<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON December 20, 1994.
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
----------------------------------------------------
Washington, D.C. 20349
FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
ICN PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0628076
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3300 HYLAND AVENUE, COSTA MESA, CALIFORNIA 92626
(Address of principal executive offices) (Zip Code)
ICN PHARMACEUTICALS, INC. 1994 STOCK OPTION PLAN
THE FOLLOWING PLANS ASSUMED BY ICN PHARMACEUTICALS, INC.
BY REASON OF THE MERGER DESCRIBED IN THE EXPLANATORY NOTE:
ICN BIOMEDICALS, INC. 1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ICN BIOMEDICALS, INC. 1992 NON-QUALIFIED STOCK OPTION PLAN
ICN BIOMEDICALS, INC. 1983 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ICN BIOMEDICALS, INC. 1983 NON-QUALIFIED STOCK OPTION PLAN
ICN BIOMEDICALS, INC. 1988 NON-QUALIFIED STOCK OPTION PLAN
ICN PHARMACEUTICALS, INC. 1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ICN PHARMACEUTICALS, INC. 1992 NON-QUALIFIED STOCK OPTION PLAN
ICN PHARMACEUTICALS, INC. 1981 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ICN PHARMACEUTICALS, INC. 1981 NON-QUALIFIED STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1992 NON-QUALIFIED STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1982 NON-QUALIFIED STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1982 EMPLOYEE INCENTIVE STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1988 NON-QUALIFIED STOCK OPTION PLAN
VIRATEK, INC. 1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
VIRATEK, INC. 1992 NON-QUALIFIED STOCK OPTION PLAN
VIRATEK, INC. 1981 EMPLOYEE INCENTIVE STOCK OPTION PLAN
VIRATEK, INC. 1981 NON-QUALIFIED EMPLOYEE STOCK OPTION PLAN
VIRATEK, INC. 1986 NON-QUALIFIED EMPLOYEE STOCK OPTION PLAN
(FULL TITLES OF PLANS)
MILAN PANIC
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
ICN PHARMACEUTICALS, INC.
3300 HYLAND AVENUE, COSTA MESA, CALIFORNIA 92626
(Name and address of agent for service)
(714) 545-0100
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED <F1> PER SHARE <F2> PRICE <F2> REGISTRATION FEE
- --------------------------------------------------------------------------
Common Stock
($.01 par value) 8,447,691 * * $53,065.60
<F>
<F1> Plus such additional shares as may be made available in order to adjust
for a change in capitalization.
<F2> As determined in accordance with Rule 457, the amount of the
Registration Fee is based on 5,447,691 shares which are subject to options at
an aggregate exercise price of $18.66 per share, 462,500 shares which are
subject to option at $20.00 per share and 2,537,500 shares which may be
issuable upon exercise of options that may be granted under the ICN
Pharmaceuticals, Inc. 1994 Stock Option Plan.
</F>
</TABLE>
<PAGE>
<PAGE> i
EXPLANATORY NOTE
On November 10, 1994, ICN Pharmaceuticals, Inc. ("Old ICN"), SPI
Pharmaceuticals, Inc. ("SPI"), Viratek, Inc. ("Viratek") and ICN
Biomedicals, Inc. ("Biomedicals"; and together with Old ICN, SPI and
Viratek, the "Predecessor Companies") effected a business combination
transaction pursuant to which Old ICN, SPI and Viratek merged with and into
ICN Merger Corp. ("ICN" or the "Company") and Biomedicals merged with and
into ICN Subsidiary Corp. (the transactions are referred to collectively
herein as the "Merger"). Following the Merger, ICN changed its name to
"ICN Pharmaceuticals, Inc." and ICN Subsidiary Corp. changed its name to
"ICN Biomedicals, Inc." Pursuant to the Merger, holders of shares of SPI
common stock (other than Old ICN) became entitled to exchange each such
share for 1.0 share of common stock, par value $.01 (the "Common Stock"),
of ICN; holders of shares of Old ICN common stock became entitled to
exchange each such share for 0.512 share of Common Stock; holders of shares
of Viratek common stock (other than Old ICN) became entitled to exchange
each such share for 0.499 share of Common Stock and holders of shares of
Biomedicals common stock (other than Old ICN) became entitled to exchange
each such share for 0.197 share of Common Stock. Pursuant to an Agreement
and Plan of Merger, dated as of August 1, 1994, as amended, by and among
each of the Predecessor Companies and the Company pursuant to which the
Merger was consummated, ICN assumed responsibility for administering all
option plans (and certain grants made to Milan Panic) previously adopted by
each of the Predecessor Companies and all outstanding stock options granted
under such option plans (and certain options granted to Milan Panic) were
converted into stock options exercisable for Common Stock (with the number
of shares subject to such options and the exercise prices thereof being
adjusted to reflect the applicable exchange ratio as described above). In
addition, this Registration Statement also relates to the registration of
3,000,000 shares of Common Stock which may be issued upon exercise of
options which have been or may be granted under the ICN Pharmaceuticals,
Inc. 1994 Stock Option Plan.
<PAGE>
<PAGE> 1
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been filed by the Company with
the Securities and Exchange Commission (the "Commission") are incorporated
by reference in this Registration Statement, as of their respective dates:
(a) The Company's Prospectus, dated November 10, 1994, filed
with the Commission pursuant to Rule 424(b) under the Securities Act of
1933, as amended, and included in the Company's Registration Statement on
Form S-1 (Registration No. 33-83952);
(b) The Company's Report on Form 10-Q for the quarter ending
September 30, 1994, filed with the Commission on November 14, 1994; and
(c) The description of the Company's common stock, par value
$.01 per share, contained in the Company's Registration Statement on Form
S-4 filed with the Commission (Registration No. 33-84534).
All documents filed subsequent to the date hereof by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and prior
to the filing of a post-effective amendment hereto which indicate that all
securities offered hereby have been sold or which deregister all securities
then remaining unsold, shall be deemed to be incorporated by reference
herein and made a part hereof from their respective dates of filing (such
documents, and the documents enumerated above, being hereinafter referred
to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which
the offering made hereby are in effect prior to the filing with the
Commission of the Company's Annual Report on Form 10-K covering such year
shall not be Incorporated Documents or be incorporated by reference herein
or be a part hereof from and after the filing of such Annual Report on Form
10-K.
Any statement contained in an Incorporated Document or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained
herein or in any other subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not required.
<PAGE>
<PAGE> 2
ITEM 5. INTERESTS OF NAMED EXPERTS.
As of December 1, 1994, M'Liss Jones Kane, Vice President,
Assistant General Counsel and Assistant Secretary of the Company, held
options to purchase 28,049 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware (the
"GCL") empowers a corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation or enterprise. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with such action, suit or proceeding
if the person indemnified acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
cause to believe his or her conduct was unlawful. In the case of an action
by or in the right of the corporation, no indemnification may be made
another than for expenses (including attorneys' fees), and no
indemnification for expenses may be made in respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine that despite
the adjudication of liability such person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to above or in the defense of any claim, issue
or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her
in connection therewith. However, if the director or officer is not
successful in the defense of any action, suit or proceeding as referred to
above or in the defense of any claim, issue or matter therein, he shall
only be indemnified by the corporation as authorized in the specific case
upon a determination that indemnification is proper because he or she met
the applicable standard set forth above as determined by a majority of the
disinterested Board of Directors or by the stockholders.
<PAGE>
<PAGE> 3
The Company's bylaws provide indemnification to its officers and
directors against liability they may incur in their capacity as such, which
indemnification is similar to that provided by Section 145, unless a
determination is reasonably and promptly made by a majority of the
disinterested Board of Directors that the indemnitee acted in bad faith and
in a manner that the indemnitee did not believe to be in or not opposed to
the best interests of the Company, or, with respect to any criminal
proceeding, that the indemnitee believed or had reasonable cause to believe
that his or her conduct was unlawful.
