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Exhibit
10.7
SCICLONE PHARMACEUTICALS,
INC.
2004 OUTSIDE DIRECTORS
STOCK OPTION PLAN
As Amended Through
February 22, 2007
1. E
STABLISHMENT , P URPOSE
AND T ERM OF P
LAN .
1.1 Establishmen t
. The SciClone Pharmaceuticals, Inc. 2004 Outside
Directors Stock Option Plan (the “ Plan
”) is established effective as of May 26, 2004, the date
on which it is approved by the stockholders of the Company (the
“ Effective Date ”
).
1.2 Purpose
. The purpose of the Plan is to advance the interests
of the Company and its stockholders by providing an incentive to
attract, retain and reward persons performing services as Outside
Directors of the Company and by motivating such persons to
contribute to the growth and profitability of the
Company.
1.3 Term of Plan. The
Plan shall continue in effect until terminated by the Board or the
date on which all of the shares of Stock available for issuance
under the Plan have been issued and all restrictions on such shares
under the terms of the Plan and the agreements evidencing Options
granted under the Plan have lapsed.
2. D
EFINITIONS AND C
ONSTRUCTION .
2.1 Definitions.
Whenever used herein, the following terms shall have their
respective meanings set forth below:
(a) “
Board ” means the Board of Directors of
the Company. If one or more Committees have been appointed by the
Board to administer the Plan, “ Board
” also means such Committee(s).
(b) “
Code ” means the Internal Revenue Code
of 1986, as amended, and any applicable regulations promulgated
thereunder.
(c) “
Committee ” means the compensation
committee or other committee of one or members of the Board duly
appointed to administer the Plan and having such powers as shall be
specified by the Board. Unless the powers of the Committee have
been specifically limited, the Committee shall have all of the
powers of the Board granted herein, including, without limitation,
the power to amend or terminate the Plan at any time, subject to
the terms of the Plan and any applicable limitations imposed by
law.
(d) “
Company ” means SciClone
Pharmaceuticals, Inc. a Delaware corporation, or any successor
corporation thereto.
(e) “
Director ” means a member of the Board
or of the board of directors of any other Parent Corporation or
Subsidiary Corporation.
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(f) “
Disability ” means the permanent and
total disability of the Optionee within the meaning of
Section 22(e)(3) of the Code.
(g) “
Exchange Act ” means the Securities
Exchange Act of 1934, as amended.
(h) “ Fair
Market Value ” means, as of any date, the
value of a share of Stock or other property as determined by the
Board, in its discretion, or by the Company, in its discretion, if
such determination is expressly allocated to the Company herein,
subject to the following:
(i) If, on such date, the
Stock is listed on a national or regional securities exchange or
market system, the Fair Market Value of a share of Stock shall be
the closing price of a share of Stock (or the closing bid price of
a share of Stock if the Stock is so quoted instead) as quoted on
the Nasdaq National Market, The Nasdaq SmallCap Market or such
other national or regional securities exchange or market system
constituting the primary market for the Stock, as reported in
The Wall Street Journal or such other source as the Company
deems reliable. If the relevant date does not fall on a day on
which the Stock has traded on such securities exchange or market
system, the date on which the Fair Market Value shall be
established shall be the last day on which the Stock was so traded
prior to the relevant date, or such other appropriate day as shall
be determined by the Board, in its discretion.
(ii) If, on such date, the
Stock is not listed on a national or regional securities exchange
or market system, the Fair Market Value of a share of Stock shall
be as determined by the Board in good faith without regard to any
restriction other than a restriction which, by its terms, will
never lapse.
(i) “
Option ” means a right to purchase Stock
(subject to adjustment as provided in Section 4.2) pursuant to
the terms and conditions of the Plan. Each Option shall be a
nonstatutory stock option; that is, an option not intended to
qualify as an incentive stock option within the meaning of
Section 422(b) of the Code.
(j) “
Option Agreement ” means a written
agreement between the Company and an Optionee setting forth the
terms, conditions and restrictions of the Option granted to the
Optionee and any shares acquired upon the exercise thereof. An
Option Agreement may consist of a form of “Notice of Grant of
Stock Options” and a form of “Stock Option
Agreement” incorporated therein by reference, or such other
form or forms as the Board may approve from time to
time.
(k) “
Optionee ” means a person who has been
granted one or more Options.
(l) “
Outside Director ” means a Director who
is not an employee of the Company or of any Parent Corporation or
Subsidiary Corporation.
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(m) “
Parent Corporation ” means any present
or future “parent corporation” of the Company, as
defined in Section 424(e) of the Code.
(n) “ Rule
16b-3 ” means Rule 16b-3 under the
Exchange Act, as amended from time to time, or any successor rule
or regulation.
(o) “
Securities Act ” means the Securities
Act of 1933, as amended.
(p) “
Service ” means an Optionee’s
service with the Company as a Director. An Optionee’s Service
shall be deemed to have terminated if the Optionee ceases to be a
Director, even if the Optionee continues to render service to the
Company in a capacity other than as a Director or commences
rendering service to a Parent Corporation or Subsidiary
Corporation. An Optionee’s Service shall not be deemed to
have terminated if the Optionee takes any bona fide leave of
absence approved by the Company. Unless otherwise provided by the
Board in the grant of an Option and set forth in the Option
Agreement evidencing such Option, an approved leave of absence
shall be treated as Service for purposes of determining vesting
under the Option. Subject to the foregoing, the Company, in its
discretion, shall determine whether the Optionee’s Service
has terminated and the effective date of such
termination.
