<PAGE> 1
As filed with the Securities and Exchange Commission on August 26, 1997
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
----------------
BIORELIANCE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 52-1541583
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9900 Blackwell Road
Rockville, MD 20706
(Address of principal executive offices, including zip code)
BIORELIANCE CORPORATION 1997 INCENTIVE PLAN
MICROBIOLOGICAL ASSOCIATES, INC. 1995 NON-QUALIFIED STOCK OPTION PLAN
MAGENTA CORPORATION 1994 INCENTIVE STOCK OPTION PLAN
MICROBIOLOGICAL ASSOCIATES, INC. 1988 INCENTIVE STOCK OPTION PLAN
(Full title of the plans)
Capers W. McDonald
BioReliance Corporation
9900 Blackwell Road
Rockville, MD 20706
(301) 762-5260
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Proposed Maximum Proposed Maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share price registration fee
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<S> <C> <C> <C> <C>
Common Stock 1,537,252 (2) * (3) * (3) $4,723.39 (3)
($.01 par value)(1) shares
==============================================================================================================
</TABLE>
(1) Plus such additional shares as may be made available in order to
adjust to a change in capitalization
(2) Pursuant to an Assignment and Assumption Agreement, dated as of
October 14, 1996, by and among Microbiological Associates, Inc.
("MA"), MAGENTA Corporation ("Magenta") and MAGENTA Viral Production,
Inc. (the "Assignment Agreement"), MA assumed all of the outstanding
options under the MAGENTA Corporation 1994 Incentive Stock Option Plan
(the "Magenta Options"), with appropriate adjustments to the number of
shares and exercise price of each Magenta Option to reflect the ratio
of the fair market value of the common stock of Magenta to the fair
market value of the common stock of MA pursuant to the Assignment
Agreement. Pursuant to an Amended and Restated Agreement and Plan of
Merger, dated as of April 24, 1997, by and among MA and the Registrant
(the "Merger Agreement"), the Registrant assumed all of the
outstanding options under the 1995 Plan, the 1994 Plan, and the 1988
Plan (the "MA Options"), with appropriate adjustments to the number of
shares and exercise price of each MA Option to reflect the ratio at
which the MA common stock was converted into common stock of the
Registrant under the Merger Agreement. Prior to the assumption of the
MA Options by the Registrant, the number of shares and exercise price
of each MA Option were adjusted to reflect a one-for-three reverse
stock split of the common stock of MA.
(3) As of the date hereof, options to purchase 21,299, 494,147, 104,680
3,164, 112,622, 15,330, 47,020, 15,083 and 11,630 shares of Common
Stock of the Registrant have been granted pursuant to the
Microbiological Associates, Inc. 1995 Non-qualified Stock Option Plan,
the MAGENTA Corporation 1994 Incentive Stock Option Plan and the
Microbiological Associates, Inc. 1988 Incentive Stock Option Plan at
exercise prices of $0.563, $1.50, $2.25, $2.43, $3.00, $4.50, $7.50,
$9.00 and $13.95 respectively. The registration fee for the foregoing
shares is based upon such exercise prices. Pursuant to Rule 457(c),
the registration fee for the 712,277 shares not currently subject to
outstanding options or not issued under the BioReliance Corporation
1997 Incentive Plan is based upon a price of $19.00 per share, the
average of the high and low sales price reported on the Nasdaq
National Market System for the Registrant's Common Stock on August 19,
1997.
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EXPLANATORY NOTE
This Registration Statement relates to the registration by BioReliance
Corporation (the "Company") of (a) 712,277 shares of common stock par value
$0.01 per share ("Common Stock") which are issuable upon the exercise of
options which have been or may be granted under the BioReliance Corporation
1997 Incentive Plan, and (b) 824,975 shares of Common Stock which are
issuable upon the exercise of options which have been granted under the
Microbiological Associates, Inc. 1995 Non-Qualified Stock Option Plan (the
"1995 Plan"), the MAGENTA Corporation 1994 Incentive Stock Option Plan (the
"1994 Plan"), and the Microbiological Associates, Inc. 1988 Incentive Stock
Option Plan (the "1988 Plan"). The 1997 Plan, the 1995 Plan, the 1994 Plan and
the 1988 Plan are collectively referred to herein as the "Plans."
Pursuant to an Assignment and Assumption Agreement, dated as of
October 14, 1996, by and among Microbiological Associates, Inc. ("MA"), MAGENTA
Corporation ("Magenta") and MAGENTA Viral Production, Inc. (the "Assignment
Agreement"), MA assumed all of the outstanding options under the MAGENTA
Corporation 1994 Incentive Stock Option Plan (the "Magenta Options"), with
appropriate adjustments to the number of shares and exercise price of each
Magenta Option to reflect the ratio of the fair market value of the common
stock of Magenta to the fair market value of the common stock of MA pursuant to
the Assignment Agreement. Pursuant to an Amended and Restated Agreement and
Plan of Merger, dated as of April 24, 1997, by and among MA and the Registrant
(the "Merger Agreement"), the Registrant assumed all of the outstanding options
under the 1995 Plan, the 1994 Plan, and the 1988 Plan (the "MA Options"), with
appropriate adjustments to the number of shares and exercise price of each MA
Option to reflect the ratio at which the MA common stock was converted into
common stock of the Registrant under the Merger Agreement. Prior to the
assumption of the MA Options by the Registrant, the number of shares and
exercise price of each MA Option were adjusted to reflect a one-for-three
reverse stock split of the common stock of MA.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the plan information required by
Item 1 of Form S-8 and the statement of availability of registrant information
and any other information required by Item 2 of Form S-8 will be sent or given
to participants of the Plans as specified by Rule 428 under the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with Rule 428 and
the requirements of Part I of Form S-8, such documents are not being filed with
the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. The Registrant shall maintain a
file of such documents in accordance with the provisions of Rule 428. Upon
request, the Registrant shall furnish to the Commission or its staff a copy or
copies of all of the documents included in such file.
<PAGE> 4
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which are filed with the Securities and
Exchange Commission (the "Commission"), are incorporated in this Registration
Statement by reference:
(a) The Company's prospectus filed with the Commission on July 29,
1997 pursuant to Rule 424(b) under the Securities Act.
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1996.
(c) The description of the common stock of the Company, $.01 par
value per share (the "Common Stock"), which is registered under Section 12 of
the Exchange Act, contained in the Registration Statement on Form 8-A filed
with the Commission on July 24, 1997, which incorporates by reference the
description of the Common Stock contained in the Registration Statement on Form
S-1 (No. 333-25071) (originally filed on April 11, 1997), as amended, including
any amendment or report filed for the purpose of updating such description.
Such description of the Common Stock contained in the Form S-1 is also
incorporated by reference.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company, as a Delaware corporation, is empowered by Section 145 of
the General Corporation Law of the State of Delaware (the "DGCL"), subject to
the procedures and limitations stated therein, to indemnify any person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending or completed action, suit or proceeding in which such
person is made or threatened to be made a party by reason of his being or
having been a director, officer, employee or agent of the Company. The statute
provides that indemnification pursuant to its provisions is not exclusive of
other rights of indemnification to which a person may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
Article EIGHTH of the Company's Certificate of Incorporation (the
"Certificate") provides that the Company shall, to the fullest extent permitted
by the DGCL, as amended from time to time, indemnify each person who was or is
made a party or is threatened to be made a party to or is involved in any
actual or threatened action, suit or proceeding whether civil, criminal,
administrative or investigative, by reason of the fact the he is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise. The indemnification provided for in
Article EIGHTH is expressly not exclusive of any other rights to which those
seeking indemnification may be entitled under any law, bylaw, agreement or vote
of stockholders or disinterested directors or otherwise, both as to action in
such person's capacity and to action in another capacity while holding office
or while employed by or acting as agent for the Company, and shall continue as
to a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such persons.
