Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE PERKIN-ELMER CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
New York 06-0490270
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
761 MAIN AVENUE
NORWALK, CONNECTICUT 06859-0001
(Address of Principal Executive Offices, including Zip Code)
MOLECULAR INFORMATICS, INC.
1997 EQUITY OWNERSHIP PLAN
(Full Title of the Plan)
WILLIAM B. SAWCH
Senior Vice President, General Counsel and Secretary
THE PERKIN-ELMER CORPORATION
761 Main Avenue
Norwalk, Connecticut 06859-0001
(203) 762-1000
(Name, Address, and Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Offering Aggregate
Title of Securities Amount to be Price Per Offering Amount of
to be Registered Registered Share (1) Price (1) Registration Fee
Common Stock, $1.00
Par Value (2) 64,689 $63.7188 $4,121,905 $1,216
1. Pursuant to Rule 457(h)(1) and Rule 457(c), the proposed maximum
offering price per share and the registration fee are based upon the
reported average of the high and low prices for the common stock of the
Registrant (the "Common Stock") on the New York Stock Exchange on
December 17, 1997. The maximum offering price per share is estimated
solely for purposes of calculating the registration fee.
2. This Registration Statement also pertains to rights to purchase
Participating Preferred Stock of the Registrant (the "Rights"). Until
the occurrence of certain prescribed events, the Rights are not
exercisable, are evidenced by the certificates for Common Stock, and
will be transferred along with and only with such securities.
Thereafter, separate Rights certificates will be issued representing one
Right for each share of Common Stock held, subject to adjustment
pursuant to anti-dilution provisions.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual
Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by The Perkin-Elmer
Corporation (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated in this
Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997.
(2) The Company's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1997.
(3) The Company's Current Report on Form 8-K dated
August 23, 1997 and filed on August 26, 1997.
(4) The descriptions of the Company's Common Stock and
the rights to purchase the Company's Participating Preferred
Stock, par value $1.00 per share, contained in the Company's
Registration Statements filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"),
including any amendment or report filed for the purpose of
updating such descriptions.
All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
1934 Act, prior to the filing of a post-effective
amendment which indicates that all securities offered
have been sold or which deregisters all securities then
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remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part
hereof from their respective dates of filing (such
documents, and the documents enumerated above, being
hereinafter referred to as "Incorporated Documents");
provided, however, that the documents enumerated above or
subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act in each year
during which the offering made by this Registration
Statement is in effect prior to the filing with the
Commission of the Company's Annual Report on Form 10-K
covering such year shall not be Incorporated Documents or be
incorporated by reference in this Registration Statement or
be a part hereof from and after the filing of such Annual
Report on Form 10-K.
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
herein or in any other subsequently filed Incorporated Document
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Legal matters in connection with the shares of Common Stock
subject to issuance pursuant to the Molecular Informatics, Inc.
1997 Equity Ownership Plan have been passed upon by William B.
Sawch, Esq., Senior Vice President, General Counsel and Secretary
of the Company. Mr. Sawch owns Common Stock of the Company and
options to purchase Common Stock of the Company with an aggregate
value in excess of $50,000.
Item 6. Indemnification of Directors and Officers.
The New York Business Corporation Law (the "NYBCL")
authorizes a New York corporation to indemnify any person
who is, or is threatened to be made, a party in any civil or
criminal proceeding (other than an action by or in the right
of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another entity, against judgments, fines, amounts paid in
settlement and reasonable expenses (including attorneys'
fees) actually and necessarily incurred by such person as a
result of such action or proceeding or any appeal therein.
With respect to actions by or in the right of the
corporation, the NYBCL authorizes indemnification of such
person against reasonable expenses including attorneys' fees
and amounts paid in settlement. To be entitled to
indemnification, a person must have acted in good faith, for
a purpose which he or she reasonably believed to be in, or
in the case of service for another organization, not opposed
to, the best interests of the corporation and,
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with respect to any criminal action or proceeding, in
addition, had no reasonable cause to believe his or her
conduct was unlawful. Court approval is required as a
prerequisite to indemnification of expenses in respect of
any claim as to which a person has been adjudged liable to
the corporation.
The NYBCL requires indemnification against expenses actually
and reasonably incurred by any director, officer, employee or
agent in connection with a proceeding against such person for
action in such capacity to the extent that the person has been
successful on the merits or otherwise. Advancement of expenses
(i.e., payment prior to a determination on the merits) is
permitted, but not required, by the NYBCL, which further requires
that any director or officer must undertake to repay such
expenses if it is ultimately determined that he or she is not
entitled to indemnification. The disinterested members of the
board of directors (or independent legal counsel or the
shareholders) must determine, in each instance where
indemnification is not required by the NYBCL, that such director,
officer, employee or agent is entitled to indemnification. The
NYBCL provides that the indemnification provided by statute is
not exclusive.
The Company's By-Laws provide that, except to the extent
expressly prohibited by the NYBCL, the Company shall indemnify
each person made or threatened to be made a party to, or called
as a witness or asked to submit information in, any action or
proceeding by reason of the fact that such person or such
person's testator or intestate is or was a director or officer of
the Company, or serves or served at the request of the Company
any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity,
against judgments, fines, penalties, amounts paid in settlement
and reasonable expenses, including attorneys' fees, incurred in
connection with such action or proceeding, or any appeal therein,
provided that no such indemnification shall be made if a judgment
or other final adjudication adverse to such person establishes
that his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to
the cause of the action so adjudicated, or that he or she
personally gained in fact a financial profit or other advantage
to which he or she was not legally entitled, and provided further
that no such indemnification shall be required with respect to
any settlement or other nonadjudicated disposition of any
threatened or pending action or proceeding unless the Company has
given its prior consent to such settlement or other disposition.
