EXHIBIT 10.33
CAMBREX CORPORATION
2001
PERFORMANCE STOCK OPTION PLAN
1. PURPOSE
The Plan is intended to expand and improve the profitability and prosperity
of Cambrex Corporation for the benefit of its Stockholders by permitting the
Corporation to grant to its directors and key employees Options to purchase
shares of the Corporation's Stock. These awards are intended to provide
additional incentive to such personnel by offering them a greater stake in the
Corporation's continued success. The Plan is also intended as a means of
reinforcing the commonality of interest between the Corporation's stockholders
and its directors, officers and other key employees, and as an aid in attracting
and retaining directors and key employees of outstanding abilities and
specialized skills.
2. DEFINITIONS
For Plan purposes, except where the context otherwise indicates, the
following terms shall have the meanings which follow:
(a) "Agreement" shall mean a written agreement (including any
amendment or supplement thereto) between the Corporation and a Participant
which specifies the terms and conditions of an Award granted to such
Participant.
(b) "Award" shall mean a Stock Option granted to a Participant.
(c) "Beneficiary" shall mean the person or persons who shall receive,
if the Participant dies, any Option exercise rights.
(d) "Board" shall mean the Board of Directors of the Corporation.
(e) "Change in Control" shall mean the occurrence of any of the
following events:
(i) the acquisition (other than from the Corporation) by any
person, entity or "group" (within the meaning of Section 13 (d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended, (the
"Exchange Act") but excluding for this purpose the Corporation or its
subsidiaries or any employee benefit plan of the Corporation or its
subsidiaries which acquires beneficial ownership of voting securities of
the Corporation) of "beneficial ownership" (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of fifteen percent (15%) or
more of either the then outstanding shares of Stock or the combined
voting power of the Corporation's then outstanding voting securities
entitled to vote generally in the election of directors; or
(ii) individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided that any person becoming a member of the
Board subsequent to the date hereof whose election or nomination for
election by the Corporation's stockholders (other than an election or
nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Corporation, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be, for purposes of this Plan,
considered a member of the Incumbent Board; or
(iii) approval by the stockholders of the Corporation of either a
reorganization, or merger, or consolidation, with respect to which
persons who were the stockholders of the Corporation immediately prior
to such reorganization, merger or consolidation do not, immediately
thereafter, own more than fifty percent (50%) of the combined voting
power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated entity's then outstanding voting
securities, or a liquidation or dissolution of the Corporation, or the
sale of all or substantially all of the assets of the Corporation; or
(iv) any other event or series of events which is determined by a
majority of the Incumbent Board to constitute a Change of Control for
the purposes of the Plan.
(f) "Change in Control Price" shall mean the highest price per share
paid or offered in any bona fide transaction related to a Change in
Control, as determined by the Committee, except that, in the case of
Incentive Stock Options, such price shall be the Fair Market Value on the
date on which the cash out described in Paragraph 10(a) occurs.
(g) "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time, and the rules and regulations promulgated
thereunder.
(h) "Committee" shall mean the Compensation Committee, or such other
Committee of the Board, which shall be designated by the Board to
administer the Plan. The Committee shall be composed of two or more persons
as from time to time are appointed to serve by the Board with respect to
awards to employees. Each member of the Committee, while serving as such,
shall also be a member of the Board, and shall be both an outside director
within the meaning of Section 162(m) of the Code and a "non-employee
director" within the meaning of Rule 16b-3 of the Exchange Act .
(i) "Common Stock" shall mean the Class A Common Stock of the
Corporation having a par value of $0.10 per share.
(j) "Corporation" shall mean Cambrex Corporation, a Delaware
corporation.
(k) "Employee" shall mean any person who is employed on a full time
basis by the Corporation or any Subsidiary, including a person who is also
a member of the Board, and who is compensated, at least in part, on a
regular salary basis.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(m) "Exercise Price" shall mean the price for which a Participant may
exercise his Stock Option to purchase a stated number of shares of Common
Stock, established pursuant to Paragraph 6 of the Plan.
(n) "Fair Market Value" shall mean with respect to any given day, the
average of the mean between the highest and lowest reported sales prices on
the principal national stock exchange on which the Common Stock is traded,
or if such exchange was closed on such day or, if it was open but the
Common Stock was not traded on such day, then on the next preceding day
that the Common Stock was traded on such exchange, as reported by such
responsible reporting service as the Committee may select.
