Exhibit 10.22
BIOGEN, INC.
1985 NON-QUALIFIED STOCK OPTION PLAN
(As amended and restated through April 11, 2003, effective as
of April 11, 2003)
I.
PURPOSE OF THE PLAN
The Plan is intended to encourage
ownership of shares of the Common Stock by certain Employees and
Directors of the Company and its Affiliates and to provide an
additional incentive to those Employees and Directors to promote
the success of the Company and its Affiliates.
II.
DEFINITIONS
1. “Affiliate” means
(a) a corporation in respect of which the Company owns
directly or indirectly fifty percent (50%) or more of the voting
securities thereof or which is otherwise controlled by the Company;
or (b) to the extent not inconsistent with Section 424 of
the Code, an unincorporated trade or business controlled by the
Company which has elected, for federal income tax purposes, to be
either (i) classified as an association taxable as a
corporation or (ii) disregarded as an entity separate from its
owner (as provided in Section 301.7701-3 of the federal income
tax regulations). For purposes of this definition, the Company
shall be deemed to control another entity if the Company possesses,
directly or indirectly, the power to direct or cause the direction
of the management and policies of such entity, whether through
ownership of voting securities, by contract or otherwise.
2. “Code” means the
Internal Revenue Code of 1986, as amended from time to time.
3. “Committee” means
the Stock and Option Plan Administration Committee of the Board of
Directors of the Company or, if such committee ceases to exist, the
Board of Directors of the Company or a committee thereof to which
responsibility for administering the Plan shall have been
delegated.
4. “Common Stock”
means the common stock of the Company, par value $0.01 per
share.
5. “Company” means
Biogen, Inc., a Massachusetts corporation.
6. “Corporate Change in
Control” shall be deemed to have occurred upon:
(i) the acquisition of beneficial
ownership (as determined pursuant to the provisions of
Rule 13d-3 under the Exchange Act) of securities of the
Company representing more than fifty percent (50%) of the combined
voting power of the Company’s then outstanding securities by
a person, entity or “group”, within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act (excluding for
this purpose, the Company or its Affiliates, or any employee
benefit plan of the Company),
pursuant
to a transaction or series of related transactions which the Board
of Directors does not approve; or
(ii) at such time as individuals who
as of April 27, 2001 constitute the Board of Directors (the
“Incumbent Board”) cease for any reason to constitute a
majority of the Board of Directors of the Company, provided that
any person becoming a director subsequent to April 27, 2001
whose election or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board, shall, for purposes
of the Plan, be considered as though such person were a member of
the Incumbent Board (other than an individual whose initial
assumption of office is in connection with an actual or threatened
election contest related 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
(iii) the occurrence of any other
event which the Incumbent Board in its sole discretion determines
should be considered a Corporate Change of Control.
7. “Corporate
Transaction” shall mean the following unless and until the
transaction becomes a Corporate Change in Control:
(i) a reorganization,
recapitalization, merger or consolidation unless more than fifty
percent (50%) of the Company’s outstanding voting stock or
the voting stock of the corporation resulting from the transaction
(or the parent of such corporation) is held subsequent to the
transaction by the persons who held the stock of the Company
immediately prior to such transaction, or
(ii) the sale, transfer or other
disposition of all or substantially all of the assets of the
Company to a successor in interest to the business of the
Company.
8. “Designated
Employee” means an Employee or Director designated by the
Committee, in its sole discretion, as a “Designated
Employee” for purposes of the Plan at any time prior to the
effective date of a Corporate Transaction.
9. “Director” means
a member of the Board of Directors of the Company or an
Affiliate.
10. “Employee” means
an individual employed by the Company or an Affiliate as a common
law employee (determined under the regular personnel policies,
practices and classifications of the Company or the Affiliate, as
applicable). An individual is not considered an Employee for
purposes of the Plan if the individual is classified as a
consultant or contractor under the Company or an Affiliate’s
regular personnel classifications and practices, or if the
individual is a party to an agreement to provide services to the
Company or an Affiliate without participating in the Plan,
notwithstanding that such individual may be treated as a common law
employee for payroll tax, coverage requirements under Section
410(b) of the Code, nondiscrimination requirements under
Section 401(a)(4) or other legal purposes.
11. “Exchange Act”
means the United States Securities Exchange Act of 1934, as amended
from time to time.
12. “Fair Market
Value” shall have the meaning set forth in
Section VI.A.
13. “For Cause”
shall have the meaning set forth in Section VI.G.
14. “Incumbent
Board” shall have the meaning set forth in the definition of
“Corporate Change of Control.”
