Exhibit 10.20
MEDICIS PHARMACEUTICAL CORPORATION
2002 STOCK OPTION PLAN
TABLE OF CONTENTS
Page
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Section 1. PURPOSE............................................... 1
Section 2. DEFINITIONS........................................... 1
Section 3. SHARES SUBJECT TO OPTIONS............................. 4
Section 4. EFFECTIVE DATE........................................ 4
Section 5. COMMITTEE............................................. 4
Section 6. ELIGIBILITY........................................... 4
Section 7. GRANT OF OPTIONS...................................... 5
Section 8. OPTION PRICE.......................................... 5
Section 9. EXERCISE PERIOD....................................... 5
Section 10. TRANSFERABILITY....................................... 6
Section 11. SECURITIES REGISTRATION AND RESTRICTIONS.............. 6
Section 12. LIFE OF PLAN.......................................... 6
Section 13. ADJUSTMENT............................................ 7
Section 14. SALE OR MERGER OF THE COMPANY......................... 7
Section 15. AMENDMENT OR TERMINATION.............................. 7
Section 16. CHANGE OF CONTROL..................................... 8
Section 17. MISCELLANEOUS......................................... 8
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MEDICIS PHARMACEUTICAL CORPORATION
2002 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purpose of this Plan is to promote the interests of Medicis
Pharmaceutical Corporation (the "Company") by granting Options to purchase Stock
to Employees and Key Consultants in order to (a) attract and retain Employees
and Key Consultants; (b) provide an additional incentive to each Employee and
Key Consultant to work to increase the value of the Stock; and (c) provide each
such Employee and Key Consultant with a stake in the future of the Company which
corresponds to the stake of each of the Company's stockholders.
SECTION 2. DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of this Plan and for any Option granted under
this Plan. For purposes of such definitions, the singular shall include the
plural and the plural shall include the singular. Unless otherwise expressly
indicated, all Section references herein shall be construed to mean references
to a particular Section of this Plan.
2.1 BOARD means the Board of Directors of the Company.
2.2 CHANGE OF CONTROL means any of the following:
(a) the acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Section 13(d) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended from time to time) (the
"Exchange Act"), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 15% or more of either (i) the then
outstanding shares of Stock (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Company Voting
Securities"), provided, however, that any acquisition by (x) the Company or any
of its subsidiaries, or any employee benefit plan (or related trust) sponsored
or maintained by the Company or any of its subsidiaries or (y) any corporation
with respect to which, following such acquisition, more than 60% of,
respectively, the then outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Company Voting Securities immediately prior
to such acquisition in substantially the same portion as their ownership,
immediately prior to such acquisition of the Outstanding Company Common Stock
and Company Voting Securities, as the case may be, shall not constitute a change
in control of the Company; or
(b) individuals who, as of July 11, 2002, constitute the Board
of Directors of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of
the Board, provided that any individual becoming a director subsequent to July
11, 2002, whose election or nomination for election by the Company's
shareholders was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such 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 Company (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act); or
(c) approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in each
case, with respect to which all or substantially all of the individuals and
entities who were the respective beneficial owners of the Outstanding Company
Common Stock and Company Voting Securities immediately prior to such Business
Combination do not, following such Business Combination, beneficially own,
directly or indirectly, more than 60% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business Combination in
substantially the same proportion as their ownership immediately prior to such
Business Combination or the Outstanding Company Common Stock and Company Voting
Securities, as the case may be; or
(d) (i) a complete liquidation or dissolution of the Company
or (ii) a sale or other disposition of all or substantially all of the assets of
the Company other than to a corporation with respect to which, following such
sale or disposition, more than 60% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors is then owned
beneficially, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Company Voting Securities immediately prior
to such sale or disposition in substantially the same proportion as their
ownership of the Outstanding Company Common Stock and Company Voting Securities,
as the case may be, immediately prior to such sale or disposition.
2.3 CODE means the Internal Revenue Code of 1986, as amended.
2.4 COMMITTEE means the committee of Non-Employee Directors appointed
by the Board to administer this Plan as contemplated by Section 5.
2.5 COMPANY means Medicis Pharmaceutical Corporation, a Delaware
corporation, and any successor to such corporation.
2.6 DESIGNATED ADMINISTRATOR means a committee appointed by the
Committee in accordance with Section 5.
2.7 EMPLOYEE means any employee of the Company or a Subsidiary, other
than an Officer or a member of the Board.
2.8 EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
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2.9 FAIR MARKET VALUE means the closing quoted selling price for Stock
on the relevant date, as reported in the Wall Street Journal or a similar
publication selected by the Committee.