(o) "Incentive Stock Option" shall mean a Stock Option which is
intended to meet and comply with the terms and conditions for an "incentive
stock option" as set forth in Section 422 of the Code.
(p) "Non-Employee Director" shall mean a member of the Board who is
not an employee of the Corporation or any Subsidiary.
(q) "Participant" shall mean a Non-Employee Director or Employee who
is granted an Award under the Plan.
(r) "Plan" shall mean the Cambrex Corporation 1998 Performance Stock
Option Plan as set forth herein and as amended from time to time.
(s) "Stock Option" or "Option" shall mean a right, including an
Incentive Stock Option and a Nonqualified Stock Option which does not meet
the requirements of Section 422 of the Code, to purchase a stated number of
shares of Common Stock subject to such terms and conditions as are set
forth in an Agreement and the Plan. Also included in this definition are
any other forms of tax "qualified" stock options which may be incorporated
and defined in the Code as it may from time to time be amended.
(t) "Subsidiary Corporation" or "Subsidiary" shall mean any
corporation which is a subsidiary corporation of the Corporation as defined
in Section 424(f) of the Code.
3. ADMINISTRATION
(a) The Committee shall administer the Plan and, accordingly, it shall have
full power to grant Awards, construe and interpret the Plan, establish rules and
regulations and perform all other acts it believes reasonable and proper,
including the authority to delegate responsibilities to others to assist in
administering the Plan.
(b) The determination of those Employees eligible to receive Awards, and
the amount, type and timing of each Award shall rest in the sole discretion of
the Committee, subject to the provisions of the Plan.
(c) Notwithstanding the foregoing, the Plan shall be administered such that
any Non-Employee Director participating in the Plan shall continue to be deemed
to be a "disinterested person" under Rule 16b-3 of the Exchange Act, as such
Rule is in effect on the effective date of the Plan and as it may be
subsequently amended, for purposes of such Director's ability to serve on any
committee charged with administering any of the Corporation's stock based plans
for executive officers intended to qualify for exemptive relief available under
Rule 16b-3.
4. COMMON STOCK LIMITS
The total number of shares of Common Stock which may be issued on exercise
of Stock Options shall not exceed 750,000 shares, subject to adjustment in
accordance with Paragraph 9 of the Plan. No Participant shall be granted Options
to purchase more than 100,000 shares of Common Stock in any twelve month period.
Shares issued under the Plan may be, in whole or in part, as determined by the
Committee, authorized but unissued or reacquired shares of Common Stock. If any
Option granted under the Plan shall expire or terminate without having been
exercised, the shares subject to such Option shall be available for use under
the Plan.
5. ELIGIBILITY FOR PARTICIPATION
(a) Consistent with Plan objectives, eligibility to become a Participant in
the Plan and receive Awards shall be limited to Non-Employee Directors and key
Employees.
(b) No Incentive Stock Option shall be granted to an Employee ineligible at
the time to receive such an Option because of owning more than 10% of the Common
Stock in accordance with the provisions of Section 422(b)(6) of the Code, unless
the Option meets the requirements of Section 422(c)(5) of the Code.
6. STOCK OPTIONS -- TERMS AND CONDITIONS
All Stock Options granted under the Plan shall be evidenced by Agreements
which shall be subject to applicable provisions of the Plan, and such other
provisions as the Committee may adopt, including the following provisions:
(a) Price: The Exercise Price per share shall not be less than 100%
of the Fair Market Value of a share of Common Stock on the date of Award
provided that without shareholder approval no option shall be repriced or
rescinded.
(b) Period: Except as provided in Paragraph 6(f) below, the Committee
may establish the term of any Option awarded under the Plan, provided,
however, that an Option shall expire no later than ten (10) years from the
date of Award.
(c) Time of Exercise: Subject to the provisions of Paragraph 10
below, the Committee shall establish installment exercise terms in Awards
to Employees based on the Company's publicly traded share price, and may
establish installment exercise terms based on the passage of time or
otherwise, such that the Option becomes fully exercisable in a series of
cumulating portions. The Committee may also establish other conditions of
exercise as it shall determine and may accelerate the exercisability of any
Option granted to an Employee under the Plan.