Article EIGHTH of the Company's Certificate also provides
that the Company shall have the power to purchase and maintain insurance on
behalf of any person who is or was or has agreed to become a director or
officer of the Company, or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against such person and
incurred by such person in any such capacity or arising out of such person's
status as such. The Company has obtained primary and excess insurance policies
insuring the directors and officers of the Company against certain liabilities
that they may incur in their capacity as directors and officers. Under such
policies, the insurers, on behalf of the Company, may also pay amounts for
which the Company has granted indemnification to the directors or officers.
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Pursuant to Section 102(b)(7) of the DGCL, Article SEVENTH of the
Company's Certificate eliminates the liability of a director to the Company or
its stockholders for monetary damages for such breach of fiduciary duty as a
director, except for liabilities arising (i) from any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) from acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) from any
transaction from which the director derived an improper personal benefit. The
Certificate also provides that if the DGCL is amended to permit further
elimination or limitation of personal liability of directors, then the
liability of a director of the Company shall be eliminated or limited to the
fullest extent permitted by the DGCL as so amended.
Additionally, reference is made to the Underwriting Agreement filed as
Exhibit 1.1 to the Registration Statement on Form S-1, as amended, File No.
333-25079, which provides for indemnification by the Underwriters of the
Company, its directors and officers who sign the Registration Statement on Form
S-1 and persons who control the Company under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
4.1 Specimen form of the Company's Common Stock Certificate
(Filed as Exhibit 4.1 to Amendment No. 4 to the Company's
Registration Statement (File No. 333-25071) on Form S-1 and
incorporated herein by reference).
4.2 Certificate of Incorporation of the Company (Filed as
Exhibit 3.1 to the Company's Registration Statement (File
No. 333-25071) on Form S-1 and incorporated herein by
reference).
4.3 Bylaws of the Company (Filed as Exhibit 3.2 to the Company's
Registration Statement (File No. 333-25071) on Form S-1 and
incorporated herein by reference).
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<PAGE> 7
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
4.4 BioReliance Corporation 1997 Incentive Plan (Filed as
Exhibit 10.1 to Amendment No. 2 to the Company's
Registration Statement (File No. 333-25071) on Form S-1 and
incorporated herein by reference).
4.5 Microbiological Associates, Inc. 1995 Non-Qualified Stock
Option Plan.
4.6 MAGENTA Corporation 1994 Incentive Stock Option Plan.
4.7 Microbiological Associates, Inc. 1988 Incentive Stock Option
Plan.
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson as to
the validity of the shares of Common Stock covered by the
Registration Statement.
23.1 Consent of Price Waterhouse L.L.P.
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
this registration statement (or the most
recent post-effective amendment hereto)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in this registration
statement; and
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<PAGE> 8
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether
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<PAGE> 9
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-6
<PAGE> 10
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL THE REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF ROCKVILLE, STATE OF MARYLAND, ON THIS 26TH DAY
OF AUGUST, 1997.
BIORELIANCE CORPORATION
(Registrant)
By: /s/ CAPERS W. MCDONALD
-------------------------------------
Capers W. McDonald
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Sidney R. Knafel and Capers W. McDonald,
and each of them, as his or her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ SIDNEY R. KNAFEL Chairman of the Board August 26, 1997
---------------------------
Sidney R. Knafel
/s/ CAPERS W. MCDONALD President, Chief Executive August 26, 1997
--------------------------- Officer and a Director
Capers W. McDonald
/s/ CARL C. SCHWAN Senior Vice President and Chief August 26, 1997
--------------------------- Financial Officer (Chief
Carl C. Schwan Accounting Officer)
/s/ WILLIAM J. GEDALE Director August 26, 1997
---------------------------
William J. Gedale
/s/ VICTORIA HAMILTON Director August 26, 1997
---------------------------
Victoria Hamilton
/s/ GORDON J. LOUTTIT Director August 26, 1997
---------------------------
Gordon J. Louttit
/s/ DR. LEONARD SCHERLIS Director August 26, 1997
---------------------------
Dr. Leonard Scherlis
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
4.1 Specimen form of the Company's Common Stock Certificate
(Filed as Exhibit 4.1 to Amendment No. 4 to the Company's
Registration Statement (File No. 333-25071) on Form S-1 and
incorporated herein by reference).
4.2 Certificate of Incorporation of the Company (Filed as
Exhibit 3.1 to the Company's Registration Statement (File
No. 333-25071) on Form S-1 and incorporated herein by
reference).
4.3 Bylaws of the Company (Filed as Exhibit 3.2 to the Company's
Registration Statement (File No. 333-25071) on Form S-1 and
incorporated herein by reference).
4.4 BioReliance Corporation 1997 Incentive Plan (Filed as
Exhibit 10.1 to Amendment No. 2 to the Company's
Registration Statement (File No. 333-25071) on Form S-1 and
incorporated herein by reference).
4.5 Microbiological Associates, Inc. 1995 Non-Qualified Stock
Option Plan.
4.6 MAGENTA Corporation 1994 Incentive Stock Option Plan.
4.7 Microbiological Associates, Inc. 1988 Incentive Stock Option
Plan.
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson as to
the validity of the shares of Common Stock covered by the
Registration Statement.
23.1 Consent of Price Waterhouse L.L.P.
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
E-1
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EXHIBIT 4.5
<PAGE> 2
MICROBIOLOGICAL ASSOCIATES, INC.
1995 NON-QUALIFIED STOCK OPTION PLAN
This 1995 Non-Qualified Stock Option Plan is adopted as of the 18th day of
April, 1995.
SECTION I. PURPOSE OF PLAN; ADMINISTRATION
1.1 Purpose. The intent and purpose of this 1995 Non-Qualified
Stock Option Plan (the "Plan") is to strengthen Microbiological Associates,
Inc., a Maryland corporation ("MA"), by providing a means to attract and retain
non-employee directors ("Directors") and non-employee scientific advisors who
may or may not comprise a scientific advisory board ("Scientific Advisors") and
to encourage stock ownership in the company by Directors and Scientific
Advisors to provide to participating Directors and Scientific Advisors added
incentive for maximum efforts to improve the performance of MA and its
subsidiaries. The purposes may be achieved through the grant of options to
purchase Common Stock of MA (the "Common Stock").
1.2 Administration. This Plan shall be administered by the Board
of Directors or the Executive Committee of the Board or a duly established
Stock Option Committee thereof (the "Committee"). Any action of the Committee
with respect to the administration of the Plan shall be taken pursuant to a
majority vote, or by the written consent of a majority, of its members.
Subject to the express provisions of the Plan, the Committee shall have the
authority to construe and interpret the Plan, to define the terms used herein,
and to prescribe, amend and rescind rules and regulations relating to the
administration of the Plan. The determinations of the Committee on the
foregoing matters shall be conclusive. Subject to the express provisions of
the Plan, the Committee shall determine the terms and provisions of such
options. No member of the Committee shall be liable for any action, failure to
act, determination or interpretation made in good faith with respect to the
Plan or any transaction hereunder.
1.3 Participation.
1.3.1 All non-employee Directors of MA and all non-employee
Scientific Advisors shall be eligible to receive non-qualified stock options
hereunder "Participant"); provided that any such Director of Scientific Advisor
may elect not to participate in the Plan.
1.3.2. Each person who is a Director on April 18, 1995 shall
receive a non-qualified stock option grant for 20,000 shares of MA Common
Stock.