The Company carries directors' and officers' liability insurance,
covering losses up to $5,000,000 (subject to a $500,000 deductible).
The Company, as a matter of policy, enters into indemnification
agreements with its directors and officers indemnifying them against
liability they may incur in their capacity as such. The indemnification
agreements require no specific standard of conduct for indemnification and
make no distinction between civil and criminal proceedings, except in
proceedings where the dishonesty of an indemnitee is alleged. Such
indemnification is not available if an indemnitee is adjudicated to have
acted in a deliberately dishonest manner with actual dishonest purpose and
intent where such acts were material to the adjudicated proceeding.
Additionally, the indemnity agreements provide indemnification for any
judgment or amount paid in settlement of claims by or in the right of the
Company. The indemnification agreements provide that the Company is not
required to provide indemnification for any claim against an indemnitee
where the claim is based upon the indemnitee obtaining personal advantage
or profit to which he or she was not legally entitled, the claim is for an
accounting of profits made in connection with a violation of Section
16(b) of the Exchange Act, or similar state law provision, or the claim was
brought about or contributed to by the dishonesty of the indemnitee.
Section 102(b)(7) of the GCL permits a corporation to include in
its certificate of incorporation a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that
such provision shall not eliminate or limit the liability of a director (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section
174 of the GCL (relating to unlawful payment of dividend and unlawful stock
purchase and redemption), or (iv) for any transaction from which the
director derived an improper personal benefit. The Company has provided in
its certificate of incorporation, as amended, that its directors shall be
exculpated from liability as provided under Section 102(b)(7).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None
<PAGE>
<PAGE> 4
ITEM 8. EXHIBITS.
Exhibit No. Description
4.1 Form of Restated Certificate of Incorporation of the Company
previously filed as Exhibit 3.1 to the Company's Registration
Statement No. 33-84534 on Form S-4*
4.2 Form of By-laws of the Company previously filed as Exhibit 3.2 to
the Company's Registration Statement No. 33-84534 on Form S-4*
4.3 Form of Rights Agreement between the Company and the Rights Agent
previously filed as Exhibit 4.2 to the Company's Registration
Statement No. 33-84534 on Form S-4*
4.4 ICN Pharmaceuticals, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.56 to Old ICN's Form 10-K for the
year ended December 31, 1992*
4.5 ICN Pharmaceuticals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.57 to Old ICN's Form 10-K
for the year ended December 31, 1992*
4.6 SPI Pharmaceuticals, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.42 to SPI's Form 10-K for the year
ended December 31, 1992*
4.7 SPI Pharmaceuticals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.43 to SPI's Form 10-K for the year
ended December 31, 1992*
4.8 Viratek, Inc. 1992 Employee Incentive Stock Option Plan previously
filed as Exhibit 10.22 to Viratek's Registration
Statement No. 33-54678 on Form S-2*
4.9 Viratek, Inc. 1992 Non-Qualified Stock Option Plan previously filed
as Exhibit 10.23 to Viratek's Registration Statement
No. 33-54678 on Form S-2*
4.10 ICN Biomedicals, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.22 to Biomedical's Form 10-K
for the year ended December 31, 1992*
4.11 ICN Biomedicals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.23 to Biomedical's Form 10-K for
the year ended December 31, 1992*
4.12 ICN Pharmaceuticals, Inc. 1981 Employee Incentive Stock Option Plan,
as amended, previously filed as Exhibit 4.1 to Registration
Statement No. 33-60866 on Form S-3*
4.13 ICN Pharmaceuticals, Inc. 1981 Non-Qualified Stock Option Plan
previously filed as Exhibit 4.1 to Registration Statement No.
33-60866 on Form S-8*
<PAGE>
<PAGE> 5
4.14 SPI Pharmaceuticals, Inc. 1981 Employee Incentive Stock Option Plan,
as amended and restated as of January 21, 1992, previously filed as
Exhibit 4.1 to SPI's Registration Statement No. 33-60872 on Form
S-8*
4.15 SPI Pharmaceuticals, Inc. 1982 Non-Qualified Stock Option Plan, as
amended and restated as of January 21, 1992, previously filed as
Exhibit 4.2 to SPI's Registration Statement No. 33-60872 on Form
S-8*
4.16 SPI Pharmaceuticals, Inc. 1988 Non-Qualified Stock Option Plan
previously filed as an Exhibit to SPI Pharmaceuticals, Inc.'s
Registration Statement No. 33-63166*
4.17 Viratek, Inc. 1981 Employee Incentive Stock Option Plan, as amended
on January 21, 1992, previously filed as an Exhibit to Viratek's
Registration Statement No. 33-60876*
4.18 Viratek, Inc. 1981 Non-Qualified Stock Option Plan previously
filed as an Exhibit to Viratek, Inc.'s Registration Statement
No. 33-63168*
4.19 Viratek, Inc. 1986 Non-Qualified Stock Option Plan previously
filed as an Exhibit to Viratek, Inc.'s Registration Statement
No. 33-63168*
4.20 ICN Biomedicals, Inc. 1983 Non-Qualified Stock Option Plan
previously filed as an Exhibit to Biomedicals' Registration
Statement No. 33-34943*
4.21 ICN Biomedicals, Inc. 1983 Incentive Stock Option Plan, as amended
and restated as of January 21, 1992, previously filed as an Exhibit
to Biomedicals' Registration Statement No. 33-34943*
4.22 ICN Biomedicals, Inc. 1988 Non-Qualified Stock Option Plan,
previously filed as an Exhibit to Biomedicals' Registration
Statement No. 33-63162*
4.23 ICN Pharmaceuticals, Inc. 1994 Stock Option Plan
5.1 Opinion of M'Liss Jones Kane, Vice President, Assistant General
Counsel and Assistant Secretary of the Company regarding legality of
shares of Common Stock covered by the Registration Statement
15.1 Letter from Coopers & Lybrand L.L.P. concerning unaudited interim
information
23.1 Consent of M'Liss Jones Kane, Vice President, Assistant General
Counsel and Assistant Secretary of the Company (included
in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P. independent public accountants
24.1 Powers of Attorney (included on signature page herewith)
<PAGE>
<PAGE> 6
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment to this Registration
Statement 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.
(c) 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.
(d) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant
to Section 13(a) or 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 securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 Act and will be governed by the final adjudication of such issue.
<PAGE>
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and it has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Costa Mesa, State of California,
on December 20, 1994.
ICN PHARMACEUTICALS, INC.
/s/ Milan Panic
By:___________________________
Milan Panic
Chairman of the Board,
Chief Executive Officer
and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Milan Panic and John E.
Giordani and each or any of them, his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents each acting alone, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as might or could be done in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone,
or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
<PAGE>
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Milan Panic
_____________________ December 20, 1994
Milan Panic Chairman of the Board,
Chief Executive Officer
and President
/s/ Norman Barker
_____________________ December 20, 1994
Norman Barker, Jr. Director
/s/ Birch E. Bayh
_____________________ December 20, 1994
Birch E. Bayh, Esq. Director
/s/ Alan F. Charles
_____________________ December 20, 1994
Alan F. Charles Director
/s/ Robert Finch
_____________________ December 20, 1994
Robert H. Finch, Esq. Director
/s/ John E. Giordani
____________________ December 20, 1994
John E. Giordani Executive Vice President -
Chief Financial Officer
and Corporate Controller
/s/ Roger Guillemin, M.D.
_____________________ December 20, 1994
Roger Guillemin, M.D.,
Ph.D. Director
/s/ Adam Jerney
_____________________ December 20, 1994
Adam Jerney Director, Executive
Vice President - Chief
Operating Officer
<PAGE>
<PAGE> 9
/s/ Weldon B. Jolley
______________________ December 20, 1994
Weldon B. Jolley,
Ph.D. Director
/s/ Vernon Knight, M.D.
