EXHIBIT 4.1
.........................
FINAL VERSION
.........................
AXCAN PHARMA INC.
STOCK OPTION PLAN
AND
OFFERING NOTICE
AS AMENDED AND RESTATED ON DECEMBER 19, 2000
1. PURPOSE OF THE PLAN
1.1 The purpose of this stock option plan (the "Plan") is to provide directors,
senior executives and full-time employees of Axcan Pharma Inc. ("Axcan") and its
subsidiaries (Axcan and its subsidiaries, present and future, being hereinafter
referred to collectively as the "Corporations") with a proprietary interest
through the granting of options to purchase shares of Axcan, subject to certain
conditions as hereinafter set forth, for the following purposes:
1.1.1 to increase the interest in the Corporations' welfare of those
directors, senior executives and employees who share primary
responsibility for the management, growth and protection of the
business of the Corporations;
1.1.2 to furnish an incentive to such directors, senior executives and
employees to continue their services for the Corporations; and
1.1.3 to provide a means through which each of the Corporations may
attract able persons to enter its employment.
1.2 For the purposes of the Plan,
1.2.1 a "Subsidiary of Axcan" shall be any corporation (other than Axcan)
in an unbroken chain of corporations beginning with Axcan if, at the
time of the granting of the option hereunder, each of the
corporations other than the last corporation in the unbroken chain
owns shares to which are attached more than fifty percent (50%) of
the aggregate voting rights attached to all classes of shares in one
of the other corporations in such chain;
1.2.2 the term "Outside Director" means a director of any of the
Corporation who is not an employee of any of the Corporation and a
director who has ceased to be an employee of any of the Corporation
as at and from the date of such termination; and
1.2.3 the term "Other Plans" means any stock option, stock option plan,
stock purchase plan or any other compensation or incentive mechanism
involving the issuance or potential issuance of shares to one or
more directors, senior executives or full-time employees, including
a share purchase from treasury which is financially assisted by any
of the Corporation by way of a loan, guaranty or otherwise and
including without limitation Axcan's Share Purchase Plan adopted on
December 15, 1995 and Axcan's Stock Participation Plan adopted on
December 15, 1995.
2. ADMINISTRATION OF THE PLAN
2.1 The Plan shall be administered by the Board of Directors of Axcan (the
"Board"). The Board may delegate the general administration of the Plan to any
committee of the Board, in which case, unless the context otherwise requires,
all references herein to the Board shall be deemed to be references to such
committee.
2.2 The Board may, from time to time, as it may deem expedient, adopt, amend and
rescind rules and regulations for carrying out the provisions and purposes of
the Plan. The interpretation, construction and application of the Plan and any
provisions thereof made by the Board, shall be final and binding on all holders
of options granted under the Plan and all persons eligible under the provisions
of the Plan to participate therein. No member of the Board shall be liable for
any action taken or for any determination made in good faith in the
administration, interpretation, construction or application of the Plan.
3. GRANTING OF OPTIONS
3.1 The Board may, from time to time, designate directors, senior executives and
full-time employees of the Corporations to whom options to purchase common
shares in the share capital of Axcan (the "Common Shares") may be granted and
the number of Common Shares to be optioned to each, provided that:
3.1.1 the total number of Common Shares to be optioned to any one
individual under the Plan, when combined with the number of Common
Shares issued or issuable to such individual under any of the Other
Plans, shall not exceed five percent (5%) of the total issued and
outstanding Common Shares as of the date of grant of the option;
3.1.2 the total number of Common Shares to be optioned under the Plan
shall not exceed the number provided in subsection 4.1 hereof;
3.1.3 the total number of Common Shares reserved for issuance to Insiders
(as defined in the Securities Act (Quebec)) and their Associates (as
defined in the Securities Act (Quebec)) under the Plan or any of the
Other Plans shall not exceed ten percent (10%) of the Common Shares
outstanding on the date of reservation of such Common Shares;
3.1.4 the total number of Common Shares issued to all Insiders and their
Associates under the Plan or Other Plans within a one-year period,
shall not exceed ten percent (10%) of the Common Shares outstanding
on the date of issuance of such Common Shares; and
3.1.5 the total number of Common Shares issued to any one Insider and his
Associates under the Plan or Other Plans within a one-year period
shall not exceed five percent (5%) of the Common Shares outstanding
on the date of issuance of such Common Shares.
