Exhibit 99.4
IDEC PHARMACEUTICALS CORPORATION
1993 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(AMENDED AND RESTATED THROUGH JANUARY 12, 2000)
I. PURPOSE OF THE PLAN
This 1993 Non-Employee Directors Stock Option Plan (the
"Plan") is intended to promote the interests of IDEC Pharmaceuticals
Corporation, a Delaware corporation (the "Corporation"), by providing the
non-employee members of the Corporation's Board of Directors with the
opportunity to acquire a proprietary interest, or otherwise increase their
proprietary interest, in the Corporation as an incentive for them to remain in
the service of the Corporation.
All share numbers in this January 12, 2000 restatement reflect
the two-for-one split of the Common Stock which was effected on December 21,
1999.
II. DEFINITIONS
For purposes of the Plan, the following definitions shall be
in effect:
BOARD: the Corporation's Board of Directors.
CODE: the Internal Revenue Code of 1986, as amended.
COMMON STOCK: shares of the Corporation's common stock.
CHANGE IN CONTROL: a change in ownership or control of the
Corporation effected through either of the following transactions:
a. any person or related group of persons (other than
the Corporation or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Corporation) who
directly or indirectly acquires beneficial ownership (within the
meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as
amended) of securities possessing fifty percent (50%) or more of the
total combined voting power of the Corporation's outstanding securities
pursuant to a tender or exchange offer made directly to the
Corporation's stockholders; or
b. there is a change in the composition of the Board
over a period of twenty-four (24) consecutive months or less such that
a majority of the Board members ceases, by reason of one or more proxy
contests for the election of Board members, to be comprised of
individuals who either (A) have been Board members continuously since
the beginning of such period or (B) have been elected or nominated for
election as Board members during such period by at least a
majority of the Board members described in clause (A) who were still
in office at the time such election or nomination was approved by the
Board.
CORPORATE TRANSACTION: any of the following
stockholder-approved transactions to which the Corporation is a party:
a. a merger or consolidation in which the Corporation
is not the surviving entity, except for a transaction the principal
purpose of which is to change the State in which the Corporation is
incorporated,
b. 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, or
c. any reverse merger in which the Corporation is the
surviving entity but in which securities possessing fifty percent (50%)
or more of the total combined voting power of the Corporation's
outstanding securities are transferred to person or persons different
from those who held such securities immediately prior to such merger.
EFFECTIVE DATE: September 24, 1993, the date the Plan was
originally adopted by the Board. The Plan was subsequently approved by the
Corporation's stockholders on May 19, 1994. On January 25, 1995, the Board
adopted an amendment to the Plan which increased the number of shares of Common
Stock issuable thereunder by an additional 200,000 shares, and that amendment
was approved by the stockholders at the 1995 Annual Meeting. The Plan was
subsequently restated by the Board on February 20, 1998, and such restatement
was approved by the Corporation's stockholders at the 1998 Annual Meeting. On
January 12, 2000, the Board authorized an increase of 300,000 shares of Common
Stock to the share reserve under the Plan, and that amendment was approved by
the stockholder at the 2000 Annual Meeting.
FAIR MARKET VALUE: the Fair Market Value per share of Common
Stock is determined in accordance with the following provisions:
a. If the Common Stock is not at the time listed or
admitted to trading on any national stock exchange but is traded on The
Nasdaq Stock Market, the Fair Market Value shall be the closing
selling price per share on the date in question, as such price is
reported by The Nasdaq Stock Market and published in THE WALL STREET
JOURNAL. If there is no reported closing selling price for the Common
Stock on the date in question, then the closing selling price on the
last preceding date for which such quotation exists shall be
determinative of Fair Market Value.
2.
b. If the Common Stock is at the time listed or
admitted to trading on any national stock exchange, then the Fair
Market Value shall be the closing selling price per share on the date
in question on the 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 and
published in THE WALL STREET JOURNAL. If there is no reported sale of
Common Stock on such exchange on the date in question, then the Fair
Market Value shall be the closing selling price on the exchange on the
last preceding date for which such quotation exists.
HOSTILE TAKE-OVER: the direct or indirect acquisition by any
person or related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by, or is under common control
with, the Corporation) of beneficial ownership (within the meaning of Rule 13d-3
of the Securities Exchange Act of 1934, as amended) of securities possessing
fifty percent (50%) or more of the total combined voting power of the
Corporation's outstanding securities pursuant to a tender or exchange offer made
directly to the Corporation's stockholders which the Board does not recommend
such stockholders to accept.
1934 ACT: the Securities Exchange Act of 1934, as amended.
OPTIONEE: any person to whom an option is granted under the
Plan.
