EXHIBIT 10.1
INFORMAX, INC.
EQUITY INCENTIVE COMPENSATION PLAN
INFORMAX, INC. (the "Company") sets forth herein the terms of this Equity
Incentive Compensation Plan (the "Plan") as follows:
1. PURPOSE
The Plan is intended to advance the interests of the Company by providing
eligible officers, employees, directors of, and consultants to the Company (as
designated pursuant to Section 4 below) with incentives to improve business
results, by providing an opportunity to acquire or increase a proprietary
interest in the Company, which thereby will create a stronger incentive to
expend maximum effort for the growth and success of the Company, and will
encourage such persons to remain in the employ or service of the Company. To
this end, the Plan provides for the grant of stock options, and shares of
restricted stock, all as set out herein.
Each stock option granted under the Plan (an "Option") is intended to be an
"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended from time to time, or the corresponding
provision of any subsequently-enacted tax statute (the "Code") ("Incentive Stock
Option"), except (i) to the extent that any such Option would exceed the
limitations set forth in Section 7 below; (ii) any Option specifically
designated at the time of grant as not being "incentive stock options"; and
(iii) any Option that otherwise would not satisfy the requirements of Code
Section 422 at the time of grant (collectively, "Non-qualified Stock Options").
Further, grants may be made of shares of restricted stock, in accordance with
the provisions of Section 6 below ("Restrictive Stock Awards"). Such grants and
awards are referred to collectively as "Incentive Awards." Each Incentive Award
shall be evidenced by a written agreement between the Company and the recipient
employee setting out the terms and conditions of the grant (an "Agreement").
Except where the context otherwise requires, the term "Company" shall include
the parent corporation and all subsidiaries of the Company within the meaning of
Sections 424(e) and 424(f) of the Code.
2. ADMINISTRATION
(a) Board of Directors. The Plan shall be administered by the Board of
Directors of the Company (the "Board"), which shall have the full power and
authority to take all actions, and to make all determinations required or
provided for under the Plan or any Incentive Award granted or associated
agreement entered into hereunder and all such other actions and determinations
not inconsistent with the specific terms and provisions of the Plan deemed by
the
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Board to be necessary or appropriate to the administration of the Plan or any
Incentive Award granted or Agreement entered into hereunder. All such actions
and determinations shall be by the affirmative vote of a majority of the members
of the Board present at a meeting at which any issue relating to the Plan is
properly raised for consideration or by without a meeting by written consent of
the Board of Directors executed in accordance with the Company's Articles of
Incorporation and By-Laws, and with applicable law. The interpretation and
construction by the Board of any provision of the Plan or of any Incentive Award
granted or Agreement entered into hereunder shall be final and conclusive.
(b) Committee. The Board may from time to time appoint an Equity Incentive
compensation Plan Committee (the "committee") consisting of one or more members
of the Board. The Board, in its sole discretion, may provide that the role of
the Committee shall be limited to making recommendations to the Board concerning
any determinations to be made and actions to be taken by the Board pursuant to
or with respect to the Plan, or the board may delegate to the Committee such
powers and authorities related to the administration of the Plan, as set forth
in Section 2(a) above, as the Board shall determine, consistent with the
Articles of Incorporation and By-Laws of the Company and applicable law. The
Board may remove members, add members, and fill vacancies on the committee from
time to time, all in accordance with the company's Articles of Incorporation and
By-Laws, and with applicable law. The majority vote of the Committee, or acts
reduced to or approved in writing by a majority of the members of the Committee,
shall be the valid acts of the Committee.
(c) No Liability. No member of the Board or of the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Incentive Award granted or Agreement entered into hereunder.
(d) Delegation to the Committee. In the event that the Plan or any
Incentive Award granted or Agreement entered into hereunder provides for any
action to be taken by or determination to be made by the Board, such action may
be taken by or such determination may be made by the Committee if the power and
authority to do so has been delegated to the Committee by the Board as provided
for in Section 2(b) above. Unless otherwise expressly determined by the Board,
any such action or determination by the Committee shall be final and conclusive.
3. STOCK
The stock that may be issued pursuant to Incentive Awards under the Plan
shall be shares of Non-Voting Common Stock, par value $0.01 per share, of the
Company (the "Non-Voting Stock") and be shares of Voting Common Stock, par
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value $0.01 per share, of the Company (the "Voting Stock", and together with the
Non-Voting Stock, the "Stock"), which shares may be treasury shares or
authorized but unissued shares. The number of shares of Non-Voting Stock that
may be issued pursuant to Incentive Awards under the Plan shall not exceed, in
the aggregate, 2,200,000 shares, which number of shares is subject to adjustment
as hereinafter provided in Section 17 below. If any Incentive Award expires,
terminates, or is terminated for any reason prior to exercise or vesting in
full, the shares of Stock that were subject to the unexercised, forfeited or
terminated portion of such Incentive Award shall be available for future grants
of Incentive Awards under the Plan.