15. “Involuntary
Employment Action” shall have the meaning set forth in
Section VI.R.
16. “ISO Plan” shall
have the meaning set forth in Article III.
17. “Option” means a
stock option granted under this Plan.
18. “Option
Certificate” means a certificate delivered to an Option
holder by the Company pursuant to the Plan, in such form as the
Committee shall approve, which sets forth the terms and conditions
of an Option.
19. “Plan” shall
mean this 1985 Non-Qualified Stock Option Plan, as amended and/or
restated from time to time.
20. “Retirement”
shall have the meaning set forth in Section VI.J.
21. “Securities Act”
shall mean the United States Securities Act of 1933, as amended
from time to time.
III.
SHARES SUBJECT TO THE PLAN
The aggregate number of shares as to
which Options may be granted from time to time shall be 54,208,000
shares of the Common Stock; provided, however that such aggregate
number shall be reduced by the number of shares which has been sold
under, or may be sold pursuant to options granted from time to time
under, the Company’s 1982 Incentive Stock Option Plan (the
“ISO Plan”), to the same extent as if such sales had
been made or options granted pursuant to the Plan.
Notwithstanding the foregoing, on the
first day of each fiscal year of the Company (beginning in 2003)
the number of shares as to which Options may be granted from time
to time pursuant to the Plan shall be increased by an amount equal
to the lesser of (i) 3,695,000 shares or the equivalent of
such number of shares of the Common Stock after the Committee, in
its sole discretion, has interpreted the effect of any stock split,
stock dividend, combination, recapitalization or similar
transaction in accordance with Article VIII of this Plan; or
(ii) 2.5% of the number of outstanding shares of the Common
Stock on the last trading day of the immediately preceding fiscal
year. Notwithstanding the immediately preceding sentence, in the
event that the stockholders of the Company approve the adoption of
the Company’s 2003
Omnibus
Equity Plan at the 2003 annual meeting of the Company’s
shareholders, the aggregate number of shares of Common Stock that
may be issued under this Plan shall be the number determined in
accordance with the first paragraph of this Article III.
If any Option granted under the Plan
or the ISO Plan ceases to be “outstanding”, in whole or
in part, other than by reason of the exercise of such Option, the
shares which were subject to such Option shall be available for the
granting of other Options. Any Option shall be treated as
“outstanding” until such Option is exercised in full,
terminates under the provisions of the Plan or the ISO Plan, as the
case may be, or expires by reason of lapse of time.
Except as expressly provided above,
the aggregate number of shares as to which Options may be granted
shall be subject to change only by means of an amendment adopted in
accordance with Article XI below, subject to the provisions of
Article VIII.
IV.
ADMINISTRATION OF THE PLAN
The Plan shall be administered by the
Committee. The membership of the Committee shall be determined, and
shall be subject to change without cause and without notice from
time to time, by the Board of Directors of the Company.
The Committee is authorized to
interpret the provisions of the Plan or of any Option and to make
all rules and determinations necessary or advisable for the
administration of the Plan. The interpretation and construction by
the Committee of any provision of the Plan or of any Option granted
under it shall be final, unless otherwise determined by the
Incumbent Board. The Committee’s determinations under the
Plan do not need to be uniform and may be made by it selectively
among persons who receive, or are eligible to receive, Options
under the Plan (whether or not such persons are similarly
situated). Subject to the provisions of the Plan, Options may be
granted upon such terms and conditions as the Committee may
prescribe.
V.
ELIGIBILITY FOR PARTICIPATION
The Committee shall determine which
Employees and Directors shall be eligible to participate in the
Plan. Without limiting the generality of the foregoing, Options may
be awarded for reasons of performance, merit, promotion, bonus or
upon new Employees joining the Company or any Affiliate.
The Committee may grant to one or
more such Employees or Directors one or more Options, and shall
designate the number of shares to be optioned under each Option so
granted; provided, however, that no Options shall be granted after
December 31, 2011. In no event shall any Employee be granted
in any calendar year Options to purchase or receive more than
2,400,000 shares, as adjusted pursuant to Article VIII, of the
Common Stock pursuant to the Plan.
VI.
