EXHIBIT 10.10
MEDICIS PHARMACEUTICAL CORPORATION
2001 SENIOR EXECUTIVE RESTRICTED STOCK PLAN
(As Adopted July 17, 2001)
1. Purpose.
The purpose of this Plan is to strengthen Medicis
Pharmaceutical Corporation, a Delaware corporation (the "Company"), by providing
an incentive to selected senior executive officers to devote their abilities and
industry to the success of the Company's business enterprise. It is intended
that this purpose be achieved by extending to such senior executives an added
long-term incentive for high levels of performance and unusual efforts through
the grant of Restricted Stock.
2. Definitions.
For purposes of this Plan:
2.1 "Agreement" means the written agreement between the
Company and a Grantee evidencing the grant of an Award and setting forth the
terms and conditions thereof.
2.2 "Award" means a grant of Restricted Stock.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Cause" means that, in the case of a Grantee whose
employment with the Company is subject to the terms of an employment agreement
between such Grantee and the Company, which employment agreement includes a
definition of "Cause," the term "Cause" as used in this Plan or any Agreement
shall have the meaning set forth in such employment agreement during the period
that such employment agreement remains in effect, provided, however, that a
Change in Control shall not constitute "Cause."
2.5 "Change in Capitalization" means any increase or reduction
in the number of Shares, or any change (including, but not limited to, in the
case of a spin-off, dividend or other distribution in respect of Shares, a
change in value) in the Shares or exchange of Shares for a different number or
kind of shares or other securities of the Company or another corporation, by
reason of a reclassification, recapitalization, merger, consolidation,
reorganization, spin-off, split-up, issuance of warrants or rights or
debentures, stock dividend, stock split or reverse stock split, cash dividend,
property dividend, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise.
2.6 A "Change in Control" shall mean the occurrence of 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 Exchange Act), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 15% or more of either (A) the then
outstanding Shares of common stock (the "Outstanding Company Common Stock") or
(B) 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 31, 1998, 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 31, 1998, 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 a (II) 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.
2.7 "Code" means the Internal Revenue Code of 1986, as
amended.
2.8 "Committee" means a committee, as described in Section
3.1, appointed by the Board from time to time to administer this Plan and to
perform the functions set forth herein.
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2.9 "Company" means Medicis Pharmaceutical Corporation.
2.10 "Director" means a director of the Company.
2.11 "Disability" means:
(a) in the case of a Grantee whose employment with
the Company is subject to the terms of an employment agreement between such
Grantee and the Company, which employment agreement includes a definition of
"Disability" or similar term such as "permanent disability", the term
"Disability" as used in this Plan or any Agreement shall have the meaning set
forth in such employment agreement during the period that such employment
agreement remains in effect; or
(b) the term "Disability" as used in the Company's
long-term disability plan, if any; or
(c) in all other cases, the term "Disability" as used
in this Plan or any Agreement shall mean a physical or mental infirmity which
impairs the Grantee's ability to perform substantially his or her duties for a
period of one hundred eighty (180) consecutive days.
2.12 "Eligible Individual" means any senior officer of the
Company as designated by the Stock Option and Compensation Committee.
2.13 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
2.14 "Fair Market Value" on any date means the closing sales
prices of the Shares on such date on the New York Stock Exchange, Inc. or other
principal national securities exchange on which such Shares are listed or
admitted to trading, or, if such Shares are not so listed or admitted to
trading, the average of the per Share closing bid price and per Share closing
asked price on such date as quoted on the National Association of Securities
Dealers Automated Quotation System or such other market in which such prices are
regularly quoted, or, if there have been no published bid or asked quotations
with respect to Shares on such date, the Fair Market Value shall be the value
established by the Board in good faith.
2.15 "Grantee" means a person to whom an Award has been
granted under this Plan.
2.16 "Nonemployee Director" means a director of the Company
who is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
2.17 "Restricted Period" means the period designated by the
Committee during which Restricted Stock may not be sold, assigned, pledged or
otherwise encumbered.
2.18 "Restricted Stock" means Shares issued or transferred to
an Eligible Individual pursuant to Section 5.
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2.19 "Retained Distribution" means any securities or other
property (other than regular cash dividends) distributed by the Company in
respect of Restricted Stock during any Restricted Period.
2.20 "Shares" means the common stock, par value $.0014 per
share, of the Company and any other securities into which such shares are
changed or for which such shares are exchanged.
2.21 "Subsidiary" means any entity, whether or not
incorporated, in which the Company directly or indirectly owns 50% or more of
the outstanding equity or other ownership interests.