PERMANENT DISABILITY OR PERMANENTLY DISABLED: the inability of
the Optionee to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment expected to result in death
or to be of continuous duration of twelve (12) months or more.
SERVICE: the performance of services as a member of the Board.
TAKE-OVER PRICE: the GREATER of (a) the Fair Market Value per
share of Common Stock on the date the option is surrendered to the Corporation
in connection with a Hostile Take-Over or (b) the highest reported price per
share of Common Stock paid by the tender offeror in effecting such Hostile
Take-Over.
III. ADMINISTRATION OF THE PLAN
The terms and conditions of each automatic option grant
(including the timing and pricing of the option grant) shall be determined by
the express terms and conditions of the Plan, and neither the Board nor any
committee of the Board shall exercise any discretionary functions with respect
to option grants made pursuant to the Plan.
3.
IV. STOCK SUBJECT TO THE PLAN
A. Shares of the Corporation's Common Stock shall be
available for issuance under the Plan and shall be drawn from either the
Corporation's authorized but unissued shares of Common Stock or from
reacquired shares of Common Stock, including shares repurchased by the
Corporation 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 1,040,000
shares(1), subject to adjustment from time to time in accordance with the
provisions of this Article IV.
B. Should one or more outstanding options under this Plan
expire or terminate for any reason prior to exercise in full, then the shares
subject to the portion of each option not so exercised shall be available for
subsequent option grants under the Plan. Unvested shares issued under the Plan
and subsequently repurchased by the Corporation, at the option exercise price
paid per share, pursuant to the Corporation's repurchase rights under the Plan,
shall be added back to the number of shares of Common Stock reserved for
issuance under the Plan and shall accordingly be available for reissuance
through one or more subsequent option grants under the Plan. Shares subject to
any option or portion thereof surrendered in accordance with Article VII shall
reduce on a share-for-share basis the number of shares of Common Stock available
for subsequent option grants under the Plan. In addition, should the exercise
price of an outstanding option under the Plan be paid with shares of Common
Stock, then the number of shares of Common Stock available for issuance under
the Plan shall be reduced by the gross number of shares for which the option is
exercised, and not by the net number of shares of Common Stock actually issued
to the option holder.
C. Should any change be made to the Common Stock issuable
under the Plan 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, then appropriate adjustments shall be made to (i) the maximum
number and/or class of securities issuable under the Plan, (ii) the number
and/or class of securities for which automatic option grants are to be
subsequently made per each new or continuing non-employee Board member under the
Plan, and (iii) the number and/or class of securities and price per share in
effect under each option outstanding under the Plan. Such adjustments to the
outstanding options are to be effected in a manner which shall preclude the
enlargement or dilution of rights and benefits under such options. The
adjustments determined by the Board shall be final, binding and conclusive.
- -------------
1 Adjusted to reflect (i) the 2-for-1 split of the Common Stock effected
by the Corporation on December 21, 1999, (ii) the 200,000 share
increase authorized by the Board on January 25, 1995 and approved by
the stockholders at the 1995 Annual Meeting, (iii) the 240,000 share
increase authorized by the Board on February 20, 1998 and approved by
the stockholders at the 1998 Annual Meeting, and (iv) the 300,000-share
increase authorized by the Board on January 12, 2000 and approved by
the stockholders at the 2000 Annual Meeting.
4.
V. ELIGIBILITY
A. ELIGIBLE OPTIONEES. The individuals eligible to receive
automatic option grants pursuant to the provisions of this Plan shall be limited
to (i) those individuals who are first elected or appointed as non-employee
Board members after the Effective Date, whether through appointment by the Board
or election by the Corporation's stockholders, and (ii) those individuals who
continue to serve as non-employee Board members after such Effective Date,
whether or not they commenced Board service prior to such Effective Date. In no
event, however, shall any non-employee Board member be eligible to participate
in the Plan if such individual has previously been in the employ of the
Corporation (or any parent or subsidiary corporation) at any time after December
31, 1989. Each non-employee Board member eligible to participate in the Plan
pursuant to the foregoing criteria shall be designated an Eligible Director for
purposes of the Plan.
VI. TERMS AND CONDITIONS OF AUTOMATIC OPTION GRANTS
A. GRANT DATE. Pursuant to the terms of this January 12, 2000
restatement, which became effective as of the date of the 2000 Annual
Stockholders Meeting, option grants shall be made on the dates specified below:
- Each individual who is first elected or appointed
as an Eligible Director, whether through appointment by the Board or
election by the Corporation's stockholders, on or after the date of the
2000 Annual Stockholders Meeting, shall automatically be granted, on
the date of such initial election or appointment, a non-statutory stock
option to purchase 17,500 shares of Common Stock.