1.3.3. Each person who is a Director on each January 1st
thereafter shall receive a non-qualified stock option grant for 1,000 shares of
MA Common Stock
<PAGE> 3
effective as of the first business day thereafter. The number of shares of
such non-qualified stock option grant shall be subject to adjustment from time
to time hereafter pursuant to Section 3.1 below.
1.3.4. Each person who becomes a new Director during a
calendar year after the adoption of this Plan will receive a non-qualified
stock option grant for 5,000 shares of MA Common Stock effective as of the date
such person becomes a Director. The number of shares of such non-qualified
stock option grant shall be subject to adjustment from time to time hereafter
pursuant to Section 3.1 below.
1.3.5 Each person who becomes a Scientific Advisor shall
receive such options under the Plan as may be determined by the Committee.
1.4 Stock Subject to the Plan. Subject to the adjustments as
provided in Section 3.1 hereof, the stock to be offered under the Plan shall be
shares of authorized but unissued Common Stock. The aggregate amount of Common
Stock to be issued under this Plan shall not exceed two hundred fifty thousand
(250,000) shares. If any option granted hereunder shall expire or terminate
for any reason without having been fully exercised, the unpurchased shares of
Common Stock, which are subject thereof shall again be available for the
purposes of this Plan.
1.5 Option Agreement. All options granted hereunder shall be
evidenced by a written Stock Option Agreement substantially in the form of
Exhibit A hereto, as amended from time to time; provided that the terms and
conditions of a particular Stock Option Agreement for a Scientific Advisor may
be different from those contained in Exhibit A as shall be appropriate in the
discretion of the Committee.
SECTION II. STOCK OPTION TERMS
2.1 Option Price. The purchase price of Common Stock covered by
each option shall be determined by the Committee, but shall not be less than
75% of the Fair Market Value of such stock on the date the option is granted.
"Fair Market Value" shall mean with (i) the average of the closing bid and
asked prices of Common Stock as quoted in the Over-the-Counter Market Summary
or the closing price on any exchange upon which MA's Common Stock may hereafter
be listed, both as published in the Eastern Edition of The Wall Street Journal
for a given date, or if no trading occurred on such date, for the next
preceding date on which such trading occurred or (ii) if there is no trading of
the Common Stock either Over-the-Counter or on an exchange, the value
established by the Committee in good faith. The purchase price of any shares
purchased shall be paid in full in cash or by check at the time of each
purchase; provided that, subject to the discretion of the Committee and upon
receipt of all regulatory approvals, the person exercising the option may
deliver Common Stock to MA in payment of the exchange price. Such stock shall
be valued at its Fair Market Value on the day of exercise of the option.
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<PAGE> 4
2.2 Option Period. Except as provided below, each option and all
rights or obligations thereunder shall expire on such date as the Committee
shall determine, but not later than the day before the tenth anniversary of the
date on which the option is granted (the "expiration date"), and shall be
subject to earlier termination as hereinafter provided.
2.3 Exercise of Options. Each option shall become exercisable and
the total number of shares subject thereto shall be purchasable, in such
installments, which need not be equal, as the Committee shall determine;
provided, however, that if the Participant shall not purchase in any given
installment period all of the shares purchasable, the right to purchase any
shares not purchased in such installment period shall continue until the
expiration or sooner termination of such Participant's option. The Committee
may, at any time after grant of the option and from time to time, increase the
number of shares purchasable in any installment, but may not increase the total
number of shares subject to the option. No option or installment thereof shall
be exercisable except in respect of whole shares, and fractional share
interests shall be disregarded. Notwithstanding the foregoing, the Committee
shall have the authority to provide that an option shall become exercisable as
to all the Option Shares upon the entering into of an agreement pursuant to
which at least a majority of the outstanding Common Stock, or all or
substantially all of MA's assets, will be sold in one transaction or a series
of related transactions to one or more parties who are not shareholders of MA
or MA shall enter into a merger or consolidation with another party in which MA
is not the surviving entity or becomes a subsidiary of another party; and in
connection therewith, to provide for a method of exercising the option and
paying the exercise price for the subject stock as the Committee shall
determine.
2.4 Non-transferability of Options. An option granted under this
Plan shall, by its terms, be non-transferable by the Participant other than by
will or the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Internal Revenue Code of 1986, as
amended ("Code"), and shall be exercisable during the Participant's lifetime
only by the option holder or by the Participant's duly appointed guardian or
personal representative.
2.5 Termination as a Director or Scientific Advisor. If a
Participant ceases to serve Director or Scientific Advisor, then Participant's
option shall terminate on the earlier of (i) the expiration date of the option
or (ii) the fifth anniversary of the date the Participant ceases to serve as a
Director or Scientific Advisor for any reason unless (a) the option by its
terms specifies that it shall terminate sooner than specified above, or (b) the
Participant's directorship or position as a Scientific Advisor is terminated
for cause, in which case the option shall terminate immediately upon
termination of such Participant as a Director or Scientific Advisor unless such
option termination is waived in writing by the Committee at its sole
discretion. Termination for cause shall include termination for gross
malfeasance in performance of duties, or conviction of illegal activity in
connection therewith, conviction for a felony or any conduct detrimental to the
interests of MA or
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<PAGE> 5
any of its subsidiaries and the determination of the Committee with respect
thereto shall be final and conclusive.
2.6 Issuance of Stock Certificates. Upon exercise of an option
the person exercising such option shall be entitled to one stock certificate
evidencing the shares acquired upon exercise; provided, however, that any
person who tenders Common Stock of MA when exercising the option shall be
entitled to receive two certificates, one representing a number of shares equal
to the number of shares exchanged for the stock acquired upon exercise and
another representing the additional shares, if any, acquired upon exercise of
the option.
SECTION III. OTHER PROVISIONS
3.1 Adjustments Upon Changes in Capitalization.
3.1.1. Subject to any action by the stockholders required by
law, the number of shares of Common Stock covered by this Plan and any
outstanding options and the price per share thereof shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock of MA resulting from a subdivision or consolidation of shares or the
payment of a stock dividend on the Common Stock or any other increase or
decrease in the number of such shares effected without receipt of consideration
by MA (for this purpose, issuances of shares upon conversion of convertible
securities shall be deemed as issuance for which MA received consideration).
3.1.2. Subject to any required action by stockholders, if MA
shall be the surviving corporation in any merger or consolidation, an
outstanding option shall pertain to and apply to the securities to which a
holder of the number of shares of Common Stock subject to the option would have
been entitled. A dissolution or liquidation of MA or a merger or consolidation
in which MA is not the surviving corporation shall cause an outstanding option
to terminate; provided that the holder of any outstanding option shall in such
event, be given at least thirty (30) days prior written notice of such event
(which notice, if mailed, shall be deemed given at the time of mailing) and
shall have the right until such event to exercise his option to the extent then
exercisable; provided further that the Committee in its discretion may in the
event of any such dissolution, liquidation, merger or consolidation accelerate
the accrual of exercise rights in such manner as the Committee shall deem
appropriate. Nevertheless, if approved by the Committee with respect to a
merger or consolidation, a new option in the successor corporation may be
substituted for an outstanding option or an outstanding option may be assumed
by the successor corporation.
3.1.3. Adjustments under this Section 3.1 shall be made by
the Committee, whose determination as to what adjustments shall be made, and
the extent thereof shall be binding and conclusive. No fractional shares of
Common Stock shall be issued under the Plan on account of any such adjustment.