For the purposes of paragraphs 3.1.3, 3.1.4 and 3.1.5: (i) an entitlement
granted prior to the optionee becoming an Insider or Associate of an Insider
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shall be excluded in determining the number of shares issuable to Insiders and
their Associates and (ii) no person shall be considered an Insider solely by
virtue of being a director or senior executive of a Subsidiary of Axcan.
3.2 Options may only be granted by Axcan pursuant to decisions of the Board. No
option shall be granted to any person who is not a director, senior executive or
full-time employee of any of the Corporation. For United States federal income
tax purposes, options granted pursuant to the Plan may be either Incentive Stock
Options ("Incentive Stock Options") meeting the requirements of Section 422 of
the United States Internal Revenue Code of 1986, as amended (the "U.S. Tax
Code"), or non-statutory options which are not intended to meet the requirements
of U.S. Tax Code Section 422.
3.3 The granting of options hereunder and the obligation of Axcan to deliver its
Common Shares pursuant hereto shall be subject to Axcan obtaining the approval
of any competent authority which may be required in connection with the granting
of options hereunder or the authorization, issuance or sale of the optioned
shares, and, if required, Axcan having effectively listed the optioned shares on
any stock exchange on which Common Shares may then be listed. Axcan shall use
its best efforts to obtain all approvals necessary to give effect to this Plan.
4. SHARES SUBJECT TO THE PLAN
4.1 The maximum number of Common Shares which may be optioned under the Plan,
subject to the provisions of Section 8 hereof, shall be 2,590,000 Common Shares.
4.2 The Common Shares in respect of which options are not exercised before their
expiry shall be available for subsequent options to be granted pursuant to the
provisions hereof.
5. OPTION PRICE
5.1 The option price per share for Common Shares which are the subject of any
option shall be fixed by the Board when such option is granted. Except as set
forth in Section 11, the option price for said shares shall be the reported
closing price for Common Shares on any stock exchange on which Common Shares may
then be listed on the last trading day before the day on which the option is
granted, provided that:
5.1.1 if no sale is reported on any such stock exchange on that day, the
reported closing price shall be deemed to be the mean of the highest
bid and asked quotations, if any, for such shares on any stock
exchange selected by the Board on which the Common Shares are listed
on that date;
5.1.2 if the Common Shares are listed on more than one stock exchange and
the closing price for such last trading day is not the same on all
such exchanges, the option price shall be the reported closing price
on the exchange having recorded the highest volume of Common Shares
traded for such day; and
5.1.3 prices and quotations expressed in Canadian or U.S. currency shall
be converted in the other currency based on the exchange rate
prevailing for the relevant trading day as published in the Wall
Street Journal (or failing its publication, in any national
financial newspaper published in Canada or the United States as may
be selected by the Board).
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6. CONDITIONS GOVERNING OPTIONS
6.1 Options shall be evidenced by a stock option agreement or other written
instrument in such form not inconsistent with the Plan as the Board may from
time to time determine, provided that the substance of the following be included
or referenced therein:
6.1.1 Employment - The granting of an option to a director, senior
executive or full-time employee shall not impose upon any of the
Corporation any obligation to retain the optionee in its employ or
to preserve the office of the optionee.
6.1.2 Option Term - The period during which an option is exercisable shall
not, subject to the provisions of the Plan, exceed ten (10) years
from the date the option is granted.
6.1.3 Exercise of Options - Prior to its expiration or earlier termination
in accordance with the Plan, each option shall be exercisable as to
the whole or any portion thereof at the time or times stipulated.
The Board may, at the time of granting a particular option, impose
such conditions as it shall determine in its sole discretion
regarding the time or times at which the option may be exercised in
whole or in part.
6.1.4 Non-assignability of Options - Each option granted hereunder is
personal to the optionee and shall not be assignable or transferable
by the optionee, whether voluntarily or by operation of law, except
by will or by the laws of succession of the domicile of the deceased
optionee. No option granted hereunder shall be pledged,
hypothecated, charged, transferred, assigned or otherwise encumbered
or disposed of on pain of nullity, and, subject to the foregoing
exception in the case of death, each option granted hereunder may be
exercised only by the optionee.
6.1.5 Effect of Termination of Office or Employment or of Death
6.1.5.1 Upon an optionee's full-time employment with the
Corporations being terminated for cause or upon an
optionee ceasing to be a director or senior executive
of any of the Corporation by reason of his being
removed or becoming disqualified from being a director
or senior executive by law, any option or the
unexercised portion thereof granted to him shall
terminate forthwith.