- On the first trading day on The Nasdaq Stock Market
in January of each calendar year (commencing with calendar year 2001),
each individual who is at the time serving as an Eligible Director
shall automatically be granted on such date a non-statutory option to
purchase 5,000 shares of Common Stock, provided such individual has
served as a Board member for a period of at least six (6) months.
There shall be no limit on the number of 5,000-share option
grants any one Eligible Director may receive over his or her period of Board
service.
Stockholder approval of this January 12, 2000 restatement at
the 2000 Annual Meeting constituted pre-approval of each option grant
subsequently made pursuant to the provisions of the Plan as restated and the
subsequent exercise of that option in accordance with its terms.
5.
B. EXERCISE PRICE. The exercise price per share of Common
Stock subject to each automatic option grant shall be equal to one hundred
percent (100%) of the Fair Market Value per share of Common Stock on the
automatic grant date.
C. PAYMENT.
The exercise price shall become immediately due upon
exercise of the option and shall be payable in one of the alternative forms
specified below:
(i) full payment in cash or check made
payable to the Corporation's order; or
(ii) full payment in shares of Common
Stock held for the requisite period necessary to avoid a charge to the
Corporation's earnings for financial-reporting purposes and valued at
Fair Market Value on the Exercise Date (as such term is defined below);
or
(iii) full payment in a combination of
shares of Common Stock held for the requisite period necessary to avoid
a charge to the Corporation's earnings for financial-reporting purposes
and valued at Fair Market Value on the Exercise Date and cash or check
payable to the Corporation's order; or
(iv) to the extent the option is
exercised for vested shares, full payment through a broker-dealer sale
and remittance procedure pursuant to which the non-employee Board
member (I) shall provide irrevocable instructions to a
Corporation-designated brokerage firm to effect the immediate sale of
the purchased shares and remit to the Corporation, out of the sale
proceeds available on the settlement date, sufficient funds to cover
the aggregate exercise price payable for the purchased shares and (II)
shall concurrently provide directives to the Corporation to deliver the
certificates for the purchased shares directly to such brokerage firm
in order to complete the sale transaction.
For purposes of this subparagraph VI.C, the Exercise Date
shall be the date on which written notice of the option exercise is delivered to
the Corporation. Except to the extent the sale and remittance procedure
specified above is utilized in connection with the exercise of the option for
vested shares, payment of the option price for the purchased shares must
accompany the exercise notice. However, if the option is exercised for any
unvested shares, then the optionee must also execute and deliver to the
Corporation a stock purchase agreement for those unvested shares which provides
the Corporation with the right to repurchase, at the exercise price paid per
share, any unvested shares held by the optionee at the time of cessation of
Board service and which precludes the sale, transfer or other disposition of any
shares purchased under the option, to the extent those shares are subject to the
Corporation's repurchase right.
6.
D. OPTION TERM. Each automatic grant under the Plan shall have
a maximum term of ten (10) years measured from the automatic grant date.
E. EXERCISABILITY/VESTING. Each automatic grant shall be
immediately exercisable for any or all of the option shares. However, any shares
purchased under the option shall be subject to repurchase by the Corporation, at
the exercise price paid per share, upon the Optionee's cessation of Board
service prior to vesting in those shares. Each initial 17,500 share option shall
vest, and the Corporation's repurchase right shall lapse, in a series of four
(4) equal and successive annual installments over the Optionee's period of
continued service as a Board member, with the first such installment to vest
upon Optionee's completion of one (1) year of Board service measured from the
grant date. Each additional 5,000-share automatic grant shall vest, and the
Corporation's repurchase with respect thereto shall lapse, upon Optionee's
completion of one (1) year of Board service measured from the automatic grant
date. Vesting of the option shares shall be subject to acceleration as provided
in Section VI.G and Article VII. In no event, however, shall any additional
option shares vest after the Optionee's cessation of Board service.
F. NON-TRANSFERABILITY. During the lifetime of the Optionee,
each automatic option grant, together with the limited stock appreciation right
pertaining to such option, shall be exercisable only by the Optionee and shall
not be assignable or transferable by the Optionee other than (i) a transfer of
the option effected by will or by the laws of descent and distribution following
Optionee's death or (ii) a transfer of the option during the optionee's lifetime
to one or more members of the optionee's immediate family or to a trust
established exclusively for one or more such family members, to the extent such
transfer is effected pursuant to the optionee's estate plan. The assigned
portion may only be exercised by the person or persons who acquire a proprietary
interest in the option pursuant to the assignment. The terms applicable to the
assigned portion shall be the same as those in effect for the option immediately
prior to such assignment and shall be set forth in such documents issued to the
assignee as the Corporation may deem appropriate.
