determine to be
equitable, and the balance of payroll deductions credited to the
account of each participant under the Plan shall be returned as
promptly as possible, without interest.
(b) The participant will have no interest in Stock covered by an
option until such option has been exercised.
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(c) Stock to be delivered to a participant with respect to any
Offering under the Plan will be registered in the name of the
participant or, if the participant so directs by written notice
to the Company before the Offering Termination Date, in the names
of the participant and such other person as may be designated by
the participant, as joint tenants with rights of survivorship, to
the extent permitted by applicable law.
(d) The Board of Directors may, in its discretion, require as
conditions to the exercise of any option, that either (i) a
registration statement under the Securities Act of 1933, as
amended, with respect to shares covered by the option shall be
effective, or (ii) the participant shall represent, in such form
and manner as the Company may determine, that it is the
participant's intention to purchase the shares only for
investment. The participant shall deliver to the Company such
certificates and other documents as may be requested by the
Company in order to evidence compliance with applicable state and
federal securities regulations.
10. Administration
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The Plan initially shall be administered by the Company's President or the
President's designee (the "Administrator"). The interpretation and construction
of any provision of the Plan and the adoption of rules and regulations for
administering the Plan shall be made by the Administrator, subject, however, to
the final determination of the Board of Directors of the Company. Determinations
made by the Administrator and approved by the Board of Directors with respect to
any matter or provision contained in the Plan shall be final, conclusive and
binding upon the Company and upon all participants, their legal representatives
and any other persons under the Plan. Any rule or regulation adopted by the
Administrator shall remain in full force and effect unless and until altered,
amended or repealed by the Board of Directors.
11. Designation of Beneficiary
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A participant may file a written designation of a beneficiary to receive
any Stock or cash in the event of the participant's death. Any designation of a
beneficiary may be changed by the participant at any time by written notice to
the Administrator. Upon the death of a participant and upon receipt by the
Administrator of proof of the identity and existence at the time of the
participant's death of a beneficiary validly designated under the Plan, the
Company will deliver such Stock or cash to the participant's beneficiary. In the
event that no beneficiary survives the participant, the Company will deliver
such Stock or cash to the executor or administrator of the participant's estate.
If no executor or administrator has been appointed to the knowledge of the
Administrator, the Company, in its discretion, may deliver such Stock or cash to
the spouse or to any one or more dependents of the participant as the
Administrator may designate. No beneficiary shall, prior to the death of the
participant, acquire any interest in any Stock or cash credited to the
participant under the Plan.
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12. Transferability
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Neither contributions credited to a participant's account nor any rights
with regard to the exercise of an option or the receipt of Stock under the Plan
may be assigned, transferred, pledged or otherwise disposed of in any way by a
participant. Any such assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such an act as an election to
withdraw funds in accordance with Section 6.
13. Use of Funds
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All payroll deductions received or held by the Company under the Plan will
be general assets of the Company and may be used for any corporate purpose. The
Company shall not be obligated to segregate such payroll deductions.
14. Effect of Changes in Common Stock
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If the Company subdivides or reclassifies Common Stock which has been or
may be optioned under the Plan, or declares any dividend payable in shares of
Common Stock, or takes any other action of a similar nature affecting such
Stock, then the number and class of shares of Common Stock which may thereafter
be optioned (in the aggregate and with respect to any individual participant)
will be adjusted accordingly and, in the case of each option outstanding at the
time of any such action, the number and class of shares which may thereafter be
purchased pursuant to the option and the option price per share shall be
adjusted to the extent determined by the Board of Directors, upon the
recommendation of the Administrator, to be necessary to preserve unimpaired and
undiluted the rights of the holder of such option.
15. Amendment
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The Board of Directors of the Company may at any time amend the Plan;
provided, however, that the Board may not make any change in any option
previously granted which would adversely affect the rights of any participant.
No amendment may be made without prior approval of the holders of a majority of
the shares of Common Stock of the Company issued, outstanding and entitled to
vote if such amendment would:
(a) require the sale of more shares of Stock than are
authorized under Section 9 of the Plan; or
(b) permit payroll deductions at a rate in excess of 10
percent of a participant's base pay.
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16. Discontinuance or Termination
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The Plan shall terminate on the Offering Termination Date on which the
number of shares for which options are exercised exceeds the number of shares
available for the Offering. The Board of Directors may at any other time
terminate the Plan. No discontinuance or termination may affect options
previously granted except as provided herein.
17. Notices
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All notices or other communications by a participant to the Company under
the Plan shall be deemed to have been duly given when received by the Company.
18. Merger or Consolidation
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In the event of a merger or consolidation to which the Company is a party
(other than a merger or consolidation in which shareholders of the Company
immediately prior to the merger or consolidation shall immediately following the
merger or consolidation own securities in the resulting corporation having the
right to cast more than 50% of the votes necessary to elect a majority of the
Directors of the resulting corporation), or in the event of a sale or transfer
of all or substantially all of the Company's assets, the Plan shall terminate
and the date of such merger, consolidation, sale or transfer shall be the
Offering Termination Date for the Plan Period within which such event occurs. To
the extent of payroll deductions credited to each participant's account on the
Offering Termination Date, the holder of each option then outstanding shall be
deemed to have exercised the option and shall be entitled to receive, as nearly
as reasonably may be determined, the securities or property to which a holder of
Common Stock was entitled immediately prior to the merger, consolidation, sale
or transfer. The Board of Directors shall take such steps in connection with any
merger, consolidation, sale or transfer as it may deem necessary to insure that
the provisions of Section 14 will thereafter be applicable, as nearly as
reasonably possible, to such securities or property.
19. Approval of Stockholders
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The Plan shall be effective when approved by the holders of a majority of
the shares of Common Stock of the Company present and entitled to vote either at
the next annual meeting of stockholders, a special meeting in lieu of the annual
meeting, or a special meeting of holders of Common Stock called, at least in
part, to act upon the Plan, provided, that a quorum representing a majority of
all outstanding voting stock of the Company is, either in person or by proxy,
present and voting on the Plan.
20. Participant and Employee Rights The Plan shall not be deemed to give
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any participant or any employee the right to be retained in the employ of the
Company, or to confer on or create in any participant or any employee any
rights, legal or equitable, except such as are expressly set forth herein.
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21. Governing Law
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The Plan shall be construed, and the rights and liabilities of all persons
under the Plan shall be determined, in accordance with the laws of the State of
Delaware, to the extent not superseded by federal law.
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