EXHIBIT 10.36
U.S. Bioscience, Inc.
1996 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
1. Purpose. U.S. Bioscience, Inc. (the "Company") hereby adopts the
U.S. Bioscience, Inc. 1996 Non-Employee Directors Stock Option Plan (the
"Plan"). The Plan is intended to encourage ownership of the stock of the Company
by directors of the Company who are not employees of the Company and to enhance
the Company's ability to retain highly qualified persons to serve as its
directors.
2. Definitions. Unless the context clearly indicates otherwise, the
following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a parent
corporation or a subsidiary corporation with respect to the Company within the
meaning of Section 424(e) or (f) of the Code.
(b) "Annual Fees" means the dollar amount that a Non-Employee
Director is entitled to receive for serving as a member of the Company's Board
of Directors and on any committee of the Company's Board of Directors during the
period of approximately one-year beginning on the day after an Annual
Meeting Date and ending on the next Annual Meeting Date (which dollar
amount is in addition to the automatic grants of stock options which such
Non-Employee Director may be entitled to receive under any other stock option
plan of the Company).
(c) "Annual Meeting Date" means the date of the annual meeting
of stockholders of the Company held for the election of directors in any
calendar year, commencing in 1997.
(d) "Board of Directors" or "Board" means the Board of
Directors of the Company.
(e) "Change of Control" shall have the meaning as set forth in
Section 8 of the Plan.
(f) "Code" means the Internal Revenue Code of 1986, as
amended.
(g) "Committee" shall have the meaning set forth in Section 3
of the Plan.
(h) "Common Stock" means the common stock, par value $.01 per
share, of the Company.
(i) "Company" means U.S. Bioscience, Inc. a Delaware
corporation.
(j) "Fair Market Value" of a share of Common Stock on any date
means the average of the closing sales prices of a share of Common Stock on the
American Stock Exchange (or
such other national securities exchange on which the Common Stock may then be
listed) for the ten trading days prior to the date of determination, as
published in The Wall Street Journal or in any other publication selected by the
Committee.
(k) "Non-employee Director" means a member of the Board of
Directors who is not an employee of the Company or an Affiliate.
(l) "Option" means an option granted pursuant to the Plan to
purchase shares of Common Stock. Options granted pursuant to the Plan shall not
be incentive stock options as defined in Section 422 of the Code.
(m) "Optionee" means a person to whom an Option has been
granted under the Plan, which Option has not been exercised and has not expired
or terminated.
(n) "Option Document" means the document described in Section
7 of the Plan, which sets forth the terms and conditions of each Option grant.
(o) "Purchase Price" means the price at which Shares may be
purchased upon exercise of an Option, as calculated pursuant to Section 7(a) of
the Plan.
(p) "Shares" means the shares of Common Stock of the Company
which are the subject of Options.
3. Administration of the Plan. The grant of Options under the Plan
shall be automatic. The Plan shall be administered by the Board of Directors;
however, the Board of Directors may designate a committee composed of two or
more of its members to administer the Plan. Any such committee designated by the
Board of Directors, and the Board of Directors itself in its administrative
capacity with respect to the Plan, is referred to as the Committee.
(a) Meetings. The Committee shall hold meetings at such times
and places as it may determine. Acts approved at a meeting by a majority of the
members of the Committee or acts approved in writing by the unanimous consent of
the members of the Committee shall be the valid acts of the Committee.
(b) Interpretation. The Committee shall be authorized to
interpret the Plan and the Options granted under the Plan and to make any
determinations it believes necessary or advisable for the administration of the
Plan. The interpretation and construction by the Committee of any provisions of
the Plan or of any Option granted under it shall be final, binding and
conclusive.
(c) Exculpation. No member of the Board of Directors shall be
personally liable for monetary damages for any
action taken or any failure to take any action in connection with the
administration of the Plan or the granting of Options under the Plan, provided
that this Subsection 3(c) shall not apply to (i) any breach of such member's
duty of loyalty to the Company or its stockholders, (ii) acts or omissions not
in good faith or involving intentional misconduct or a knowing violation of law,
(iii) acts or omissions that would result in liability under Section 174 of the
General Corporation Law of the State of Delaware, as amended, and (iv) any
transaction from which the member derived an improper personal benefit.