G. EFFECT OF TERMINATION OF BOARD SERVICE.
1. Should the Optionee cease to serve as a
Board member for any reason (other than death or Permanent Disability) while
holding one or more automatic option grants under the Plan, then such individual
shall have a six (6)-month period following the date of such cessation of Board
service in which to exercise each such option for any or all of the option
shares in which the Optionee is vested at the time of such cessation of Board
service. Each such option shall immediately terminate and cease to be
outstanding, at the time of such cessation of Board service, with respect to any
option shares in which the Optionee is not otherwise at that time vested.
2. Should the Optionee die within six (6)
months after cessation of Board service, then any automatic option grant held by
the Optionee at the time of death may subsequently be exercised, for any or all
of the option shares in which the Optionee is vested at the time of his or her
cessation of Board service (less any option shares subsequently purchased by the
7.
Optionee prior to death), by the personal representative of the Optionee's
estate or by the person or persons to whom the option is transferred pursuant to
the Optionee's will or in accordance with the laws of descent and distribution.
The right to exercise each such option shall lapse upon the expiration of the
twelve (12)-month period measured from after the date of the Optionee's death.
3. Should the Optionee die or become Permanent
Disabled while serving as a Board member, then the shares of Common Stock at the
time subject to each automatic option grant held by such Optionee shall
immediately vest in full (and the Corporation's repurchase right with respect to
such shares shall terminate), and the Optionee (or the representative of the
Optionee's estate or the person or persons to whom the option is transferred
upon the Optionee's death) shall have a twelve (12)-month period following the
date of the Optionee's cessation of Board service in which to exercise such
option for any or all of those vested shares of Common Stock.
4. In no event shall any automatic grant under
this Plan remain exercisable after the expiration date of the ten (10)-year
option term. Upon the expiration of the applicable post-service exercise period
under subparagraphs 1 through 3 above or (if earlier) upon the expiration of the
ten (10)-year option term, the automatic grant shall terminate and cease to be
outstanding for any option shares in which the Optionee was vested at the time
of his or her cessation of Board service but for which such option was not
otherwise exercised.
H. STOCKHOLDER RIGHTS. The holder of an automatic option grant
shall have none of the rights of a stockholder with respect to any shares
subject to such option until such individual shall have exercised the option and
paid the exercise price for the purchased shares.
I. REMAINING TERMS. The remaining terms and conditions of each
automatic option grant shall be as set forth in the form Non-statutory Stock
Option Agreement attached as Exhibit A.
VII. CORPORATE TRANSACTION/CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. In the event of any Corporate Transaction, the shares of
Common Stock at the time subject to each outstanding option but not otherwise
vested shall automatically vest in full so that each such option shall,
immediately prior to the specified effective date for the Corporate Transaction,
become fully exercisable for all of the shares of Common Stock at the time
subject to that option and may be exercised for all or any portion of such
shares as fully-vested shares of Common Stock. Immediately following the
consummation of the Corporate Transaction, each automatic option grant under the
Plan shall terminate and cease to be outstanding, except to the extent assumed
by the successor entity (or parent thereof).
8.
B. In connection with any Change in Control of the
Corporation, the shares of Common Stock at the time subject to each outstanding
option but not otherwise vested shall automatically vest in full so that each
such option shall, immediately prior to the specified effective date for the
Change in Control, become fully exercisable for all of the shares of Common
Stock at the time subject to that option and may be exercised for all or any
portion of such shares as fully-vested shares of Common Stock. Each such option
shall remain fully exercisable for the option shares which vest in connection
with the Change in Control until the expiration or sooner termination of the
option term.
C. The Optionee shall have the right, exercisable at any time
within the thirty (30)-day period immediately following the effective date of a
Hostile Take-Over, to surrender to the Corporation each automatic option grant
held by him or her under this Plan. The Optionee shall in return be entitled to
a cash distribution from the Corporation in an amount equal to the excess of (i)
the Take-Over Price of the shares of Common Stock at the time subject to the
surrendered option (whether or not the Optionee is otherwise at the time vested
in those shares) over (ii) the aggregate exercise price payable for such shares.
Such cash distribution shall be paid within five (5) days following the
surrender of the option to the Corporation. Stockholder approval of this January
12, 2000 restatement at the 2000 Annual Meeting constituted the pre-approval of
each option subsequently granted with such a surrender right and the subsequent
exercise of that right in accordance with the provisions of this Section VII.C.