3. Administration.
3.1 This Plan shall be administered by the Committee, which
shall hold meetings at such times as may be necessary for the proper
administration of this Plan. The Committee shall keep minutes of its meetings. A
quorum shall consist of not fewer than two (2) members of the Committee and a
majority of a quorum may authorize any action. Any decision or determination
reduced to writing and signed by a majority of all of the members of the
Committee shall be as fully effective as if made by a majority vote at a meeting
duly called and held. The Committee shall consist of two (2) or more Directors
and may consist of the entire Board. If the Committee consists of less than the
entire Board, then with respect to any Award to an individual who is subject to
Section 16 of the Exchange Act, the Committee shall consist of at least two (2)
Directors, each of whom shall be a Nonemployee Director. For purposes of the
preceding sentence, if one or more members of the Committee is not a Nonemployee
Director, but recuses himself or herself or abstains from voting with respect to
a particular action taken by the Committee, then the Committee, with respect to
that action, shall be deemed to consist only of the members of the Committee who
have not recused themselves or abstained from voting. Subject to applicable law,
the Committee may delegate its authority under this Plan to any other person or
persons.
3.2 No member of the Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with respect
to this Plan or any transaction hereunder. The Company hereby agrees to
indemnify each member of the Committee for all costs and expenses and, to the
extent permitted by applicable law, any liability incurred in connection with
defending against, responding to, negotiating for the settlement of or otherwise
dealing with any claim, cause of action or dispute of any kind arising in
connection with any actions in administering this Plan or in authorizing or
denying authorization to any transaction hereunder.
3.3 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time to:
(a) select those Eligible Individuals to whom Awards
shall be granted under this Plan and to determine the number of Shares in
respect of which each Award is granted, the terms and conditions (which need not
be identical) of each such Award, and make any amendment or modification to any
Award Agreement consistent with the terms of this Plan;
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(b) to construe and interpret this Plan and the
Awards granted hereunder and to establish, amend and revoke rules and
regulations for the administration of this Plan, including, but not limited to,
correcting any defect or supplying any omission, or reconciling any
inconsistency in this Plan or in any Agreement, in the manner and to the extent
it shall deem necessary or advisable, including so that this Plan and the
operation of this Plan complies with Rule 16b-3 under the Exchange Act, the
Code, to the extent applicable, and other applicable law, and otherwise to make
this Plan fully effective. All decisions and determinations by the Committee in
the exercise of this power shall be final, binding and conclusive upon the
Company, its Subsidiaries, and Grantees, and all other persons having any
interest therein;
(c) to determine the duration and purposes for leaves
of absence which may be granted to a Grantee on an individual basis without
constituting a termination of employment or service for purposes of this Plan;
(d) to exercise its discretion with respect to the
powers and rights granted to it as set forth in this Plan; and
(e) generally, to exercise such powers and to perform
such acts as are deemed necessary or advisable to promote the best interests of
the Company with respect to this Plan.
4. Stock Subject to this Plan; Grant Limitations.
4.1 The maximum number of Shares that may be made the subject
of Awards granted under this Plan is 55,000. The Company shall reserve for the
purposes of this Plan, out of Shares held in the Company's treasury, such number
of Shares as shall be determined by the Board.
4.2 Upon the granting of an Award, the number of Shares
available under Section 4.1 for the granting of further Awards shall be reduced
by the number of Shares in respect of which the Award is granted.
4.3 Whenever any outstanding Award or portion thereof expires,
is canceled, is forfeited, or is otherwise terminated for any reason without all
the Shares covered thereby having vested, the Shares allocable to the expired,
canceled, forfeited, or otherwise terminated portion of the Award may again be
the subject of Awards granted hereunder.
5. Restricted Stock.
5.1 Grant. The Committee may grant Awards to Eligible
Individuals, each of which shall be evidenced by an Agreement between the
Company and the Grantee. Each Agreement shall contain such restrictions, terms
and conditions as the Committee may, in its discretion, determine and (without
limiting the generality of the foregoing) such Agreements may require that an
appropriate legend be placed on Share certificates. Awards of Restricted Stock
shall be subject to the terms and provisions set forth below in this Section 5.
5.2 Rights of Grantee. Shares of Restricted Stock granted
pursuant to an Award hereunder shall be issued in the name of the Grantee as
soon as reasonably practicable
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after the Award is granted provided that the Grantee has executed an Agreement
evidencing the Award, the appropriate blank stock powers and, in the discretion
of the Committee, an escrow agreement and any other documents which the
Committee may require as a condition to the issuance of such Shares. If a
Grantee shall fail to execute the Agreement evidencing a Restricted Stock Award,
or any documents which the Committee may require within the time period
prescribed by the Committee at the time the Award is granted, the Award shall be
null and void. At the discretion of the Committee, Shares issued in connection
with a Restricted Stock Award shall be deposited together with the stock powers
with an escrow agent (which may be the Company) designated by the Committee.