4. ELIGIBILITY
Incentive Awards may be granted under the Plan to any employee or director
of, or any consultant to the Company or any Subsidiary (including any such
employee who is an officer or director of the Company or any Subsidiary) as the
Board shall determine and designate from time to time prior to expiration or
termination of the Plan. An individual may hold more than one Incentive Award,
subject to such restrictions as are provided herein.
5. EFFECTIVE DATE AND TERM OF THE PLAN
(a) Effective Date. The Plan shall be effective as of the date of adoption
by the Board, subject to approval of the Plan within one year of such effective
date by a majority of the votes cast at a duly held meeting of the shareholders
of the Company at which a quorum representing at least a majority of outstanding
shares of stock of the Company entitled to vote thereon is, either in person or
by proxy, present and voting on the Plan or by written consent in accordance
with the Articles of Incorporation and By-Laws of the Company; provided,
however, that upon approval of the Plan by the shareholders of the Company as
set forth above, all Incentive Awards granted under the Plan on or after the
effective date shall be fully effective as if the shareholders of the Company
had approved the Plan on the effective date. If the shareholders fail to approve
the Plan within one year of such effective date, any Incentive Awards granted
hereunder shall be null and void and of no effect.
(b) Term. The Plan shall terminate on the date ten years from the effective
date.
6. GRANT OF OPTIONS AND SHARES OF RESTRICTED STOCK
(a) Options. Subject to the terms and conditions of the Plan, the Board
may, at any time and from time to time, prior to the date of termination
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of the Plan, grant to such eligible individuals as the Board may determine
("Optionees"), Options to purchase such number of shares of the Stock on such
terms and conditions as the Board may determine, including any terms or
conditions which may be necessary to qualify such Options as Incentive Stock
Options. The date on which the Board approves the grant of an Option shall be
considered the date on which such Option is granted.
(b) Restricted Stock Awards. Subject to the terms of the Plan, the Board
may, at any time and from time to time, prior to the date of termination of the
Plan, grant to such eligible individuals as the Board may determine ("Holders"),
shares of restricted Stock, subject to (i) payment by the Holder of not less
than the par value of such stock and (ii) the attainment of such performance
objectives and the completion of such service requirements (if any) as the Board
shall determine and specify as a condition to making such grant. Each such grant
shall be effected by the execution of an Agreement setting out the terms and
conditions applicable thereto and by the issuance of shares of restricted Stock.
Upon attainment of the specified objectives and requirements (or, to the extent
specified by the Board, partial attainment of such objectives and requirements),
the Holder shall be entitled to shares of Stock specified in the grant (or the
portion of such shares earned by partial attainment of the objectives and
requirements, as applicable) free of restrictions, except that such shares of
Stock shall continue to be subject to the restrictions set out in Section 11(b)
and (c). Upon the failure of (i) the Holder to pay the price specified for the
shares within the time set by the Board at the time of the grant or, (ii) upon
the expiration of the specified period for attaining performance objectives
without such objectives having been achieved or (iii) upon termination of the
Holder's employment without the Holder having satisfied the service requirement
specified at the time of grant (the "Conditions"), except as shall otherwise
have been specified in the Agreement at the time of grant or in an amendment
thereto, the shares of restricted Stock (or appropriate portion thereof) shall
be forfeited and shall again be available for regrant under the terms of the
Plan. The Board may require that the certificates evidencing the grant of shares
of restricted Stock hereunder be held in escrow until such restrictions have
expired. The Board may also cause a legend to be placed on such certificates
making appropriate reference to the restrictions to which the shares are
subject.
(c) Cancellation and New Grant of Options. The Board shall have the
authority to effect, at any time and from time to time, with the consent of the
affected optionees, the cancellation of any or all outstanding Options under the
Plan and the grant in substitution therefor of new Options under the Plan
covering the same or different numbers of shares of Stock having an exercise
price per share which may be lower or higher than the exercise price per share
of the canceled Options.
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(d) Acceleration. The Board may, in its sole discretion, accelerate the
date or dates on which all or any particular Option or Options granted under the
Plan may be exercised or on which any Conditions under Restricted Stock Awards
lapse.
7. LIMITATION ON INCENTIVE STOCK OPTIONS
An Option (other than an Option described in exception (ii) or (iii) of
Section 1) shall constitute an Incentive Stock Option only to the extent that
the aggregate fair market value (determined at the time the Option is granted)
of the Stock with respect to which options intended to constitute Incentive
Stock Options are exercisable for the first time by any Optionee during any
calendar year (under the Plan and all other plans of the Optionee's employer
corporation and its parent and subsidiary corporations within the meaning of
Section 422(b)(7) of the Code) does not exceed $100,000.
8. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by Agreements
("Option Agreements"), to be executed by the Company and by the Optionee, in
such form or forms as the Board shall from time to time determine. Option
Agreements covering Options granted from time to time or at the same time need
not contain similar provisions; provided, however, that all such Option
Agreements shall comply with all terms of the Plan. Any amendment or
modification to an Option Agreement shall be made by a written instrument
approved by the Board and executed by or on behalf of the Company and the
Optionee (or permitted transferee of the Optionee).
9. OPTION PRICE
The purchase price of each share of the Stock subject to an Option (the
"Option Price") shall be determined by the Board and stated in each Option
Agreement.
In the case of an Option intended to constitute an Incentive Stock Option,
the Option Price shall be not less than the greater of par value or 100% of the
fair market value of a share of the Stock on the date the Option is granted (as
determined in good faith by the Board); provided, however, that in the event the
Optionee would otherwise be ineligible to receive an Incentive Stock Option by
reason of the provisions of Sections 422(b)(6) and 424(d) of the Code (relating
to stock ownership of more than ten percent (10%)), the Option Price of an
Option which is intended to be an Incentive Stock Option (within the meaning of
Section 422 of the Code) shall be not less than the greater of par value or 110%
of
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the fair market value of a share of Stock at the time such Option is granted. In
the event that the Stock is listed on an established national or regional stock
exchange, is admitted to quotation on the National Association of Securities
Dealers Automated Quotation System, or is publicly traded in an established
securities market, in determining the fair market value of the Stock, the Board
shall use the closing price of the Stock on such exchange or System or in such
market (the highest such closing price if there is more than one such exchange
or market) on the trading date immediately before the Option is granted (or, if
there is no such closing price, then the Board shall use the mean between the
highest bid and lowest asked prices or between the high and low prices on such
date), or, if no sale of the Stock has been made on such day, on the next
preceding day on which any such sale shall have been made. Such determination of
the fair market value of such shares shall be final, binding, and conclusive.
In the case of an Option not intended to constitute an "Incentive Stock
Option," the Option Price shall not be less than par value.
10. TERM AND EXERCISE OF OPTIONS
(a) Term. Each Option granted under the Plan shall terminate and all rights
to purchase shares thereunder shall cease upon the expiration of ten years from
the date such Option is granted or on such date prior thereto as may be fixed by
the Board and stated in the Option Agreement relating to such Option (subject to
earlier termination as provided in the Plan); provided, however, that in the
event the Optionee would otherwise be ineligible to receive an Incentive Stock
Option by reason of the provisions of Sections 422(b)(6) and 424(d) of the Code
(relating to stock ownership of more than ten percent (10%)), an Option granted
to such Optionee which is intended to be an Incentive Stock Option shall in no
event be exercisable after the expiration of five years from the date it is
granted.
(b) Option Period and Limitations on Exercise. Each Option granted under
the Plan shall be exercisable, in whole or in part, at any time and from time to
time, over a period commencing on or after the date of grant and ending upon the
expiration or termination of the Option, as the Board shall determine and set
forth in the Option Agreement relating to such Option or any amendment thereto.
Without limiting the foregoing, the Board, subject to the terms and conditions
of the Plan, may in its sole discretion provide that an Option may not be
exercised in whole or in part for any period or periods of time during which
such Option is outstanding and may condition exercisability of an Option upon
the Optionee's attainment of performance objectives set out in the Option
Agreement; provided, however, that any such limitation or condition on the
exercise of an Option contained in any Option Agreement may be rescinded,
modified or waived by the Board, in its sole discretion, at any time and from
time to time after the date of grant of such Option, so as to accelerate the
time at which the Option may be
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exercised. Notwithstanding any other provisions of the Plan, no Option granted
to an Optionee under the Plan shall be exercisable in whole or in part prior to
the date the Plan is approved by the shareholders of the Company as provided in
Section 5 above.
