EXHIBIT 10.2
IVAX CORPORATION
1994 STOCK OPTION PLAN
(revised 12/19/97)
1. PURPOSES. The purposes of this 1994 Stock Option Plan (the "Plan") are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees of the Company
or its Subsidiaries as well as other individuals who perform services for the
Company or its Subsidiaries, and to promote the success of the Company's
business. Options granted hereunder may be either Incentive Stock Options or
Nonqualified Stock Options, at the discretion of the Committee and as reflected
in the terms of the written option agreement.
2. DEFINITIONS. As used herein, the following definitions shall apply:
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMMITTEE" shall mean the committee appointed by the Board of Directors in
accordance with Section 4(a) of the Plan.
"COMMON STOCK" shall mean the common stock, $.10 par value per share, of the
Company.
"COMPANY" shall mean IVAX Corporation, a Florida corporation.
"CONTINUOUS STATUS AS AN EMPLOYEE" shall mean the absence of any interruption
or termination of service as an Employee. Service as an Employee shall not be
considered interrupted for purposes of the Plan, in the case of sick leave,
military leave, or any other bona fide leave of absence approved by the
Committee.
"EMPLOYEE" shall mean any person, including officers and directors, employed
by the Company or any Parent or Subsidiary. The payment of a director's fee
by the Company shall not be sufficient to constitute "employment" by the
Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"INCENTIVE STOCK OPTION" shall mean a stock option intended to qualify as an
"incentive stock option" within the meaning of Section 422 of the Code.
"NONQUALIFIED STOCK OPTION" shall mean a stock option not intended to qualify
as an "incentive stock option" within the meaning of Section 422 of the Code.
"OPTION" shall mean a stock option granted pursuant to the Plan.
"OPTIONED STOCK" shall mean the Common Stock subject to an Option.
"OPTIONEE" shall mean the recipient of an Option.
"PARENT" shall mean a "parent corporation" of the Company, whether now or
hereafter existing, as defined in Section 424(e) of the Code.
"RULE 16b-3" shall mean Rule 16b-3 promulgated by the Securities and Exchange
Commission under the Exchange Act or any successor rule.
"SHARE" shall mean a share of Common Stock, as adjusted in accordance with
Section 13 of the Plan.
"SUBSIDIARY" shall mean a "subsidiary corporation" of the Company, whether
now or hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK. Subject to the provisions of Section 13 of the Plan, the maximum
aggregate number of Shares which may be issued under the Plan is 7,000,000. If
an Option should expire or become unexercisable for any reason without having
been exercised in full, the unpurchased Shares which were subject thereto shall,
unless the Plan shall have been terminated, become available for further grant
under the Plan.
4. ADMINISTRATION.
(a) COMMITTEE. The Plan at all times shall be administered by a Committee
appointed by the Company's Board of Directors. The Committee shall consist of
not less than two members of the Board of Directors, each of whom is a
"disinterested person" as defined in Rule 16b-3 and an "outside director" as
defined for purposes of Section 162(m) of the Code.
(b) POWERS OF THE COMMITTEE. Subject to the provisions of the Plan, the
Committee shall have the authority, in its discretion: (i) to grant Incentive
Stock Options or Nonqualified Stock Options; (ii) to determine the fair market
value of the Common Stock; (iii) to determine the exercise price per Share of
Options to be granted; (iv) to determine the persons to whom, and the time or
times at which, Options shall be granted and the number of Shares to be
represented by each Option; (v) to determine the vesting schedule of Options to
be granted; (vi) to prescribe, amend and rescind rules and regulations relating
to the Plan; (vii) to determine the terms and provisions of each Option granted
under the Plan (which need not be identical); (viii) to accelerate the exercise
date of any Option; (ix) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option previously
granted by the Committee; (x) subject to the provisions of the Plan and subject
to such additional limitations and restrictions as the Committee may impose, to
delegate to specific members of management or to a committee of management
personnel the authority to determine: (A) the persons to whom, and the time and
times at which, Options shall be granted and the number of Shares to be
represented by each Option, (B) the vesting schedule of Options; (C) the term of
Options, and (D) other terms and conditions of any Options; provided that the
Committee shall not have the authority to delegate such matters with respect to
awards to be granted to any person subject to Section 16 of the Exchange Act or
any "covered employee" under Section 162(m) of the Code; and (xi) to interpret
the Plan and make all other determinations deemed necessary or advisable for the
administration of the Plan. The Committee may require the voluntary surrender of
all or any portion of any Option, or of any other stock option outstanding to
persons eligible to participate in the Plan, as a condition precedent to a grant
of a new Option to such Optionee or person. Subject to the provisions of the
Plan, such new Option shall be exercisable at the price, during the period and
on such other terms and conditions as are specified by the Committee at the time
the new Option is granted. Upon surrender, the Options surrendered shall be
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unexercisable and the Shares previously subject to such Options shall be
available for the grant of other Options.