____________________ December 20, 1994
Vernon Knight, M.D. Director
/s/ Jean Francois Kurz
_____________________ December 20, 1994
Jean Francois Kurz Director
/s/ Thomas H. Lenagh
_______________________ December 20, 1994
Thomas H. Lenagh Director
/s/ Charles T. Manatt
_______________________ December 20, 1994
Charles T. Manatt Director
/s/ James P. Miscoll
_______________________ December 20, 1994
James P. Miscoll Director
/s/ Stephen Moses
_______________________ December 20, 1994
Stephen Moses Director
/s/ Michael Smith, Ph.D.
_______________________ December 20, 1994
Michael Smith, Ph.D. Director
/s/ Roberts A. Smith, Ph.D.
_______________________ December 20, 1994
Roberts A. Smith, Ph.D. Director
/s/ Richard W. Starr
_______________________ December 20, 1994
Richard W. Starr Director
<PAGE>
<PAGE> 10
ICN PHARMACEUTICALS, INC.
INDEX TO EXHIBITS
Exhibit No. Description
4.1 Form of Restated Certificate of Incorporation of the Company
previously filed as Exhibit 3.1 to the Company's Registration
Statement No. 33-84534 on Form S-4*
4.2 Form of By-laws of the Company previously filed as Exhibit 3.2 to
the Company's Registration Statement No. 33-84534 on Form S-4*
4.3 Form of Rights Agreement between the Company and the Rights Agent
previously filed as Exhibit 4.2 to the Company's Registration
Statement No. 33-84534 on Form S-4*
4.4 ICN Pharmaceuticals, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.56 to Old ICN's Form 10-K for the
year ended December 31, 1992*
4.5 ICN Pharmaceuticals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.57 to Old ICN's Form 10-K
for the year ended December 31, 1992*
4.6 SPI Pharmaceuticals, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.42 to SPI's Form 10-K for the year
ended December 31, 1992*
4.7 SPI Pharmaceuticals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.43 to SPI's Form 10-K for the year
ended December 31, 1992*
4.8 Viratek, Inc. 1992 Employee Incentive Stock Option Plan previously
filed as Exhibit 10.22 to Viratek's Registration
Statement No. 33-54678 on Form S-2*
4.9 Viratek, Inc. 1992 Non-Qualified Stock Option Plan previously filed
as Exhibit 10.23 to Viratek's Registration Statement
No. 33-54678 on Form S-2*
4.10 ICN Biomedicals, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.22 to Biomedical's Form 10-K
for the year ended December 31, 1992*
4.11 ICN Biomedicals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.23 to Biomedical's Form 10-K for
the year ended December 31, 1992*
4.12 ICN Pharmaceuticals, Inc. 1981 Employee Incentive Stock Option Plan,
as amended, previously filed as Exhibit 4.1 to Registration
Statement No. 33-60866 on Form S-3*
4.13 ICN Pharmaceuticals, Inc. 1981 Non-Qualified Stock Option Plan
previously filed as Exhibit 4.1 to Registration Statement No.
33-60866 on Form S-8*
<PAGE>
<PAGE> 11
4.14 SPI Pharmaceuticals, Inc. 1981 Employee Incentive Stock Option Plan,
as amended and restated as of January 21, 1992, previously filed as
Exhibit 4.1 to SPI's Registration Statement No. 33-60872 on Form
S-8*
4.15 SPI Pharmaceuticals, Inc. 1982 Non-Qualified Stock Option Plan, as
amended and restated as of January 21, 1992, previously filed as
Exhibit 4.2 to SPI's Registration Statement No. 33-60872 on Form
S-8*
4.16 SPI Pharmaceuticals, Inc. 1988 Non-Qualified Stock Option Plan
previously filed as an Exhibit to SPI Pharmaceuticals, Inc.'s
Registration Statement No. 33-63166*
4.17 Viratek, Inc. 1981 Employee Incentive Stock Option Plan, as amended
on January 21, 1992, previously filed as an Exhibit to Viratek's
Registration Statement No. 33-60876*
4.18 Viratek, Inc. 1981 Non-Qualified Stock Option Plan previously
filed as an Exhibit to Viratek, Inc.'s Registration Statement
No. 33-63168*
4.19 Viratek, Inc. 1986 Non-Qualified Stock Option Plan previously
filed as an Exhibit to Viratek, Inc.'s Registration Statement
No. 33-63168*
4.20 ICN Biomedicals, Inc. 1983 Non-Qualified Stock Option Plan
previously filed as an Exhibit to Biomedicals' Registration
Statement No. 33-34943*
4.21 ICN Biomedicals, Inc. 1983 Incentive Stock Option Plan, as amended
and restated as of January 21, 1992, previously filed as an Exhibit
to Biomedicals' Registration Statement No. 33-34943*
4.22 ICN Biomedicals, Inc. 1988 Non-Qualified Stock Option Plan,
previously filed as an Exhibit to Biomedicals' Registration
Statement No. 33-63162*
4.23 ICN Pharmaceuticals, Inc. 1994 Stock Option Plan
5.1 Opinion of M'Liss Jones Kane, Vice President, Assistant General
Counsel and Assistant Secretary of the Company regarding legality of
shares of Common Stock covered by the Registration Statement
15.1 Letter from Coopers & Lybrand L.L.P. concerning unaudited interim
information
23.1 Consent of M'Liss Jones Kane, Vice President, Assistant General
Counsel and Assistant Secretary of the Company (included
in Exhibit 5.1)
<PAGE>
<PAGE> 12
23.2 Consent of Coopers & Lybrand L.L.P. independent public accountants
24.1 Powers of Attorney (included on signature page herewith)
- -------------------------------------------
Incorporated by reference.
* Incorporated by reference.
Exhibit 5.1
December 20, 1994
ICN Pharmaceuticals, Inc.
3300 Hyland Avenue
Costa Mesa, California 92626
Re: Registration Statement on Form S-8, Registration No. 33-( )
Registering up to 8,447,691 Shares of Common Stock, par value $.01
per share, of ICN Pharmaceuticals, Inc. (the "Registration
Statement")
Ladies and Gentlemen:
I am Assistant General Counsel for ICN Pharmaceuticals, Inc., a
Delaware corporation formerly known as ICN Merger Corp. (the "Registrant"),
and have been involved with the registration under the Securities Act of
1933, as amended (the "Act"), by the Registrant of an aggregate of up to
8,447,691 shares of the common stock, par value $.01 per share, of the
Company (the "Common Stock"). The Common Stock is being offered to
employees of the Registrant and of ICN Biomedicals, Inc., a Delaware
corporation and wholly owned subsidiary of the Registrant ("Biomedicals"),
in connection with the exercise by such employees of stock options granted
to them pursuant to the following employee stock option plans:
ICN BIOMEDICALS, INC. 1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ICN BIOMEDICALS, INC. 1992 NON-QUALIFIED STOCK OPTION PLAN
ICN BIOMEDICALS, INC. 1983 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ICN BIOMEDICALS, INC. 1983 NON-QUALIFIED STOCK OPTION PLAN
ICN BIOMEDICALS, INC. 1988 NON-QUALIFIED STOCK OPTION PLAN
ICN PHARMACEUTICALS, INC. 1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ICN PHARMACEUTICALS, INC. 1992 NON-QUALIFIED STOCK OPTION PLAN
ICN PHARMACEUTICALS, INC. 1981 EMPLOYEE INCENTIVE STOCK OPTION PLAN
ICN PHARMACEUTICALS, INC. 1981 NON-QUALIFIED STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1992 NON-QUALIFIED STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1982 NON-QUALIFIED STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1982 EMPLOYEE INCENTIVE STOCK OPTION PLAN
SPI PHARMACEUTICALS, INC. 1988 NON-QUALIFIED STOCK OPTION PLAN
VIRATEK, INC. 1992 EMPLOYEE INCENTIVE STOCK OPTION PLAN
VIRATEK, INC. 1992 NON-QUALIFIED STOCK OPTION PLAN
VIRATEK, INC. 1981 EMPLOYEE INCENTIVE STOCK OPTION PLAN
VIRATEK, INC. 1981 NON-QUALIFIED EMPLOYEE STOCK OPTION PLAN
VIRATEK, INC. 1986 NON-QUALIFIED EMPLOYEE STOCK OPTION PLAN
<PAGE>
<PAGE>
ICN Pharmaceuticals, Inc.