(c) Method of Exercise. An Option that is exercisable hereunder may be
exercised by delivery to the Company on any business day, at its principal
office, addressed to the attention of the Board, of written notice of exercise,
which notice shall specify the number of shares with respect to which the Option
is being exercised, and shall be accompanied by payment in full of the Option
Price of the shares for which the Option is being exercised, except as provided
below. Payment of the Option Price for the shares of Stock purchased pursuant to
the exercise of an Option shall be made (i) in cash or in cash equivalents;
(ii) through the tender to the Company of shares of Stock, which shares shall be
valued, for purposes of determining the extent to which the Option Price has
been paid thereby, at their fair market value (determined in the manner
described in Section 9 above) on the date of exercise; (iii) if at the time of
exercise the Stock is publicly traded on an established securities market or
exchange, by delivering a written direction to the Company that the Option be
exercised pursuant to a "cashless" exercise/sale procedure (pursuant to which
funds to pay for exercise of the option are delivered to the Company by a broker
upon receipt of stock certificates from the Company) or a cashless exercise/loan
procedure (pursuant to which the Optionees would obtain a margin loan from a
broker to fund the exercise) through a licensed broker acceptable to the Company
whereby the stock certificate or certificates for the shares of Stock for which
the Option is exercised will be delivered to such broker as the agent for the
individual exercising the Option and the broker will deliver to the Company cash
(or cash equivalents acceptable to the Company) equal to the Option Price for
the shares of Stock purchased pursuant to the exercise of the Option plus the
amount (if any) of federal and other taxes that the Company, may, in its
judgment, be required to withhold with respect to the exercise of the Option; or
(iv) by a combination of the methods described in (i), (ii) and (iii). The
Optionee's right to pay the exercise price by exchange of Stock, however, is
subject to the following limitation: the Stock being exchanged must have been
held by the Optionee for at least six months. Payment in full of the Option
Price need not accompany the written notice of exercise if the Option is
exercised pursuant to the cashless exercise/sale procedure described above. An
attempt to exercise any Option granted hereunder other than as set forth above
shall be invalid and of no force and effect. Promptly after the exercise of an
Option and the payment in full of the Option Price of the shares of Stock
covered thereby, the individual exercising the Option shall be entitled to the
issuance of a Stock certificate or certificates evidencing his ownership of such
shares. A separate Stock certificate or certificates shall be issued for any
shares purchased pursuant to the exercise of an Option which is an Incentive
Stock Option, which certificate or certificates shall not include any shares
which were purchased pursuant to the exercise of an Option which is not
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an Incentive Stock Option. An individual holding or exercising an Option shall
have none of the rights of a shareholder until the shares of Stock covered
thereby are fully paid and issued to him and, except as provided in Section 16
below, no adjustment shall be made for dividends or other rights for which the
record date is prior to the date of such issuance. Shares issued pursuant to the
exercise shall be subject to the applicable restrictions set out in Section 11
hereof.
11. TRANSFERABILITY OF STOCK AND OPTIONS
(a) Transferability. During the lifetime of an Optionee, only such Optionee
(or, in the event of legal incapacity or incompetency, the guardian or legal
representative of the Optionee) may exercise the Option. No Option shall be
assignable or transferable by the Optionee to whom it is granted, other than by
will or the laws of descent and distribution. No shares of restricted stock
shall be assignable or transferable, other than by will or the laws of descent
and distribution, prior to the satisfaction of applicable performance and
service requirements with respect to such shares. No holder of shares acquired
pursuant to this Plan shall sell, assign, transfer, pledge or hypothecate such
shares except in accordance with the terms of this Plan and any applicable
shareholders agreement. No holder of shares acquired pursuant to this Plan will
pledge or hypothecate such shares without the prior consent of the Company.
Notwithstanding anything to the contrary, any unrestricted shares acquired
pursuant to this Plan may be transferred by gift to the holder's "Family",
provided that any such transferee shall enter into a written agreement to be
bound by the terms of this Plan and any applicable shareholders agreement. For
this purpose, "Family" shall mean the siblings, children, parents and spouse of
the holder of such shares.
(b) Repurchase Rights.
(i) Upon the termination of the employment or service with the Company
or a Subsidiary for any reason of an employee who has been granted Incentive
Awards hereunder, the Company shall have the right, for a period of 180 days
following such termination, to repurchase any or all of the shares acquired by
the employee pursuant to this Plan under an Incentive Award (including shares
that were previously transferred pursuant to Subsection 11(c) below, unless
otherwise specified in the Agreement relating to such Incentive Award), at a
price equal to the fair market value of such shares on the date of termination
(or at such lower price as shall have been specified by the Board at the time of
grant and set out in the appropriate Option or restricted Stock Agreement with
respect to the grant). Upon the exercise, pursuant to Section 12 or 13 below, of
an Option following termination of employment or service, the Company shall have
the right, for a period of 180 days following such exercise, to repurchase any
or all such shares at a price equal to the fair market value of such shares on
the date of
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exercise (or at such lower price as shall have been specified by the Board at
the time of grant and set out in the appropriate Option Agreement with respect
to the grant).