(c) EFFECT OF THE COMMITTEE'S DECISION. All decisions, determinations and
interpretations of the Committee shall be final and binding on all Optionees.
5. ELIGIBILITY. Incentive Stock Options may be granted only to Employees.
Nonqualified Stock Options may be granted to Employees, non-Employee directors
(in accordance with the provisions of Section 6 of the Plan), independent
contractors and agents. Any person who has been granted an Option may, if he is
otherwise eligible, be granted an additional Option or Options. Subject to the
provisions of Section 13 of the Plan, the maximum number of Shares with respect
to which Options may be granted under the Plan to any Employee in any calendar
year is 1% of the authorized and outstanding Shares of Common Stock on the date
of adoption of the Plan.
Except as otherwise provided under the Code, to the extent that the aggregate
fair market value of stock for which Incentive Stock Options (under all stock
option plans of the Company and of any Parent or Subsidiary) are exercisable for
the first time by an Employee during any calendar year exceeds $100,000, such
Options shall be treated as Nonqualified Stock Options. For purposes of this
limitation, (a) the fair market value of stock is determined as of the time the
Option is granted, (b) the limitation is applied by taking into account Options
in the order in which they were granted, and (c) Incentive Stock Options granted
before 1987 are not to be taken into account.
The Plan shall not confer upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere in any way
with his right or the Company's right to terminate his employment at any time.
6. AUTOMATIC GRANT OF OPTION TO NON-EMPLOYEE DIRECTORS. Subject to Section 3 of
the Plan, each person who is a non-Employee director of the Company on the first
business day following any annual meeting of shareholders of the Company shall
automatically receive on such date an Option to acquire 5,000 Shares, as
adjusted in accordance with Section 13 of the Plan. The exercise price for the
Shares to be issued pursuant to Options granted under this Section 6 shall be as
set forth in Section 9(a)(ii) of the Plan. The Options granted pursuant to this
Section 6 shall have a term of ten years from the date of grant. The foregoing
formula may not be amended more than once every six months other than to comport
with changes in the Code, the Employee Retirement Income Security Act of 1974,
as amended, or the rules thereunder. Non-Employee directors shall have the
right, if they so wish, to decline receipt of any Options to be granted under
this Section 6.
7. TERM OF PLAN. The Plan shall become effective upon its adoption by the Board
of Directors of the Company; provided that, if the Plan is not approved by the
shareholders of the Company in accordance with Section 18 of the Plan within
twelve months after the date of adoption by the Board of Directors, the Plan and
any Options granted thereunder shall terminate and become null and void. The
Plan shall continue in effect until June 30, 2004 unless sooner terminated in
accordance with Section 15 of the Plan.
8. TERM OF OPTION. The term of each Option shall be ten years from the date of
grant thereof or, except for Options granted pursuant to Section 6 of the Plan,
such shorter term as may be determined
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by the Committee. However, in the case of an Incentive Stock Option granted to
an Employee who, immediately before the Incentive Stock Option is granted, owns
stock representing more than 10% of the voting power of all classes of stock of
the Company or any Parent or Subsidiary, the term of the Incentive Stock Option
shall be five years from the date of grant thereof or such shorter time as may
be determined by the Committee.
9. EXERCISE PRICE AND CONSIDERATION.
(a) The per Share exercise price for the Shares to be issued pursuant to
exercise of an Option shall be such price as is determined by the Committee, but
shall be subject to the following:
(i) In the case of an Incentive Stock Option: (A) granted to an Employee who,
immediately before the grant of such Incentive Stock Option, owns stock
representing more than 10% of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be no
less than 110% of the fair market value per Share on the date of grant; and (B)
granted to any other Employee, the per share exercise price shall be no less
than the fair market value per Share on the date of grant.
(ii) In the case of a Nonqualified Stock Option, the per Share exercise price
shall be no less than the fair market value per Share on the date of grant and,
with respect to Options granted to non-Employee directors as provided in Section
6 of the Plan, shall be equal to the fair market value per Share on the date of
the grant.