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<PAGE> 6
3.2 Rights of Participants and Beneficiaries. Except as provided
in Section 2.5 of this Plan, MA shall provide all benefits hereunder only to
the Participant or beneficiaries entitled thereto pursuant to this Plan. MA
shall not be liable for the debts, contracts, or engagements of any Participant
or his or her beneficiaries, and rights under this Plan may not be taken in
execution or by attachment or garnishment, or by any other legal or equitable
proceeding while in the hands of MA; nor shall any Participant or his or her
beneficiaries have any right to assign, pledge or hypothecate any benefits
hereunder.
3.3 Government Regulations. The Plan and the grant and exercise
of options shall be subject to all applicable rules and regulations of
governmental authorities.
3.4 Amendment and Termination.
3.4.1 The Board of Directors of MA may at any time suspend,
amend or terminate this Plan and may, with the consent of the holder of an
option, make such modifications of the terms and conditions of such option as
it shall deem advisable, provided that the Plan shall not be amended more than
once every six months other than to comport with changes in the Code or the
rules thereunder. No option may be granted during any suspension of the Plan
or after such termination. The amendment, suspension or termination of the
Plan shall not, without the consent of the affected Participant, alter or
impair any rights or obligations under any option theretofore granted under the
Plan.
3.4.2. In addition to Board of Directors approval of an
amendment, such amendment shall also be approved by the holders of a majority
of MA's outstanding capital stock entitled to vote at a meeting held for the
purpose of approving such amendment.
3.5 Time of Grant and Exercise.
3.5.1. The granting of an option pursuant to the Plan shall
take place at the time of the Committee's action, as described in Section 1.2
hereof, provided, however, that if the appropriate resolutions of the Committee
indicate that an option to a Scientific Advisor is to be granted as of and at
some future date, the date of grant shall be such future date.
3.5.2. An option shall be deemed to be exercised when the
Secretary of MA receives written notice from a Participant of such exercise in
the form of Exhibit B hereto, together with payment of the purchase price
determined pursuant to Section 2.1 of the Plan.
3.6 Privileges of Stock Ownership: Non-Distributive Intent. A
Participant shall not be entitled to the privileges of stock ownership as to
any shares of stock not actually issued and delivered to him. Upon exercise of
an option at a time when there is not in effect under the Securities Act of
1933 a registration statement relating to the stock issuance upon exercise, the
Participant shall represent and warrant in writing to MA that the shares
purchased are not being acquired with a view to the distribution thereof. No
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<PAGE> 7
shares shall be issued upon the exercise of any option unless and until any
then applicable requirements of the Securities and Exchange Commission, any
other regulatory agencies having jurisdiction and any exchanges upon which
Common Stock may be listed shall have been fully satisfied.
3.7 Effective Date of the Plan. This Plan shall be effective as
of April 18, 1995, the date the Plan was approved by the Board of Directors of
MA. A majority of MA's outstanding capital stock entitled to vote must approve
of the Plan before any option issued pursuant to the Plan may be exercised.
3.8 Termination. Unless previously terminated by the Committee,
this Plan shall terminate at the close of business on April 17, 2005, and no
option shall be granted under it thereafter, but such termination shall not
affect any option theretofore granted.
112513
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<PAGE> 1
EXHIBIT 4.6
<PAGE> 2
MAGENTA CORPORATION
1994 INCENTIVE STOCK OPTION PLAN
This 1994 Incentive Stock Option Plan (the "Plan") is adopted this 12 day of
April, 1994.
SECTION I. PURPOSE OF PLAN; ADMINISTRATION.
1.1 Purpose. The intent and purpose of this Plan is to strengthen
MAGENTA Corporation (the "Corporation"), a Delaware corporation, by providing a
means to attract and retain competent personnel and to provide to participating
non-employee directors, officers and other key employees added incentive for
high levels of performance and for unusual efforts to improve the financial
performance of the Corporation. The purposes may be achieved through the grant
of options to purchase Common Stock of the Corporation (the "Common Stock").
1.2 Administration. This Plan shall be administered by the Board of
Directors of the Corporation or the Executive Committee of the Board or a duly
established Stock Option Committee thereof (the Board or any such committee is
hereinafter referred to as the "Committee"). Any action which may be taken
hereunder by the Committee may be taken by the Stock Option Committee (if such
a committee is established), the Executive Committee or the Board of Directors
of the Corporation. Any action of the Committee with respect to the
administration of the Plan shall be taken pursuant to a majority vote, or by
the written consent of a majority, of its members. Subject to the express
provisions of the Plan, the Committee shall have the authority to construe and
interpret the Plan, to define the terms used herein, and to prescribe, amend
and rescind rules and regulations relating to the administration of the Plan.
The determinations of the Committee on the foregoing matters shall be
conclusive. Subject to the express provisions of the Plan, the Committee shall
determine from the eligible class the individuals who shall receive options,
and the terms and provisions of such options (which need not be identical). No
member of the Committee shall be liable for any action, failure to act,
determination or interpretation made in good faith with respect to the Plan or
any transaction hereunder.
1.3 Participation. Only officers and other key employees of the
Corporation, its parent or any of its subsidiaries, as defined in section 424
of the Internal Revenue Code, as amended (the "Code"), shall be eligible for
selection to participate in the Plan upon approval by the Committee; provided,
however, that members of the Committee shall not, while members thereof, be
eligible to receive options under this Plan. An individual who has been granted
an option (a "Participant") may, if otherwise eligible, be granted additional
options if the Committee shall so determine.
1.4 Stock Subject to the Plan. Subject to the adjustments as
provided in Section 3.1 hereof, the stock to be offered under the Plan shall be
shares of authorized but unissued Common Stock. The aggregate amount of Common
Stock to be issued under this Plan shall not exceed
<PAGE> 3
25,000 shares. If any option granted hereunder shall expire or terminate for
any reason without having been fully exercised, the unpurchased shares subject
thereof shall again be available for the purposes of this Plan.
1.5 Option Agreement. All options granted hereunder shall be
evidenced by a written Stock Option Agreement substantially in the form of
Exhibit A hereto, as amended from time to time; provided that the terms and
conditions of a particular Stock Option Agreement may be different from those
contained in Exhibit A as shall be appropriate in the discretion of the
Committee. The Committee shall adopt such an agreement for each option and may
include in such agreement any term or provision not prohibited by Section 422
of the Code and not inconsistent with this Plan.
SECTION II. STOCK OPTION TERMS
2.1 Option Price. Except as otherwise provided herein, the purchase
price of Common Stock covered by each option shall be determined by the
Committee, but shall not be less than 100% of the Fair Market Value of such
stock on the date the option is granted. If an option is granted to an employee
who, at the time such option is granted, owns or is deemed to own more than ten
percent of the total combined voting power of all classes of stock of the
Corporation, the option price shall be at least 110% of the Fair Market Value
of the stock on the date of the granting of the option. "Fair Market Value"
shall mean either (i) the average of the closing bid and asked prices of Common
Stock as quoted in the Over-the-Counter Market Summary or the closing price on
any exchange upon which the Corporation's Common Stock may hereafter be listed,
both as published in the Eastern Edition of The Wall Street Journal for a given
date, or if no trading occurred on such date for the next preceding date on
which such trading occurred or (ii) if there is no trading of the Common Stock
either Over-the-Counter or on an exchange, the value established by the
Committee in good faith. The purchase price of any shares purchased shall be
paid in full in cash or by check at the time of each purchase; provided that,
subject to the discretion of the Committee and upon receipt of all regulatory
approvals, the person exercising the option may deliver Common Stock to the
Corporation in payment of the exchange price. Such stock shall be valued at its
Fair Market Value on the day of exercise of the option.
