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SICOR INC.
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE OF THE PLAN.
The Plan was established effective as of July 1, 1992, subject
to the approval of the Company's stockholders. The purpose of the Plan is to
provide Eligible Employees with an opportunity to increase their proprietary
interest in the success of the Company by purchasing Stock from the Company on
favorable terms and to pay for such purchases through payroll deductions. The
Plan was restated and amended by the Board of Directors effective February 22,
1996, June 20, 1997, April 17, 1998, February 10, 1999 and February 28, 2000.
The Plan is intended to qualify under section 423 of the Internal Revenue Code
of 1986, as amended.
SECTION 2. ADMINISTRATION OF THE PLAN.
(a) THE COMMITTEE. The Plan shall be administered by the
Committee. The interpretation and construction by the Committee of any provision
of the Plan or of any right to purchase Stock granted under the Plan shall be
conclusive and binding on all persons.
(b) RULES AND FORMS. The Committee may adopt such rules and
forms under the Plan as it considers appropriate.
SECTION 3. ENROLLMENT AND PARTICIPATION.
(a) PARTICIPATION PERIODS. While the Plan is in effect, there
shall be two Participation Periods in each calendar year, consisting of the
six-month periods commencing on each January 1 and July 1.
(b) ENROLLMENT. Any individual who, on the date preceding the
first day of a Participation Period, qualifies as an Eligible Employee may elect
to become a Participant in the Plan for such Participation Period by executing
the enrollment form prescribed for this purpose by the Committee. The enrollment
form shall be filed with the Company not later than the last working day prior
to the commencement of such Participation Period.
(c) DURATION OF PARTICIPATION. Once enrolled, a Participant
shall continue to participate in the Plan for each succeeding Participation
Period until he or she discontinues contributions, withdraws from the Plan or
ceases to be an Eligible Employee. A Participant who discontinues contributions
under Section 4(d) or withdraws from the Plan under Section 5(a) may again
become a Participant, if he or she then is an Eligible Employee, by following
the procedure described in Subsection (b) above.
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SECTION 4. EMPLOYEE CONTRIBUTIONS.
(a) FREQUENCY OF PAYROLL DEDUCTIONS. A Participant may
purchase shares of Stock under the Plan solely by means of payroll deductions.
Payroll deductions, as designated by the Participant pursuant to Subsection (b)
below, shall commence with the first payday in the Participation Period and
shall continue on each subsequent payday during participation in the Plan.
(b) AMOUNT OF PAYROLL DEDUCTIONS. An Eligible Employee shall
designate on the enrollment form the portion of his or her Compensation that he
or she elects to have withheld for the purchase of Stock. Such portion shall be
a whole percentage of the Eligible Employee's Compensation, but not less than 1%
nor more than 12%.
(c) CHANGING WITHHOLDING RATE. If a Participant wishes to
change the rate of payroll withholding, he or she may do so by filing a new
enrollment form with the Company not later than the last working day prior to
the commencement of the Participation Period for which such change is to be
effective.
(d) DISCONTINUING PAYROLL DEDUCTIONS. If a Participant wishes
to discontinue employee contributions entirely, he or she may do so by filing a
new enrollment form at any time. Payroll withholding shall cease as soon as
reasonably practicable after such form has been received by the Company.
SECTION 5. WITHDRAWAL FROM THE PLAN.
(a) WITHDRAWAL. A Participant may elect to withdraw from the
Plan by filing the prescribed form with the Company at any time before the last
day of a Participation Period. As soon as reasonably practicable thereafter,
payroll deductions shall cease and the entire amount credited to the
Participant's Plan Account shall be refunded to him or her in cash, without
interest. No partial withdrawals shall be permitted.
(b) RE-ENROLLMENT AFTER WITHDRAWAL. A former Participant who
has withdrawn from the Plan shall not be a Participant until he or she
re-enrolls for a subsequent Participation Period under Section 3(b).
SECTION 6. TERMINATION OF EMPLOYMENT AND DEATH.
(a) TERMINATION OF EMPLOYMENT. Termination of employment as an
Eligible Employee for any reason, including death, shall be treated as an
automatic withdrawal from the Plan under Section 5(a). (A transfer from one
Participating Company to another shall not be treated as a termination of
employment.)
(b) DEATH. In the event of the Participant's death, the amount
credited to his or her Plan Account shall be paid to a beneficiary designated by
him or her for this purpose on the prescribed form or, if none, to the
Participant's estate.
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SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES.
(a) PLAN ACCOUNTS. The Company shall maintain a Plan Account
on its books in the name of each Participant. As of each payday in a
Participation Period, the amount deducted from the Participant's Compensation
shall be credited to the Participant's Plan Account. No interest shall be
credited to Plan Accounts.
(b) PURCHASE PRICE. The Purchase Price for each share of Stock
shall be the lower of (i) 85% of the Fair Market Value of such share on the last
trading day before the Participation Period commences or (ii) 85% of the Fair
Market Value of such share on the last trading day in the Participation Period.