December 20, 1994
Page - 2
(collectively, the "Predecessor Plans"). On November 10, 1994, the
Registrant participated in a merger, pursuant to which the Registrant
assumed all of the Predecessor Plans and all shares of common stock
issuable upon the exercise of options granted under the Predecessor Plans
were converted into shares of Common Stock. The Common Stock is also being
offered to employees of the Registrant and Biomedicals in connection with
the exercise by such employees of options granted to them under the
Registrants 1994 Stock Option Plan.
In connection with the offering of the Common Stock, I have
examined originals or copies submitted to me that I have assumed are
genuine, accurate, and complete, of all such corporate records of the
Registrant, agreements and other instruments, certificates of public
officials, officers, and representatives of the Registrant, and other
documents I have deemed I necessary or appropriate to require as the basis
for the opinion hereinafter expressed.
Based and relying solely upon the foregoing, it is my opinion that
when the 8,447,691 shares of the Common Stock, or any portion thereof, are
issued as described in the Registration Statement, such shares will be
validly issued, fully paid, and nonassessable.
This opinion may be filed as an exhibit to the Registration
Statement. Consent is also given to the reference to me under the caption
Interests of Named Experts in the Registration Statement. In giving this
consent, I do not thereby admit that I come within the category of persons
whose consent is required under Section 7 of the Act or rules and
regulations of the Securities and Exchange Commission promulgated
thereunder.
Sincerely,
/s/ M'Liss Jones Kane
M'Liss Jones Kane
Vice President - Legal and
Assistant General Counsel
LETTER OF AWARENESS
December 20, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: ICN Pharmaceuticals, Inc.
Registration Statement
on Form S-8
We are aware that our report dated August 4, 1994 on our review of interim
financial information of ICN Pharmaceuticals, Inc. ("Old ICN", as defined
in this Registration Statement) as of June 30, 1994 and for the three and
six month period ended June 30, 1994 and 1993 is incorporated by reference
in this Registration Statement on Form S-8 (File No. 33- ). Pursuant
to Rule 436(c) under the Securities Act of 1933, this report should not be
considered a part of the registration statement prepared or certified by us
within the meaning of Sections 7 and 11 of that Act.
Very truly yours,
COOPERS & LYBRAND L.L.P.
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 (File No. 33- ) of our report dated March 30, 1994, on our
auditors of the consolidate financial statements of ICN Pharmaceuticals,
Inc. ("Old ICN", as defined in this Registration Statement) as of December
31, 1993 and 1992, and for each of the three years in the period ended
December 31, 1993. The report referred to above includes an emphasis of a
matter paragraph related to certain transactions between affiliates and an
explanatory paragraph referring to the change to the equity method of
accounting for a previously consolidated subsidiary.
We consent to the incorporation by reference in this Registration Statement
on Form S-8 (File No. 33- ) of our report dated February 24, 1994, except
for Note 15 to which the date is March 24, 1994, on our audits of the
consolidated financial statements of SPI Pharmaceuticals, Inc. as of
December 31, 1993 and 1992, and for each of the three years in the period
ended December 31, 1993. The report referred to above includes an emphasis
of a matter paragraph related to certain transactions between affiliates.
We consent to the incorporation by reference in this Registration Statement
on Form S-8 (File No. 33- ) of our report dated March 4, 1994 on our
audits of the financial statements of Viratek, Inc. as of December 31, 1993
and 1992 and for each of the three years in the period ended December 31,
1993. The report referred to above includes an emphasis of a matter
paragraph related to certain transactions between affiliates.
COOPERS & LYBRAND L.L.P.
December 20, 1994
Los Angeles, California
ICN PHARMACEUTICALS, INC.
1994 STOCK OPTION PLAN
1. Purpose.
The purpose of the Plan is to grant to certain key employees,
officers, directors, scientific advisors and consultants of ICN
Pharmaceuticals, Inc., a Delaware corporation (hereinafter called the
"Company"), or any Parent or Subsidiary of the Company, an opportunity to
acquire the Shares in order to increase their proprietary interest in the
Company and as an added incentive to remain in and advance in its
employment. It is also the purpose of the Plan to advance the interests of
the Company and its stockholders by strengthening the Company's ability to
attract and retain those persons with training, experience and ability by
encouraging such persons to become owners of its stock.
2. Definitions.
For purposes of the Plan, unless otherwise specified, capitalized
terms shall have the following meanings:
2.1 "Adjusted Fair Market Value" means, in the event of a
Change in Control, the greater of (i) the highest price per Share paid to
holders of the Shares in any transaction (or series of transactions)
constituting or resulting in a Change in Control or (ii) the highest Fair
Market Value of a Share during the ninety (90) day period ending on the
date of a Change in Control.
2.2 "Agreement" means the written agreement between the
Company and an Optionee evidencing the grant of an Option and setting forth
the terms and conditions thereof.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Cause" means the commission of an act of fraud or
intentional misrepresentation or an act of embezzlement, misappropriation
or conversion of assets of the Company, Parent or any Subsidiary.
2.5 "Change in Capitalization" means any increase or
reduction in the number of Shares, or any change (including, but not
limited to, a change in value) in the Shares, or exchange of Shares for a
different number or kind of shares or other securities of the Company, by
reason of a reclassification, recapitalization, merger, consolidation,
reorganization, spin-off, split-up, issuance of warrants or rights or
debentures, stock dividend, stock split or reverse stock split, cash
dividend, property dividend, combination or exchange of shares, repurchase
of shares, change in corporate structure or otherwise.
<PAGE>
<PAGE> 2
2.6 A "Change in Control" shall mean the occurrence during
the term of the Plan of:
(i) The "acquisition" by any "Person" (as the term person is
used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) of "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of any
securities of the Company which generally entitles the holder thereof the
vote for the election of directors of the Company (the "Voting Securities")
which, when added to the Voting Securities then "Beneficially Owned" by
such person, would result in such Person "Beneficially Owning" forty
percent (40%) or more of the combined voting power of the Company's then
outstanding Voting Securities; provided, however, that for purposes of this
paragraph (i), a Person shall not be deemed to have made an acquisition of
Voting Securities if such Person: (a) acquires Voting Securities as a
result of a stock split, stock dividend or other corporate restructuring in
which all stockholders of the class of such Voting Securities are treated
on a pro rata basis; (b) acquires the Voting Securities directly from the
Company; (c) becomes the Beneficial Owner of more than the permitted
percentage of Voting Securities solely as a result of the acquisition of
Voting Securities by the Company which, by reducing the number of Voting
Securities outstanding, increases the proportional number of shares
Beneficially Owned by such Person; (d) is the Company or any corporation or
other Person of which a majority of its voting power or its equity
securities or equity interest is owned directly or indirectly by the
Company (a "Controlled Entity") or (e) acquires Voting Securities in
connection with a "Non-Control Transaction" (as defined in paragraph (iii)
below); or
(ii) The individuals who, as of November 10, 1994, are
members of the Board of Directors of the Company (the "Incumbent
Board"), cease for any reason to constitute at least two-thirds of the
Board of Directors of the Company; provided, however, that if either
the election of any new director or the nomination for election of any
new director by the Company's stockholders was approved by a vote of
at least two-thirds of the Incumbent Board, such new director shall be
considered as a member of the Incumbent Board; provided further,
however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board of Directors (a "Proxy
Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(iii) Shareholder approval of:
(a) A merger, consolidation or reorganization involving
the Company (a "Business Combination"), unless
(1) the stockholders of the Company, immediately
before the Business Combination, own, directly or indirectly
immediately following the Business Combination, at least fifty-one
percent (51%) of the combined voting power of the outstanding voting
securities of the corporation resulting from the Business Combination
(the "Surviving Corporation") in substantially the same proportion as
their ownership of the Voting Securities immediately before the
Business Combination, and
<PAGE>
<PAGE> 3
(2) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement
providing for the Business Combination constitute at least a majority
of the members of the Board of Directors of the Surviving Corporation,
and
(3) no Person (other than the Company or any
Controlled Entity, a trustee or other fiduciary holding securities
under one or more employee benefit plans or arrangements (or any trust
forming a part thereof) maintained by the Company, the Surviving
Corporation or any Controlled Entity, or any Person who, immediately
prior to the Business Combination, had Beneficial Ownership of forty
percent (40%) or more of the then outstanding Voting Securities) has
Beneficial Ownership of forty percent (40%) or more of the combined
voting power of the Surviving Corporation's then outstanding voting
securities (a transaction described in this subparagraph (a) shall be
referred to as a "Non-Control Transaction");
(b) A complete liquidation or dissolution of the
Company; or
(c) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other
than a transfer to a Controlled Entity).