2.2 Option Period. Except as provided below, each option and all
rights or obligations thereunder shall expire on such date as the Committee
shall determine, but not later than the day before the tenth anniversary of the
date on which the option is granted (the "Expiration Date"), and shall be
subject to earlier termination as hereinafter provided. If an option is granted
to an employee, who at the time the option is granted owns or is deemed to own
more than ten percent of the total combined voting power of all classes of
stock of the Corporation, each such option and all rights or obligations
thereunder shall expire as the Committee shall determine, but not later than
the day before the fifth anniversary of the date on which the option is granted
(also the "Expiration Date").
2.3 Exercise of Options. Each option shall become exercisable and
the total number of shares subject thereto shall be purchasable, in such
installments, which need not be equal, as
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<PAGE> 4
the Committee shall determine; provided, however, that if the Participant shall
not purchase in any given installment period all of the shares purchasable, the
right to purchase any shares not purchased in such installment period shall
continue until the expiration or sooner termination of such Participant's
option. The Committee may, at any time after grant of the option and from time
to time, increase the number of shares purchasable in any installment, but may
not increase the total number of shares subject to the option. No option or
installment thereof shall be exercisable except in respect of whole shares, and
fractional share interests shall be disregarded. Notwithstanding the foregoing,
the Committee shall have the authority to provide that an option shall become
exercisable as to all the Option Shares upon the entering into of an agreement
pursuant to which at least a majority of the outstanding Common Stock, or all
or substantially all of the Corporation's assets, will be sold in one
transaction or a series of related transactions to one or more parties who are
not shareholders of the Corporation and in connection therewith, provide for a
method of exercising the option and paying the exercise price for the subject
stock as the Committee shall determine.
2.4 Non-transferability of Options. An option granted under this
Plan shall, by its terms, be non-transferable by the Participant other than by
will or the laws of descent and distribution, and shall be exercisable during
the Participant's lifetime only by the option holder or by the Participant's
duly appointed guardian or personal representative.
2.5 Termination of Employment. If the Participant's employment
with the Corporation, its parent or any of its subsidiaries terminates for any
reason other than death or disability, or transfer to a parent of the
Corporation or any of its subsidiaries thereof, such Participant shall have, at
the discretion of the Committee, a period no longer than three months from the
date of termination (but not beyond the Expiration Date) to exercise his
option. Upon expiration of such three month or lesser period, all unexercised
options of such Participant shall terminate. If the Committee does not grant
such a period in the Stock Option Agreement required by Section 1.5 hereof, all
of Participant's unexercised options shall terminate at the close of business
on Participant's last day of employment. For purposes of this Section 2.5, if a
Participant remains employed by a corporation that was a parent of the
Corporation on the date the option was granted, that Participant shall be
deemed still employed by a parent even after such corporation is no longer the
Corporation's parent as defined in Section 424 of the Code.
2.6 Disability of Employee. If the Participant's employment with
the Corporation, its parent or any of its subsidiaries terminates as a result
of his disability, such Participant shall have, at the discretion of the
Committee, a period no longer than three months from the date of termination
(but not beyond the Expiration Date) to exercise his option. Upon expiration of
such three month or lesser period, all unexercised options of such Participant
shall terminate. If the Committee does not grant such a period in the agreement
required by Section 1.5 hereof, all of Participant's unexercised options shall
terminate at the close of business on Participant's last day of employment. For
purposes of this Plan, an individual is disabled if he is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
three months.
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<PAGE> 5
2.7 Death of Employee. If any Participant dies while employed by
the Corporation, its parent or any of its subsidiaries, such Participant's
options shall be exercised by the person or persons to who the Participant's
rights under the options shall pass by will or by the applicable laws of
descent and distribution to the extent the options are then exercisable. Such
person or persons shall have the lesser of 12 months from the date of the
Participant's death or until the Expiration Date of the options to exercise the
options. Provided such extension is permissible under the Code, without
affecting the status of any option granted hereunder as an incentive stock
option, the Committee may in its discretion, at the time of grant of the
option, extend such time to exercise; however, such extension may not permit
exercise after the Expiration Date of the option. Upon termination of such 12
month or lesser period, all unexercised options of such Participant shall
terminate. Options granted but not yet exercisable at the time of the
Participant's death shall terminate at his death.
2.8 Issuance of Stock Certificates. Upon exercise of an option the
person exercising such option shall be entitled to one stock certificate
evidencing the shares acquired upon exercise; provided, however, that any
person who tenders Common Stock of the Corporation when exercising the option
shall be entitled to receive two certificates, one representing a number of
shares equal to the number of shares exchanged for the stock acquired upon
exercise and another representing the additional shares, if any, acquired upon
exercise of the option.
2.9 Limitation on Grant. The aggregate Fair Market Value
determined as of the time the option is granted of the Common Stock with
respect to which options are exercisable for the first time by the Participant
during any calendar year, under this Plan and all other incentive stock option
plans of the Corporation, its parent or any of its subsidiaries, shall not
exceed $100,000.
SECTION III. OTHER PROVISIONS
3.1 Adjustments Upon Changes in Capitalization.
3.1.1 Subject to any action by the stockholders required by
law, the number of shares of Common Stock covered by this Plan and any
outstanding options and the price per share thereof shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock of the Corporation resulting from a subdivision or consolidation of
shares or the payment of a stock divided on the Common Stock or any other
increase or decrease in the number of such shares effected without receipt of
consideration by the Corporation (for this purpose, issuances of shares upon
conversion of convertible securities shall be deemed as issuance for which the
Corporation received consideration).
3.1.2 Subject to any required action by the stockholders, if
the Corporation shall be the surviving corporation in any merger or
consolidation, an outstanding option shall pertain to and apply to the
securities to which a holder of the number of shares of Common Stock subject to
the option would have been entitled. A dissolution or liquidation of the
Corporation or a merger or consolidation in which the Corporation is not the
surviving corporation shall cause an outstanding option to terminate; provided
that the holder of any outstanding option shall, in
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<PAGE> 6
such event, be given at least 30 days prior written notice of such event (which
notice, if mailed, shall be deemed given at the time of mailing) and shall have
the right until such event to exercise his option to the extent then
exercisable; provided further that the Committee in its discretion may in the
event of any such dissolution, liquidation, merger or consolidation accelerate
the accrual of exercise rights in such manner as the Committee shall deem
appropriate. Nevertheless, if approved by the Committee with respect to a
merger or consolidation, a new option in the successor corporation may be
substituted for an outstanding option or an outstanding option may be assumed
by the successor corporation.
3.1.3 Adjustments under this Section 3.1 shall be made by
the Committee, whose determination as to what adjustments shall be made, and
the extent thereof, shall be final, binding and conclusive. No fractional
shares of Common Stock shall be issued under the Plan on account of any such
adjustment.
3.2 Rights of Participants and Beneficiaries.
3.2.1 Nothing contained in the Plan or in any option
granted pursuant to the Plan shall confer upon any employee any right to
continue in the employ of the Corporation, its parent or any of its
subsidiaries, or constitute any contract or agreement of employment to
interfere in any way with the right of the Corporation, its parent or any of
its subsidiaries to reduce such person's compensation from the rate in
existence at the time of the granting of an option or to terminate such
person's employment, but nothing contained herein or in any option agreement
shall affect any contractual rights of an employee.
3.2.2 Except as provided in Section 2.7 of this Plan, the
Corporation shall provide all benefits hereunder only to the Participant or
beneficiaries entitled thereto pursuant to this Plan. The Corporation, its
parent or its subsidiaries shall not be liable for the debts, contracts, or
engagements of any Participant or his or her beneficiaries, and rights under
this Plan may not be taken in execution or by attachment or garnishment, or by
any other legal or equitable proceeding while in the hands of the Corporation,
its parent or any of its subsidiaries; nor shall any Participant or his or her
beneficiaries have any right to assign, pledge or hypothecate any benefits
hereunder.