(b) Notwithstanding Section 9(a) of the Plan, in the event the Company
substitutes an Option for a stock option issued by another corporation in
connection with a corporate transaction, such as a merger, consolidation,
acquisition of property or stock, separation (including a spin-off or other
distribution of stock or property), reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of the
Code) or partial or complete liquidation involving the Company and such other
corporation, the exercise price of such substituted Option shall be as
determined by the Committee in its discretion (subject to the provisions of
Section 424(a) of the Code in the case of a stock option that was intended to
qualify as an "incentive stock option") to preserve, on a per share basis
immediately after such corporate transaction, the same ratio of fair market
value per option share to exercise price per share which existed immediately
prior to such corporate transaction under the option issued by such other
corporation.
(c) The fair market value per Share shall be determined by the Committee in
its discretion; provided, however, that if the Common Stock is listed on a stock
exchange, the fair market value per Share shall be the closing price on such
exchange on the date of grant of the Option, as reported in the Wall Street
Journal.
(d) The consideration to be paid for the Shares to be issued upon exercise of
an Option shall consist of cash or check in an amount equal to the aggregate
exercise price of the Shares as to which said Option shall be exercised or such
other consideration as the Committee shall determine. Payment may also be made,
in the discretion of the Committee, by delivery (including by facsimile) to the
Company or its designated agent of an executed irrevocable option exercise form
together with irrevocable instructions to a broker-dealer designated by the
Company to sell (or margin) a sufficient portion of the Shares and
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deliver the sale (or margin loan) proceeds directly to the Company to pay for
the exercise price; provided that Optionees subject to Section 16 of the
Exchange Act shall not be entitled to make payment by such method until either
the holders of a majority of the outstanding shares of the Company entitled to
vote have approved an amendment to the Plan permitting payment by such method or
counsel to the Company has advised the Committee that such approval is not
required by Rule 16b-3. For purposes of this Section 9(d), the exercise date of
such Option shall be the date on which such documents have been delivered to the
Company or its designated agent.
10. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE. Any Option granted hereunder shall be exercisable
at such times and under such conditions as determined by the Committee,
including performance criteria with respect to the Company and/or the Optionee,
and as shall be permissible under the terms of the Plan. An Option may not be
exercised for a fraction of a Share. An Option shall be deemed to be exercised
when written notice of such exercise has been given to the Company in accordance
with the terms of the Option by the person entitled to exercise the Option and
full payment for the Shares with respect to which the Option is exercised has
been received by the Company. Full payment may, as authorized by the Committee,
consist of any consideration and method of payment allowable under Section 9(d)
of the Plan.
(b) RIGHTS AS A SHAREHOLDER. Until the issuance, which in no event (except as
provided in Section 16 of the Plan) will be delayed more than thirty days from
the date of the exercise of the Option, of the stock certificate evidencing such
Shares (as evidenced by the appropriate entry on the books of the Company or of
a duly authorized transfer agent of the Company), no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. No adjustment will
be made for a dividend or other right for which the record date is prior to the
date the stock certificate is issued, except as provided in the Plan. Exercise
of an Option in any manner shall result in a decrease in the number of Shares
which thereafter may be available, both for purposes of the Plan and for sale
under the Option, by the number of Shares as to which the Option is exercised.
11. TERMINATION OF EMPLOYMENT.
(a) TERMINATION OF STATUS AS AN EMPLOYEE. If any Employee ceases to be in
Continuous Status as an Employee, other than (i) by reason of retirement or (ii)
as a result of a termination by the Company for deliberate, willful or gross
misconduct, any Option held by such Employee shall be exercisable within twelve
months after the date he ceases to be in Continuous Status as an Employee (or
such longer period as the Committee shall determine) to the extent the Employee
was entitled to exercise such Option as of the date of his termination of
employment.
(b) RETIREMENT OF OPTIONEE. If any Employee ceases to be in Continuous Status
as an Employee by reason of such Employee's retirement, any Option held by such
Employee shall be exercisable within thirty-six months after the date he ceases
to be in Continuous Status as an Employee to the extent that he was entitled to
exercise such Option as of the date of his retirement. For purposes of the Plan,
"retirement" means termination of services as an Employee at or after age 65
other than as a result of deliberate, willful or gross misconduct.
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(c) TERMINATION FOR MISCONDUCT. If any Employee ceases to be in Continuous
Status as an Employee as a result of a termination by the Company for
deliberate, willful or gross misconduct, any Option held by such Employee shall
terminate immediately and automatically on the date of his termination as an
Employee unless otherwise determined by the Committee.