(ii) In the event that the Company determines that it cannot or will
not exercise its rights to purchase Stock under this Section 11(b), in whole or
in part, the Company may assign its rights, in whole or in part, to (A) any
shareholder of the Company who owns stock or securities of the Company having
more than 50% of the combined voting power of all classes of stock of the
Company (a "Shareholder"), (B) any employee benefit plan (within the meaning of
ss. 3(3) of the Employee Retirement Income Security Act of 1974, as amended)
maintained by the Company or a Subsidiary for the benefit of employees of the
Company or a Subsidiary (a "Plan"), or (C) any corporation or other trade or
business that is controlled by or under common control with the Company
(determined in accordance with the principles of Section 414(b) and (c) of the
Code and the regulations thereunder) (an "Affiliate"). The Company shall give
reasonable written notice to the employee of any assignment of its rights.
(c) Right of First Refusal.
(i) A grantee of an Incentive Award (or such other individual who is
entitled, pursuant to Section 13 below, to exercise an Option or to whom
restricted Stock is transferred, following the death of the Optionee or grantee)
shall not sell, pledge, assign, gift, transfer or otherwise dispose of any
shares of Stock acquired pursuant to an Incentive Award to anyone without first
offering them to the Company for purchase on the same terms and conditions as
those offered the proposed transferee. Any individual who proposes such a
transfer (the "Transferor") shall notify the Company, in writing, of the
identity of the transferee and the terms and conditions of such transfer. The
Company may exercise its right of first refusal within 60 days after receiving
such notice of the proposed transfer. If the Company (or its permitted assignee)
fails to exercise such right of first refusal during this 60 day period, the
Transferor may proceed with the proposed transfer at any time within the next 60
days, and if he does not do so, the restrictions of this Subsection shall
re-apply. The restrictions of this Subsection shall re-apply to any person to
whom Stock that was originally acquired pursuant to an Incentive Award is sold,
pledged, assigned, bequeathed, gifted, or otherwise transferred, without regard
to the number of such subsequent transferees or the manner in which they acquire
the Stock. Notwithstanding the foregoing, the restrictions of this Subsection
shall not apply to a transfer of Stock that occurs as a result of the death of
the Transferor or of any subsequent transferee (but shall apply to the executor,
administrator or personal representative, the estate and the legatees,
beneficiaries and assigns thereof). The right of first refusal granted in this
Section shall terminate on the closing of an initial public offering of the
Company's Stock under the Securities Act.
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(ii) The Company may assign its right of first refusal under this
Section 11(c), in whole or in part, to a Shareholder, a Plan or an Affiliate.
The Company shall give reasonable written notice to the Transferor of any
assignment of its rights.
(d) Legend. In order to enforce the restrictions imposed upon shares under
this Plan or as provided in an Agreement relating to an Incentive Award, the
Board may cause a legend or legends to be placed on any certificate representing
shares issued pursuant to this Plan which legend or legends shall make
appropriate reference to the restriction imposed under it.
(e) Put Rights. The Board, by inclusion of appropriate language in the
Agreement relating to an Incentive Award, may grant the person acquiring shares
of Stock thereunder the right to put such shares to the Company at the fair
market value of such shares (as determined hereunder) at the time of exercise of
such put, or at such other value as shall be specified on the Agreement, subject
to such further terms and conditions as the Board shall include in the Agreement
relating to such Incentive Award.
(f) Additional Provisions. The Board may, in its sole discretion, include
additional provisions in any Incentive Award granted under the Plan, including
without limitation restrictions on transfer, repurchase rights, commitments to
pay cash bonuses, arrangements for loans or transfers of property to Optionees
upon exercise of Options, a requirement to enter into any applicable
shareholders agreement by and among the Company and any of its shareholders or
such other provisions as shall be determined by the Board; provided, however,
that such additional provisions shall not be inconsistent with any term or
condition of the Plan and such additional provisions shall not cause any
Incentive Stock Option granted under the Plan to fail to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
12. TERMINATION OF SERVICE OR EMPLOYMENT OF OPTIONEE
Upon the termination of the employment or service of an Optionee, or Holder
with the Company or a Subsidiary, other than by reason of the death or
"permanent and total disability" (within the meaning of Section 22(e)(3) of the
Code) of such individual, any Option or shares of restricted stock that have not
become vested to such individual pursuant to the Plan, shall terminate and such
individual shall have no further right to purchase shares of Stock pursuant to
such Option and such restricted stock shall be forfeited; provided, however,
that the Board may provide, by inclusion of appropriate language in any Option
or restricted Stock Agreement, that the grantee may (subject to the general
limitations on exercise set forth in Section 10(b) above), in the event of
termination of employment or service
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with the Company or a Subsidiary, exercise an Option or receive unrestricted
shares of Stock, in whole or in part, at any time subsequent to such termination
of employment and prior to termination of the Incentive Award as provided in
Sections 6 and 10 above, either subject to or without regard to any installment
limitation, condition on exercise or transfer, or vesting requirement imposed
pursuant to such Sections. Whether a leave of absence or leave on military or
government service shall constitute a termination of employment or service for
purposes of the Plan shall be determined by the Board, which determination shall
be final and conclusive. For purposes of the Plan, a termination of employment
or service with the Company or a Subsidiary shall not be deemed to occur if the
Optionee is immediately thereafter employed by or engaged with the Company or
any Subsidiary in any capacity.
