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EXHIBIT 99.4
IDEC PHARMACEUTICALS CORPORATION
1995 EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED THROUGH MAY 22, 1997
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the
interests of IDEC Pharmaceuticals Corporation by providing eligible employees
with the opportunity to acquire a proprietary interest in the Corporation
through participation in a payroll-deduction based employee stock purchase plan
designed to qualify under Section 423 of the Code.
Capitalized terms herein shall have the meanings assigned to
such terms in the attached Appendix.
II. ADMINISTRATION OF THE PLAN
The Compensation Committee of the Board in its capacity as
Plan Administrator shall have full authority to interpret and construe any
provision of the Plan and to adopt such rules and regulations for proper
administration of the Plan as it may deem necessary or appropriate. Decisions
of the Plan Administrator shall be final and binding on all parties having an
interest in the Plan.
III. STOCK SUBJECT TO PLAN
A. The stock purchasable under the Plan shall be shares
of authorized but unissued or reacquired Common Stock, including shares of
Common Stock purchased on the open market. The maximum number of shares of
Common Stock which may be issued over the term of the Plan shall not exceed
495,000 shares, inclusive of the 150,000 share increase which the Board
authorized on February 24, 1997 and approved by the Corporation's stockholders
at the 1997 Annual Meeting.
B. Should any change be made to the Common Stock by
reason of any stock split, stock dividend, recapitalization, combination of
shares, exchange of shares or other change affecting the outstanding Common
Stock as a class without the Corporation's receipt of consideration,
appropriate adjustments shall be made to (i) the maximum number and class of
securities issuable under the Plan, (ii) the maximum number and class of
securities purchasable per Participant on any one Purchase Date and (iii) the
number and class of securities and the price per share in effect under each
outstanding purchase right in order to prevent the dilution or enlargement of
benefits thereunder.
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IV. OFFERING PERIODS
A. Shares of Common Stock shall be offered for purchase
under the Plan through a series of successive offering periods until such time
as (i) the maximum number of shares of Common Stock available for issuance
under the Plan shall have been purchased or (ii) the Plan shall have been
sooner terminated.
B. Each offering period shall be of such duration (not
to exceed twenty-four (24) months) as determined by the Plan Administrator
prior to the start date. Subject to the provisions of Section IV.D, the
initial offering period shall commence on the Effective Date and shall end on
the last business day in June 1997; the next offering period shall commence on
the first business day in July 1997; and subsequent offering periods shall
commence as designated by the Plan Administrator.
C. Each offering period shall be comprised of a series
of successive quarterly Purchase Periods. Purchase Periods shall commence on
the first business day in July, October, January and April each year and shall
end on the last business day in the following September, December, March and
June, respectively, each year. Accordingly, there shall be a maximum of eight
(8) quarterly Purchase Periods within each offering period.
D. Should the Fair Market Value per share of Common
Stock on any Purchase Date within an offering period be less than the Fair
Market Value per share of Common Stock on the start date of that offering
period, then that offering period shall automatically terminate immediately
after the purchase of shares of Common Stock on such Purchase Date, and a new
offering period shall commence on the next business day following such Purchase
Date. The duration of that new offering period shall be established by the
Plan Administrator within five (5) business days following the start date.
E. Under no circumstances shall any offering period
commence under the Plan, nor shall any shares of Common Stock be issued
hereunder, until such time as (i) the Plan shall have been approved by the
Corporation's stockholders and (ii) the Corporation shall have complied with
all applicable requirements of the Securities Act, all applicable listing
requirements of any securities exchange (or the Nasdaq National Market if
applicable) on which shares of the Common Stock are listed for trading and all
other applicable statutory and regulatory requirements.
V. ELIGIBILITY
A. Each Eligible Employee shall be eligible to enter an
offering period under the Plan on the start date of any Purchase Period (within
that offering period) which begins on or after his or her completion of thirty
(30) days of continuous service with the
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Corporation or any Corporate Affiliate, provided he or she remains an Eligible
Employee on such start date. The date such individual enters the offering
period shall be designated his or her Entry Date for purposes of that offering
period.
B. To participate in the Plan for a particular offering
period, the Eligible Employee must complete the enrollment forms prescribed by
the Plan Administrator (including a stock purchase agreement and a payroll
deduction authorization form) and file such forms with the Plan Administrator
(or its designate) prior to his or her scheduled Entry Date. However, each
individual who is a Participant in an offering period on the date such offering
period terminates pursuant to Section IV.D shall automatically be enrolled in
the new offering period which commences immediately after such termination
date, provided the Participant is an Eligible Employee on the start date of
that new offering period. Such start date shall be the Participant's Entry
Date for the new offering period.