Neither the approval of the Plan Administrator nor the consent of the Board
shall be required at the time of the actual option surrender and cash
distribution.
D. The shares of Common Stock subject to each option
surrendered in connection with the Hostile Take-Over shall not be available for
subsequent option grant under this Plan.
E. The automatic option grants outstanding under the Plan
shall in no way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
VIII. AMENDMENT OF THE PLAN AND AWARDS
The Board has complete and exclusive power and authority to
amend or modify the Plan (or any component thereof) in any or all respects
whatsoever. However, no such amendment or modification shall adversely affect
rights and obligations with respect to options at the time outstanding under the
Plan, unless the affected optionees consent to such amendment. In addition,
certain amendments to the Plan may require stockholder approval pursuant to
applicable law or regulation.
9.
IX. EFFECTIVE DATE AND TERM OF PLAN
A. The Plan became effective immediately upon adoption by the
Board on September 14, 1993 and was approved by the Corporation's stockholders
at the 1994 Annual Meeting. On January 25, 1995, the Board adopted an amendment
to the Plan which increased the number of shares of Common Stock issuable
thereunder by an additional 200,000 shares, and that amendment was approved by
the stockholders at the 1995 Annual Meeting.
B. On February 20, 1998, the Board adopted a series of
amendments to the Plan (the "1998 Amendments") which (i) increased the number of
shares of Common Stock reserved for issuance over the term of the Plan by an
additional 240,000 shares, (ii) allowed unvested shares issued under the Plan
and subsequently repurchased by the Corporation at the option exercise price
paid per share to be reissued under the Plan and (iii) effected a series of
additional changes to the provisions of the Plan (including the stockholder
approval requirements, the transferability of non-statutory stock options and
the elimination of the six (6)-month holding period requirement as a condition
to the exercise of stock appreciation rights) in order to take advantage of the
recent amendments to Rule 16b-3 of the 1934 Act which exempts certain
transactions by Board members under the Plan from the short-swing liability
provisions of the federal securities laws. The 1998 Amendments were approved by
the Corporation's stockholder at the 1998 Annual Meeting.
C. On January 12, 2000, the Board authorized (i) an increase
of 300,000 shares of Common Stock to the share reserve under the Plan and (ii)
an extension of the term of the Directors Plan from September 13, 2003 to
December 31, 2005. Such amendments were approved by the Corporation's
stockholder at the 2000 Annual Meeting.
D. The Plan shall terminate upon the EARLIER of (i) December
31, 2005 or (ii) the date on which all shares available for issuance under the
Plan shall have been issued as vested shares or cancelled pursuant to the
cash-out provisions of the Plan. If the date of termination is determined under
clause (i) above, then all option grants outstanding on such date shall
thereafter continue to have force and effect in accordance with the provisions
of the instruments evidencing such grants.
X. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of
shares pursuant to option grants or share issuances under the Plan shall be used
for general corporate purposes
XI. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any option
under the Plan and the issuance of Common Stock upon the exercise of the option
grants made hereunder shall be subject to the Corporation's procurement of all
approvals and permits required by regulatory
10.
authorities having jurisdiction over the Plan, the options granted under it, and
the Common Stock issued pursuant to it.
B. No shares of Common Stock or other assets shall be issued
or delivered under this Plan unless and until there shall have been compliance
with all applicable requirements of Federal and state securities laws, including
the filing and effectiveness of the Form S-8 registration statement for the
shares of Common Stock issuable under the Plan, and all applicable listing
requirements of any securities exchange on which the Common Stock is then listed
for trading.
XII. NO IMPAIRMENT OF RIGHTS
Neither the action of the Corporation in establishing the Plan
nor any provision of the Plan shall be construed or interpreted so as to affect
adversely or otherwise impair the right of the Corporation or the stockholders
to remove any individual from the Board at any time in accordance with the
provisions of applicable law.
XIII. MISCELLANEOUS PROVISIONS
A. The right to acquire Common Stock or other assets under the
Plan may not be assigned, encumbered or otherwise transferred by any Optionee.
B. The provisions of the Plan relating to the exercise of
options and the vesting of shares shall be governed by the laws of the State of
California, as such laws are applied to contracts entered into and performed in
such State.
C. The provisions of the Plan shall inure to the benefit of,
and be binding upon, the Corporation and its successors or assigns, whether by
Corporate Transaction or otherwise, and the Optionees, the legal representatives
of their respective estates, their respective heirs or legatees and their
permitted assignees.
11.