3.3 Government Regulations. The Plan and the grant and exercise of
options shall be subject to all applicable rules and regulations of
governmental authorities.
3.4 Withholding. The Corporation, its parent or any of its
subsidiaries that employs the Participant shall have the right to deduct any
sums that federal, state or local tax law requires to be withheld with respect
to the exercise of any option, or as otherwise may be required by such laws.
The Corporation, its parent or any of its subsidiaries may require as a
condition to issuing shares upon exercise of an option that the Participant or
other person exercising the option pay any sums that federal, state or local
tax law requires to be withheld with respect to such exercise. There is no
obligation hereunder that any Participant be advised of the existence of the
tax or the amount which the employer corporation will be so required to
withhold.
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<PAGE> 7
3.5 Amendment and Termination.
3.5.1 The Board of Directors of the Corporation may at any
time suspend, amend or terminate this Plan and may, with the consent of the
holder of an option, make such modifications of the terms and conditions of
such option as it shall deem advisable. No option may be granted during any
suspension of the Plan or after such termination. The amendment, suspension or
termination of the Plan shall not, without the consent of the affected
Participant, alter or impair any rights or obligations under any option
theretofore granted under the Plan.
3.5.2 In addition to Board of Directors approval of an
amendment, if Section 422 of the Code requires shareholder approval of such
amendment, then such amendment shall be approved by the holders of a majority
of the Corporation's outstanding capital stock entitled to vote at a meeting
held for the purpose of approving such amendment.
3.6 Time of Grant and Exercise.
3.6.1 The granting of an option pursuant to the Plan shall
take place at the time of the Committee's action, as described in Section 1.2
hereof; provided, however, that if the appropriate resolutions of the Committee
indicate that an option is to be granted as of and at some future date, the
date of grant shall be such future date.
3.6.2 An option shall be deemed to be exercised when the
Secretary of the Corporation receives written notice from a Participant of such
exercise, together with payment of the purchase price determined pursuant to
Section 2.1 of the Plan.
3.7 Privileges of Stock Ownership: Non-Distributive Intent. A
Participant shall not be entitled to the privileges of stock ownership as to
any shares of stock not actually issued and delivered to him. Upon exercise of
an option at a time when there is not in effect under the Securities Act of
1933 a registration statement relating to the stock issuance upon exercise, the
Participant shall represent and warrant in writing to the Corporation that the
shares purchased are not being acquired with a view to the distribution
thereof. No shares shall be issued upon the exercise of any option unless and
until any then applicable requirements of the Securities and Exchange
Commission, and any other regulatory agencies having jurisdiction and any
exchanges upon which Common Stock may be listed shall have been fully
satisfied.
3.8 Effective Date of the Plan. This plan shall be effective as of
April 12, 1994, the date the Plan was approved by the Board of Directors of the
Corporation. A Majority of the Corporation's outstanding capital stock entitled
to vote must approve of the Plan within 12 months of approval by said Board and
before any option issued pursuant to the Plan may be exercised.
3.9 Termination of the Plan. Unless previously terminated by the
Committee, this Plan shall terminate at the close of business on April 11,
2004, and no option shall be granted under it thereafter, but such termination
shall not affect any option theretofore granted.
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<PAGE> 1
EXHIBIT 4.7
<PAGE> 2
MICROBIOLOGICAL ASSOCIATES, INC.
1988 INCENTIVE STOCK OPTION PLAN
This 1988 Stock Option Plan is adopted the 18th day of April 1989.
SECTION I. PURPOSE OF PLAN; ADMINISTRATION.
1.1 Purpose. The intent and purpose of this 1988 Incentive Stock
Option Plan (the "Plan") is to strengthen Microbiological Associates, Inc., a
Maryland corporation ("MA"), by providing a means to attract and retain
competent personnel and to provide to participating officers and other key
employees added incentive for high levels of performance and for unusual
efforts to improve the financial performance of MA. The purposes may be
achieved through the grant to options to purchase Common Stock of MA (the
"Common Stock").
1.2. Administration. This Plan shall be administered by the Board of
Directors of MA or the Executive Committee of the Board or a duly established
Stock Option Committee thereof (the Board or any such committee is hereinafter
referred to as the "Committee"). Any action which may be taken hereunder by the
Committee may be taken by the Stock Option Committee (if such a committee is
established), the Executive Committee or the Board of Directors of MA. Any
action of the Committee with respect to the administration of the plan shall be
taken pursuant to a majority vote, or by the written consent of a majority, of
its members. Subject to the express provisions of the Plan, the Committee shall
have the authority to construe and interpret the Plan, to define the terms used
herein, and to prescribe, amend and rescind rules and regulations relating to
the administration of the Plan. The determinations of the Committee on the
foregoing matters shall be conclusive. Subject to the express provisions of the
Plan, the Committee shall determine from the eligible class the individuals who
shall receive options, and the terms and provisions of such options (which need
not be identical). No member of the Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with respect
to the Plan or any transaction hereunder.
1.3. Participation. Only officers and other key employees of MA,
or of any subsidiary of MA shall be eligible for selection to participate in
the Plan upon approval by the Committee; provided, however, that members of the
Committee shall not, while members thereof, be eligible to receive options
under this Plan. An individual who has been granted an option (a "Participant")
may, if otherwise eligible, be granted additional options if the Committee
shall so determine.
1.4 Stock Subject to the Plan. Subject to the adjustments as
provided in Section 3.1 hereof, the stock to be offered under the Plan shall be
shares of authorized but unissued Common Stock. The aggregate amount of Common
Stock to be issued under this Plan shall not exceed one hundred seventy-five
thousand (175,000) shares. If any option granted hereunder shall
<PAGE> 3
expire or terminate for any reason without having been fully exercised, the
unpurchased shares subject thereof shall again be available for the purposes of
this Plan.
1.5 Option Agreement. All options granted hereunder shall be
evidenced by a written Stock Option Agreement substantially in the form of
Exhibit A hereto, as amended from time to time; provided that the terms and
conditions of a particular Stock Option Agreement may be different from those
contained in Exhibit A as shall be appropriate in the discretion of the
Committee. The Committee shall adopt such an agreement for each option and may
include in such agreement any term or provision not prohibited by Section 422
of the Internal Revenue Code of 1986, as amended (the "Code") and not
inconsistent with this Plan.
SECTION II. STOCK OPTION TERMS
2.1 Option Price. Except as otherwise provided herein, the
purchase price of Common Stock covered by each option shall be determined by
the Committee, but shall not be less than 100% of the Fair Market Value of such
stock on the date the option is granted. If an option is granted to an employee
who, at the time such option is granted, owns or is deemed to own more than ten
percent of the total combined voting power of all classes of stock of MA, the
option price shall be at least 110% of the Fair Market Value of the stock on
the date of the granting of the option. "Fair Market Value" shall mean either
(i) the average of the closing bid and asked prices of Common Stock as quoted
in the Over-the-Counter Market Summary or the closing price on any exchange
upon which MA's Common Stock may hereafter be listed, both as published in the
Eastern Edition of The Wall Street Journal for a given date, or if no trading
occurred on such date for the next preceding date on which such trading
occurred or (ii) if there is no trading of the Common Stock either
Over-the-Counter or on an exchange, the value established by the Committee in
good faith. The purchase price of any shares purchased shall be paid in full in
cash or by check at the time of each purchase; provided that, subject to the
discretion of the Committee and upon receipt of all regulatory approvals, the
person exercising the option may deliver Common Stock to MA in payment of the
exchange price. Such stock shall be valued at its Fair Market Value on the day
of exercise of the option.
