STOCK OPTION AGREEMENT
This Agreement is dated as of this 22nd day of September,
1995 between Biogen, Inc., a Massachusetts corporation (the
"Company"), having its principal office in Cambridge,
Massachusetts, and Xxxxx X. Xxxxxxx, an employee and member of the
Board of Directors of Biogen, Inc. (the "Employee"). Any
capitalized term not defined in this Agreement shall have the
meaning set forth in the Company's 1985 Non-Qualified Stock Option
Plan, as amended (the "Plan").
WHEREAS, the Company desires to grant to Employee an option
(the "Option") to purchase ______________ shares of the Company's
Common Stock, par value U.S. $0.01 per share, under the Plan;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable
consideration, the parties hereto agree as follows:
1. GRANT OF OPTION
The Company hereby grants to Employee the right and
Option to purchase all or any part of an aggregate of
shares of its Common Stock, U.S. $0.01 par value (the
"Shares"), on the terms and conditions and subject to all of the
limitations set forth herein and in the Plan. The Option granted
hereby shall not be treated as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended.
2. EXERCISE PRICE
The exercise price shall be $ per share.
3. EXERCISE OF OPTION
3.1. The Option granted hereby shall be immediately
exercisable for all or any part of the Shares.
3.2A. Notwithstanding the provisions of paragraph 3.1,
if (a) the Company terminates Employee's employment for cause (as
defined in paragraph 8 (e) of the Employment Agreement dated
September 23, 1985 between Employee and the Company (the
"Employment Agreement"), or (b) Employee resigns as an employee
under circumstances which do not constitute (i) permanent or total
disability as defined in Section 4 hereof, or (ii) Constructive
Termination (as defined in paragraph 8 (f) of the Employment
Agreement, and the Employee also no longer serves on the Board of
Directors), then if either (a) or (b) above occurs before September
22, 1996, and Employee has theretofore exercised the Option for any
Shares, the Company may purchase those Shares from Employee at the
price paid by Employee upon exercise; if either (a) or (b) above
occurs on or after September 22, 1996 and before September 22, 1997
and Employee has theretofore exercised the Option for more than 40%
of the Shares originally issuable hereunder, the Company may
purchase the number of Shares for which the Option has been
exercised in excess of 40% of the Shares originally issuable
hereunder at the price paid by Employee upon exercise; if either
(a) or (b) above occurs on or after September 22, 1997 and before
September 22, 1998, and Employee has theretofore exercised the
Option for more than 70% of the Shares originally issuable
hereunder, such purchase right will apply as to the number of
Shares for which the Option has been exercised in excess of 70% of
the Shares originally issuable hereunder at the price paid by
Employee upon exercise.
3.2B. If (a) the Company terminates Employee's
employment other than for cause and the Employee also no longer
serves on the Board of Directors or (b) if Employee resigns under
circumstances which constitute a Constructive Termination within
the provisions of subparagraphs (i) and (ii) of paragraph 8 (f) of
the Employment Agreement and the Employee also no longer serves on
the Board of Directors, then if either (a) or (b) above occurs
before September 22, 1996 and Employee has theretofore exercised
the Option for more than 40% of the Shares originally issuable
hereunder, the Company may purchase the number of Shares for which
the Option has been exercised in excess of 40% of the Shares
originally issuable hereunder at the price paid by Employee upon
exercise; if either (a) or (b) above occurs on or after September
22, 1996 and before September 22, 1997 and Employee has theretofore
exercised the Option for more than 70% of the Shares originally
issuable hereunder, the Company may purchase the number of Shares
for which the Option has been exercised in excess of 70% of the
Shares originally issuable hereunder at the price paid by Employee
upon exercise.
3.2C. Under paragraphs 3.2A and 3.2B, the Option
shall cease to be exercisable as to any Shares which, together with
Shares previously purchased by the Employee upon exercise of the
Option, will exceed the percentages set forth above for the
relevant time period and event. The right of the Company to
purchase Shares pursuant to this Section 3.2 is hereinafter
referred to as the "Purchase Option". Notwithstanding anything to
the contrary contained herein, a resignation or termination of
employment by reason of total and permanent disability, as
determined by the Stock and Option Plan Administration Committee of
the Board of Directors (the "Committee"), in its discretion, shall
not be deemed a resignation or termination for purposes of the
Purchase Option.