(d) DEATH OF OPTIONEE. Subject to the provisions of the Plan, any Option held
by an Optionee at the time of his death may be subsequently exercised by the
legal representative of the Optionee's estate or by the person or persons who
acquired the right to exercise the Option by bequest or inheritance but only to
the extent the Optionee was entitled to exercise such Option as of the date of
his death. In the event of the death of an Optionee during the final three
months of the time period specified in Section 11(a) or 11(b), as applicable,
the Option may be exercised, at any time within three 3 months following the
date of his death, by the Optionee's estate or by a person or persons who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent the Optionee was entitled to exercise such Option as of the date of
his death.
(e) EXPIRATION OF OPTIONS. None of the events described above in this Section
11 shall extend the period of exercisability of the Option beyond the expiration
date thereof. To the extent that an Optionee was not entitled to exercise an
Option on the date he ceased to be in Continuous Status as an Employee or the
date of the Optionee's death, or if he does not exercise such Option (which he
was entitled to exercise) within the time period specified in this Section 11,
the Option shall terminate and become null and void. Notwithstanding the
provisions of Section 11(a), 11(b) or 11(d) of the Plan, no Options shall be
exercisable after an Optionee ceases to be in Continuous Status as an Employee
in the event the Optionee shall have during the time period in which his Options
are exercisable, engaged in deliberate action which, as determined by the
Committee, causes substantial harm to the interests of the Company or
constitutes a breach of any obligation of the Optionee to the Company. In such
event, the Optionee shall forfeit all rights to any unexercised Option as of the
date of such deliberate action.
12. NON-TRANSFERABILITY OF OPTIONS. An Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent and distribution or, in the case of a
Nonqualified Stock Option, pursuant to a qualified domestic relations order as
defined in the Code or Title I of the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder, and, except with respect to a
qualified domestic relations order as aforesaid, may be exercised, during the
lifetime of the Optionee, only by the Optionee.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CHANGE IN CONTROL; DISSOLUTION.
(a) In the event that the Committee shall determine that any dividend or
other distribution (whether in the form of cash, Shares or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Shares such that an
adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the rights of Optionees under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number and kind of Shares which may thereafter be issued in connection
with Options, (ii) the number and kind of Shares issued or issuable in respect
of outstanding Options, (iii) the maximum number of Shares with respect to which
Options may be granted to any Employee, (iv) the number of shares of
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Common Stock to be granted to non-Employee directors pursuant to Section 6 of
the Plan, and (v) the vesting, exercisability, exercise price, grant price, or
purchase price relating to any Option or, if deemed appropriate, make provision
for a cash payment with respect to any outstanding Option; provided, however,
that (a) each such adjustment with respect to an Incentive Stock Option shall
comply with the rules of Section 424(a) of the Code (or any successor provision)
and (b) in no event shall any adjustment be made which would render any
Incentive Stock Option granted hereunder other than an "incentive stock option"
as defined in Section 422 of the Code; and provided further, however, that
conversion of any convertible securities of the Company shall not be deemed to
dilute or enlarge the rights of Optionees under the Plan. Such adjustment shall
be made by the Committee, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an Option.
(b) If: (1) any person (as defined for purposes of Section 13(d) and 14(d) of
the Exchange Act, but excluding the Company and any of its wholly-owned
subsidiaries) acquires direct or indirect ownership of 50% or more of the
combined voting power of the then outstanding securities of the Company as a
result of a tender or exchange offer, open market purchases, privately
negotiated purchases or otherwise; or (2) the shareholders of the Company
approve (A) any consolidation or merger of the Company in which the Company is
not the surviving corporation (other than a merger of the Company in which the
holders of Common Stock immediately prior to the merger have the same
proportionate ownership of the surviving corporation immediately after the
merger), or (B) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of the assets
of the Company to an entity which is not a wholly-owned subsidiary of the
Company, then the exercisability of each Option outstanding under the Plan shall
be automatically accelerated so that each such Option shall, immediately prior
to the specified effective date of any of the foregoing transaction, become
fully exercisable with respect to the total number of Shares subject to such
Option and may be exercisable for all or any portion of such Shares. Upon the
consummation of any of such transaction, all outstanding Options under the Plan
shall, to the extent not previously exercised, either be assumed by the
successor corporation or parent thereof or be replaced with a comparable option
to purchase shares of the capital stock of the successor corporation or parent
thereof.
(c) In the event of the proposed dissolution or liquidation of the Company,
all outstanding Options will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Committee.