2.2 Option Period. Except as provided below, each option and all
rights or obligations thereunder shall expire on such date as the Committee
shall determine, but not later than the day before the tenth anniversary of the
date on which the option is granted (the "expiration date"), and shall be
subject to earlier termination as hereinafter provided. If an option is granted
to an employee, who at the time the option is granted owns or is deemed to own
more than ten percent of the total combined voting power of all classes of
stock of MA, each such option and all rights or obligations thereunder shall
expire as the Committee shall determine, but not later than the day before the
fifth anniversary of the date on which the option is granted (also the
"expiration date").
2.3 Exercise of Options. Each option shall become exercisable and
the total number of shares subject thereto shall be purchasable, in such
installments, which need not be equal, as the Committee shall determine;
provided, however, that if the Participant shall not purchase in
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<PAGE> 4
any given installment period all of the shares purchasable, the right to
purchase any shares not purchased in such installment period shall continue
until the expiration or sooner termination of such Participant's option. The
Committee may, at any time after grant of the option and from time to time,
increase the number of shares purchasable in any installment, but may not
increase the total number of shares subject to the option. No option or
installment thereof shall be exercisable except in respect of whole shares, and
fractional share interests shall be disregarded. Notwithstanding the foregoing,
the Committee shall have the authority to provide that an option shall become
exercisable as to all the Option Shares upon the entering into of an agreement
pursuant to which at least a majority of the outstanding Common Stock, or all
or substantially all of MA's assets, will be sold in one transaction or a
series of related transactions to one or more parties who are not shareholders
of MA and in connection therewith provide for a method of exercising the option
and paying the exercise price for the subject stock as the Committee shall
determine.
2.4 Non-transferability of Options. An option granted under this
Plan shall, by its terms, be non-transferable by the Participant other than by
will or the laws of descent and distribution, and shall be exercisable during
the Participant's lifetime only by the option holder or by the Participant's
duly appointed guardian or personal representative.
2.5 Termination of Employment. If the Participant's employment
with MA terminates for any reason other than death or disability, such
Participant shall have, at the discretion of the Committee, a period no longer
than three (3) months from the date of termination to exercise his option. Upon
expiration of such three (3) month or lesser period, all unexercised options of
such Participant shall terminate. If the Committee does not grant such a period
in the agreement required by Section 1.5 hereof, all of Participant's
unexercised options shall terminate at the close of business on Participant's
last day of employment.
2.6 Disability of Employee. If the Participant's employment with
MA terminates as a result of his disability, such Participant shall have, at
the discretion of the Committee, a period no longer than three (3) months from
the date of termination to exercise his option. Upon expiration of such three
(3) month or lesser period, all unexercised options of such Participant shall
terminate. If the Committee does not grant such a period in the agreement
required by Section 1.5 hereof, all of Participant's unexercised options shall
terminate at the close of business on Participant's last day of employment. For
purposes of this Plan, an individual is disabled if he is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
three (3) months.
2.7 Death of Employee. If any Participant dies while employed by
MA, such Participant's options shall be exercised by the person or persons to
whom the Participant's rights under the options shall pass by will or by the
applicable laws of descent and distribution to the extent the options are then
exercisable. Such person or persons shall have the lesser of twelve (12) months
from the date of the Participant's death or until the expiration date of the
options to exercise the options. Provided such extension is permissible under
the Code, without affecting the status of any option granted hereunder as an
incentive stock option, the Committee may in its
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<PAGE> 5
discretion, at the time of grant of the option, extend such time to exercise;
however, such extension may not permit exercise after the expiration date of
the option. Upon termination of such twelve (12) month or lesser period, all
unexercised options of such Participant shall terminate. Options granted but
not yet exercisable at the time of the Participant's death shall terminate at
his death.
2.8 Issuance of Stock Certificates. Upon exercise of an option the
person exercising such option shall be entitled to one stock certificate
evidencing the shares acquired upon exercise; provided, however, that any
person who tenders Common Stock of MA when exercising the option shall be
entitled to receive two certificates, one representing a number of shares equal
to the number of shares exchanged for the stock acquired upon exercise and
another representing the additional shares, if any, acquired upon exercise of
the option.
2.9 Limitation on Grant. The aggregate Fair Market Value
(determined as of the time the option is granted) of the Common Stock with
respect to which options are exercisable for the first time by the Participant
during any calendar year (under this Plan and all other incentive stock option
plans of MA or any subsidiary or parent of MA) shall not exceed $100,000.
SECTION III. OTHER PROVISIONS
3.1 Adjustments Upon Changes in Capitalization.
3.1.1 Subject to any action by the stockholders required by
law, the number of shares of Common Stock covered by this Plan and any
outstanding options and the price per share thereof shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock of MA resulting from a subdivision or consolidation of shares or the
payment of a stock dividend on the Common Stock or any other increase or
decrease in the number of such shares effected without receipt of consideration
by MA (for this purpose, issuances of shares upon conversion of convertible
securities shall be deemed as issuance for which MA received consideration).
3.1.2 Subject to any required action by the stockholders, if
MA shall be the surviving corporation in any merger or consolidation, an
outstanding option shall pertain to and apply to the securities to which a
holder of the number of shares of Common Stock subject to the option would have
been entitled. A dissolution or liquidation of MA or a merger or consolidation
in which MA is not the surviving corporation shall cause an outstanding option
to terminate; provided that the holder of any outstanding option shall, in such
event, be given at least thirty (30) days prior written notice of such event
(which notice, if mailed, shall be deemed given at the time of mailing) and
shall have the right until such event to exercise his option to the extent then
exercisable; provided further that the Committee in its discretion may in the
event of any such dissolution, liquidation, merger or consolidation accelerate
the accrual of exercise rights in such manner as the Committee shall deem
appropriate. Nevertheless, if approved by the Committee with respect to a
merger or consolidation, a new option in the successor corporation
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<PAGE> 6
may be substituted for an outstanding option or an outstanding option may be
assumed by the successor corporation.
3.1.3 Adjustments under this Section 3.1 shall be made by
the Committee, whose determination as to what adjustments shall be made, and
the extent thereof, shall be final, binding and conclusive. No fractional
shares of Common Stock shall be issued under the Plan on account of any such
adjustment.
3.2 Rights of Participants and Beneficiaries.
3.2.1 Nothing contained in the Plan (or in any option
granted pursuant to the Plan) shall confer upon any employee any right to
continue in the employ of MA or constitute any contract or agreement of
employment to interfere in any way with the right of MA to reduce such person's
compensation from the rate in existence at the time of the granting of an
option or to terminate such person's employment, but nothing contained herein
or in any option agreement shall affect any contractual rights of an employee.
3.2.2 Except as provided in Section 2.7 of this Plan, MA
shall provide all benefits hereunder only to the Participant or beneficiaries
entitled thereto pursuant to this Plan. MA shall not be liable for the debts,
contracts, or engagements of any Participant or his or her beneficiaries, and
rights under this Plan may not be taken in execution or by attachment or
garnishment, or by any other legal or equitable proceeding while in the hands
of MA; nor shall any Participant or his or her beneficiaries have any right to
assign, pledge or hypothecate any benefits hereunder.
3.3 Government Regulations. The Plan and the grant and exercise of
options shall be subject to all applicable rules and regulations of
governmental authorities.
3.4 Withholding. MA or any of its subsidiaries that employs the
Participant shall have the right to deduct any sums that federal, state or
local tax law requires to be withheld with respect to the exercise of any
option, or as otherwise may be required by such laws. MA or such subsidiary may
require as a condition to issuing shares upon exercise of an option that the
Participant or other person exercising the option pay any sums that federal,
state or local tax law requires to be withheld with respect to such exercise.
