EXHIBIT 10.2
BIOGEN, INC.
1982 INCENTIVE STOCK OPTION PLAN
(As Amended Through April 25, 1995 and Restated)
I. DEFINITIONS AND PURPOSE
A. Definitions: References in this document to the "Company" are to
Biogen, Inc., a Massachusetts corporation; reference to the "Plan" are to
the Biogen, Inc. 1982 Incentive Stock Option Plan; references to the "Code"
are to the United States Internal Revenue Code of 1986, as amended. Unless
otherwise specified or unless the context otherwise requires, the following
terms, as used in the Plan, have the following meanings:
1. "Affiliate" means a corporation which, for purposes of Section 422
of the Code, is a parent or subsidiary of the Company, direct or indirect.
2. "Disability" means permanent and total disability as defined in
Section 105(d)(4) of the Code.
3. "Key Employee" means an employee of the Company or of an Affiliate
(including, without limitation, an employee who is also serving as an
officer of the Company or of an Affiliate), designated by the Committee to
be eligible to be granted one or more Options under the Plan.
4. "Option" means a right or option granted under the Plan.
5. "Participant" means a Key Employee to whom one or more Options are
granted under the Plan. As used herein, "Participant" shall include
"Participant's Survivors" where the context requires.
6. "Participant's Survivors" means a deceased Participant's legal
representatives and/or any person or persons who acquired the Participant's
rights to an Option by will or by the laws of descent and distribution.
7. "Shares" mean those shares of the Common Stock, $.01 par value, of
the Company as to which Options have been or may be granted under the Plan.
B. Purposes Of The Plan: The Plan is intended to encourage ownership
of the Shares of the Company by Key Employees in order to attract such Key
Employees, to induce such Key Employees to remain in the employ of the
Company or of an Affiliate and to provide additional incentive for such Key
Employees to promote the success of the Company or its Affiliates. It is
further intended that Options issued pursuant to the Plan shall be eligible
to constitute "incentive stock options" within the meaning of Section 422
of the Code.
II. SHARES SUBJECT TO THE PLAN
The aggregate number of Shares as to which Options may be granted from
time to time shall be 9,227,000; provided, however that such aggregate
number shall be reduced by the number of shares which have been sold under,
or may be sold pursuant to options granted from time to time under the
Company's 1985 Non-Qualified Stock Option Plan (the "1985 Plan"), to the
same extent as if such sales had been made or options granted pursuant to
this Plan.
If any option granted under this Plan or the 1985 Plan ceases to be
"outstanding", in whole or in part, other than by reason of the exercise of
such option, the shares which were subject to such option shall be
available for the granting of other Options. Any option shall be treated as
"outstanding" until such option is exercised in full, terminates under the
provisions of this Plan or the 1985 Plan, as the case may be, or expires by
reason of lapse of time.
The aggregate number of Shares as to which Options may be granted
shall be subject to change only by means of an amendment of the Plan duly
adopted by the Company and approved by the Shareholders of the Company
within one year before or after the date of the adoption of any such
amendment, subject to the provisions of Article VII.
III. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Stock and Option Plan
Administration Committee of the Company (the "Committee"). The membership
of the Committee shall be determined and shall be subject to change without
cause and without notice from time to time, by the Company.
The Committee is authorized to interpret the provisions of the Plan or
of any Option and to make all rules and determinations necessary or
advisable for the administration of the Plan. It may from time to time
determine which employees of the Company or of any Affiliate shall be
designated as Key Employees and which of the Key Employees shall be granted
Options and, subject to the other provisions of the Plan, the number of
Shares for which an Option or Options shall be granted. Subject to the
provisions of the Plan, Options may be granted upon such terms and
conditions as the Committee may prescribe; provided, however, that such
terms and conditions shall be prescribed in the context of preserving, to
the extent reasonably possible, the United States tax status of the Options
as incentive stock options.