(d) Exercise: An Option, or portion thereof, shall be exercised by
delivery of a written notice of exercise to the Corporation and payment of
the full price of the shares being exercised. Payment may be made: (i) in
United States dollars in cash or by check, bank draft or money order
payable to the order of the Corporation, or (ii) through the delivery of
shares of Common Stock which have been held by a
Participant for at least six months with a value equal to the Option Price,
provided that the use by an Employee (but not a Non-Employee Director) of
previously acquired shares shall be subject to the approval of the
Committee, or (iii) by a combination of both (i) and (ii) above. The
Committee shall determine acceptable methods for tendering Common Stock as
payment upon exercise of an Option and may impose such limitations and
prohibitions on the use of Common Stock to exercise an Option as it deems
appropriate. A Participant shall not have any of the rights or privileges
of a holder of Common Stock until such time as shares of Common Stock are
issued or transferred to the Participant.
(e) Special Rules for Incentive Stock Options: Notwithstanding any
other provision of the Plan, in the case of any Incentive Stock Option
granted under the Plan, the following provisions will apply:
(i) The aggregate Fair Market Value (determined at the time the
Option is granted) of the shares of stock with respect to which
Incentive Stock Options are exercisable for the first time by a
Participant under the Plan or any other plan of the Corporation or any
Subsidiary or any corporation which is a parent corporation (as defined
in Section 424(e) of the Code) of the Corporation, in any calendar year,
shall not exceed $100,000 (or such other individual employee maximum as
may be in effect from time to time under the Code at the time the
Incentive Stock Option is awarded).
(ii) Any Participant who disposes of shares of Common Stock
acquired on the exercise of an Incentive Stock Option by sale or
exchange either (A) within two years after the date of the grant of the
Option under which the stock was acquired or (B) within one year after
the acquisition of such shares shall notify the Corporation of such
disposition and of the amount realized upon such disposition.
(f) Special Rules for Grants to Non-Employee Directors: Notwithstanding
any other provision of the Plan, grants to Non-Employee Directors shall be made
pursuant to the following provisions:
(i) On the date of the first meeting of the Board after each Annual
Meeting of Stockholders of the Company occurring during the term of this
Plan, each Non-Employee Director shall receive an award of Non-qualified
Options to purchase 2,000 shares of Common Stock;
(ii) All options granted to Non-Employee Directors pursuant to
paragraph (i) shall have an exercise price equal to the fair market
value of the Common Stock on the date of grant, a term of ten years, and
shall become exercisable, subject to the provisions of the Plan, six
months after the grant date provided that without shareholder approval
no option shall be repriced or rescinded; and
(iii) Non-Employee Directors shall not be eligible for any grants
under the Plan other than those provided for in paragraph (i) above.
(g) Proceeds on Exercise: The proceeds of the sale of the Common
Stock subject to Option are to be added to the general funds of the
Corporation and used for its corporate purposes.
(h) Deferral on Exercise: If the Corporation maintains an appropriate
deferred compensation plan available for such purpose, the Committee, in
its discretion, may permit a Participant to elect to defer the receipt of
Common Stock which would otherwise be issued upon the exercise of Options
as provided in such deferred plan.
7. TERMINATION OF EMPLOYMENT
(a) In the event a Participant (other than a Non-Employee Director) shall
cease to be employed by the Corporation or any Subsidiary while he is holding
one or more Options, each outstanding Option, or any portion thereof, which is
exercisable on the date of such termination shall expire at the earlier of the
expiration of its term or the following:
(i) one year, in the case of a "non-qualified" Stock Option, and three
months, in the case of an Incentive Stock Option, after termination due to
normal retirement, late retirement or earlier retirement with Committee
consent, under a formal plan or policy of the Corporation;
(ii) one year after termination due to disability within the meaning
of Section 22(e)(3) of the Code as determined by the Committee;
(iii) one year after the Participant's death; or
(iv) coincident with the date of termination if due to any other
reason, except as and to the extent that the Committee may determine
otherwise. In the event of death within the up to three month or one year
period set forth in clause (i) above, as appropriate, after normal or early
retirement while any portion of the Option remains exercisable, the
Committee in its discretion may provide for an extension of the exercise
period of up to one year after the Participant's death but not beyond the
expiration of the term of the Option.
(b) For the purposes of this paragraph 7, it shall not be considered a
termination of employment when a Participant is placed by the Corporation or any
Subsidiary on a military or sick leave or such other type of leave of absence
which is considered as continuing intact the employment relationship of the
Participant. In the case of such leave of absence the employment relationship
shall be continued until the later of the date when such leave equals ninety
(90) days or the date when the Participant's right to reemployment with the
Corporation or such Subsidiary shall no longer be guaranteed either by statute
or contract.