4. TERM OF OPTION
The Option shall terminate on September 22, 2005, but
shall be subject to earlier termination as provided herein.
If, for any reason other than termination of employment
by the Company for cause, the Employee no longer serves as an
employee of the Company or an Affiliate and also no longer serves
as a member of the Board of Directors, this Option may be
exercised, if it has not previously expired, within eighteen (18)
months after the later of the date Employee ceases to be an
employee or the date the Employee ceases to be a director.
If the Employee's employment is terminated due to the
total and permanent disability of Employee (as determined by the
Committee, and as to the fact and date of which Employee is
notified by the Committee in writing), and if the Employee also no
longer serves as director, the Option, to the extent not previously
exercised, shall be exercisable by Employee or his legal
representative within eighteen (18) months after the date of the
Committee's determination of total or permanent disability, or, if
earlier, within the time originally described in the first
paragraph of this Section 4. In the event of the death of
Employee, the Option, to the extent not exercised as of the date of
death, may be exercised by the executors, administrators or other
legal representatives of the estate of Employee or by any person or
persons who acquired Employee's rights to the Option by will or the
laws of descent and distribution as provided in the Plan within
eighteen (18) months after the date of Employee's death or, if
earlier, within the time originally prescribed in the first
paragraph of this Section 4.
In the event Employee's employment with the Company or
any of its Affiliates is terminated for cause (as defined in
paragraph 8(e) of the Employment Agreement), upon such termination,
Employee's right to exercise any unexercised portion of this Option
shall immediately cease, and this Option shall immediately
terminate.
5. EXERCISE OF OPTION AND ISSUE OF STOCK
The Option may be exercised in whole or in part (to the
extent that it is exercisable in accordance with its terms) by
giving written notice to the Company, at the address set forth in
Section 8 below, and accompanied by the Option exercise price.
Such written notice shall be signed by the person exercising the
Option, shall state the number of Shares with respect to which the
Option is being exercised, and shall otherwise comply with the
terms and conditions of this Agreement. Payment of the Option
price shall be made to the Company as follows:
(a) In cash; or
(b) By transfer to the Company of shares of Common Stock
which have been held by Employee for at least six (6) months prior
to being used for payment of the Option price, the transfer value
of such shares being their fair market value on the day preceding
the date of notice of exercise (determined in accordance with
paragraph 8 of the Employment Agreement); or
(c) A combination of (a) and (b) above.
The Company shall pay all original issue taxes with
respect to the issue of Shares pursuant hereto and all other fees
and expenses necessarily incurred by the Company in connection
therewith. The payment of any withholding or other similar taxes
shall be made in compliance with Section VI (M) of the Plan. The
holder of this Option shall have the rights of a shareholder only
with respect to those shares covered by the Option which have been
registered in the holder's name in the share register of the
Company upon due exercise of the Option.
6. RESTRICTIONS ON TRANSFER OF SHARES; DETAILS OF THE
PURCHASE OPTION
6.1 Any Shares which are subject to the Option shall not
be transferred by Employee except as permitted herein. Until the
termination of this Agreement, the Shares which are subject to the
Purchase Option may not be transferred by Employee unless and until
the transferee agrees, in a form satisfactory to the Company, to be
bound by this Agreement and to sell any transferred Shares to the
Company should the Company choose to exercise the Purchase Option.
6.2 In the event the Company shall be entitled to and
shall elect to exercise the Purchase Option, it shall give to
Employee a written notice specifying the number of Shares which it
elects to purchase (the "Purchase Stock") and specifying a date for
closing hereunder (the "Closing") which date shall not be more than
thirty (30) calendar days after the giving of such notice. The
Closing shall take place at the Company's principal office in
Massachusetts or such other location as the entity giving the
notice may reasonably designate in such notice.