(c) NUMBER OF SHARES PURCHASED. As of the last day of each
Participation Period, each Participant shall be deemed to have elected to
purchase the number of whole shares of Stock calculated in accordance with this
Subsection (c), unless the Participant has previously elected to withdraw from
the Plan in accordance with Section 5(a). The amount then in the Participant's
Plan Account shall be divided by the Purchase Price, and the number of whole
shares that results shall be purchased from the Company with the funds in the
Participant's Plan Account. The foregoing notwithstanding, no Participant shall
purchase more than a maximum of 1,000 shares of Stock with respect to any
Participation Period nor shares of Stock in excess of the amounts set forth in
Sections 8 and 12(a).
(d) AVAILABLE SHARES INSUFFICIENT. In the event that the
aggregate number of shares that all Participants elect to purchase during a
Participation Period exceeds the maximum number of shares remaining available
for issuance under Section 12(a), then the number of shares to which each
Participant is entitled shall be determined by multiplying the number of shares
available for issuance by a fraction, the numerator of which is the number of
shares that such Participant has elected to purchase and the denominator of
which is the number of shares that all Participants have elected to purchase.
(e) ISSUANCE OF STOCK. Certificates representing the number of
shares of Stock purchased shall be issued as soon as reasonably practicable
after the close of the Participation Period. Shares may be registered in the
name of the Participant or jointly in the name of the Participant and his or her
spouse as joint tenants with right of survivorship or as community property.
(f) UNUSED CASH BALANCES. Any amount remaining in the
Participant's Plan Account that represents the Purchase Price for a fractional
share shall be carried over in the Participant's Plan Account to the next
Participation Period. Any amount remaining in the Participant's Plan Account
that represents the Purchase Price for whole shares which could not be purchased
under Subsection (c) above or Section 12(a) shall be refunded to the Participant
in cash, without interest.
SECTION 8. LIMITATIONS ON STOCK OWNERSHIP.
Any other provision of the Plan notwithstanding, no
Participant shall be granted a right to purchase Stock under the Plan if:
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(a) Such Participant, immediately after his or her election to
purchase such Stock, would own stock possessing more than 5% of the
total combined voting power or value of all classes of stock of the
Company or any parent or Subsidiary of the Company; or
(b) Under the terms of the Plan, such Participant's rights to
purchase stock under this and all other qualified employee stock
purchase plans of the Company or any parent or Subsidiary of the
Company would accrue at a rate that exceeds $25,000 of the fair market
value of such stock (determined at the time when such right is granted)
for each calendar year for which such right or option is outstanding at
any time.
Ownership of stock shall be determined after applying the attribution rules of
section 424(d) of the Internal Revenue Code of 1986, as amended. For purposes of
this Section 8, each Participant shall be considered to own any stock that he or
she has a right or option to purchase under this or any other plan, and each
Participant shall be considered to have the right to purchase 1,000 shares of
Stock under this Plan with respect to each Participation Period.
SECTION 9. RIGHTS NOT TRANSFERABLE.
The rights of any Participant under the Plan, or any
Participant's interest in any Stock or moneys to which he or she may be entitled
under the Plan, shall not be transferable by voluntary or involuntary assignment
or by operation of law, or in any other manner other than by will or the laws of
descent and distribution. If a Participant in any manner attempts to transfer,
assign or otherwise encumber his or her rights or interest under the Plan, other
than by will or the laws of descent and distribution, then such act shall be
treated as an election by the Participant to withdraw from the Plan under
Section 5(a).
SECTION 10. NO RIGHTS AS AN EMPLOYEE.
Nothing in the Plan shall be construed to give any person the
right to remain in the employ of a Participating Company. Each Participating
Company reserves the right to terminate the employment of any person at any
time, with or without cause.
SECTION 11. NO RIGHTS AS A STOCKHOLDER.
A Participant shall have no rights as a stockholder with
respect to any shares that he or she has purchased, or may have a right to
purchase, under the Plan until the date of issuance of a stock certificate for
such shares.
SECTION 12. STOCK OFFERED UNDER THE PLAN.
(a) AUTHORIZED SHARES. The aggregate number of shares of Stock
available for purchase under the Plan shall be 710,000, subject to adjustment
pursuant to this Section 12.
(b) ANTI-DILUTION ADJUSTMENTS. The aggregate number of shares
of Stock offered under the Plan, the 1,000-share limitation described in Section
7(c) and the price of shares that any Participant has elected to purchase shall
be adjusted proportionately by the Committee for any increase or decrease in the
number of outstanding shares of Stock resulting from a subdivision or
consolidation of shares, the payment of a stock dividend, any other increase or
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decrease in such shares effected without receipt or payment of consideration by
the Company or the distribution of the shares of a Subsidiary to the Company's
stockholders.