VI. PAYROLL DEDUCTIONS
A. The payroll deduction authorized by the Participant
for purposes of acquiring shares of Common Stock in an offering period may be
any multiple of one percent (1%) of the Eligible Earnings paid to the
Participant during each Purchase Period within that offering period, up to a
maximum of ten percent (10%). The deduction rate so authorized shall continue
in effect for the remainder of the offering period, except to the extent such
rate is changed in accordance with the following guidelines:
(i) The Participant may, at any time
during an offering period, reduce his or her rate of payroll deduction
to any lower multiple of one percent of Eligible Earnings to become
effective as soon as possible after filing the appropriate form with
the Plan Administrator. The Participant may not, however, effect more
than one (1) such reduction per Purchase Period.
(ii) The Participant may, prior to the
commencement of any new Purchase Period within the offering period,
increase or decrease the rate of his or her payroll deduction by
filing the appropriate form with the Plan Administrator prior to the
start date of that Purchase Period. The new rate (which may not
exceed the ten percent (10%) maximum) shall become effective as of the
start date of the first Purchase Period following the filing of such
form.
B. Payroll deductions shall begin on the first pay day
following the Participant's Entry Date into the offering period and shall
(unless sooner terminated by the Participant) continue through the pay day
ending with or immediately prior to the last day of that offering period. The
amounts so collected shall be credited to the Participant's book account under
the Plan, but no interest shall be paid on the balance from time to time
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outstanding in such account. The amounts collected from the Participant shall
not be held in any segregated account or trust fund and may be commingled with
the general assets of the Corporation and used for general corporate purposes.
C. Payroll deductions shall automatically cease upon the
termination of the Participant's purchase right in accordance with the
provisions of the Plan.
D. The Participant's acquisition of Common Stock under
the Plan on any Purchase Date shall neither limit nor require the Participant's
acquisition of Common Stock on any subsequent Purchase Date, whether within the
same or a different offering period.
VII. PURCHASE RIGHTS
A. GRANT OF PURCHASE RIGHT. A Participant shall be
granted a separate purchase right for each offering period in which he or she
participates. The purchase right shall be granted on the Participant's Entry
Date into the offering period and shall provide the Participant with the right
to purchase shares of Common Stock, in a series of successive installments over
the remainder of such offering period, upon the terms set forth below. The
Participant shall execute a stock purchase agreement embodying such terms and
such other provisions (not inconsistent with the Plan) as the Plan
Administrator may deem advisable.
Under no circumstances shall purchase rights be granted under
the Plan to any Eligible Employee if such individual would, immediately after
the grant, own (within the meaning of Code Section 424(d)) or hold outstanding
options or other rights to purchase, stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Corporation or any Corporate Affiliate.
B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right
shall be automatically exercised in installments on each Purchase Date within
the offering period, and shares of Common Stock shall accordingly be purchased
on behalf of each Participant (other than any Participant whose payroll
deductions have previously been refunded in accordance with the Termination of
Purchase Right provisions below) on each such Purchase Date. The purchase
shall be effected by applying the Participant's payroll deductions for the
Purchase Period ending on such Purchase Date (together with any carryover
deductions from the preceding Purchase Period) to the purchase of whole shares
of Common Stock (subject to the limitation on the maximum number of shares
purchasable per Participant on any one Purchase Date) at the purchase price in
effect for the Participant for that Purchase Date.
C. PURCHASE PRICE. The purchase price per share at
which Common Stock will be purchased on the Participant's behalf on each
Purchase Date within the offering period shall be equal to eighty-five percent
(85%) of the lower of (i) the Fair Market Value per share of Common Stock on
the Participant's Entry Date into that offering period or (ii)
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the Fair Market Value per share of Common Stock on that Purchase Date.
However, for each Participant whose Entry Date is other than the start date of
the offering period, the clause (i) amount shall in no event be less than the
Fair Market Value per share of Common Stock on the start date of that offering
period.
D. NUMBER OF PURCHASABLE SHARES. The number of shares
of Common Stock purchasable by a Participant on each Purchase Date during the
offering period shall be the number of whole shares obtained by dividing the
amount collected from the Participant through payroll deductions during the
Purchase Period ending with that Purchase Date (together with any carryover
deductions from the preceding Purchase Period) by the purchase price in effect
for the Participant for that Purchase Date. However, the maximum number of
shares of Common Stock purchasable per Participant on any one Purchase Date
shall not exceed 2,500 shares, subject to periodic adjustments in the event of
certain changes in the Corporation's capitalization.