6.3 At the Closing, Employee shall deliver the Purchase
Stock being purchased by the Company against the simultaneous
delivery to Employee of the purchase price (by certified or bank
cashier's check), for the number of shares of Purchase Stock then
being purchased. In the event that Employee fails to deliver the
number of shares of the Purchase Stock to be purchased, the Company
may elect (a) to establish a segregated account in the amount of
the purchase price, such account to be turned over to Employee upon
delivery of such shares of Purchase Stock, and (b) immediately to
take such action as is appropriate to transfer record title in such
Purchase Stock from Employee to the Company and to treat Employee
and such shares of Purchase Stock in all respects as if delivery of
such shares of Purchase Stock had been made as required by this
Agreement. Employee hereby irrevocably grants the Company a power
of attorney for the purposes of effectuating the preceding
sentence.
6.4 If the Company shall pay a stock dividend or declare
a stock split on or with respect to any of the Company's Common
Stock, or otherwise distribute securities of the Company to the
holders of its Common Stock, whether before or after the exercise
of the Option, the number of Shares of stock or other securities of
the Company issued with respect to the Purchase Stock then subject
to the Purchase Option shall be added to the Purchase Stock then
subject to the Purchase Option without any change in the aggregate
purchase price. If the Company shall distribute to its
stockholders shares of stock of another corporation, the shares of
stock of such other corporation distributed with respect to the
Purchase Stock then subject to the Purchase Option shall be added
to the Purchase Stock covered by the Purchase Option without any
change in the aggregate purchase price. Without limiting the
generality of the foregoing, Employee shall be entitled to retain
any and all cash dividends paid by the Company on the Shares.
6.5 If the outstanding shares of Common Stock of the
Company shall be subdivided into a greater number of shares or
combined into a smaller number of shares, or in the event of a
reclassification of the outstanding shares of Common Stock of the
Company, or if the Company shall be a party to any capital
reorganization, whether before or after the exercise of the Option,
there shall be substituted for the Purchase Stock then covered by
the Purchase Option such amount and kind of securities as are
issued in such subdivision, combination, reclassification, or
capital reorganization in respect of the Purchase Stock subject to
the Purchase Option immediately prior thereto, without any change
in the aggregate purchase price, although the purchase price will
be based on the adjusted exercise price of the Option, if any.
6.6 If the Company shall be completely liquidated, then
the Purchase Option shall cease and terminate as of the date of
such liquidation and Employee shall hold the Shares free of the
Purchase Option.
6.7 The Company shall not be required to transfer any
Shares on its books which shall have been sold, assigned or
otherwise transferred in violation of this Agreement, or to treat
as owner of such Shares, or to accord the right to vote as such
owner or to pay dividends to, any person or organization to which
any such Shares shall have been sold, assigned or otherwise
transferred, from and after any sale, assignment or transfer of any
Shares made in violation of this Agreement.
6.8 All certificates representing any Shares to be
issued to Employee pursuant to the exercise of the Option which are
subject to the Purchase Option shall have endorsed thereon a legend
substantially as follows: "The shares represented by this
certificate are subject to a Stock Option Agreement dated September
22, 1995 between Biogen, Inc. and Xxxxx X. Xxxxxxx, a copy of which
Agreement is available for inspection at the principal offices of
the Company or will be made available upon request."
6.9 This Agreement shall not restrict the transfer by
Employee of shares, if any, which are not acquired pursuant to the
exercise of the Option or which are not, or cease to be, subject to
the Purchase Option in accordance with the terms hereof.
7. NON-ASSIGNMENT
This Option shall not be transferable by Employee other
than by will or by the laws of descent and distribution or pursuant
to a qualified domestic relations order as interpreted under Rule
16b-3 (a) (2) of the Securities Exchange Act of 1934, and shall be
exercisable during Employee's lifetime only by Employee.
8. NOTICES
Any notice required or permitted by the terms of this
Agreement shall be given by registered or certified mail, return
receipt requested, addressed as follows:
To the Company: Biogen, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Vice President - General Counsel
To Employee: Xxxxx X. Xxxxxxx
Biogen, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or to such other address or addresses of which notice in the same
manner has previously been given. Any such notice shall be deemed
to have been given when mailed in accordance with the foregoing
provisions.
9. GOVERNING LAW
This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts.
10. BENEFIT OF AGREEMENT
This Agreement shall be for the benefit of and shall be
binding upon heirs, executors, administrators and successors of the
parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its duly authorized representative and
Employee has hereunto set his hand as of the day and year first
above written.
BIOGEN, INC. EMPLOYEE:
By: _____________________ _____________________
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
Vice President and
General Counsel
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