13. RIGHTS IN THE EVENT OF DEATH OR DISABILITY
(a) Death. If an Optionee dies while employed by or providing service to
the Company or a Subsidiary, the executors or administrators or legatees or
distributees of such individual's estate shall have the right (subject to the
general limitations on exercise set forth in Section 10(b) above), at any time
within six (6) months after the date of such individual's death and before
termination of the Option as provided in Section 10(a) above, to exercise any
vested portion of the Option held by such individual at the date of such
individual's death. The extent to which shares of restricted Stock shall become
vested as a result of the grantee's death while employed by or providing
services to the Company or a Subsidiary shall be determined by the Board at the
time of grant of such shares of restricted Stock and specified in the related
Agreement.
(b) Disability. If an Optionee terminates employment or service with the
Company or a Subsidiary by reason of the "permanent and total disability"
(within the meaning of Section 22(e)(3) of the Code) of such person, then such
person shall have the right (subject to the general limitations on exercise set
forth in Section 10(b) above), at any time within six (6) months after such
termination of employment or service and before termination of the Option as
provided in Section 10(a) above, to exercise, in whole or in part, any vested
portion of the Option held by such person at the date of such termination of
employment or service. Whether a termination of employment is to be considered
by reason of "permanent and total disability" for purposes of this Plan shall be
determined by the Board, which determination shall be final and conclusive. The
extent to which shares of restricted stock shall become vested as a result of
the grantee's "total and permanent disability" while employed by or engaged in
performing services for the Company or a Subsidiary shall be determined by the
Board at the time of grant of such shares of restricted stock and specified in
the related Agreement.
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14. USE OF PROCEEDS
The proceeds received by the Company from the sale of Stock pursuant to the
exercise of Options granted under the Plan and the issuance of shares of
restricted stock hereunder shall constitute general funds of the Company.
15. REQUIREMENTS OF LAW
The Company shall not be required to sell, issue or transfer any shares of
Stock under any Incentive Award if the sale, issuance or transfer of such shares
would constitute a violation by the Holder or the individual exercising the
Option or the Company of any provisions of any law or regulation of any
governmental authority, including without limitation any federal or state
securities laws or regulations. Specifically in connection with the Securities
Act of 1933 (as now in effect or as hereafter amended), at the time of grant of
restricted Stock or when such Stock becomes vested or upon exercise of any
Option, unless a registration statement under such Act is in effect with respect
to the shares of Stock covered by thereby, the Company shall not be required to
sell or issue such shares unless the Board has received evidence satisfactory to
it that the holder of such restricted Stock or Option may acquire such shares
pursuant to an exemption from registration under such Act. Any determination in
this connection by the Board shall be final, binding, and conclusive. The
Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended). The Company shall not be obligated to take any affirmative
action in order to cause the exercise of an Option or the issuance of shares
pursuant thereto or pursuant to a grant of restricted Stock to comply with any
law or regulation of any governmental authority. As to any jurisdiction that
expressly imposes the requirement that an Option shall not be exercisable or
that shares of Stock may not be issued pursuant to a grant of restricted Stock
unless and until the shares of Stock covered by such grant or Option are
registered or are subject to an available exemption from registration, the
exercise of such Option or issuance of shares of Stock pursuant to such grant
(under circumstances in which the laws of such jurisdiction apply) shall be
deemed conditioned upon the effectiveness of such registration or the
availability of such an exemption.
16. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend, suspend or
terminate the Plan as to any shares of Stock as to which Incentive Awards have
not been granted; provided, however, that no amendment by the Board shall,
without approval by a majority of the votes cast at a duly held meeting of the
shareholders of the Company at which a quorum representing at least a majority
of outstanding shares of stock of the Company entitled to vote thereon is,
either in person or by
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proxy, present and voting on the Plan or by written consent in accordance with
the Articles of Incorporation and By-Laws of the Company, (a) change the
requirements as to eligibility to receive Incentive Stock Options; or (b)
increase the maximum number of shares of Stock in the aggregate that may be sold
or issued pursuant to grants of Incentive Stock Options under the Plan (except
as permitted under Section 17 hereof). Except as permitted under Section 17
hereof, no amendment, suspension or termination of the Plan shall not, without
the consent of the holder of the Incentive Award, alter or impair rights or
obligations under any Incentive Award theretofore granted under the Plan. With
the consent of the Optionee or Holder, the Board may amend any outstanding
Agreement in a manner not inconsistent with the Plan. Amendments to the Plan not
requiring stockholder approval shall become effective when adopted by the Board;
amendments requiring stockholder approval (as provided in this Section 16) shall
become effective when adopted by the Board, but no Incentive Stock Option issued
after the date of such amendment shall become exercisable (to the extent that
such amendment to the Plan was required to enable the Company to grant such
Incentive Stock Option to a particular Optionee) unless and until such amendment
shall have been approved by the Company's stockholders. If such stockholder
approval is not obtained within twelve (12) months of the Board's adoption of
such amendment, any Incentive Stock Options granted on or after the date of such
amendment shall terminate to the extent that such amendment to the Plan was
required to enable the Company to grant such Option to a particular Optionee.
17. EFFECT OF CHANGES IN CAPITALIZATION
(a) Changes in Stock. If the outstanding shares of Stock are increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of any recapitalization,
reclassification, stock split-up, combination of shares, exchange of shares,
stock dividend or other distribution payable in capital stock, or other increase
or decrease in such shares effected without receipt of consideration by the
Company, occurring after the effective date of the Plan, the number and kinds of
shares for the issuance of which restricted Stock may be awarded and for the
acquisition of which Options may be granted under the Plan shall be adjusted
proportionately and accordingly by the Company. In addition, the number and kind
of shares for which Options are outstanding shall be adjusted proportionately
and accordingly so that the proportionate interest of the holder of the Option
immediately following such event shall, to the extent practicable, be the same
as immediately before such event. Any such adjustment in outstanding Options
shall not change the aggregate Option Price payable with respect to shares
subject to the unexercised portion of the Option outstanding but shall include a
corresponding proportionate adjustment in the Option Price per share.
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(b) Reorganization in Which the Company Is the Surviving Corporation.
Subject to Subsection (c) hereof, if the Company shall be the surviving
corporation in any reorganization, merger, or consolidation of the Company with
one or more other corporations, any Option theretofore granted pursuant to the
Plan shall pertain to and apply to the securities to which a holder of the
number of shares of Stock subject to such Option would have been entitled
immediately following such reorganization, merger, or consolidation, with a
corresponding proportionate adjustment of the Option Price per share so that the
aggregate Option Price thereafter shall be the same as the aggregate Option
Price of the shares remaining subject to the Option immediately prior to such
reorganization, merger, or consolidation.
(c) Reorganization in Which the Company Is Not the Surviving Corporation or
Sale of Assets or Stock. Upon the dissolution or liquidation of the Company, or
upon a merger, consolidation or reorganization of the Company with one or more
other corporations in which the Company is not the surviving corporation, or
upon a sale of all or substantially all of the assets of the Company to another
corporation, or upon any transaction (including, without limitation, a merger or
reorganization in which the Company is the surviving corporation) approved by
the Board which results in any person or entity (other than persons who are
shareholders of the Company at the time the Plan is approved by the shareholders
and other than an Affiliate) owning 80% or more of the combined voting power of
all classes of stock of the Company, the Plan and all Options outstanding
hereunder shall terminate, except to the extent a provision is made in writing
in connection with such transaction for the continuation of the Plan and/or the
assumption of such Options theretofore granted, or for the substitution for such
Options of new options covering the stock of a successor corporation, or a
parent or subsidiary thereof, with appropriate adjustments as to the number and
kinds of shares and exercise prices, in which event the Plan and Options
theretofore granted shall continue in the manner and under the terms so
provided. In the event of any such termination of the Plan, each individual
holding an Option shall have the right (subject to the general limitations on
exercise set forth in Section 10(b) above), immediately before the occurrence of
such termination and during such period occurring before such termination as the
Board in its sole discretion shall determine and designate, to exercise such
Option in whole or in part, to the extent that such Option was otherwise
exercisable at the time such termination occurs, except that, by inclusion of
appropriate language in an Option Agreement, the Board may provide that the
Option may be exercised before termination without regard to any installment
limitation or other condition on exercise imposed pursuant to Section 10(b)
above. The Board shall send written notice of an event that will result in such
a termination to all individuals who hold Options not later than the time at
which the Company gives notice thereof to its shareholders. The extent to which
unvested shares of restricted Stock shall be vested or forfeited in the case of
an event described in this Section 17(c) shall be set
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out in the Agreement with respect to such grant; in the absence of such a
provision, the unvested shares shall be forfeited.