E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions
not applied to the purchase of shares of Common Stock on any Purchase Date
because they are not sufficient to purchase a whole share of Common Stock shall
be held for the purchase of Common Stock on the next Purchase Date. However,
any payroll deductions not applied to the purchase of Common Stock by reason of
the limitation on the maximum number of shares purchasable by the Participant
on the Purchase Date shall be promptly refunded.
F. TERMINATION OF PURCHASE RIGHT. The following
provisions shall govern the termination of outstanding purchase rights:
(i) A Participant may, at any time at
least five (5) business days prior to the next Purchase Date in the
offering period, terminate his or her outstanding purchase right by
filing the appropriate form with the Plan Administrator (or its
designate), and no further payroll deductions shall be collected from
the Participant with respect to the terminated purchase right. Any
payroll deductions collected during the Purchase Period in which such
termination occurs shall, at the Participant's election, be
immediately refunded or held for the purchase of shares on the next
Purchase Date. If no such election is made at the time such purchase
right is terminated, then the payroll deductions collected with
respect to the terminated right shall be refunded as soon as possible.
(ii) The termination of such purchase
right shall be irrevocable, and the Participant may not subsequently
rejoin the offering period for which the terminated purchase right was
granted. In order to resume participation in any subsequent offering
period, such individual must re-enroll in the Plan (by making a timely
filing of the prescribed enrollment forms) prior to his or her
scheduled Entry Date into that offering period.
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(iii) Should the Participant cease to
remain an Eligible Employee for any reason (including death,
disability or change in status) while his or her purchase right
remains outstanding, then such individual (or the personal
representative of the estate of a deceased Participant) shall have the
following election, exercisable up until the end of the Purchase
Period in which such cessation of Eligible Employee status occurs:
- to withdraw all of the Participant's
payroll deductions to date during that Purchase Period or
- to have such funds held for the
purchase of shares on the next Purchase Date.
In the absence of such a timely election, the
Participant's payroll deductions shall be refunded as soon as possible
after the close of the Purchase Period. In no event, however, may any
payroll deductions be made on the Participant's behalf following
his/her cessation of Eligible Employee status.
(iv) Should the Participant cease to
remain in active service by reason of an approved unpaid leave of
absence, then the Participant shall have the election, exercisable up
until the last business day of the Purchase Period in which such leave
commences, to (a) withdraw all the funds in the Participant's payroll
account at the time of the commencement of such leave or (b) have such
funds held for the purchase of shares at the end of such Purchase
Period. In no event, however, shall any further payroll deductions be
added to the Participant's account during such unpaid leave. Upon the
Participant's return to active service, his or her payroll deductions
under the Plan shall automatically resume at the rate in effect at the
time the leave began, provided the Participant returns to service
prior to the expiration date of the offering period in which such
leave began.
G. CORPORATE TRANSACTION. Each outstanding purchase
right shall automatically be exercised, immediately prior to the effective date
of any Corporate Transaction, by applying the payroll deductions of each
Participant for the Purchase Period in which such Corporate Transaction occurs
to the purchase of whole shares of Common Stock at a purchase price per share
equal to eighty-five percent (85%) of the lower of (i) the Fair Market Value
per share of Common Stock on the Participant's Entry Date into the offering
period in which such Corporate Transaction occurs or (ii) the Fair Market Value
per share of Common Stock immediately prior to the effective date of such
Corporate Transaction. However, the applicable limitation on the number of
shares purchasable per
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Participant shall continue to apply to any such purchase, and the clause (i)
amount above shall not, for any Participant whose Entry Date for the offering
period is other than the start date of that offering period, be less than the
Fair Market Value per share of Common Stock on such start date.
The Corporation shall use its best efforts to provide at least
ten (10)-days prior written notice of the occurrence of any Corporate
Transaction, and Participants shall, following the receipt of such notice, have
the right to terminate their outstanding purchase rights prior to the effective
date of the Corporate Transaction.
H. PRORATION OF PURCHASE RIGHTS. Should the total
number of shares of Common Stock which are to be purchased pursuant to
outstanding purchase rights on any particular date exceed the number of shares
then available for issuance under the Plan, the Plan Administrator shall make a
pro-rata allocation of the available shares on a uniform and nondiscriminatory
basis, and the payroll deductions of each Participant, to the extent in excess
of the aggregate purchase price payable for the Common Stock pro-rated to such
individual, shall be refunded.
I. ASSIGNABILITY. No purchase right granted under the
Plan shall be assignable or transferable by the Participant other than by will
or by the laws of descent and distribution following the Participant's death,
and during the Participant's lifetime the purchase right shall be exercisable
only by the Participant.