This Plan is intended to comply in all respects with Rule 16b-3 or its
successors promulgated under the Securities Exchange Act of 1934 ("1934
Act") with respect to participants who are subject to Section 16 of the
1934 Act,and any provision in this Plan with respect to such persons
contrary to Rule 16b-3 shall be deemed null and void to the extent
permissible by law and deemed appropriate by the Committee.
IV. ELIGIBILITY FOR PARTICIPATION
Each Participant must be a Key Employee of the Company or of an
Affiliate at the time an Option is granted.
The Committee may grant to one or more Key Employees one or more
Options, and shall designate the number of Shares to be optioned under each
Option so granted; provided, however, that no Options shall be granted
after December 31, 2002, and provided further, that the fair market value
(determined as of the date the Options are granted) of the Shares as to
which incentive stock options granted on or after January 1, 1987 by the
Company or its Affiliates to any individual employee under the Plan and/or
under any other incentive stock option plans are exercisable for the first
time in any one calendar year shall not exceed $100,000.
Notwithstanding any of the foregoing provisions, the Committee may
authorize the grant of an Option to a person not then in the employ of the
Company or of an Affiliate, conditioned upon such person becoming eligible
to be a Participant at or prior to the execution of the Option agreement
evidencing such Option.
In no event shall any employee be granted in any calendar year options
to purchase or receive more than 600,000 shares of the Company's Common
Stock pursuant to this Plan.
V. TERMS AND CONDITIONS
Each Option shall be set forth in writing in an Option agreement, duly
executed on behalf of the Company and by the Participant to whom such
Option is granted. No Option shall be deemed to have been granted and no
purported grant of any Option shall be effective, until such Option shall
have been approved by the Committee. The Committee may provide that Options
be granted subject to such conditions as the Committee may deem
appropriate, including without limitation, subsequent approval by the
shareholders of the Company of this Plan or any amendments thereto. Each
such Option agreement shall be subject to at least the following terms and
conditions:
A. Option Price: If, including for this purpose the Shares which are
the subject of Options previously granted and outstanding or proposed to be
granted hereunder, the optionee owns 10% or less of the total combined
voting power of all classes of share capital of the Company, the Option
price (per share) of the Shares covered by each Option granted hereunder
shall be not less than the fair market value (per share) of the Shares on
the date of the grant of the Option; provided, however, that in no event
shall the Option price be less than the par value per share of Common
Stock. In all other cases, the Option price shall be not less than 110% of
the said fair market value. For purposes hereof, the fair market value
shall be the average between the high and low sale prices, as reported in
the National Association of Securities Dealers Automated Quotation System
("NASDAQ") for the date of the grant of the Option or, if none, for the
most recent trading date thirty (30)days or less prior to the date of the
grant of the Option on which the Common Stock was traded. If the fair
market value cannot be determined under the preceding sentence, it shall be
determined in good faith by the Committee.
B. Number of Shares: Each Option shall state the number of Shares to
which it pertains. C. Term of Option: Each Option shall terminate at
such date as the Committee, at the time it authorizes the grant of the
Option, shall determine, and shall be subject to earlier termination as
herein provided, except that if the option price is required under
Paragraph A of this Article V to be at least 110% fair market value, each
such Option shall terminate not more than five (5) years from the date of
the grant hereof; and provided that in no case may the term of any Option
exceed ten (10) years.
D. Date of Exercise: The Committee may prescribe the date or dates on
which the Option becomes exercisable, and may provide that the Option
rights accrue or become exercisable in installments over a period of months
or years, or upon the attainment of stated goals. The Committee may
stipulate that any Option which becomes exercisable shall be subject to
cancellation or that Shares purchased upon the exercise of such Option
shall be subject to repurchase rights in favor of the Company. In such
event, the Committee shall determine the date or dates, or event or events,
upon which such cancellation or repurchase rights shall become effective or
shall lapse, as the case maybe.
E. Medium of Payment: The option price shall be payable upon the
exercise of the Option. It shall be payable in cash, or, if permitted by
the Committee and by Section 422 of the Code, in shares or other
consideration.