Unless otherwise determined by the Committee, any portion of an Option held
by a Participant (other than a Non-Employee Director) that is not exercisable on
the date such Participant's employment terminates shall expire as of such
termination date.
8. TERMINATION OF SERVICE AS DIRECTOR
(a) In the event a Director shall cease to serve as a Director of the
Corporation while he or she is holding one or more Options, each outstanding
Option which is exercisable as of the date of such termination shall expire at
the earlier of the expiration of its term or the following:
(i) one year after termination of service due to retirement under a
mandatory retirement policy of the Board as may be in effect on the date of
such termination of service;
(ii) one year after termination of service due to disability within
the meaning of Section 22(e)(3) of the Code;
(iii) one year after termination of service due to the Director's
death; or
(iv) coincident with the date service terminates for any other reason.
(b) Any Options which have not become exercisable as of the date a Director
ceases to serve as a Director of the Corporation shall terminate as of such
date.
9. ADJUSTMENTS
In the event that a stock dividend, stock split or other subdivision,
recapitalization, reorganization, merger, consolidation or change in the shares
of Common Stock, extraordinary cash dividend, spin-off or other similar event
affects the Common Stock, then if the Committee shall determine in its sole
discretion that such change equitably requires an adjustment in the number or
kind of shares which may be awarded under the Plan or in the number or kind of
shares covered by any outstanding Options, and/or in such Option's Exercise
Price, such adjustments shall be made by the Committee and shall be conclusive
and binding upon eligible Participants and for all purposes of the Plan.
10. CHANGE IN CONTROL
(a) Accelerated Vesting and Payment. Subject to the provisions of
Paragraph 10(b) below, in the event of a Change in Control, each Option
(including an Option held by a Non-Employee Director) whether or not currently
exercisable shall promptly be canceled in exchange for a payment in cash of an
amount equal to the excess of the Change of Control Price over the Exercise
Price for such Option.
(b) Alternative Awards. Notwithstanding Paragraph 10(a), no cancellation
and cash settlement shall occur with respect to any Award or class of Awards if
the Committee reasonably determines in good faith prior to the occurrence of a
Change of Control that such Award or class of Awards shall be honored or
assumed, or new rights substituted therefor (such honored, assumed or
substituted award hereinafter called an
"Alternative Award") by a Participant's employer (or the parent or a subsidiary
of such employer) immediately following the Change of Control, provided that any
such Alternative Award must:
(i) be based on stock which is traded on an established securities
market, or which will be so traded within 60 days following the Change of
Control;
(ii) provide such Participant (or each Participant in a class of
Participants) with rights and entitlements substantially equivalent to or
better than the rights and entitlements applicable under such Award;
(iii) have substantially equivalent economic value to such Award
(determined by the Committee as constituted immediately prior to the Change
in Control, in its sole discretion, promptly after a Change in Control);
and
(iv) have terms and conditions which provide that following a Change
of Control, any conditions on a Participant's rights under, or any
restrictions or conditions on transfer or exercisability applicable to each
such Award, shall be waived or lapse as the case may be.
11. AMENDMENT AND TERMINATION OF PLAN
(a) The Board, without further approval of the Stockholders, may at any
time, and from time to time, suspend or terminate the Plan in whole or in part
or amend it from time to time in such respects as the Board may deem appropriate
and in the best interests of the Corporation; provided, however, that no such
amendment shall be made, without approval of the Stockholders, which would:
(i) materially modify the eligibility requirements for Participants;
(ii) increase the total number of shares of Common Stock which may be
issued pursuant to Stock Options, except as is provided for in accordance
with Paragraph 9 under the Plan;
(iii) decrease the minimum Exercise Price per share;
(iv) extend the period for granting Stock Options;
(v) reduce the price or rescind any Option.
(b) No amendment may be made to Paragraph 6(f) or any other provision of
the Plan relating to Options granted to or held by Non-Employee Directors within
six months of the last date on which any such provision was amended.
(c) No amendment, suspension or termination of this Plan shall, without the
Participant's consent, alter or impair any of the rights or obligations under
any Award theretofore granted to her or him under the Plan.
(d) The Board may amend the Plan, subject to the limitations cited above,
in such manner as it deems necessary to permit the granting of Stock Options
meeting the requirements of future amendments or issued regulations, if any, to
the Code.
12. GOVERNMENT AND OTHER REGULATIONS
The granting of Stock Options under the Plan and the obligation of the
Corporation to issue, or transfer and deliver shares for Stock Options exercised
under the Plan shall be subject to all applicable laws, regulations, rules and
orders which shall then be in effect.