Notwithstanding the foregoing, (x) a Change in Control shall not be
deemed to occur solely because forty percent (40%) or more of the then
outstanding Voting Securities is Beneficially Owned by (A) a trustee
or other fiduciary holding securities under one or more employee
benefit plans or arrangements (or any trust forming a part thereof)
maintained by the Company or any Controlled Entity or (B) any
corporation which, immediately prior to its acquisition of such
interest, is owned directly or indirectly by the stockholders of the
Company in the same proportion as their ownership of stock in the
Company immediately prior to such acquisition; and (y) if an Eligible
Employee's employment is terminated and the Eligible Employee
reasonably demonstrates that such termination (A) was at the request
of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control and who
effectuates a Change in Control or (B) otherwise occurred in
connection with, or in anticipation of, a Change in Control which
actually occurs, then for all purposes hereof, the date of a Change in
Control with respect to the Eligible Employee shall mean the date
immediately prior to the date of such termination of employment.
2.7 "Code" means the Internal Revenue Code of 1986,
as amended.
2.8 "Committee" means a committee consisting of
solely at least two (2) directors each of whom are Disinterested
Directors and Outside Directors who are appointed by the Board to
administer the Plan and to perform the functions set forth herein.
2.9 "Company" means ICN Pharmaceuticals, Inc. or
any successor thereto.
2.10 "Director Option" means an Option granted pursuant
to Section 5.
<PAGE>
<PAGE> 4
2.11 "Disability" means a physical or mental infirmity
which impairs the Optionee's ability to perform substantially his or
her duties for a period of one hundred eighty (180) days during any
three hundred and sixty (360) day period.
2.12 "Disinterested Director" means a director of the
Company who is "disinterested" within the meaning of Rule 16b-3 under
the Exchange Act.
2.13 "Division" means any of the operating units or
divisions of the Company designated as a division by the Committee.
2.14 "Eligible Employee" means any officer or other key
employee or consultant or scientific advisor of the Company or a Parent
or Subsidiary designated by the Committee as eligible to receive
Options subject to the conditions set forth herein.
2.15 "Employee Option" means an Option granted pursuant
to Section 6.
2.16 "Exchange Act" means the Securities Exchange Act of
1934, as amended.
2.17 "Fair Market Value" on any date means (i) the
closing price per share of the Company's stock on the principal
exchange on which the stock is listed, on such date (or if no such
price is reported on such date, such price as reported on the nearest
preceding date on which such price is reported), (ii) if the stock is
not listed on an exchange, the bid price per share of stock at the
close of trading on such date or, (iii) if the stock is not listed on
an exchange or otherwise publicly traded on such date, the fair market
value of the Company's stock as of such date as determined in good
faith by the Board.
2.18 "Incentive Stock Option" means an Option satisfying
the requirements of Section 422 of the Code and designated by the
Committee as an Incentive Stock Option.
2.19 "Nonemployee Director" means a director of the
Company who is not an employee of the Company or any Subsidiary.
2.20 "Non-Qualified Stock Option" means an Option which
is not an Incentive Stock Option.
2.21 "Option" means a Employee Option, a Director Option,
or either or both of them.
2.22 "Optionee" means a person to whom an Option has been
granted under the Plan.
2.23 "Outside Director" means a director of the Company
who is an "outside director" within the meaning of Section 162(m) of
the Code and the regulations promulgated thereunder.
2.24 "Parent" means any corporation which is a parent
corporation (within the meaning of Section 424(e) of the Code) with
respect to the Company.
<PAGE>
<PAGE> 5
2.25 "Plan" means the ICN Pharmaceuticals, Inc. 1994
Stock Option Plan, as it may be amended from time to time.
2.26 "Pooling Period" means, with respect to a Pooling
Transaction, the period ending on the day after the first date on which
the combined entity resulting from the Pooling Transaction publishes
thirty days of combined operating results or, if the Board makes a
determination, such other period following the Pooling Transaction
which the Board reasonably determines is appropriate in connection with
the Pooling Transaction as a means of qualifying for and preserving
"pooling of interests" accounting treatment.
2.27 "Pooling Transaction" means an acquisition of or by
the Company in a transaction which is intended to be treated as a
"pooling of interests" under generally accepted accounting principles.
2.28 "Shares" means the common stock, par value $.01 per
share, of the Company.
2.29 "Subsidiary" means any corporation which is a
subsidiary corporation (within the meaning of Section 424(f) of the
Code) with respect to the Company.
2.30 "Successor Corporation" means a corporation, or a
parent or subsidiary thereof within the meaning of Section 424(a) of
the Code, which issues or assumes a stock option in a transaction to
which Section 424(a) of the Code applies.
2.31 "Ten-Percent Stockholder" means an Eligible
Employee, who, at the time an Incentive Stock Option is to be granted
to him or her, owns (within the meaning of Section 422(b)(6) of the
Code) stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company, or of a
Parent or a Subsidiary.
<PAGE>
<PAGE> 6
3. Administration.
3.1 The Plan shall be administered by the Committee
which shall hold meetings at such times as may be necessary for the
proper administration of the Plan. The Committee shall keep minutes of
its meetings. A quorum shall consist of not less than two members of
the Committee and a majority of a quorum may authorize any action. Any
decision or determination reduced to writing and signed by a majority
of all of the members of the Committee shall be as fully effective as
if made by a majority vote at a meeting duly called and held. Each
member of the Committee shall be a Disinterested Director and an
Outside Director. No member of the Committee shall be liable for any
action, failure to act, determination or interpretation made in good
faith with respect to this Plan or any transaction hereunder, except
for liability arising from his or her own willful misfeasance, gross
negligence or reckless disregard of his or her duties. The Company
hereby agrees to indemnify each member of the Committee for all costs
and expenses and, to the extent permitted by applicable law, any
liability incurred in connection with defending against, responding to,
negotiation for the settlement of or otherwise dealing with any claim,
cause of action or dispute of any kind arising in connection with any
actions in administering this Plan or in authorizing or denying
authorization to any transaction hereunder.