2.10 KEY CONSULTANT means any consultant or independent contractor of
the Company or a Subsidiary (other than a Non-Employee Director) and who serves
as such a consultant or contractor pursuant to a written agreement with the
Company which has been approved by the Board, in either case who, in the
judgment of the Committee acting in its absolute discretion, is a key to the
success of the Company or a Subsidiary.
2.11 NON-EMPLOYEE DIRECTOR means any member of the Board of Directors
of the Company qualified as such under SEC Rule 16b-3(b)(3)(i) under the
Exchange Act, or any successor rule.
2.12 NON-ISO means any option granted under this Plan to purchase stock
which fails to satisfy the requirements of Section 422 of the Code or has been
specifically denominated as a Non-ISO by the Committee as of the time the option
is granted.
2.13 OFFICER means a person who is an officer of the Company.
2.14 OPTION means a Non-ISO.
2.15 OPTION CERTIFICATE means the written agreement or instrument which
sets forth the terms of an Option granted to an Employee or Key Consultant under
this Plan.
2.16 OPTION PRICE means the price which shall be paid to purchase one
share of stock upon the exercise of an Option granted under this Plan.
2.17 OUTSIDE DIRECTOR means any member of the Board of Directors of the
Company who is not employed by the Company, regardless of whether such person
qualifies as a Non-Employee Director.
2.18 PARENT CORPORATION means any corporation which is a parent
corporation of the Company within the meaning of Section 424(e) of the Code.
2.19 PLAN means this Medicis Pharmaceutical Corporation 2002 Stock
Option Plan, as amended from time to time.
2.20 PRINCIPAL OFFICER means the Chairman of the Board (if the Chairman
of the Board is a payroll employee), the Chief Executive Officer, the President,
any Executive Vice President, any Senior Vice President, any Vice President and
the Treasurer of the Company and any other person who is an "officer" of the
Company as that term is defined in SEC Rule 16a-1(f) under the Exchange Act or
any successor rule thereunder.
2.21 SECURITIES ACT means the Securities Act of 1933, as amended.
2.22 SEC means the Securities Exchange Commission.
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2.23 STOCK means the Class A Common Stock, $.014 par value per share,
of the Company.
2.24 SUBSIDIARY means any corporation which is a subsidiary corporation
of the Company within the meaning of Section 424(f) of the Code.
SECTION 3. SHARES SUBJECT TO OPTIONS
There shall be Three Million (3,000,000) shares of Stock reserved for
issuance in connection with Options granted under this Plan. Such shares of
Stock shall be reserved to the extent that the Company deems appropriate from
authorized but unissued shares of Stock and from shares of Stock which have been
reacquired by the Company. Any shares of Stock subject to an Option which remain
after the cancellation, expiration or exchange of such Option for another Option
thereafter shall again become available for use under this Plan.
SECTION 4. EFFECTIVE DATE
The effective date of this Plan shall be the date which this Plan is
approved by the Board.
SECTION 5. COMMITTEE
Subject to the further provisions of this Section 5, this Plan shall be
administered by a Committee consisting solely of not less than two (2) Non
Employee Directors. The Committee acting in its absolute discretion shall
exercise such powers and take such action as expressly called for under this
Plan. Furthermore, the Committee shall have the power to interpret this Plan and
to take such other action in the administration and operation of this Plan as
the Committee deems equitable under the circumstances, which action shall be
binding on the Company, on each affected Employee or Key Consultant and on each
other person directly or indirectly affected by such action. The Committee may
appoint one or more persons, any of whom may be an Officer, whether or not any
of them are also a member of the Board (the "Designated Administrator"), to
administer this Plan, subject to such conditions, restrictions and limitations
as may be imposed by the Committee: including (i) Options to purchase not more
than 1,050,000 shares of Common Stock may be granted by the Designated
Administrator in any one calendar year to all employees of the Company in the
aggregate; and (ii) the Committee may establish a maximum number of shares that
may be subject to Options granted under the Plan in any one calendar year to any
single Employee or Key Consultant by the Designated Administrator. The maximum
number of shares that may be subject to Options granted under the Plan in any
one calendar year by the Designated Administrator to any single Employee or Key
Consultant shall be 15,000 Shares. Any actions duly taken by the Designated
Administrator with respect to the grant of Options to Employees and to Key
Consultants shall be deemed to have been taken by the Committee for purposes of
the Plan.
SECTION 6. ELIGIBILITY
Only Employees or Key Consultants shall be eligible for the grant of
Options under this Plan. Officers and Directors of the Company shall not be
eligible for the grant of Options under this Plan. Only Non-ISOs may be granted
under this Plan.