There is no obligation hereunder that any Participant be advised of the
existence of the tax or the amount which the employer corporation will be so
required to withhold.
3.5 Amendment and Termination.
3.5.1 The Board of Directors of MA may at any time suspend,
amend or terminate this Plan and may, with the consent of the holder of an
option, make such modifications of the terms and conditions of such option as
it shall deem advisable. No option may be granted during any suspension of the
Plan or after such termination. The amendment, suspension or termination of the
Plan shall not, without the consent of the affected Participant, alter or
impair any rights or obligations under any option theretofore granted under the
Plan.
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<PAGE> 7
3.5.2 In addition to Board of Directors approval of an
amendment, if Section 422 of the Code requires shareholder approval of such
amendment, then such amendment shall be approved by the holders of a majority
of MA's outstanding capital stock entitled to vote at a meeting held for the
purpose of approving such amendment.
3.6 Time of Grant and Exercise.
3.6.1 The granting of an option pursuant to the Plan shall
take place at the time of the Committee's action, as described in Section 1.2
hereof; provided, however, that if the appropriate resolutions of the Committee
indicate that an option is to be granted as of and at some future date, the
date of grant shall be such future date.
3.6.2 An option shall be deemed to be exercised when the
Secretary of MA receives written notice from a Participant of such exercise,
together with payment of the purchase price determined pursuant to Section 2.1
of the Plan.
3.7 Privileges of Stock Ownership; Non-Distributive Intent. A
Participant shall not be entitled to the privileges of stock ownership as to
any shares of stock not actually issued and delivered to him. Upon exercise of
an option at a time when there is not in effect under the Securities Act of
1933 a registration statement relating to the stock issuance upon exercise, the
Participant shall represent and warrant in writing to MA that the shares
purchased are not being acquired with a view to the distribution thereof. No
shares shall be issued upon the exercise of any option unless and until any
then applicable requirements of the Securities and Exchange Commission, any
other regulatory agencies having jurisdiction and any exchanges upon which
Common Stock may be listed shall have been fully satisfied.
3.8 Effective Date of the Plan. This Plan shall be effective as of
April 18th, 1989, the date the Plan was approved by the Board of Directors of
MA. A Majority of MA's outstanding capital stock entitled to vote must approve
of the Plan within twelve (12) months of approval by said Board and before any
option issued pursuant to the Plan may be exercised.
3.9 Termination. Unless previously terminated by the Committee,
this Plan shall terminate at the close of business on April 17, 1999, and no
option shall be granted under it thereafter, but such termination shall not
affect any option theretofore granted.
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<PAGE> 1
EXHIBIT 5.1
<PAGE> 2
August 25, 1997
(202) 639-7032
BioReliance Corporation
9900 Blackwell Road
Rockville, Maryland 20850
Ladies and Gentlemen:
We have acted as special counsel for BioReliance Corporation,
a Delaware corporation (the "Company"), in connection with the registration,
pursuant to a Registration Statement on Form S-8 (the "Registration
Statement"), of 1,537,252 shares of the Company's common stock, par value $.01
per share ("Common Stock"), issuable upon exercise of options which have been
or may be granted under the BioReliance Corporation 1997 Incentive Plan (the
"1997 Plan"), the Microbiological Associates, Inc. 1995 Non-Qualified Stock
Option Plan (the "1995 Plan"), the MAGENTA Corporation 1994 Incentive Stock
Option Plan (the "1994 Plan") and the MicroBiological Associates, Inc. 1988
Incentive Stock Option Plan (the "1988 Plan").
Pursuant to an Assignment and Assumption Agreement, dated
as of October 14, 1996, by and among Microbiological Associates, Inc.
("MA"), MAGENTA Corporation ("Magenta") and MAGENTA Viral Production, Inc. (the
"Assignment Agreement"), MA assumed all of the outstanding options under the
MAGENTA Corporation 1994 Incentive Stock Option Plan (the "Magenta Options"),
with appropriate adjustments to the number of shares and exercise price of each
Magenta Option to reflect the ratio of the fair market value of the common
stock of Magenta to the fair market value of the common stock of MA pursuant to
the Assignment Agreement. Pursuant to an Amended and Restated Agreement and
Plan of Merger, dated as of April 24, 1997, by and among MA and the Registrant
(the "Merger Agreement"), the Registrant assumed all of the outstanding options
under the 1995 Plan, the 1994 Plan, and the 1988 Plan (the "MA Options"), with
appropriate adjustments to the number of shares and exercise price of each MA
Option to reflect the ratio at which the MA common stock was converted into
common stock of the Registrant under the Merger Agreement. Prior to the
assumption of the MA Options by the Registrant, the number of shares and
exercise price of each MA Option were adjusted to reflect a one-for-three
reverse stock split of the common stock of MA. The 1997 Plan, the 1995 Plan,
the 1994 Plan and the 1988 Plan are collectively referred to herein as the
"Plans" and the shares of Common Stock being registered under the Registration
Statement are referred to herein as the "Shares". This opinion is delivered to
you pursuant to Item 601(b)(5) of Regulation S-K under the Securities Act of
1933, as amended. With your permission, all assumptions and statements of
reliance herein have been made without any independent investigation or
verification on our part except to the extent otherwise expressly stated, and
we express no opinion with respect to the subject matter or accuracy of such
assumptions or items relied upon.
In connection with this opinion, we have (i) investigated
such questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records of
the Company, such certificates of public officials, and such other documents,
and (iii) reviewed such information from officers and representatives of the
Company and others as we have deemed necessary or appropriate for the purposes
of this opinion. We have examined, among other documents, the following:
<PAGE> 3
BioReliance Corporation
August 25, 1997
Page 2
(a) The Plans; and
(b) Form of Stock Option Grant Agreement for each Plan.
The documents referred to in items (a) and (b) above,
inclusive, are referred to herein collectively as the "Documents."
In all such examinations, we have assumed the legal capacity
of all natural persons executing Documents, the genuineness of all signatures,
the authenticity of original or certified documents, and the conformity to
original or certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the opinion
expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the Documents and certificates and
oral or written statements and other information of or from public officials,
officers or other representatives of the Company, and others and assume
compliance on the part of all parties to the Documents with their covenants and
agreements contained therein. Insofar as statements herein are based upon our
knowledge, such phrase means and is limited to the conscious awareness of facts
or other information by lawyers in this firm who gave substantive attention to
representation of the Company in connection with the Documents.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that the
Shares, when issued and paid for (with the consideration received by the
Company being not less than the par value thereof) in accordance with the Plans
and any agreement applicable to such Shares, will be validly issued, fully paid
and non-assessable.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware, as currently in effect. The opinion
expressed herein is given as of the date hereof, and we undertake no obligation
to supplement this letter if any applicable laws change after the date hereof
or if we become aware of any facts that might change the opinion expressed
herein after the date hereof or for any other reason.
The opinion expressed herein is solely for your benefit and
may not be relied on in any manner or for any purpose by any other person or
entity and may not be quoted in whole or in part without our prior written
consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement relating to the registration of the Shares. In
giving this consent,
<PAGE> 4
BioReliance Corporation
August 25, 1997
Page 3
we do not admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ ANDREW P. VARNEY
-----------------------------------
Andrew P. Varney
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 28, 1997, except as to the
stock split described in Note 14 which is as of May 8, 1997, appearing on page
F-2 of BioReliance Corporation's Registration Statement on Form S-1.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Washington, D.C.
August 25, 1997