3.2 Subject to the express terms and conditions set
forth herein, the Committee shall have the power from time to time to:
(a) determine those individuals to whom Employee
Options shall be granted under the Plan and the number of Incentive
Stock Options and/or Non-Qualified Stock Options to be granted to each
Eligible Employee and to prescribe the terms and conditions (which need
not be identical) of each Employee Option, including the purchase price
per Share subject to each Employee Option, and make any amendment or
modification to any Agreement consistent with the terms of the Plan;
(b) to construe and interpret the Plan and the
Options granted thereunder and to establish, amend and revoke rules and
regulations for the administration of the Plan, including, but not
limited to, correcting any defect or supplying any omission, or
reconciling any inconsistency in the Plan or in any Agreement, in the
manner and to the extent it shall deem necessary or advisable to make
the Plan fully effective, and all decisions and determinations by the
Committee in the exercise of this power shall be final, binding and
conclusive upon the Company, the Parent, its Subsidiaries, the Optionee
and all other persons having any interest therein;
(c) to determine the duration and purposes for
leaves of absence which may be granted to an Optionee on an individual
basis without constituting a termination of employment or service for
purposes of the Plan;
(d) to exercise its discretion with respect to the
powers and rights granted to it as set forth in the Plan; and
(e) generally, to exercise such powers and to
perform such acts as are deemed necessary or advisable to promote the
best interests of the Company with respect to the Plan.
<PAGE>
<PAGE> 7
4. Stock Subject to the Plan.
4.1 The maximum number of Shares that may be made the
subject of Options granted under the Plan is 3,000,000; provided,
however, that the maximum number of Shares that any Eligible Employee
may receive pursuant to the Plan in respect of Options may not exceed
1,000,000 Shares. Upon a Change in Capitalization, the maximum number
of Shares shall be adjusted in number and kind pursuant to Section 9.
The Company shall reserve for the purposes of the Plan, out of its
authorized but unissued Shares or out of Shares held in the Company's
treasury, or partly out of each, such number of Shares as shall be
determined by the Board.
4.2 Whenever any outstanding Option or portion thereof
expires, is canceled or is otherwise terminated for any reason, the
Shares allocable to the canceled or otherwise terminated portion of the
Option may again be the subject of Options granted hereunder.
5. Option Grants for Nonemployee Directors.
5.1 Grant. Subject to the availability of an adequate
number of Shares designated under the Plan, each Nonemployee Director
shall be granted Director Options under the Plan automatically on a
non-discretionary basis according to the following provisions of this
Section 5 and in accordance with the other provisions of the Plan.
Nonemployee Directors shall not be granted options under the Plan
except pursuant to this Section 5. Director Options shall be granted
automatically to Nonemployee Directors as follows: (i) each person who
is a Nonemployee Director on the date of adoption of the Plan shall be
granted an option to purchase 15,000 shares; (ii) each person who is a
Nonemployee Director on the first business day following the 1995
annual meeting of stockholders of the Company shall be granted on such
date an option to purchase 15,000 Shares; and (iii) thereafter, each
person who is a Nonemployee Director on the first business day
following the day of a subsequent annual meeting of stockholders shall
be granted on such first business day an option to purchase 15,000
Shares.
5.2 Purchase Price. The purchase price for Shares under
each Director Option granted on the adoption date of the Plan shall be
the Fair Market Value of such Shares on November 11, 1994, and under
each Director Option granted thereafter, 100% of the Fair Market Value
of such Shares on the date of grant.
5.3 Vesting. Subject to Sections 5.4 and 7.4, each
Director Option shall become exercisable with respect to 25% of the
Shares subject thereto on each of the first four anniversaries of the
grant date; provided, that the Optionee is a director as of the
relevant anniversary. If an Optionee ceases to serve as a director for
any reason, the Optionee shall have no rights with respect to that
portion of a Director Option which has not then vested pursuant to the
preceding sentence and the Optionee shall automatically forfeit that
portion of the Director Option which remains unvested.
5.4 Duration. Each Director Option shall terminate on
the date which is the tenth anniversary of the grant date, unless
terminated earlier as follows:
<PAGE>
<PAGE> 8
(a) If an Optionee's service as a director
terminates for any reason other than Disability, death or Cause, the
Optionee may for a period of three (3) months after such termination
exercise his or her Option to the extent, and only to the extent, that
such Option or portion thereof was vested and exercisable as of the
date the Optionee's service as a director terminated, after which time
the Option shall automatically terminate in full.
(b) If an Optionee's service as a director
terminates by reason of Disability, the Optionee may, for a period of
one (1) year after such termination, exercise his or her Option to the
extent, and only to the extent, that such Option or portion thereof was
vested and exercisable as of the date the Optionee's service as
director terminated, after which one year period the Option shall
automatically terminate in full.
(c) If an Optionee's service as a director
terminates for Cause, the Option granted to the Optionee hereunder
shall immediately terminate in full and no rights thereunder may be
exercised.
(d) If an Optionee dies while a director or within
three (3) months after termination of service as a director as
described in clause (a) or (b) of this Section 5.4, the Option granted
to the Optionee may be exercised at any time within twelve (12) months
after the Optionee's death by the person or persons to whom such rights
under the Option shall pass by will, or by the laws of descent or
distribution, after which time the Option shall terminate in full;
provided, however, that an Option may be exercised to the extent, and
only to the extent, that the Option or portion thereof was exercisable
on the date of termination of the Optionee's services as a director.
6. Option Grants for Eligible Employees.
6.1 Authority of Committee. Subject to the provisions
of the Plan and to Section 4.1 above, the Committee shall have full and
final authority to select those Eligible Employees who will receive
Options (each, an "Employee Option"), which may be Incentive Stock
Options or Non-Qualified Stock Options, the terms and conditions of
which shall be set forth in an Agreement; provided, however, that no
person shall receive any Incentive Stock Option unless he or she is an
employee of the Company, a Parent or a Subsidiary at the time the
Incentive Stock Option is granted.
6.2 Purchase Price. The purchase price or the manner in
which the purchase price is to be determined for Shares under each
Employee Option shall be determined by the Committee and set forth in
the Agreement, provided that the purchase price per Share under each
Employee Option shall not be less than 100% of the Fair Market Value of
a Share on the date the Employee Option is granted (110% in the case of
an Incentive Stock Option granted to a Ten-Percent Stockholder).
6.3 Maximum Duration. Employee Options granted
hereunder shall be for such term as the Committee shall determine,
provided that an Incentive Stock Option shall not be exercisable after
the expiration of ten (10) years from the date it is granted (five (5)
years in the case of an Incentive Stock Option granted to a Ten-Percent
Stockholder) and a Non-Qualified Stock Option shall not be exercisable
after the expiration of ten (10) years from the date it is granted.
<PAGE>
<PAGE> 9
The Committee may, subsequent to the granting of any Employee Option,
extend the term thereof but in no event shall the term as so extended
exceed the maximum term provided for in the preceding sentence.
6.4 Vesting. Subject to Section 7.4 hereof, each
Employee Option shall become exercisable in such installments (which
need not be equal) and at such times as may be designated by the
Committee and set forth in the Agreement. To the extent not exercised,
installments shall accumulate and be exercisable, in whole or in part,
at any time after becoming exercisable, but not later than the date the
Employee Option expires. The Committee may accelerate the
exercisability of any Employee Option or portion thereof at any time.
6.5 Modification or Substitution. The Committee may, in
its discretion, modify outstanding Employee Options or accept the
surrender of outstanding Employee Options (to the extent not exercised)
and grant new Options in substitution for them. Notwithstanding the
foregoing, no modification of an Employee Option shall adversely alter
or impair any rights or obligations under the Employee Option without
the Optionee's consent.
7. Terms and Conditions Applicable to All Options.
7.1 Non-transferability. No Option granted hereunder
shall be transferable by the Optionee to whom granted otherwise than by
will or the laws of descent and distribution, or as otherwise permitted
pursuant to Rule 16b-3, and an Option may be exercised during the
lifetime of such Optionee only by the Optionee or his or her guardian
or legal representative. The terms of such Option shall be final,
binding and conclusive upon the beneficiaries, executors,
administrators, heirs and successors of the Optionee.