(q) “
Stock ” means the common stock of the
Company, as adjusted from time to time in accordance with
Section 4.2.
(r) “
Subsidiary Corporation ” means any
present or future “subsidiary corporation” of the
Company, as defined in Section 424(f) of the Code.
2.2 Construction.
Captions and titles contained herein are for convenience only and
shall not affect the meaning or interpretation of any provision of
the Plan. Except when otherwise indicated by the context, the
singular shall include the plural and the plural shall include the
singular. Use of the term “or” is not intended to be
exclusive, unless the context clearly requires
otherwise.
3. A
DMINISTRATION .
3.1 Administration by the
Board. The Plan shall be administered by the Board. All
questions of interpretation of the Plan or of any Option shall be
determined by the Board, and such determinations shall be final and
binding upon all persons having an interest in the Plan or such
Option. At any time that any class of equity security of the
Company is registered pursuant to Section 12 of the Exchange
Act, the Plan shall be administered in compliance with the
requirements, if any, of Rule 16b-3. For this purpose, the
Board may delegate authority to administer the Plan to a Committee
composed solely of two or more Non-Employee Directors.
3.2 Authority of
Officers. Any officer of the Company shall have the authority
to act on behalf of the Company with respect to any matter, right,
obligation, determination or election which is the responsibility
of or which is allocated to the Company herein, provided the
officer has apparent authority with respect to such matter, right,
obligation, determination or election.
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3.3 Indemnification.
In addition to such other rights of indemnification as they may
have as members of the Board or officers or employees of the
Company, members of the Board and any officers or employees of the
Company to whom authority to act for the Board or the Company is
delegated shall be indemnified by the Company against all
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 right granted hereunder, and against all amounts paid by them
in settlement thereof (provided such settlement is approved by
independent legal counsel selected by 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 person is
liable for gross negligence, bad faith or intentional misconduct in
duties; provided, however, that within sixty (60) days after
the institution of such action, suit or proceeding, such person
shall offer to the Company, in writing, the opportunity at its own
expense to handle and defend the same.
4. S
HARES S UBJECT TO P
LAN .
4.1 Maximum Number of
Shares Issuable. Subject to adjustment as provided in
Section 4.2, the maximum aggregate number of shares of Stock
that may be issued under the Plan shall be one million seven
hundred sixty-five thousand (1,765,000) and shall consist of
authorized but unissued or reacquired shares of Stock or any
combination thereof. Shares issuable under the Plan shall consist
of authorized but unissued or reacquired shares of Stock or any
combination thereof. If an outstanding Option for any reason
expires or is terminated or canceled without having been exercised
in full, the shares of Stock allocable to the unexercised portion
of such Option shall again be available for issuance under the
Plan. Shares of Stock shall not be deemed to have been issued
pursuant to the Plan to the extent such shares are withheld in
satisfaction of tax withholding obligations pursuant to
Section 6.5.
4.2 Adjustments for
Changes in Capital Structure . Subject to any
required action by the stockholders of the Company, in the event of
any change in the Stock effected without receipt of consideration
by the Company, whether through merger, consolidation,
reorganization, reincorporation, recapitalization,
reclassification, stock dividend, stock split, reverse stock split,
split-up, split-off, spin-off, combination of shares, exchange of
shares, or similar change in the capital structure of the Company,
or in the event of payment of a dividend or distribution to the
stockholders of the Company in a form other than Stock (excepting
normal cash dividends) that has a material effect on the Fair
Market Value of shares of Stock, appropriate and proportionate
adjustments shall be made in the number and class of shares subject
to the Plan and to any outstanding Options and in the exercise
price per share of any outstanding Options in order to prevent
dilution or enlargement of Optionees’ rights under the Plan.
For purposes of the foregoing, conversion of any convertible
securities of the Company shall not be treated as “effected
without receipt of consideration by the Company.” Any
fractional share resulting from an adjustment pursuant to this
Section 4.2 shall be rounded down to the nearest
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whole number, and in no event may the
exercise price of any Option be decreased to an amount less than
the par value, if any, of the stock subject to the Option. Such
adjustments shall be determined by the Board, and its determination
shall be final, binding and conclusive.
5. E
LIGIBILITY .
Options shall be granted only
to those persons who, at the time of grant, are serving as Outside
Directors.
6. T
ERMS AND C ONDITIONS
OF O PTIONS .
Options shall be evidenced by
Option Agreements specifying the number of shares of Stock covered
thereby, in such form as the Board shall from time to time
establish. Option Agreements may incorporate all or any of the
terms of the Plan by reference and shall comply with and be subject
to the following terms and conditions:
6.1 Automatic Grant.
Subject to the execution by an Outside Director of an appropriate
Option Agreement, Options shall be granted automatically and
without further action of the Board, as follows:
(a) Initial
Option. Each person who first becomes an Outside Director
on or after the Effective Date shall be granted on the date such
person first becomes an Outside Director an Option to purchase
fifty thousand (50,000) shares of Stock (an “
Initial Option ” ).
(b) Annual
Option. Each Outside Director shall be granted on the date
of each annual meeting of the stockholders of the Company
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