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SECTION 7. GRANT OF OPTIONS
7.1 COMMITTEE ACTION. The Committee (or the Designated Administrator,
if appointed) acting in its absolute discretion shall grant Options to Employees
and Key Consultants under this Plan from time to time to purchase shares of
Stock and, further, shall have the right to grant new Options in exchange for
outstanding Options. Each grant of an Option shall be evidenced by an Option
Certificate, and each Option Certificate shall incorporate such terms and
conditions as the Committee (or the Designated Administrator, if appointed)
acting in its absolute discretion deems consistent with the terms of this Plan,
including, without limitation, a limitation on the number of shares subject to
the Option which first became exercisable or subject to surrender during any
particular period.
In connection with the termination for any reason of employment by or
service to the Company or any Subsidiary of any particular holder of any Option,
the Committee may, in its discretion, determine to modify the number of shares
of Stock as to which such Option first becomes exercisable during any particular
period as provided in the related Option Certificate; provided, however, that
the Committee may not extend any such period with respect to any shares of Stock
subject to such Option.
SECTION 8. OPTION PRICE
The Option Price for each share of Stock subject to an Option shall not
be less than the Fair Market Value of a share of Stock on the date the Option is
granted. The Option Price shall be payable in full upon the exercise of any
Option, and an Option Certificate at the discretion of the Committee may provide
for the payment of the Option Price either in cash or in Stock acceptable to the
Committee or in any combination of cash and Stock acceptable to the Committee.
Any payment made in Stock shall be treated as equal to the Fair Market Value of
such Stock on the date the properly endorsed certificate for such Stock is
delivered to the Committee.
SECTION 9. EXERCISE PERIOD
(a) Each Option granted under this Plan shall be exercisable
in whole or in part at such time or times as set forth in the related Option
Certificate, but no Option Certificate shall provide that:
(i) an Option is exercisable before the date such
Option is granted, or
(ii) an Option is exercisable after the date which is
the tenth anniversary of the date such Option is granted.
An Option Certificate may provide for the exercise of an Option after the
employment of an Employee or service by a Key Consultant has terminated for any
reason whatsoever, including death or disability. In connection with the
termination for any reason of employment by or service to the Company or any
Subsidiary of any particular holder of any Option, the Committee may, in its
discretion, determine to extend the period during which such Option may be
exercised as provided in the related Option Certificate; provided, however, that
no such extension shall permit an Option to be exercised beyond the date
specified in paragraph (b) of this Section.
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(b) Notwithstanding any other provision of this Section, upon a Change
of Control each Option granted under this Plan prior to such Change of Control
(whether prior to or after the amendment of the Plan to include this provision)
shall immediately become exercisable to the full extent of the original grant
and, in the case an Option held by an Employee shall remain exercisable for
three months (or such longer period as specified in the particular Option with
regard to all or any shares of Stock covered by such Option) after any
termination of employment of such Employee.
SECTION 10. TRANSFERABILITY
Each Option shall be non-transferable otherwise than by will or the
laws of descent and distribution and an Option may be exercised, during the
lifetime of the holder thereof, only by such holder. Notwithstanding the
foregoing, the Committee in its discretion may allow Options to be transferred
to an optionee's "family member" as that term is defined in the General
Instructions to Form S-8 as adopted from time to time by the Securities and
Exchange Commission or any successor to such commission.
SECTION 11. SECURITIES REGISTRATION AND RESTRICTIONS
Each Option Certificate shall provide that, upon the receipt of shares
of Stock as a result of the exercise or surrender of an Option, the Employee or
Key Consultant shall, if so requested by the Company, hold such shares of Stock
for investment and not with a view toward resale or distribution to the public
and, if so requested by the Company, shall deliver to the Company a written
statement to that effect satisfactory to the Company. Each Option Certificate
shall also provide that, if so requested by the Company, the Employee or Key
Consultant shall represent in writing to the Company that he or she will not
sell or offer to sell any such shares of Stock unless a registration statement
shall be in effect with respect to such Stock under the Securities Act and any
applicable state securities law or unless he or she shall have furnished to the
Company an opinion, in form and substance satisfactory to the Company, of legal
counsel acceptable to the Company, that such registration is not required.
Certificates representing the Stock transferred upon the exercise or surrender
of an Option granted under this Plan may at the discretion of the Company bear a
legend to the effect that such Stock has not been registered under the
Securities Act or any applicable state securities law and that such Stock may
not be sold or offered for sale in the absence of (a) an effective registration
statement as to such Stock under the Securities Act and any applicable state
securities law or (b) an opinion, in form and substance satisfactory to the
Company, of legal counsel acceptable to the Company, that such registration is
not required. Furthermore, the Company shall have the right to require an
Employee or Key Consultant to enter into such stockholder or other related
agreements as the Company deems necessary or appropriate under the circumstances
as a condition to the issuance of any Stock under this Plan to an Employee or
Key Consultant.