7.2 Method of Exercise. The exercise of an Option shall
be made only by a written notice delivered in person or by mail to the
Secretary of the Company at the Company's principal executive office,
specifying the number of Shares to be purchased and accompanied by
payment therefor and Withholding Taxes and otherwise in accordance with
the Agreement pursuant to which the Option was granted. The purchase
price for any Shares purchased pursuant to the exercise of an Option
shall be paid in full upon such exercise by any one or a combination of
the following: (i) cash or (ii) pursuant to such rules as may be
determined by the Committee, transferring Shares to the Company, or
(iii) any combination of the foregoing as may be determined by the
Committee. Until such person has been issued the Shares subject to
such exercise, he or she shall possess no rights as a stockholder with
respect to such Shares. Notwithstanding the foregoing, the Committee
shall have discretion to determine at the time of grant of each
Employee Option or at any later date (up to and including the date of
exercise) the form of payment acceptable in respect of the exercise of
such Employee Option and may establish cashless exercise procedures
which provide for the exercise of the Option and sale of the underlying
Share by a designated broker or dealer. In that connection, the
written notice pursuant to this Section 7.2 may also provide
instructions from the Optionee to the Company that upon receipt of
appropriate instructions from the Optionee's broker or dealer,
designated as such on the written notice, the Company shall issue such
Shares directly to the designated broker or dealer.
<PAGE>
<PAGE> 10
Any Shares transferred to the Company as payment of the purchase price
under an Option shall be valued at their Fair Market Value on the day
preceding the date of exercise of such Option. If requested by the
Committee, the Optionee shall deliver the Agreement evidencing the Option to
the Secretary of the Company who shall endorse thereon a notation of such
exercise and return such Agreement to the Optionee. No fractional
Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of Shares that may be purchased upon exercise
shall be rounded to the nearest number of whole Shares.
7.3 Rights of Optionee. No Optionee shall be deemed for
any purpose to be the owner of any Shares subject to any Option unless
and until (i) the Option shall have been exercised pursuant to the
terms thereof, (ii) the Company shall have issued and delivered the
Shares to the Optionee and (iii) the Optionee's name shall have been
entered as a stockholder of record on the books of the Company.
Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares.
7.4 Effect of Change in Control. Notwithstanding
anything contained in the Plan or an Agreement to the contrary (other
than the last sentence of this Section 7.4), in the event of a Change
in Control, (i) all Options outstanding on the date of such Change in
Control shall become immediately and fully exercisable, (ii) upon
termination of an Optionee's employment following a Change in Control,
Options held by the Optionee shall remain exercisable until the later
of (x) one year after termination and (y) sixty (60) days following the
expiration of the Pooling Period (in the event the Change in Control
constitutes a Pooling Transaction), but in no event beyond the stated
term of the Option, and (iii) an Optionee will be permitted to
surrender for cancellation within sixty (60) days after such Change in
Control any Option or portion of an Option to the extent not yet
exercised and the Optionee will be entitled to receive a cash payment
in an amount equal to the excess, if any, of (x) (A) in the case of a
Non-Qualified Stock Option, the greater of (1) the Fair Market Value,
on the date preceding the date of surrender, of the Shares subject to
the Option or portion thereof surrendered or (2) the Adjusted Fair
Market Value of the Shares subject to the Option or portion thereof
surrendered or (B) in the case of an Incentive Stock Option, the Fair
Market Value, on the date preceding the date of surrender, of the
Shares subject to the Option or portion thereof surrendered, over
(y) the aggregate purchase price for such Shares under the Option or
portion thereof surrendered; provided, however, that in the case of an
Option granted within six (6) months prior to the Change in Control to
any Optionee who may be subject to liability under Section 16(b) of the
Exchange Act, such Optionee shall be entitled to surrender for
cancellation his or her Option only during the sixty (60) day period
commencing upon the expiration of six (6) months from the date of grant
of any such Option. In the case of a Change in Control which also
constitutes a Pooling Transaction and notwithstanding anything
contained in the Plan or an Agreement to the contrary, the Committee
may, and with respect to Director Options shall, take such actions
which are specifically recommended by an independent accounting firm
retained by the Company, to the extent reasonably necessary in order to
assure that the Pooling Transaction will qualify as such, including,
but not limited to, providing that (i) all Options or, in the
alternative, such Options held by Optionee specifically identified by
the Committee, shall not become immediately and fully exercisable on
<PAGE>
<PAGE> 11
the date of the Change in Control but rather shall become immediately
and fully exercisable on the date following the day on which the
Pooling Period expires (whether or not the Optionee is then an employee
or director of the Company) and (ii) the holders of such Options shall
only have the right to surrender for cancellation Options or portions
thereof for the cash payment specified in clause (iii) of the first
sentence of this Section 7.4 after the day following the expiration of
the Pooling Period and for a period of sixty (60) days thereafter (in
which case, whether or not the Optionee holding any such Options
remains an employee or director of the Company, any such Option shall
not terminate and shall remain exercisable for the greater of sixty
(60) days after the expiration of the Pooling Period and the date such
Option would otherwise terminate in accordance with the Plan and the
relevant Agreement), and/or (iii) the payment specified in this
Section 7.4 shall be paid in the form of cash, Shares or securities of
a successor or acquirer of the Company, or a combination of the
foregoing, as designated by the Committee.
8. Effect of a Termination of Employment.
The Agreement evidencing the grant of each Employee
Option shall set forth the terms and conditions applicable to such
Employee Option upon a termination or change in the status of the
employment of the Optionee by the Company, Parent, a Subsidiary or a
Division (including a termination or change by reason of the sale of a
Subsidiary or a Division), as the Committee may, in its discretion,
determine at the time the Employee Option is granted or thereafter.
9. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the
Committee shall conclusively determine the appropriate adjustments, if
any, to (i) the maximum number and class of Shares or other stock or
securities with respect to which Options may be granted under the Plan,
(ii) the maximum number of Shares with respect to which Options may be
granted to any Eligible Employee during the term of the Plan, (iii) the
number and class of Shares or other stock or securities which are
subject to Director Options issuable under Section 5, and (iv) the
number and class of Shares or other stock or securities which are
subject to outstanding Options granted under the Plan, and the purchase
price therefor, if applicable.
(b) Any such adjustment in the Shares or other stock or
securities subject to outstanding Incentive Stock Options (including
any adjustments in the purchase price) shall be made in such manner as
not to constitute a modification as defined by Section 424(h)(3) of the
Code and only to the extent otherwise permitted by Sections 422 and 424
of the Code.
(c) Any such adjustment in the Shares or other stock or
securities subject to outstanding Director Options (including any
adjustments in the purchase price) shall be made only to the extent
necessary to maintain the proportionate interest of the Optionee and
preserve, without exceeding, the value of such Director Options.
(d) If, by reason of a Change in Capitalization, an
Optionee shall be entitled to exercise an Option with respect to new,
additional or different shares of stock or securities, such new,
<PAGE>
<PAGE> 12
additional or different shares shall thereupon be subject to all of the
conditions and restrictions which were applicable to the Shares subject
to the Option prior to such Change in Capitalization.
10. Effect of Certain Transactions.
Subject to Section 7.4, in the event of (i) the
liquidation or dissolution of the Company or (ii) a merger or
consolidation of the Company (a "Transaction"), the Plan and the
Options issued hereunder shall continue in effect in accordance with
their respective terms and each Optionee shall be entitled to receive
in respect of each Share subject to any outstanding Options, upon
exercise of such Options, the same number and kind of stock,
securities, cash, property, or other consideration that each holder of
a Share was entitled to receive in the Transaction in respect of a
Share.
11. Termination and Amendment of the Plan.
The Plan shall terminate on the day preceding the tenth
anniversary of the date of its adoption by the Board and no Options may
be granted thereafter. The Board may sooner terminate the Plan and the
Board may at any time and from time to time amend, modify or suspend
the Plan; provided, however, that:
(a) No such amendment, modification, suspension or
termination shall impair or adversely alter any Options theretofore
granted under the Plan, except with the consent of the Optionee, nor
shall any amendment, modification, suspension or termination deprive
any Optionee of any Shares which he or she may have acquired through or
as a result of the Plan;
(b) To the extent necessary under Section 16(b) of the
Exchange Act and the rules and regulations promulgated thereunder or
other applicable law, no amendment shall be effective unless approved
by the stockholders of the Company in accordance with applicable law
and regulations; and
(c) The provisions of Section 5 shall not be amended
more often than once every six (6) months, other than to comport with
changes in the Code, the Employee Retirement Income Security Act of
1974, as amended, or the rules and regulations promulgated thereunder.