J. STOCKHOLDER RIGHTS. A Participant shall have no
stockholder rights with respect to the shares subject to his or her outstanding
purchase right until the shares are purchased on the Participant's behalf in
accordance with the provisions of the Plan and the Participant has become a
holder of record of the purchased shares.
A Participant shall be issued, as soon as practicable after
the date of each purchase, a stock certificate for the number of shares
purchased on the Participant's behalf. Such certificate may, upon the
Participant's request, be issued in the names of the Participant and his/her
spouse as community property or as joint tenants with right of survivorship.
Alternatively, the stock certificate may be delivered to a designated stock
brokerage account maintained for the Participant and held in "street name" in
order to facilitate the subsequent sale of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A. No Participant shall be entitled to accrue rights to
acquire Common Stock pursuant to any purchase right outstanding under this Plan
if and to the extent such accrual, when aggregated with (i) rights to purchase
Common Stock accrued under any other purchase right granted under this Plan and
(ii) similar rights accrued under other employee stock purchase plans (within
the meaning of Code Section 423) of the Corporation or any Corporate Affiliate,
would otherwise permit such Participant to purchase more than Twenty-
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Five Thousand Dollars ($25,000) worth of stock of the Corporation or any
Corporate Affiliate (determined on the basis of the Fair Market Value of such
stock on the date or dates such rights are granted) for each calendar year such
rights are at any time outstanding.
B. For purposes of applying such accrual limitations,
the following provisions shall be in effect:
(i) The right to acquire Common Stock
under each outstanding purchase right shall accrue in a series of
installments on each Purchase Date during the offering period on which
such right remains outstanding.
(ii) No right to acquire Common Stock
under any outstanding purchase right shall accrue to the extent the
Participant has already accrued in the same calendar year the right to
acquire Common Stock under one (1) or more other purchase rights at a
rate equal to Twenty-Five Thousand Dollars ($25,000) worth of Common
Stock (determined on the basis of the Fair Market Value of such stock
on the date or dates of grant) for each calendar year such rights were
at any time outstanding.
C. If by reason of such accrual limitations, any
purchase right of a Participant does not accrue for a particular Purchase
Period, then the payroll deductions which the Participant made during that
Purchase Period with respect to such purchase right shall be promptly refunded.
D. In the event there is any conflict between the
provisions of this Article and one or more provisions of the Plan or any
instrument issued thereunder, the provisions of this Article shall be
controlling.
IX. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan was adopted by the Board on January 25, 1995
and was approved by the Corporation's stockholders at the 1995 Annual Meeting.
B. On February 24, 1997, the Board amended the Plan to
increase the total share reserve available for issuance under the Plan by an
additional 150,000 shares, and such increase was approved by the Corporation's
stockholders at the 1997 Annual Meeting.
C. Unless sooner terminated by the Board, the Plan shall
terminate upon the earliest of (i) the last business day in June 2005, (ii) the
date on which all shares available for issuance under the Plan shall have been
sold pursuant to purchase rights exercised under the Plan or (iii) the date on
which all purchase rights are exercised in connection with a Corporate
Transaction. No further purchase rights shall be granted or
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exercised, and no further payroll deductions shall be collected, under the Plan
following its termination.
X. AMENDMENT OF THE PLAN
The Board may alter, amend, suspend or discontinue the Plan at
any time to become effective immediately following the close of any Purchase
Period. However, the Board may not, without the approval of the Corporation's
stockholders, (i) materially increase the number of shares of Common Stock
issuable under the Plan or the maximum number of shares purchasable per
Participant on any one Purchase Date, except for permissible adjustments in the
event of certain changes in the Corporation's capitalization, (ii) alter the
purchase price formula so as to reduce the purchase price payable for the
shares of Common Stock purchasable under the Plan, or (iii) materially increase
the benefits accruing to Participants under the Plan or materially modify the
requirements for eligibility to participate in the Plan.
XI. GENERAL PROVISIONS
A. All costs and expenses incurred in the administration
of the Plan shall be paid by the Corporation.
B. Nothing in the Plan shall confer upon the Participant
any right to continue in the employ of the Corporation or any Corporate
Affiliate for any period of specific duration or interfere with or otherwise
restrict in any way the rights of the Corporation (or any Corporate Affiliate
employing such person) or of the Participant, which rights are hereby expressly
reserved by each, to terminate such person's employment at any time for any
reason, with or without cause.
C. The provisions of the Plan shall be governed by the
laws of the State of California without resort to that State's conflict-of-laws
rules.
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SCHEDULE A
CORPORATIONS PARTICIPATING IN
EMPLOYEE STOCK PURCHASE PLAN
AS OF THE EFFECTIVE DATE
IDEC Pharmaceuticals Corporation
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APPENDIX
The following definitions shall be in effect under the Plan:
A. BOARD shall mean the Corporation's Board of
Directors.