(d) Adjustments. Adjustments under this Section 17 related to stock or
securities of the Company shall be made by the Board, whose determination in
that respect shall be final, binding, and conclusive. No fractional shares of
Stock or units of other securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such adjustment shall be
eliminated in each case by rounding downward to the nearest whole share or unit.
(e) No Limitations on Company. The grant of shares of Incentive Awards
pursuant to the Plan shall not affect or limit in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
of its capital or business structure or to merge, consolidate, dissolve or
liquidate, or to sell or transfer all or any part of its business or assets.
18. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Incentive Award granted or agreement
entered into pursuant to the Plan shall be construed to confer upon any
individual the right to remain in the employ or service of the Company or any
Subsidiary, or to interfere in any way with the right and authority of the
Company or any Subsidiary either to increase or decrease the compensation of any
individual at any time, or to terminate any employment or other relationship
between any individual and the Company or any Subsidiary. The obligation of the
Company to pay any benefits pursuant to this Plan shall be interpreted as a
contractual obligation to pay only those amounts described herein, in the manner
and under the conditions prescribed herein. The Plan shall in no way be
interpreted to require the Company to transfer any amounts to a third party
trustee or otherwise hold any amounts in trust or escrow for payment to any
participant or beneficiary under the terms of the Plan.
19. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan nor the submission of the Plan to the
shareholders of the Company for approval shall be construed as creating any
limitations upon the right and authority of the Board to adopt such other
incentive compensation arrangements (which arrangements may be applicable either
generally to a class or classes of individuals or specifically to a particular
individual or individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of restricted stock, stock options
or stock appreciation rights otherwise than under the Plan.
* * *
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The Plan was duly adopted and approved by the Board of Directors of the
Company on the 10th day of February, 1999.
/s/ Calvin Cobb
------------------------------------
Secretary
The Plan was duly adopted and approved by the shareholders of the Company
on the 17th day of March, 1999.
/s/ Calvin Cobb
------------------------------------
Secretary
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EXHIBIT A
AMENDMENT NO. 1 TO THE
INFORMAX, INC. EQUITY INCENTIVE COMPENSATION PLAN
WHEREAS, InforMax, Inc. (the "Corporation") maintains the InforMax,
Inc. Equity Incentive Compensation Plan (the "Plan");
WHEREAS, the Corporation desires to amend the Plan to increase the
number of common shares of beneficial interest of the Corporation available for
grants under the Plan; and
WHEREAS, the Directors of the Corporation and the shareholders of the
Corporation have approved this amendment.
NOW, THEREFORE, the Plan is hereby amended as follows:
The second sentence of Section 3 is amended in its entirety to read as
follows, effective as of July 11, 1999:
The number of shares of Non-Voting Stock that may be issued pursuant to
Incentive Awards under the Plan shall not exceed, in the aggregate, 2,700,000
shares, which number of shares is subject to adjustment as hereafter provided in
Section 17 below.
* * * * *
In all respects not amended, the Plan is confirmed and ratified.
IN WITNESS WHEREOF, the Corporation has caused this Amendment No. 1 to
be executed and delivered by its duly authorized officer on this 25th day of
July, 1999.
InforMax, Inc.
By: /s/ Alexander Titomirov
----------------------------------
Alexander Titomirov
President and Chief Executive Officer
<PAGE>
EXHIBIT A
AMENDMENT NO. 2 TO THE
INFORMAX, INC. EQUITY INCENTIVE COMPENSATION PLAN
WHEREAS, InforMax, Inc. (the "Corporation") maintains the InforMax,
Inc. Equity Incentive Compensation Plan (the "Plan");
WHEREAS, the Corporation desires to amend the Plan to increase the
number of common shares of beneficial interest of the Corporation available for
grants under the Plan; and
WHEREAS, the Directors of the Corporation and the shareholders of the
Corporation have approved this amendment.
NOW, THEREFORE, the Plan is hereby amended as follows:
The second sentence of Section 3 is amended in its entirety to read as
follows, effective as of November 8, 1999:
The number of shares of Non-Voting Stock that may be issued pursuant to
Incentive Awards under the Plan shall not exceed, in the aggregate, 3,200,000
shares, which number of shares is subject to adjustment as hereafter provided in
Section 17 below.
* * * * *
In all respects not amended, the Plan is confirmed and ratified.
IN WITNESS WHEREOF, the Corporation has caused this Amendment No. 2 to
be executed and delivered by its duly authorized officer on this 25th day of
January, 2000.
InforMax, Inc.
By: /s/ Alexander Titomirov
----------------------------------
Alexander Titomirov
President and Chief Executive Officer