F. Prior Options: By its terms, each Option granted prior to January
1, 1987 under the Plan to a Participant, shall not be exercisable while
there is"outstanding" any other incentive stock option (as defined in the
predecessor to Section 422 of the Code), which was granted before the grant
of such Option, to such Participant to purchase Shares in the Company or in
an Affiliate or in a predecessor of the Company or of an Affiliate.
G. Termination of Employment: A Participant who ceases (for any reason
other than death or disability or termination by the Participant's employer
for cause) to be an employee of the Company or of an Affiliate, may
exercise any Option granted to such Participant, to the extent that the
right to purchase Shares thereunder has accrued on the date of such
termination of employment, but only within three (3) months, or such
shorter period as may be determined by the Committee, after such date, or,
if earlier, within the originally prescribed term of the Option. A
Participant's employment shall not be deemed terminated by reason of a
transfer to another employer which is the Company or an Affiliate.
A Participant whose employment is terminated by the Participant's
employer for cause shall forthwith upon such termination cease to have any
right to exercise any Option. For purposes of this paragraph, "cause" shall
be deemed to include dishonesty with respect to the employer,
insubordination,substantial malfeasance or non-feasance of duty,
unauthorized disclosure of confidential information, and conduct
substantially prejudicial to the business of the Company or any Affiliate.
The determination of the Committee as to the existence of cause shall be
conclusive on the Participant and Company.
A Participant to whom an Option has been granted under the Plan who is
absent from work with the Company or with an Affiliate because of temporary
disability, or who is on leave of absence for any purpose permitted by any
authoritative interpretation of Section 422, shall not, during the period
of any such absence, be deemed, by virtue of such absence alone, to have
terminated his employment with the Company or with an Affiliate, except as
the Committee may otherwise expressly provide.
H. Disability: If a Participant ceases to be an employee of the
Company or of an Affiliate by reason of Disability, any Option held by him
or her on the date of Disability shall be exercisable as to all or any part
of the Shares subject to the Option, all of which shares shall be fully
vested as of the date of such Disability. A Disabled Participant may
exercise such Option only within a period of one (1) year after the date as
of which the Committee determines that he or she became Disabled, or, if
earlier, within the originally prescribed term of the Option.
I. Death: If a Participant dies while the Participant is an employee
of the Company or of an Affiliate, any Option held by him or her at the
date of death shall be exercisable as to all or any part of the Shares
subject to the Option, all of which shares shall be fully vested as of the
date of the Participant's death. A deceased Participant's Survivors may
exercise such Option only within a period of one (1) year after the date of
death, or, if earlier, within the originally prescribed term of the Option.
J. Exercise of Option and Issue of Shares: Options shall be exercised
by giving written notice to the Company, addressed to the Company at the
address specified in the Option agreement, with which the Participant shall
tender the Option price. Such written notice shall be signed by the person
exercising the Option, shall state the number of Shares with respect to
which the Option is being exercised, and shall contain any warranty
required by Article VI. The issuance of the Shares may be delayed by the
Company if any law or regulation requires the Company to take any action
with respect to the shares prior to the issuance thereof. Without limiting
the generality of the foregoing, nothing contained herein shall be deemed
to require the Company to issue any Shares if prohibited by law or
applicable regulation.
The Shares shall, upon delivery, be evidenced by an appropriate
certificate or certificates in respect of paid-up, non-assessable Shares.
K. Rights as a Shareholder: No Participant to whom an Option has been
granted shall have rights as a shareholder with respect to any Shares
covered by such Option except as to such Shares as have been registered in
the Company's share register in the name of such Participant upon the due
exercise of the Option.