Unless the Committee determines otherwise and as set forth in the Agreement,
upon delivery of the Shares to the escrow agent, the Grantee shall have all of
the rights of a stockholder with respect to such Shares, including the right to
vote the Shares and to receive all dividends or other distributions paid or made
with respect to the Shares. The Company shall retain custody of all Retained
Distributions made or declared with respect to the Restricted Stock and such
Retained Distributions shall be subject to the same restrictions on terms and
conditions as are applicable to the Restricted Stock.
5.3 Non-transferability. Until all restrictions upon the
Shares of Restricted Stock awarded to a Grantee shall have lapsed in the manner
set forth in Section 5.4, such Shares and Retained Distribution shall not be
sold, transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated.
5.4 Lapse of Restrictions.
(a) Generally. Restrictions upon Shares of Restricted
Stock awarded hereunder shall lapse at such time or times and on such terms and
conditions as the Committee may determine (the "Restricted Period"). The
Agreement evidencing the Award shall set forth any such restrictions.
(b) Effect of Change in Control. Unless the Committee
shall determine otherwise at the time of the grant of an Award of Restricted
Stock, the restrictions upon Shares of Restricted Stock shall lapse immediately
prior to a Change in Control. The Agreement evidencing the Award shall set forth
any such provisions. In addition to the accelerated lapse of restrictions that
that shall occur upon a Change in Control (unless otherwise stated in an
Agreement), a Grantee's individual Agreement may provide for accelerated lapse
of restrictions upon the occurrence of other events.
5.5 Treatment of Dividends. At the time an Award of Shares of
Restricted Stock is granted, the Committee may, in its discretion, determine
that the payment to the Grantee of dividends, or a specified portion thereof,
declared or paid on such Shares by the Company shall be (a) deferred until the
lapsing of the restrictions imposed upon such Shares and (b) held by the Company
for the account of the Grantee until such time. In the event that dividends are
to be deferred, the Committee shall determine whether such dividends are to be
reinvested in Shares (which shall be held as additional Shares of Restricted
Stock) or held in cash. If deferred dividends are to be held in cash, there may
be credited at the end of each year (or portion thereof) interest on the amount
of the account at the beginning of the year at a rate per annum as the
Committee, in its discretion, may determine. Payment of deferred dividends in
respect of Shares of Restricted Stock (whether held in cash or as additional
Shares of Restricted Stock), together
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with interest accrued thereon, if any, shall be made upon the lapsing of
restrictions imposed on the Shares in respect of which the deferred dividends
were paid, and any dividends deferred (together with any interest accrued
thereon) in respect of any Shares of Restricted Stock shall be forfeited upon
the forfeiture of such Shares.
5.6 Delivery of Shares. Upon the lapse of the restrictions on
Shares of Restricted Stock, the Committee shall cause a stock certificate to be
delivered to the Grantee with respect to such Shares, free of all restrictions
hereunder.
6. Effect of a Termination of Employment.
The Agreement evidencing the grant of each Award shall set
forth the terms and conditions applicable to such Award upon a termination or
change in the status of the employment of the Grantee by the Company or a
Subsidiary, which shall be as the Committee may, in its discretion, determine at
the time the Award is granted or thereafter.
7. Adjustment Upon Changes in Capitalization.
7.1 Generally. In the event of a Change in Capitalization, the
Committee shall conclusively determine the appropriate adjustments, if any, to
(i) the maximum number, exercise price and class of Shares or other stock or
securities with respect to which Awards may be granted under this Plan, and (ii)
the number, exercise price and class of Shares or other stock or securities
which are subject to outstanding Awards granted under this Plan.
7.2 Continuation of Restrictions. If, by reason of a Change in
Capitalization, a Grantee of an Award shall be entitled to new, additional or
different shares of stock or securities of the Company or any other corporation,
such new, additional or different shares shall thereupon be subject to all of
the conditions, restrictions and performance criteria which were applicable to
the Shares subject to the Award prior to such Change in Capitalization.
8. Effect of Certain Transactions.
Subject to Sections 5.4(b), or as otherwise provided in an
Agreement, in the event of (a) the liquidation or dissolution of the Company or
(b) a merger or consolidation of the Company (a "Transaction"), this Plan and
the Awards issued hereunder shall continue in effect in accordance with their
respective terms, except that following a Transaction either (i) each
outstanding Award shall be treated as provided for in the agreement entered into
in connection with the Transaction or (ii) if not so provided in such agreement,
each Grantee shall be entitled to receive in respect of each Share subject to
any outstanding Awards, as the case may be, upon transfer in respect of any
Award, the same number and kind of stock, securities, cash, property or other
consideration that each holder of a Share was entitled to receive in the
Transaction in respect of a Share; provided, however, that such stock,
securities, cash, property or other consideration shall remain subject to all of
the conditions, restrictions and performance criteria which were applicable to
the Awards prior to such Transaction.