(d) Indemnification. Service on the Committee
shall constitute service as a member of the Board of Directors of
the Company. Each member of the Committee shall be entitled without further act
on his or her part to indemnity from the Company to the fullest extent provided
by applicable law and the Company's Certificate of Incorporation and/or By-laws
in connection with or arising out of any action, suit or proceeding with respect
to the administration of the Plan or the granting of Options thereunder in which
he or she may be involved by reason of his or her being or having been a member
of the Committee, whether or not he or she continues to be such member of the
Committee at the time of the action, suit or proceeding.
4. Shares Subject to Plan. The aggregate maximum number of Shares for
which Options may be granted pursuant to the Plan is Fifty Thousand (50,000),
subject to adjustment as provided in Section 9 of the Plan. The Shares shall be
issued from authorized and unissued Common Stock or Common Stock held in or
hereafter acquired for the treasury of the Company. If an Option terminates or
expires without having been fully exercised for any reason, the Shares for which
the Option was not exercised may again be the subject of one or more Options
granted pursuant to the Plan.
5. Grant of Options.
(a) Day of Grant and Determination of Number of Shares. An
Option shall be granted automatically, on the day after each Annual Meeting
Date, to each Non-employee Director who shall have duly elected to receive
options instead of Annual Fees in respect of the period of approximately one
year, ending on the next Annual Meeting Date. The number of Shares subject to
such an Option shall be equal to the nearest whole number of shares of Common
Stock determined according to the following formula:
Number of Shares = Amount of Annual Fees
------------------------------------
(Fair Market Value - Purchase Price)
For purposes of this formula, the Fair Market Value of a share of Common Stock
shall be determined as of the date of the grant of the Option, and the Purchase
Price of a Share subject to the Option shall be that determined in accordance
with Section 7(a).
(b) Annual Elections. To elect to receive an Option instead of
Annual Fees for services to be rendered during the period between successive
Annual Meeting Dates, a Non-employee Director who is an incumbent member of the
Board on a December 15 shall file a written election with the Secretary of the
Company by such December 15 with respect to the period of approximately one year
commencing on the next Annual Meeting Date. A person who is not a Non-employee
Director on a December 15 and is, prior to the next Annual Meeting Date,
nominated and upon election would become a Non-employee Director, may elect to
receive an Option instead of Annual Fees for services to be rendered during the
period of approximately one year commencing on such next Annual Meeting Date by
filing a written election with the Secretary of the Company prior taking office
as a Non-employee Director. Each election made under this Section 5(b) shall be
irrevocable and in a form approved by the Committee.
(c) Limitations. The following limitations shall apply to the
grant of Options pursuant to this Section 5:
(i) No Options shall be granted pursuant to the Plan
prior to the day after the 1997 Annual Meeting Date.
(ii) If on any date on which Options are to be
granted to any Non-employee Directors pursuant to this Section 5 there is an
insufficient number of shares of Common Stock available, pursuant to Section 4,
for the grant of Options to all electing Non-employee Directors as provided in
this Section 5, then the number of Shares subject to each Option granted
pursuant to this Section 5 on such date shall equal the number of shares of
Common Stock that otherwise would be subject to such Option except for this
limitation, multiplied by a fraction, the numerator of which shall be the total
number of shares of Common Stock then available pursuant to Section 4 for the
grant of Options under the Plan and the denominator of which shall be the
aggregate number of shares of Common Stock that otherwise would be subject to
Options granted pursuant to this Section 5 on such date, such product to be
rounded down to the nearest whole number. To the extent that this Section
5(c)(ii) reduces the number of Shares subject to an Option granted to a
Non-employee Director pursuant to this Section 5 on any given date, the
Non-employee Director's election of an Option instead of Annual Fees shall be
ineffective to the same extent, and the Non-employee
Director shall receive in cash that proportion of his or her Annual Fees which
was not replaced by the Option.
6. Term of the Plan. The Plan is effective as of December 11, 1996. No
Option may be granted under the Plan after December 11, 2006.
7. Option Documents and Terms. Each Option granted pursuant to the Plan
shall for the number of Shares determined in accordance with Section 5(a) and
shall be evidenced by an Option Document in such form as the Committee shall
from time to time approve, which Option Document shall include the following
terms and conditions and such other terms and conditions as the Committee shall
from time to time require which are not inconsistent with the terms of the Plan:
(a) Purchase Price. The Purchase Price of each Share shall be
equal to 30% of the Fair Market Value of a share of Common Stock on the date the
Option is granted, rounded to the nearest whole cent.