L. Assignability and Transferability of Options: By its terms, an
Option granted to a Participant shall not be transferable by the
Participant otherwise than by will or by the laws of descent and
distribution and shall be exercisable, during the Participant's lifetime,
only by such Participant. Such Option shall not be assigned, pledged, or
hypothecated in any way (whether by operation of law or otherwise) and
shall not be subject to execution, attachment, or similar process. Any
attempted transfer, assignment, pledge, hypothecation, or other disposition
of any Option or of any rights granted thereunder contrary to the
provisions of this Paragraph L, or the levy of any attachment or similar
process upon an Option or such rights, shall be null and void.
M. Tax Withholding: In the event that any federal, state, or local
income taxes, employment taxes, Federal Insurance Contributions Act
("F.I.C.A.") withholdings or other amounts are required by applicable law
or governmental regulation to be withheld from the Option holder's salary
in connection with the exercise of an Option, the Option holder shall
advance in cash to the Company, or to any Affiliate of the Company which
employs or employed the Option holder, the amount of such withholdings
unless a different withholding arrangement, including the use of shares of
the Company's Common Stock, is authorized by the Committee (and permitted
by law), provided, however, that with respect to persons subject to Section
16 of the 1934 Act, any such withholding arrangement shall be in compliance
with any applicable provisions of Rule 16b-3 promulgated under Section 16
of the 1934 Act. For purposes hereof, the fair market value of the shares
withheld for purposes of payroll withholding shall be determined in the
manner provided in Section V.A. above, as of the most recent practicable
date prior to the date of exercise. If the fair market value of the shares
withheld is less than the amount of payroll withholdings required, the
Option holder may be required to advance the difference in cash to the
Company or the Affiliate employer.
N. Reload Options: Concurrently with the award of Options under the
Plan, the Committee may authorize reload options ("Reload Options") to
purchase for cash or shares a number of shares of Common Stock. The number
of Reload Options shall equal (i) the number of shares of Common Stock used
to exercise the underlying Options and (ii) to the extent authorized by the
Committee, the number of shares of Common Stock used to satisfy any tax
withholding requirement incident to the exercise of the underlying Options.
The grant of a Reload Option will become effective upon the exercise of
underlying Options or Reload Options through the use of shares of Common
Stock held by the optionee for at least 6 months. Reload Options must be
evidenced in Option agreements.The Option price per share of Common Stock
deliverable upon the exercise of a Reload Option shall be determined in
accordance with Paragraph V.A. hereof on the date the grant of the Reload
Option becomes effective. The term of each Reload Option shall be equal to
the remaining option term of the underlying Option. No additional Reload
Options shall be granted to Option holders when Options and/or Reload
Options are exercised pursuant to the terms of this Plan following
termination of the Option holder's employment or on account of death or
total and permanent disability. All other provisions of this Plan with
respect to Options shall apply equally to Reload Options.
O. Other provisions: The Option agreements
authorized under the Plan shall be subject to such other terms and
conditions, including, without limitation, restrictions upon the exercise
of the Option, as the Committee shall deem advisable. Any such Option
agreement shall contain such limitations and restrictions upon the exercise
of the Option as shall be necessary in order that such Option can be an
"incentive stock option" within the meaning of the Section 442 of the Code.
VI. Purchase for Investment
If, and to the extent that, the issuance of Shares pursuant to the
exercise of Options is deemed by the Company to be subject to the United
States Securities Act of 1933, as now in force or hereafter amended, ("1993
Act"), or to the securities laws of any other jurisdiction, the Company
shall be under no obligation to issue the Shares covered by such exercise
unless the person or persons who exercises or who exercise such Option
shall make such warranty as may be required by any applicable securities
law of any applicable jurisdiction and shall, in the case of the
applicability of the 1933 Act, in the absence of an effective registration
under such Act with respect to such Shares, warrant to the Company, at the
time of such exercise, that such person is or that they are acquiring the
Shares to be issued to such person or to them, pursuant to such exercise of
the Option, for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and in such events
the person or persons acquiring such Shares shall be bound by the
provisions of a legend endorsed upon any share certificates expressing the
requirements of any applicable non-United States securities law, or, in
cases deemed governed by the 1933 Act substantially the following legend,
which shall be endorsed upon the certificate or certificates evidencing the
Shares issued by the Company pursuant to such exercise:
"The shares have not been registered under the securities laws of any
country including the United States Securities Act of 1933, as
amended, and the Company may refuse to permit the sale or transfer of
all or any of the shares until (1) the Company has received an opinion
of Counsel satisfactory to the Company that any such transfer is
exempt from registration under all applicable securities laws or (2)
in the case of sales or transfer to which the United States Securities
Act of 1933 is applicable, unless a registration statement with
respect to such shares shall be effective under such Act, as amended."