B. CODE shall mean the Internal Revenue Code of 1986, as
amended.
C. COMMON STOCK shall mean the Corporation's common
stock.
D. CORPORATE AFFILIATE shall mean any parent or
subsidiary corporation of the Corporation (as determined in accordance with
Code Section 424), whether now existing or subsequently established.
E. CORPORATE TRANSACTION shall mean either of the
following stockholder-approved transactions to which the Corporation is a
party:
(i) a merger or consolidation in which
securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities are
transferred to a person or persons different from the persons holding
those securities immediately prior to such transaction, or
(ii) the sale, transfer or other
disposition of all or substantially all of the assets of the
Corporation in complete liquidation or dissolution of the Corporation.
F. CORPORATION shall mean IDEC Pharmaceuticals
Corporation, a Delaware corporation, and any corporate successor to all or
substantially all of the assets or voting stock of IDEC Pharmaceuticals
Corporation which shall by appropriate action adopt the Plan.
G. EFFECTIVE DATE shall mean July 3, 1995, the first
business day in July 1995. Any Corporate Affiliate which becomes a
Participating Corporation after such Effective Date shall designate a
subsequent Effective Date with respect to its employee-Participants.
H. ELIGIBLE EARNINGS shall mean the (i) regular base
salary paid to a Participant by one or more Participating Companies during such
individual's period of participation in the Plan, plus (ii) any pre-tax
contributions made by the Participant to any Code Section 401(k) salary
deferral plan or any Code Section 125 cafeteria benefit program now or
hereafter established by the Corporation or any Corporate Affiliate, plus (iii)
all of the following amounts to the extent paid in cash: overtime payments,
bonuses, commissions,
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profit-sharing distributions and other incentive-type payments. However,
Eligible Earnings shall NOT include any contributions (other than Code Section
401(k) or Code Section 125 contributions) made on the Participant's behalf by
the Corporation or any Corporate Affiliate to any deferred compensation plan or
welfare benefit program now or hereafter established.
I. ELIGIBLE EMPLOYEE shall mean any person who is
engaged, on a regularly-scheduled basis of more than twenty (20) hours per week
for more than five (5) months per calendar year, in the rendition of personal
services to any Participating Corporation as an employee for earnings
considered wages under Code Section 3401(a).
J. ENTRY DATE shall mean the date an Eligible Employee
first commences participation in the offering period in effect under the Plan.
The earliest Entry Date under the Plan shall be the Effective Date.
K. FAIR MARKET VALUE per share of Common Stock on any
relevant date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time
traded on the Nasdaq National Market, then the Fair Market Value shall
be the closing selling price per share of Common Stock on the date in
question, as such price is reported by the National Association of
Securities Dealers on the Nasdaq National Market or any successor
system. If there is no closing selling price for the Common Stock on
the date in question, then the Fair Market Value shall be the closing
selling price on the last preceding date for which such quotation
exists.
(ii) If the Common Stock is at the time
listed on any Stock Exchange, then the Fair Market Value shall be the
closing selling price per share of Common Stock on the date in
question on the Stock Exchange determined by the Plan Administrator to
be the primary market for the Common Stock, as such price is
officially quoted in the composite tape of transactions on such
exchange. If there is no closing selling price for the Common Stock
on the date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which such
quotation exists.
L. PARTICIPANT shall mean any Eligible Employee of a
Participating Corporation who is actively participating in the Plan.
M. PARTICIPATING CORPORATION shall mean the Corporation
and such Corporate Affiliate or Affiliates as may be authorized from time to
time by the Board to extend the benefits of the Plan to their Eligible
Employees. The Participating Corporations in the Plan as of the Effective Date
are listed in attached Schedule A.
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N. PLAN shall mean the Corporation's 1995 Employee Stock
Purchase Plan, as set forth in this document.
O. PLAN ADMINISTRATOR shall mean the Compensation
Committee of the Board in its capacity as administrator of the Plan.
P. PREDECESSOR PLAN shall mean the Corporation's
existing Employee Stock Purchase Plan.
Q. PURCHASE PERIOD shall mean each successive period
within the offering period at the end of which there shall be purchased shares
of Common Stock on behalf of each Participant.
R. PURCHASE DATE shall mean the last business day of
each Purchase Period. The initial Purchase Date shall be September 30, 1995.
S. SECURITIES ACT shall mean the Securities Act of 1933,
as amended.
T. STOCK EXCHANGE shall mean either the American Stock
Exchange or the New York Stock Exchange.
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