6.1.5.2 Upon an optionee's full-time employment with the
Corporations being terminated (except in the case of
transfer from one corporation to another corporation
contemplated herein) otherwise than by reason of death
or termination for cause, or upon an optionee ceasing
to be a director (other than an Outside Director) or
senior executive of any of the Corporation other than
by reason of death, removal or disqualification by
law, any option or unexercised portion thereof granted
to such optionee may be exercised by him only for that
number of Common Shares which he was entitled to
acquire under the option pursuant to paragraph 6.1.3
hereinabove at the time of such termination or
cessation. Such option shall only be exercisable
within ninety (90) days after such termination or
cessation or prior to the expiration of the term of
the option, whichever occurs earlier. Any option or
unexercised portion thereof granted to an optionee who
is an Outside Director, and who ceases to hold his
office for reason other than death, removal or
disqualification by law, may be exercised within the
time period and in accordance with the other terms and
conditions provided for any such option.
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6.1.5.3 If an optionee dies while employed by any of the
Corporation or while serving as a director or senior
executive of any of the Corporation, any option or
unexercised portion thereof granted to such optionee
may be exercised by a legatee or legatees of such
optionee under the optionee's last will or by his
personal representatives for that number of Common
Shares which he was entitled to acquire under the
option pursuant to paragraph 6.1.3 hereinabove at the
time of his demise. Such option shall only be
exercisable within twelve (12) months after the
optionee's death or prior to the expiration of the
term of the option, whichever occurs earlier.
6.1.5.4 The Board may, subject to the prior approval of The
Toronto Stock Exchange, or other relevant regulatory
authorities, at any time and at its discretion, waive
any of the termination provisions contained in
subparagraphs 6.1.5.1, 6.1.5.2 and 6.1.5.3 hereof in
respect of any particular optionee.
6.1.6 Rights as a Stockholder - The optionee (or his personal
representatives or legatees) shall have no rights whatsoever as a
shareholder in respect of any shares covered by his option until the
date of issuance of a share certificate to him (or his personal
representatives or legatees) for such shares. Without in any way
limiting the generality of the foregoing, no adjustment shall be
made for dividends or other rights for which the record date is
prior to the date such share certificate is issued.
6.1.7 Method of Exercise - Subject to the provisions of the Plan, an
option granted under the Plan shall be exercisable (from time to
time as provided in paragraph 6.1.3 hereinabove) by the optionee's
(or his personal representatives' or legatees') giving of notice in
writing to Axcan at its registered office, addressed to its
Vice-President, Finance, which notice shall specify the number of
Common Shares in respect of which the option is being exercised and
shall be accompanied by full payment, by cash or certified cheque,
of the purchase price for the number of shares specified. On the
date of issue of the certificate representing the shares purchased
under the option, which shall not be later than the tenth (10th)
business day following the date of receipt by the Vice-President,
Finance of Axcan of the written notice herein referred to, the
optionee shall be considered as the registered holder of such number
of shares as the optionee (or his personal representatives or
legatees) shall have then paid for and as are specified in such
notice and Axcan shall cause the transfer agent and registrar of
Axcan to deliver to the optionee (or his personal representatives or
legatees), according to the latter's written instructions, if any, a
certificate in the name of the optionee representing such shares. If
required by the Board by notification to the optionee at the time of
granting of the option, it shall be a condition of such exercise
that the optionee shall represent that he is purchasing the Common
Shares in respect of which the option is being exercised for
investment only and not with a view of resale or distribution.
7. USE OF PROCEEDS
7.1 The proceeds received by Axcan upon the exercise of options by optionees
shall be used to increase the working capital of Axcan and for general corporate
purposes.
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8. ADJUSTMENT TO SHARES SUBJECT TO THE OPTION
8.1 In the event that the outstanding Common Shares of Axcan are hereafter
changed into or exchanged for a different number or kind of shares or other
securities of Axcan or of another corporation, or in the event that there is a
reorganization, amalgamation, consolidation, reclassification, dividend payable
in capital stock or other change in the capital stock of Axcan, subject to
regulatory approval, the Board shall make such adjustments as it deems
appropriate in the number and kind of shares for the purchase of which options
may be granted under the Plan and such adjustments shall be final and binding.
9. AMENDMENT OR DISCONTINUANCE OF THE PLAN
9.1 The Board may amend, subject to the prior approval of The Toronto Stock
Exchange or other relevant regulatory authorities, or discontinue the Plan or
the terms of any options granted under the Plan at any time, provided, however,
that no such amendment may detrimentally alter any option previously granted to
an optionee under the Plan without the consent of the optionee, except to the
extent required by law.