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9. Rule 16b-3.
This Plan is intended to comply with Rule 16b-3 promulgated
under the Exchange Act and the Committee shall interpret and administer the
provisions of this Plan or any Agreement in a manner consistent therewith. Any
provisions inconsistent with such Rule shall be inoperative and shall not affect
the validity of this Plan.
10. Termination and Amendment of this Plan or Modification of Awards.
10.1 Plan Amendment or Termination. This Plan shall terminate
on the day preceding the tenth anniversary of the date of its adoption by the
Board and no Award may be granted thereafter. The Board may sooner terminate
this Plan and the Board may at any time and from time to time amend, modify or
suspend this Plan; provided, however, that:
(a) no such amendment, modification, suspension or
termination shall impair or adversely alter any Awards theretofore granted under
this Plan, except with the consent of the Grantee, nor shall any amendment,
modification, suspension or termination deprive any Grantee of any Shares which
he or she may have acquired through or as a result of this Plan; and
(b) to the extent necessary under any applicable law,
regulation or exchange requirement, no amendment shall be effective unless
approved by the stockholders of the Company in accordance with applicable law,
regulation or exchange requirement.
10.2 Modification of Awards. No modification of an Award shall
adversely alter or impair any rights or obligations under the Award without the
consent of the Grantee, as the case may be.
11. Non-Exclusivity of this Plan.
The adoption of this Plan by the Board shall not be construed
as amending, modifying or rescinding any previously approved incentive
arrangement or as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable.
12. Limitation of Liability.
As illustrative of the limitations of liability of the
Company, but not intended to be exhaustive thereof, nothing in this Plan shall
be construed to:
(a) give any person any right to be granted an Award
other than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with
respect to Shares except as specifically provided in this Plan;
(c) limit in any way the right of the Company or any
Subsidiary to terminate the employment of any person at any time; or
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(d) be evidence of any agreement or understanding,
expressed or implied, that the Company will employ any person at any particular
rate of compensation or for any particular period of time.
13. Regulations and Other Approvals; Governing Law.
13.1 Except as to matters of federal law, this Plan and the
rights of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of Arizona without giving effect to
conflicts of laws principles thereof.
13.2 The obligation of the Company to deliver Shares with
respect to Awards granted under this Plan shall be subject to all applicable
laws, rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
13.3 Each Award is subject to the requirement that, if at any
time the Committee determines, in its discretion, that the listing, registration
or qualification of Shares issuable pursuant to this Plan is required by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Award or the issuance of
Shares, no Awards shall be granted or Shares issued, in whole or in part, unless
listing, registration, qualification, consent or approval has been effected or
obtained free of any conditions as acceptable to the Committee.
13.4 Notwithstanding anything contained in this Plan or any
Agreement to the contrary, in the event that the disposition of Shares acquired
pursuant to this Plan is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, such Shares shall be restricted against
transfer to the extent required by the Securities Act and Rule 144 or other
regulations thereunder. The Committee may require any individual receiving
Shares pursuant to an Award granted under this Plan, as a condition precedent to
receipt of such Shares, to represent and warrant to the Company in writing that
the Shares acquired by such individual are acquired without a view to any
distribution thereof and will not be sold or transferred other than pursuant to
an effective registration thereof under the Securities Act or pursuant to an
exemption applicable under said Act or the rules and regulations promulgated
thereunder. The certificates evidencing any of such Shares shall be
appropriately amended or have an appropriate legend placed thereon to reflect
their status as restricted securities as aforesaid.
14. Miscellaneous.
14.1 Multiple Agreements. The terms of each Award may differ
from other Awards granted under this Plan at the same time, or at some other
time. The Committee may also grant more than one Award to a given Eligible
Individual during the term of this Plan, either in addition to, or in
substitution for, one or more Awards previously granted to that Eligible
Individual.
14.2 Withholding of Taxes. At such times as a Grantee
recognizes taxable income in connection with the receipt of Shares or cash
hereunder (a "Taxable Event"), the
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Grantee shall pay to the Company an amount equal to (but not in excess of) the
federal, state and local income taxes and other amounts as may be required by
law to be withheld by the Company in connection with the Taxable Event (the
"Withholding Taxes") prior to the issuance, or release from escrow, of such
Shares or the payment of such cash. The Company shall have the right to deduct
from any payment of cash to a Grantee an amount equal to the Withholding Taxes
in satisfaction of the obligation to pay Withholding Taxes. The Committee may
provide in the Agreement at the time of grant, or at any time thereafter, that
the Grantee, in satisfaction of the obligation to pay Withholding Taxes to the
Company, may elect to have withheld a portion of the Shares then issuable to him
or her having an aggregate Fair Market Value equal to the Withholding Taxes.
14.3 Effective Date. The effective date of this Plan shall be
July 17, 2001.
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