(b) Exercise. An Option shall be fully
exercisable at the Purchase Price six months after the grant of the Option, and
may thereafter be exercised in whole or in part from time to time. No Option
shall be deemed to have been exercised prior to the receipt by the Company of
written notice
of such exercise and payment in full of the Purchase Price for the Shares to be
purchased. Each such notice shall specify the number of Shares to be purchased
and shall (unless the Shares are covered by a then current registration
statement or a Notification under Regulation A under the Securities Act of 1933,
as amended (the "Act")), contain the Optionee's acknowledgment in form and
substance satisfactory to the Company that (a) such Shares are being purchased
for investment and not for distribution or resale (other than a distribution or
resale which, in the opinion of counsel satisfactory to the Company, may be made
without violating the registration provisions of the Act), (b) the Optionee has
been advised and understands that (i) the Shares have not been registered under
the Act and are "restricted securities" within the meaning of Rule 144 under the
Act and are subject to restrictions on transfer and (ii) the Company is under no
obligation to register the Shares under the Act or to take any action which
would make available to the Optionee any exemption from such registration, (c)
such Shares may not be transferred without compliance with all applicable
federal and state securities laws, and (d) an appropriate legend referring to
the foregoing restrictions on transfer and any other restrictions imposed under
the Option Documents may be endorsed
on the certificates. Notwithstanding the foregoing, if the Company determines
that issuance of Shares should be delayed pending (A) registration under federal
or state securities laws, (B) the receipt of an opinion of counsel acceptable to
the Company that an appropriate exemption from such registration is available,
(C) the listing or inclusion of the Shares on any securities exchange or an
automated quotation system or (D) the consent or approval of any governmental
regulatory body whose consent or approval is necessary in connection with the
issuance of such Shares, the Company may defer exercise of any Option granted
hereunder until any of the events described in this Subsection 7(b) has
occurred.
(c) Medium of Payment. An Optionee shall pay the Purchase
Price for Shares (i) in cash, (ii) by certified or cashier's check payable to
the order of the Company, (iii) in whole or in part in shares of the Common
Stock, or (iv) by such other mode of payment as the Committee may approve,
including payment through a broker in accordance with procedures permitted by
Regulation T of the Federal Reserve Board. If payment is made in whole or in
part in shares of the Company's Common Stock, then the Optionee shall deliver to
the Company certificates registered in the name of such Optionee representing
the shares owned by
such Optionee, free of all liens, claims and encumbrances of every kind and
having an aggregate Fair Market Value on the date of delivery that is at least
as great as the Purchase Price of the Shares (or relevant portion thereof) with
respect to which such Option is to be exercised by the payment in shares of
Common Stock, accompanied by stock powers duly endorsed in blank by the
Optionee. In the event that certificates for shares of the Company's Common
Stock delivered to the Company represent a number of shares in excess of the
number of shares required to make payment for the Purchase Price of the Shares
(or relevant portion thereof) with respect to which such Option is to be
exercised by payment in shares of Common Stock, the stock certificate issued to
the Optionee shall represent (i) the Shares in respect of which payment is made,
and (ii) such excess number of shares. Notwithstanding the foregoing, the
Committee may impose from time to time such limitations and prohibitions on the
use of shares of the Common Stock to exercise an Option as it deems appropriate.
(d) Termination of Options. No Option shall be exercisable
after the first to occur of the following:
(i) the tenth anniversary of the date of grant; or
(ii) the date, if any, set by the Board of Directors
as an accelerated expiration date in the event of the liquidation or dissolution
of the Company.
(e) Transfers. An Option granted under the Plan may not be
transferred, except by will or by the laws of descent and distribution, except
as follows: If the terms of an Option specifically so permit, an Option may be
transferred by the Optionee by bona fide gift, with no consideration for the
transfer, to a lineal descendent, sibling, lineal descendent of a sibling, in
each case whether by blood or adoption, a spouse or former spouse (collectively
"family members"), to a trust for the benefit of one or more family members or
to a partnership in which family members are the only partners. Notwithstanding
the foregoing, an Option may be transferred pursuant to the terms of a
"qualified domestic relations order," within the meaning of Sections 401(a)(13)
and 414(p) of the Code or within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
(f) Amendment. Subject to the provisions of the Plan, the
Committee shall have the right to amend any Option Documents issued to an
Optionee, subject to the Optionee's consent if such amendment is not favorable
to the Optionee, except that the
consent of the Optionee shall not be required for any amendment made under
Subsection 7(d)(ii) or Section 8 of the Plan, as applicable.