12. Non-Exclusivity of the Plan.
The adoption of the Plan by the Committee and the Board shall
not be construed as amending, modifying or rescinding any previously
approved incentive arrangement or as creating any limitations on the
power of the Board to adopt such other incentive arrangements as it may
deem desirable, including, without limitation, the granting of stock
options otherwise than under the Plan, and such arrangements may be
either applicable generally or only in specific cases.
13. Limitation of Liability.
As illustrative of the limitations of liability of the
Company, but not intended to be exhaustive thereof, nothing in the Plan
shall be construed to:
<PAGE>
<PAGE> 13
(i) give any person any right to be granted an Option
other than at the sole discretion of the Committee;
(ii) give any person any rights whatsoever with respect
to Shares except as specifically provided in the Plan;
(iii) limit in any way the right of the Company to
terminate the employment of any person at any time; or
(iv) be evidence of any agreement or understanding,
expressed or implied, that the Company will employ any person at any
particular rate of compensation or for any particular period of time.
14. Regulations and Other Approvals; Governing Law.
14.1 Except as to matters of federal law, this Plan and
the rights of all persons claiming hereunder shall be construed and
determined in accordance with the laws of the State of Delaware without
giving effect to conflicts of law principles.
14.2 The obligation of the Company to sell or deliver
Shares with respect to Options granted under the Plan shall be subject
to all applicable laws, rules and regulations, including all applicable
federal and state securities laws, and the obtaining of all such
approvals by governmental agencies as may be deemed necessary or
appropriate by the Committee.
14.3 The Plan is intended to comply with Rule 16b-3
promulgated under the Exchange Act and the Committee shall interpret
and administer the provisions of the Plan or any Agreement in a manner
consistent therewith. Any provisions inconsistent with such Rule shall
be inoperative and shall not affect the validity of the Plan.
14.4 The Committee may make such changes as may be
necessary or appropriate to comply with the rules and regulations of
any government authority, or to obtain for Eligible Employees granted
Incentive Stock Options the tax benefits under the applicable
provisions of the Code and regulations promulgated thereunder.
14.5 Each Option is subject to the requirement that, if
at any time the Committee determines, in its discretion, that the
listing, registration or qualification of Shares issuable pursuant to
the Plan is required by any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of, or in connection
with, the grant of an Option or the issuance of Shares, no Options
shall be granted or payment made or Shares issued, in whole or in part,
unless listing, registration, qualification, consent or approval has
been effected or obtained free of any conditions as acceptable to the
Committee.
14.6 Notwithstanding anything contained in the Plan or
any Agreement to the contrary, in the event that the disposition of
Shares acquired pursuant to the Plan is not covered by a then current
registration statement under the Securities Act of 1933, as amended,
and is not otherwise exempt from such registration, such Shares shall
be restricted against transfer to the extent required by the Securities
<PAGE>
<PAGE> 14
Act of 1933, as amended, and Rule 144 or other regulations thereunder.
The Committee may require any individual receiving Shares pursuant to
an Option granted under the Plan, as a condition precedent to receipt
of such Shares, to represent and warrant to the Company in writing that
the Shares acquired by such individual are acquired without a view to
any distribution thereof and will not be sold or transferred other than
pursuant to an effective registration thereof under said Act or
pursuant to an exemption applicable under the Securities Act of 1933,
as amended, or the rules and regulations promulgated thereunder. The
certificates evidencing any of such Shares shall be appropriately
legended to reflect their status as restricted securities as aforesaid.
15. Miscellaneous.
15.1 Multiple Agreements. The terms of each Option may
differ from other Options granted under the Plan at the same time, or
at some other time. The Committee may also grant more than one Option
to a given Eligible Employee during the term of the Plan, either in
addition to, or in substitution for, one or more Options previously
granted to that Eligible Employee.
15.2 Withholding of Taxes. (a) The Company shall have
the right to deduct from any distribution or payment of cash to any
Optionee an amount equal to the federal, state and local income taxes
and other amounts as may be required by law to be withheld (the
"Withholding Taxes") with respect to any Option. If an Optionee
realizes a taxable event in connection with the receipt of Shares
pursuant to an Option exercise (a "Taxable Event"), the Optionee shall
pay the Withholding Taxes to the Company prior to the issuance of such
Shares. In satisfaction of the obligation to pay Withholding Taxes to
the Company, the Optionee may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of the
Committee, to have withheld a portion of the Shares then issuable to
him or her having an aggregate Fair Market Value, on the date preceding
the date of such issuance, equal to the Withholding Taxes, provided
that in respect of an Optionee who may be subject to liability under
Section 16(b) of the Exchange Act either: (i) (A) the Tax Election is
made at least six (6) months prior to the date of the Taxable Event and
(B) the Tax Election is irrevocable with respect to all Taxable Events
of a similar nature occurring prior to the expiration of six (6) months
following a revocation of the Tax Election; or (ii) (A) the Optionee
makes the Tax Election at least six (6) months after the date the
Option was granted, (B) the Option is exercised during the ten (10) day
period beginning on the third business day and ending on the twelfth
business day following the release for publication of the Company's
quarterly or annual statement of sales and earnings (a "Window Period")
and (C) the Tax Election is made during the Window Period in which the
related Option is exercised or prior to such Window Period and
subsequent to the immediately preceding Window Period. Notwithstanding
the foregoing, the Committee may, by the adoption of rules or
otherwise, (i) modify the provisions of this Section 15.2 (other than
as regards Director Options) or impose such other restrictions or
limitations on Tax Elections as may be necessary to ensure that the Tax
Elections will be exempt transactions under Section 16(b) of the
Exchange Act, and (ii) permit Tax Elections to be made at such other
times and subject to such other conditions as the Committee determines
will constitute exempt transactions under Section 16(b) of the Exchange
Act.
<PAGE>
<PAGE> 15
(b) If an Optionee makes a disposition, within the
meaning of Section 424(c) of the Code and regulations promulgated
thereunder, of any Share or Shares issued to such Optionee pursuant to
the exercise of an Incentive Stock Option within the two-year period
commencing on the day after the date of the grant or within the one-
year period commencing on the day after the date of transfer of such
Share or Shares to the Optionee pursuant to such exercise, the Optionee
shall, within ten (10) days of such disposition, notify the Company
thereof, by delivery of written notice to the Company at its principal
executive office.
(c) The Committee shall have the authority, at the
time of grant of an Employee Option under the Plan or at any time
thereafter, to award tax bonuses to designated Optionee, to be paid
upon their exercise of Employee Options granted hereunder. The amount
of any such payments shall be determined by the Committee. The
Committee shall have full authority in its absolute discretion to
determine the amount of any such tax bonus and the terms and conditions
affecting the vesting and payment thereof.
15.3. Interpretation. Unless otherwise expressly stated
in the relevant Agreement, any grant of Options is intended to be
performance-based compensation within the meaning of Section
162(m)(4)(C) of the Code. The Committee shall not be entitled to
exercise any discretion otherwise authorized hereunder with respect to
such Options if the ability to exercise such discretion or the exercise
of such discretion itself would cause the compensation attributable to
such Options to fail to qualify as performance-based compensation.
16. Effective Date/Shareholder Approval. The effective date
of the Plan shall be the date of its adoption by the Board, subject
only to the approval by the affirmative vote of the holders of a
majority of the securities of the Company present, or represented, and
entitled to vote at the first meeting of stockholders duly held in
accordance with the applicable laws of the State of Delaware after such
date of adoption.