Without limiting the generality of the foregoing, the Company may
delay issuance of the Shares until completion of any action or obtaining of
any consent which the Company deems necessary under any applicable law
(including, without limitation, state securities or "blue sky" laws).
VII. Adjustments upon Changes in Capitalization
In the event that the outstanding Common Stock, $.01 par value, of the
Company is changed into or exchanged for a different number or kind of
shares or other securities of the Company or of another corporation by
reason of any reorganization, merger, consolidation, recapitalization,
reclassification, change in par value, stock split-up, combination of
shares or dividend payable in capital stock, or the like, appropriate
adjustment shall be made in the number and kind of Shares for the purchase
of which Options may be granted under the Plan, and, in addition,
appropriate adjustment shall be made in the number and kind of Shares and
in the Option price per share subject to outstanding Options so that each
Option holder shall be in a position equivalent to the position the Option
holder would have been in had the Option holder exercised the Options
immediately prior to the applicable event. No such adjustment shall be
made which shall, within the meaning of Section 424 of the Code, constitute
such a modification, extension or renewal of any Option as to cause it to
be considered as the grant of a new Option.
VIII. Dissolution or Liquidation of the Company
Upon the dissolution or liquidation of the company other than in
connection with a transaction to which the preceding Article VII is
applicable, all Options granted hereunder shall terminate and become null
and void; provided, however, that if the rights of a Participant or the
Participant's Survivors hereunder have not otherwise terminated and
expired, the Participant or the Participant's Survivors shall have the
right immediately prior to such dissolution or liquidation to exercise any
Option granted hereunder to the extent that the right to purchase Shares
thereunder has accrued as of the date of exercise immediately prior to such
dissolution or liquidation.
IX. Termination of the Plan
The Plan shall terminate on December 31, 2002. The Plan may be
terminated at an earlier date by vote of the Shareholders; provided,
however, that expiration or any such earlier termination shall not affect
any Option granted or Option agreements executed prior to expiration or the
effective date of such termination.
X. Amendment of the Plan
The Plan may be amended by action of the Committee or the Board of
Directors of the Company; provided, however, that if the scope of any
amendment is such as to require shareholder approval in order to preserve
incentive stock option treatment, then such amendments shall also require
approval, within one (1) year before or after the adoption thereof, by the
shareholders, and provided further that if the scope of any amendment is
such as to require shareholder approval in order to comply with Rule 16b-3
under the 1934 Act, then such amendment shall also require approval by the
shareholders. Any amendment shall not affect any Options theretofore
granted and any Option agreements theretofore executed by the Company and a
Participant, unless such amendment shall expressly so provide. No
amendment shall adversely affect any Participant with respect to an
outstanding Option without the written consent of such Participant. With
the consent of the Option holder affected, the Committee may amend any
outstanding Option agreement in a manner not inconsistent with the plan,
including, without limitation, to accelerate the date of exercise of any
installment of any Option.
XI. Employment Relationship
Nothing herein contained shall be deemed to prevent the Company or an
Affiliate from terminating the employment of a Participant, nor to prevent
a Participant from terminating the Participant's employment with the
Company or an Affiliate.
XII. Effective Date
This Plan first became effective as of January 8, 1982, subject to the
approval, within one (1) year after such adoption, of the shareholders of
the Company.