8. Change in Control. Notwithstanding anything to the contrary in any
Option Document, upon a Change in Control, the exercise date of all Options then
outstanding under the Plan and held by Optionees who are then members of the
Board of Directors of the Company or an Affiliate shall automatically accelerate
to the date of the Change of Control. Any amendment of this Section 8 which
diminishes the rights of Optionees shall not be effective with respect to
Options outstanding at the time of adoption of such amendment, whether or not
such outstanding Options are then exercisable.
A "Change in Control" shall be deemed to have occurred
if: (i) there has been a change in control of a nature that would be required,
if the Company would be subject to reporting requirements under the Securities
Exchange Act of 1934 (the "Exchange Act"), to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act or
Item 1 of Form 8-K promulgated under the Exchange Act; or (ii) any person,
entity or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act), other
than any employee benefit plan (or related trust) sponsored or maintained by the
Company or any subsidiary of the Company, is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 30% or more of
the combined voting power in the election of directors; or (iii) during any
period of two consecutive years, individuals who at the beginning of such period
constitute the Board cease for any reason to have authority to cast at least a
majority of the votes which all directors on the Board are entitled to cast,
unless the election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least two-thirds
of the votes entitled to be cast by the directors then still in office who were
directors at the beginning of the period.
9. Adjustments on Changes in Capitalization. The aggregate number of
Shares and class of shares as to which Options may be granted hereunder, the
number and class or classes of shares covered by each outstanding Option and the
Option Price thereof shall be appropriately adjusted in the event of a stock
dividend, stock split, recapitalization or other change in the number or class
of issued and outstanding equity securities of the Company resulting from a
subdivision or consolidation of the
Common Stock and/or, if appropriate, other outstanding equity securities or a
recapitalization or other capital adjustment (not including the issuance of
Common Stock on the conversion of other securities of the Company which are
convertible into Common Stock) affecting the Common Stock which is effected
without receipt of consideration by the Company. The Committee shall have
authority to determine the adjustments to be made under this Section, and any
such determination by the Committee shall be final, binding and conclusive.
10. Amendment and Termination of the Plan. The Board of Directors of
the Company may amend the Plan from time to time in such manner as it may deem
advisable, and may terminate the Plan at any time as it may deem advisable. If
the Plan is terminated after an election has been made pursuant to Section 5(b)
but before the related Option has been granted, the Option shall not be granted
and the Non-employee Director shall receive his or her Annual Fees in cash
instead. If the Plan is amended after an election has been made pursuant to
Section 5(b) but before the related Option has been granted, such amendment
shall be effective with respect to such election in the manner contemplated by
such amendment.
11. No Commitment to Retain. The grant of an Option pursuant to the
Plan shall not be construed to imply or to constitute evidence of any agreement,
express or implied, on the part of the Company or any Affiliate to retain the
Optionee as a member of the Company's Board of Directors or in any other
capacity.
12. Withholding of Taxes. Whenever the Company proposes or is required
to deliver or transfer Shares in connection with the exercise of an Option, the
Company shall have the right to (a) require the recipient to remit or otherwise
make available to the Company an amount sufficient to satisfy any federal, state
and/or local withholding tax requirements prior to the delivery or transfer of
any certificate or certificates for such Shares or (b) take whatever other
action it deems necessary to protect its interests with respect to tax
liabilities. The Company's obligation to make any delivery or transfer of Shares
shall be conditioned on the Optionee's compliance, to the Company's
satisfaction, with any withholding requirement.
13. Interpretation. The Plan is intended to enable transactions under
the Plan to satisfy the conditions of Rule 16b-3 (adopted under the Securities
and Exchange Act of 1934, as amended) or any successor provision; to the extent
that any
provision of the Plan, or any provisions of any Option granted pursuant to the
Plan, would cause a conflict with such conditions or would cause the
administration of the Plan as provided in Section 3 to fail to satisfy the
conditions of Rule 16b-3, such provision shall be deemed null and void to the
extent permitted by applicable law.