14. TIME FOR GRANTING OPTIONS. The date of grant of an Option shall be the date
on which the Committee makes the determination granting such Option or such
later date as the Committee may specify. Notice of the determination shall be
given to each Employee to whom an Option is so granted within a reasonable time
after the date of such grant.
15. AMENDMENT AND TERMINATION OF THE PLAN.
(a) Subject to the limitations set forth in Section 6 of the Plan, the
Committee may amend or terminate the Plan from time to time in such respects as
the Committee may deem advisable; provided that, the following revisions or
amendments shall require approval of the Company's shareholders in
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accordance with Section 18 of the Plan (i) any increase in the number of Shares
subject to the Plan, other than in connection with an adjustment under Section
13 of the Plan; (ii) any change in the designation of the class of persons
eligible to be granted Options; (iii) any material increase in the benefits
accruing to participants under the Plan; or (iv) any increase in the maximum
number of Shares with respect to which Options may be granted to any Employee.
(b) EFFECT OF AMENDMENT OR TERMINATION. No amendment or termination or
modification of the Plan shall in any manner affect any Option theretofore
granted without the consent of the Optionee, except that the Committee may amend
or modify the Plan in a manner that does affect Options theretofore granted upon
a finding by the Committee that such amendment or modification is in the best
interest of shareholders or Optionees.
16. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the Shares may then be listed,
and shall be further subject to the advice of counsel for the Company with
respect to such compliance. As a condition to the exercise of an Option, the
Company may require the person exercising such Option to represent and warrant
at the time of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares
if, in the opinion of counsel for the Company, such a representation is required
by law.
17. OPTION AGREEMENTS. Options shall be evidenced by written option agreements
in such form as the Committee shall approve. Such agreements shall contain such
provisions, including, without limitation, restrictions upon the exercise of the
Option, as the Committee shall determine.
18. SHAREHOLDER APPROVAL. The effectiveness of the Plan shall be subject to
approval by the shareholders of the Company, in a separate vote, within twelve
months after the date the Plan is adopted. The approval of such shareholders of
the Company shall be solicited substantially in accordance with Section 14(a) of
the Exchange Act and the rules and regulations promulgated thereunder, and shall
be obtained, at a duly held shareholders' meeting, by the affirmative vote of
the holders of a majority of the outstanding shares of the Company present or
represented and entitled to vote thereon.
19. INDEMNIFICATION OF COMMITTEE MEMBERS. In addition to such other rights of
indemnification as they may have as Directors, the members of the Committee
shall be indemnified by the Company against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the defense
of any action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any Option granted
thereunder, and against all amounts paid by them in settlement thereof (provided
such settlement is approved to the extent required by and in the manner provided
by the Articles of Incorporation and Bylaws of the Company), or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such Committee member did not act in good faith and in a manner
he reasonably believed to be in and not opposed to the best interests of the
Company; provided
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that within 60 days after institution of any such action, suit or proceeding
a Committee member shall in writing offer the Company the opportunity, at its
own expense, to handle and defend the same.
20. OTHER COMPENSATION PLANS. The adoption of the Plan shall not affect any
other stock option or incentive or other compensation plans in effect for the
Company or any Subsidiary, nor shall the Plan preclude the Company from
establishing any other forms of incentive or other compensation for employees
and directors of the Company or any Subsidiary.
21. HEADINGS. Headings of Articles and Sections hereof are inserted for
convenience and reference; they constitute no part of the Plan.
22. WITHHOLDING. The Company and any Subsidiary may, to the extent permitted by
law, deduct from any payments or transfers of any kind due to an Optionee the
amount of any federal, state, local or foreign taxes required by any
governmental regulatory authority to be withheld or otherwise deducted with
respect to the Options or the Optioned Stock.
23. GOVERNING LAW. The Plan, the Options granted hereunder and all related
matters shall be governed by, and construed and enforced in accordance with, the
laws of the State of Florida.
24. COMPLIANCE WITH RULE 16b-3. It is the intent of the Company that this Plan
comply in all respects with Rule 16b-3 (or any successor rule) in connection
with any Option granted to a person who is subject to Section 16 of the Exchange
Act. Accordingly, any provision of this Plan or any Option agreement that does
not comply with the requirements of Rule 16b-3 (or any successor rule) as then
applicable to any such person shall be construed or deemed amended to the extent
necessary to conform to such requirements, except that such automatic amendment
shall not apply to any other participant in the Plan who is not (at the time of
such application) subject to Section 16 of the Exchange Act. Any action taken by
the Committee pursuant to the Plan that does not comply with the requirements of
Rule 16b-3 (or any successor rule) shall be null and void.
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