(c) REORGANIZATIONS. In the event of a dissolution or
liquidation of the Company, or a merger or consolidation to which the Company is
a constituent corporation, the Plan shall terminate unless the plan of merger,
consolidation or reorganization provides otherwise, and all amounts that have
been withheld but not yet applied to purchase Stock hereunder shall be refunded,
without interest. The Plan shall in no event be construed to restrict in any way
the Company's right to undertake a dissolution, liquidation, merger,
consolidation or other reorganization.
SECTION 13. AMENDMENT OR DISCONTINUANCE.
The Board of Directors shall have the right to amend, suspend
or terminate the Plan at any time and without notice; provided that no
Participant's existing rights are adversely affected thereby and that, except as
provided in Section 12, any increase in the aggregate number of shares of Stock
to be issued under the Plan shall be subject to approval by a vote of the
stockholders of the Company.
SECTION 14. STOCKHOLDER APPROVAL.
(a) STOCKHOLDER APPROVAL REQUIRED. The Plan and any rights to
purchase shares hereunder shall be void if the Plan is not approved by the
Company's stockholders on or before the earlier of (i) the date of the 1996
annual meeting of the Company's stockholders or (ii) the date 12 months after
the adoption of the Plan by the Board of Directors. Until stockholder approval
is obtained, all shares purchased under the Plan shall be held in escrow by the
Company or its designee as agent for the Participants and spouses who own such
shares and shall not be transferable or assignable.
(b) STOCKHOLDER APPROVAL NOT OBTAINED. In the event that
stockholder approval is not obtained on or before the prescribed date, the Plan
shall terminate, all shares then held in escrow shall be repurchased by the
Company for an amount equal to the Purchase Price paid by the Participants, and
all amounts then held in Plan Accounts shall be refunded to the Participants
without interest.
SECTION 15. DEFINITIONS.
(a) "BOARD OF DIRECTORS" means the Board of Directors of the
Company, as constituted from time to time.
(b) "COMMITTEE" means the Stock Option Committee of the Board
of Directors.
(c) "COMPANY" means SICOR Inc., a Delaware corporation.
(d) "COMPENSATION" means the base compensation paid in cash to
a Participant by a Participating Company, including salaries and wages, but
excluding bonuses, incentive compensation, commissions, overtime pay, moving or
relocation allowances, car allowances,
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imputed income attributable to cars, taxable fringe benefits and similar items,
all as determined by the Committee.
(e) "ELIGIBLE EMPLOYEE" means any employee of a Participating
Company (i) whose customary employment is for more than five months per calendar
year and for more than 20 hours per week and (ii) who has been an employee of a
Participating Company for not less than three consecutive months.
(f) "FAIR MARKET VALUE" shall mean the market price of
Stock, determined by the Committee as follows:
(i) If the Stock was traded over-the-counter on the date in
question but was not classified as a national market issue, then the
Fair Market Value shall be equal to the mean between the last reported
representative bid and asked prices quoted by the NASDAQ system for
such date;
(ii) If the Stock was traded over-the-counter on the date in
question and was classified as a national market issue, then the Fair
Market Value shall be equal to the closing price quoted by the NASDAQ
system for such date;
(iii) If the Stock was traded on a stock exchange on the date
in question, then the Fair Market Value shall be equal to the closing
price reported by the applicable composite transactions report for such
date; and
(iv) If none of the foregoing provisions is applicable, then
the Fair Market Value shall be determined by the Committee in good
faith on such basis as it deems appropriate.
Whenever possible, the determination of Fair Market Value by the Committee shall
be based on the prices reported in the Western Edition of THE WALL STREET
JOURNAL. Such determination shall be conclusive and binding on all persons.
(g) "PARTICIPANT" means an Eligible Employee who elects to
participate in the Plan, as provided in Section 3(b).
(h) "PARTICIPATING COMPANY" means the Company and each present
or future Subsidiary, except Subsidiaries excluded by the Committee.
(i) "PARTICIPATION PERIOD" means a period during which
contributions may be made toward the purchase of Stock under the Plan, as
determined pursuant to Section 3(a).
(j) "PLAN" means this SICOR Inc. Employee Stock Purchase Plan,
as amended from time to time.
(k) "PLAN ACCOUNT" means the account established for each
Participant pursuant to Section 6(a).
(l) "PURCHASE PRICE" means the price at which Participants may
purchase Stock under the Plan, as determined pursuant to Section 7(b).
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(m) "STOCK" means the Common Stock of the Company.
(n) "SUBSIDIARY" means a corporation, 50% or more of the total
combined voting power of all classes of stock of which is owned by the Company
or by another Subsidiary.
SECTION 16. EXECUTION.
To record the amendment and restatement of the Plan by the
Board of Directors on February 28, 2000, the Company has caused its duly
authorized officer to affix the corporate name and seal hereto.
SICOR INC.
By /s/ John W. Sayward
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John W. Sayward
Executive Vice President, Finance,
Chief Financial Officer and Treasurer
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