TERMS AND CONDITIONS OF OPTIONS
No Option issued pursuant to the Plan
shall be an incentive stock option under Section 422 of the
Code. No purported grant of any Option shall be effective until
such Option shall have been approved by the Committee, except as
otherwise provided in Section VI.N below. The Committee may
provide that Options be granted subject to such conditions as the
Committee may deem appropriate, including without limitation,
subsequent approval by the shareholders of the Company of the Plan
or any amendments thereto. Each Option shall be subject to at least
the following terms and conditions:
A. Option Price : Each
Option Certificate shall state the Option price per share of the
Common Stock covered by such Option grant. Except as otherwise
determined by the Committee, the Option price per share for Options
granted under the Plan shall be equal to the fair market value per
share of Common Stock (the “Fair Market Value”) on the
date of grant of the Option; provided, however, that in no event
shall the Option price be less than the par value per share of
Common Stock. Fair Market Value shall be calculated as follows:
(i) if the Common Stock is listed on a national securities
exchange or traded on the Nasdaq National Market or the Nasdaq
SmallCap Market and sale prices are regularly reported for
the Common Stock, then the Fair Market Value shall be the
arithmetic mean between the “high” and
“low” sale prices for the Common Stock reported on the
applicable composite tape or other comparable reporting system on
the date of grant, or if the date of grant is not a trading day, on
the most recent trading day immediately prior to the date of grant;
or (ii) if sale prices are not regularly reported for the
Common Stock as described in clause (i) above but bid and
asked prices for the Common Stock are regularly reported, then the
Fair Market Value shall be the arithmetic mean between the closing
or last bid and asked prices for the Common Stock on the date of
grant or, if the date of grant is not a trading day, on the most
recent trading day immediately prior to the date of grant; or
(iii) if sale prices are not regularly reported for the Common
Stock as described in clause (i) or (ii) above, then the
Fair Market Value shall be such value as the Committee in good
faith determines.
B. Number of Shares :
Each Option Certificate shall state the number of shares of the
Common Stock to which it pertains.
C. Term of Option : Each
Option Certificate shall state the term of the Option which shall
be ten (10) years from the date of the grant thereof, or at
such earlier or later time as the Committee shall expressly state
in the Option Certificate.
D. Date of Exercise :
Each Option Certificate shall state the date or dates on which the
Option becomes exercisable, and may provide that the Option rights
accrue or become exercisable in installments over a period of
months or years, or upon the attainment of stated goals or events
or through other circumstances or programs approved by the
Committee. The Committee shall have the right to accelerate the
date of exercise of any installment of any Option.
E. Cancellation and
Repurchase Rights : An Option Certificate may stipulate that an
Option which becomes exercisable shall be subject to cancellation
or that shares purchased upon the exercise of such Option shall be
subject to repurchase rights in favor of the Company. In such event
the Committee shall determine the date or dates, or event or
events, upon which such
cancellation or repurchase rights shall become effective or shall
lapse, as the case may be and those provisions shall be set forth
in the Option Certificate.
F. Medium of Payment :
The Option price shall be payable upon the exercise of the Option.
It shall be payable (a) in United States dollars in cash or by
check, (b) if permitted by the Committee, in shares of the
Common Stock held by the Option holder for at least six months
having a fair market value (determined in the manner provided in
Section VI.A above as of the date of exercise) equal to the
cash exercise price of the Option, (c) at the discretion of
the Committee, by delivery of the Option holder’s personal
note, for full, partial or no recourse, bearing interest payable
not less than annually at market rate on the date of exercise and
no less than 100% of the applicable Federal rate, as defined in
Section 1274(d) of the Code, with or without the pledge of
shares of the Common Stock as collateral, (d) at the
discretion of the Committee, in accordance with a cashless exercise
program established with a securities brokerage firm, or
(e) at the discretion of the Committee, by any combination of
(a), (b), (c) and (d) above.
G. Termination of
Employment : An Option holder who ceases (for any reason other
than death, total and permanent disability, Retirement or
termination of employment For Cause) to be an Employee or Director
of the Company or of an Affiliate may exercise any Option granted
to the extent that the right to purchase shares thereunder has
accrued on the date of such termination. Except as set forth in the
next sentence or as otherwise set forth in the Plan, such Option
shall be exercisable only within three (3) months after such
date of termination, or, if earlier, within the originally
prescribed term of the Option, unless the Committee shall set forth
a different period in the Option Certificate. Notwithstanding
anything in this Plan to the contrary, unless a different time
period is specified in the Option Certificate, an Option holder (or
permitted transferee of such individual) who ceases (for any reason
other than For Cause) to be a member of the Board of Directors of
the Company after the completion of at least six (6) full
years of services on the Board may exercise any Option granted
within the originally prescribed term of the Option but solely to
the extent the right to purchase shares thereunder has accrued on
the date of such termination. For purposes of the Plan, employment
shall not be deemed terminated by reason of a transfer to another
employer which is the Company or an Affiliate. If any Option is not
exercised following the Option holder’s termination within
the time specified, the Option shall terminate and the shares
covered by such Option shall revert to the Plan.
An Option holder whose empl
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