13. UNFUNDED PLAN
The Plan, insofar as it provides for payments, shall be unfunded and the
Corporation shall not be required to segregate any assets which may at any time
be subject to Awards under the Plan. Any liability of the Corporation to any
person with respect to any Award under this Plan shall be based solely upon any
contractual obligations which may be created by Agreements reflecting grants or
Awards under this Plan.
14. MISCELLANEOUS PROVISIONS
(a) Rights to Continued Employment: No person shall have any claim or
right to be granted an Award under the Plan, and the grant of an Award under the
Plan shall not be construed as giving any Participant the right to be retained
in the employ of the Corporation or any Subsidiary corporation of the
Corporation and the Corporation expressly reserves the right at any time to
dismiss a Participant with or without cause, free from any liability, or any
claim under the Plan, except as provided herein or in an Agreement.
(b) Rights to Serve as a Director: This Plan shall not impose any
obligation on the Company to retain any individual as a Non-Employee Director
nor shall it impose any obligation on the part of any Non-Employee Director to
remain as a director of the Company, provided that each Non-Employee Director by
accepting each award under the Plan shall represent to the Company that it is
his good faith intention to continue to serve as a director of the Company until
its next annual meeting of stockholders and that he agrees to do so unless a
change in circumstances arises.
(c) No Obligation to Exercise Option: The granting of an Option shall
impose no obligation upon the Participant to exercise such Option.
(d) Who Shall Exercise: During a Participant's lifetime, Options may be
exercised only by the Participant except as provided by the Plan or as otherwise
specified by the Committee in the case of Options which are not Incentive Stock
Options.
(e) Non-Transferability: An award may be transferred to a member of the
Participant's immediate family or to a trust or similar vehicle for the benefit
of such immediate family members or to a charitable trust (collectively, the
"Permitted Transferees"), provided that except as permitted by this section no
award shall be assignable or transferable except by will or the laws of descent
and distribution, and except to the extent required by law, no right or interest
of any Participant shall be subject to any lien, obligation or liability of the
Participant. All rights with respect to awards granted to a Participant under
the Plan shall be exercisable during his lifetime only by such Participant or,
if applicable, the Permitted Transferees. The rights of a Permitted Transferee
shall be limited to the rights conveyed to such Transferee, who shall be subject
to and bound by the terms of the agreement or agreements between the Participant
and the Corporation."
(f) Withholding Taxes: The Corporation may require a payment to cover
applicable withholding for income and employment taxes in the event of the
exercise of a Stock Option. At any time when a Participant is required to pay to
the Corporation an amount required to be withheld under applicable income tax
laws in connection with the exercise of a Stock Option, the Participant may
satisfy this obligation in whole or in part by electing (the "Election") to have
the Corporation withhold shares of Common Stock having a value equal to the
amount required to be withheld. The value of the shares to be withheld shall be
equal to the Fair Market Value of the Common Stock, as determined on the date
that the amount of tax to be withheld shall be determined (the "Tax Date"). Each
Election must be made prior to the Tax Date pursuant to such rules as the
Committee shall establish. The Committee may disapprove of any Election or may
suspend or terminate the right to make Elections. An Election is irrevocable.
(g) Plan Expenses: Any expenses of administering this Plan shall be borne
by the Corporation.
(h) Legal Considerations: The Corporation shall not be required to issue
shares of Common Stock under the Plan until all applicable legal, listing or
registration requirements, as determined by legal counsel, have been satisfied,
including, if necessary, appropriate written representations from Participants.
(i) Other Plans: Nothing contained herein shall prevent the Corporation
from establishing other incentive and benefit plans in which Participants in the
Plan may also participate.
(j) No Warranty of Tax Effect: Except as may be contained in any
Agreement, no opinion shall be deemed to be expressed or warranties made as to
the effect for foreign, federal, state or local tax purposes of any Awards.
(k) Construction of Plan: The validity, construction, interpretation,
administration and effect of the Plan and of its rules and regulations, and
rights relating to the Plan, shall be determined in accordance with the laws of
the State of Delaware.
15. STOCKHOLDER APPROVAL AND EFFECTIVE DATES
This Plan shall become operative and in effect on such date as it shall be
approved by the stockholders of the Corporation. No Option shall be granted
hereunder after the expiration of ten years following the date of adoption of
the Plan by the Board of Directors.