SECTION 12. LIFE OF PLAN
No Option shall be granted under this Plan on or after the earlier of
(a) the date the Committee determines, in its sole and
absolute discretion, shall be the termination date of this Plan; or
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(b) the date on which all of the Stock reserved under Section
3 of this Plan has, as a result of the exercise of Options granted under this
Plan, been issued or no longer is available for use under this Plan, in which
event this Plan also shall terminate on such date.
SECTION 13. ADJUSTMENT
The number of shares of Stock reserved under Section 3 of this Plan,
the number of shares of Stock that may be granted pursuant to Section 5 of this
Plan by the Designated Administrator to any single Employee or Key Consultant,
and the number of shares of Stock subject to Options granted under this Plan and
the Option Price of such Options shall be adjusted by the Board in an equitable
manner to reflect any change in the capitalization of the Company, including,
but not limited to, such changes as stock dividends or stock splits. If any
adjustment under this Section 13 would create a fractional share of Stock or a
right to acquire a fractional share of Stock, such fractional share shall be
disregarded and the number of shares of Stock reserved under this Plan and the
number subject to any Options granted under this Plan shall be the next lower
number of shares of Stock, rounding all fractions downward. An adjustment made
under this Section 13 by the Board shall be conclusive and binding on all
affected persons and, further, shall not constitute an increase in "the number
of shares reserved under Section 3" within the meaning of Section 15(a) of this
Plan.
SECTION 14. SALE OR MERGER OF THE COMPANY
If the Company agrees to sell all or substantially all of its assets
for cash or property or for a combination of cash and property or agrees to any
merger, consolidation, reorganization, division or other corporate transaction
in which Stock is converted into another security or into the right to receive
securities or property and such agreement does not provide for the assumption or
substitution of the Options granted under this Plan, each then outstanding
Option at the direction and discretion of the Board may be canceled unilaterally
by the Company as of the effective date of such transaction in exchange for a
payment in cash or Stock, or in a combination of cash and Stock, equal in amount
to the excess of the Fair Market Value on such date of the shares represented by
the canceled Options over the Option Price for such shares.
SECTION 15. AMENDMENT OR TERMINATION
This Plan may be amended by the Board from time to time to the extent
that the Board deems necessary or appropriate; provided, however, that no such
amendment shall be made absent the approval of the stockholders of the Company
(a) to increase the aggregate number of shares reserved under Section 3, (b) to
change the class of persons eligible for Options under Section 6 or (c) to
materially modify the requirements as to eligibility for participation in this
Plan, (d) to otherwise materially increase the benefits accruing under this Plan
to Plan participants, in each case only if such approval would be required in
order for the Company to comply with applicable law or the rules or regulations
of any stock exchange or market on which the Stock is traded or listed. The
Board also may suspend the granting of Options under this Plan at any time and
may terminate this Plan at any time; provided, however, that the Company shall
not have the right to unilaterally cancel or, in a manner which would materially
adversely affect the holder, amend or modify any Option granted before such
suspension or termination unless (i) the Employee or Key Consultant consents in
writing to such modification, amendment
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or cancellation or (ii) there is a dissolution or liquidation of the Company or
a transaction described in Section 13 or Section 14 of this Plan.
SECTION 16. CHANGE OF CONTROL
Notwithstanding any other provision of this Section, upon a Change of
Control each Option granted under this Plan prior to such Change of Control
(whether prior to or after the amendment of the Plan to include this provision)
shall immediately become exercisable to the full extent of the original grant
and shall remain exercisable for three months (or such longer period as
specified in the particular Option with regard to all or any shares of Stock
covered by such Option) after any termination of employment of any Employee.
SECTION 17. MISCELLANEOUS
17.1 NO STOCKHOLDER RIGHTS. No Employee or Key Consultant shall have
any rights as a stockholder of the Company as a result of the grant of an Option
to him or to her under this Plan or his or her exercise or surrender of such
Option pending the actual delivery of Stock subject to such Option to such
Employee or Key Consultant.
17.2 NO CONTRACT OF EMPLOYMENT. The grant of an Option to an Employee
or Key Consultant under this Plan shall not constitute a contract of employment
or consulting or right to continue to serve on the Company's Board of Directors
and shall not confer on an Employee or Key Consultant any rights upon his or her
termination of employment or service in addition to those rights, if any,
expressly set forth in the Option Certificate which evidences his or her Option.
17.3 WITHHOLDING. The exercise or surrender of any Option granted under
this Plan shall constitute an Employee's full and complete consent to whatever
action the Committee elects to satisfy the federal and state tax withholding
requirements, if any, which the Committee in its discretion deems applicable to
such exercise or surrender.
17.4 CONSTRUCTION. This Plan and the Option Certificates shall be
construed under the laws of the State of Delaware.
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