9.2 Notwithstanding anything contained to the contrary in this Plan or in any
resolution of the Board in implementation thereof:
9.2.1 in the event Axcan proposes to amalgamate, merge or consolidate with
any other corporation (other than with a wholly-owned Subsidiary of
Axcan) or to liquidate, dissolve or wind-up, or in the event an
offer to purchase the Common Shares or any part thereof shall be
made to all holders of Common Shares, Axcan shall have the right,
upon written notice thereof to each optionee holding options under
this Plan, to permit the exercise of all such options within the
thirty (30) day period next following the date of such notice and to
determine that upon the expiration of such thirty (30) day period,
all rights of optionees to such options or to exercise same (to the
extent not theretofore exercised) shall ipso facto terminate and
cease to have any further force or effect whatsoever;
9.2.2 the Board may, by resolution, advance the date on which any option
may be exercised, in the manner to be set forth in such resolution.
The Board shall not, in the event of any such advancement, be under
any obligation to advance the date upon which any option may be
exercised by any other optionee; and
9.2.3 the Board may, by resolution, but subject to applicable regulatory
provisions, decide that any of the provisions hereof concerning the
effect of termination of the optionee's full-time employment or
cessation of the optionee's office as senior executive or director
shall not apply for any reason acceptable to the Board.
10. OTHER MATERIAL INFORMATION
10.1 Reference is made to the most recently available proxy material, annual
information form, press releases, material change reports and annual financial
statements of Axcan as regards certain facts relating to Axcan which may be
material.
11. INCENTIVE STOCK OPTIONS
11.1 Options granted under the Plan which are intended to be Incentive Stock
Options may only be granted before the 10th anniversary of the Plan's effective
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date (such anniversary being December 15, 2005) and only to persons who are
employees of the Corporations on the date of grant and shall be subject to the
following additional terms and conditions:
11.1.1 Dollar Limitation - To the extent that the aggregate fair market
value of Common Shares for which Incentive Stock Options are
exercisable for the first time by an employee during any calendar
year (under all plans of the Corporations, with fair market value
being determined as of each Incentive Stock Option's date of grant)
exceeds U.S. $100,000, options designated as Incentive Stock Options
shall be treated as non-qualified stock options for United States
tax purposes, with later granted options being treated as
non-qualified stock options first; and
11.1.2 10% Stockholder - If any employee to whom an Incentive Stock Option
is to be granted under the Plan is at the time of the grant of such
Incentive Stock Option the owner of stock possessing more than 10%
of the total combined voting power of all classes of stock of the
Corporations, then the following special provisions shall be
applicable to the Incentive Stock Option granted to such individual:
(i) the purchase price per share of the Common Share subject to such
Incentive Stock Option shall not be less than 110% of the fair
market value of one share of Common Share at the time of grant; and
(ii) the option exercise period shall not exceed five years from the
date of grant.
Except as modified by the preceding provisions of this Section 11, all the
provisions of the Plan shall be applicable to Incentive Stock Options granted
hereunder.
12. EFFECTIVE DATE OF PLAN
12.1 This Plan was (i) originally adopted by the Board on December 15, 1995,
(ii) amended by the Board on December 23, 1999 and ratified by the Shareholders
of Axcan on February 22, 2000 and (iii) re-amended as of December 19, 2000
subject to ratification by the Shareholders at the next Shareholders Meeting of
Axcan. Should changes be required in this Plan by any securities commission or
other governmental body of any province of Canada to which this Plan has been
submitted or by The Toronto Stock Exchange or any other exchange on which the
Common Shares may from time to time be listed, such changes shall be made in
this Plan as are necessary to conform with such requests and if such changes are
approved by the Board, this Plan, as amended, shall remain in full force and
effect in its amended form as of and from December 15, 1995. Axcan may, in its
discretion, qualify this Plan in additional jurisdictions outside of Canada.
However, unless and until Axcan decides to so qualify this Plan, employees
residing in such other jurisdictions are not eligible to participate in this
Plan.
By Order of the Board of Directors
December 19, 2000.
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SECRETARY CERTIFICATION
The undersigned certifies that the Stock Option Plan restated and amended is a
true copy of the Plan as adopted and restated on December 19, 2000, and has not
been reamended or revoked.
February 22, 2001
/s/ Francois Painchaud
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Francois Painchaud
Secretary