Reference to an action or proceeding in these By-Laws includes,
without limitation, any pending or threatened action, proceeding,
hearing or investigation, whether civil or criminal, whether
judicial, administrative or legislative in nature and whether or
not in the nature of a direct or a shareholders' derivative
action brought by or on behalf of the Company or any other
corporation or enterprise which the director or officer of the
corporation serves at the Company's request.
The Company's By-Laws further provide that the Company shall advance
or promptly reimburse upon request any person entitled to
indemnification hereunder for all expenses, including attorneys' fees,
reasonably incurred in defending any action or proceeding in advance
of the final disposition thereof upon receipt of an undertaking by or
on behalf of such person to repay such amount if such person is
ultimately found not to be entitled to indemnification or, where
indemnification is granted, to the extent the expenses so advanced or
reimbursed exceed the amount to which such person is entitled,
provided, however, that such person shall cooperate
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in good faith with any request by the Company that
common counsel be utilized by the parties to an action or
proceeding who are similarly situated unless to do so would
be inappropriate due to actual or potential differing
interests between or among such parties. The Company shall
also promptly pay or reimburse such person for all expenses,
including fees and expenses of counsel, reasonably incurred
by such person in successfully enforcing his or her rights
pursuant to the By-Law provisions described above.
Item 7. Exemption from Registration Claimed.
Not applicable
.
Item 8. Exhibits.
Exhibit 4(1) - Three Year Credit Agreement
dated June 1, 1994 among Morgan Guaranty
Trust Company, certain banks named in
such Agreement, and the Company, as
amended July 20, 1995 (Incorporated by
reference to Exhibit 4(1) to the
Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1995
(Commission file number 1-4389)).
Exhibit 4(2) - Amendment dated as of March
31, 1996 to the Three Year Credit
Agreement dated as of June 1, 1994 among
Morgan Guaranty Trust Company, certain
banks named in such agreement, and the
Company, as amended July 20, 1995
(Incorporated by reference to Exhibit
4(2) to the Company's Annual Report on
Form 10-K for the fiscal year ended June
30, 1997 (Commission file number 1-
4389)).
Exhibit 4(3) - Shareholder Protection Rights
Agreement dated April 30, 1989 between
the Company and The First National Bank
of Boston (Incorporated by reference to
Exhibit 4 to the Company's Current
Report on Form 8-K dated April 20, 1989
(Commission file number 1-4389)).
Exhibit 5 - Opinion of William B. Sawch,
Esq. (including Consent).
Exhibit 23(1) - Consent of Price Waterhouse LLP.
Exhibit 23(2) - Consent of William B. Sawch, Esq.
(included in Exhibit 5).
Exhibit 24 - Power of Attorney (contained
on the signature pages hereof).
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Exhibit 99 - Molecular Informatics, Inc.
1997 Equity Ownership Plan.
Item 9. Undertakings.
(a) The Company 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 of 1933 (the "1933 Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement; and
(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) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability
under the 1933 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; and
(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 Company hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section
15(d) of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the 1934 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.
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(c) Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe
that it meets all of 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 Norwalk, State of Connecticut, on November 30, 1997.
THE PERKIN-ELMER CORPORATION
By: /s/ William B. Sawch
William B. Sawch
Senior Vice President, General
Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Dennis L.
Winger and William B. Sawch, and each of them, his true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all
amendments (including, without limitation, 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 of any 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,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Tony L. White Chairman of the Board, November 30, 1997
Tony L. White President and Chief
Executive Officer
(Principal Executive Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Dennis L. Winger Senior Vice President, November 30, 1997
Dennis L. Winger Chief Financial Officer
and Treasurer (Principal
Financial Officer)
/s/ Ugo D. DeBlasi Corporate Controller November 30, 1997
Ugo D. DeBlasi (Principal Accounting
Officer)
/s/ Joseph F. Abely, Jr. Director November 30, 1997
Joseph F. Abely, Jr.
/s/ Richard H. Ayers Director November 30, 1997
Richard H. Ayers
Director November , 1997
Jean-Luc Belingard
/s/ Robert H. Hayes Director November 30, 1997
Robert H. Hayes
/s/ Georges C. St. Laurent, Jr. Director November 30, 1997
Georges C. St. Laurent, Jr.
/s/ Carolyn W. Slayman Director November 30, 1997
Carolyn W. Slayman
Director November , 1997
Orin R. Smith
</TABLE>
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EXHIBIT INDEX
Exhibit No. Exhibit
5 Opinion of William B. Sawch, Esq.
23(1) Consent of Price Waterhouse
99 Molecular Informatics, Inc. 1997 Equity
Ownership Plan
December 19, 1997
The Perkin-Elmer Corporation
761 Main Avenue
Norwalk, CT 06859-0001
Ladies and Gentlemen:
This opinion is being rendered in connection with the
preparation and filing by The Perkin-Elmer Corporation (the
"Company") of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933,
as amended (the "Securities Act"), with respect to the
proposed sale of up to 64,689 shares (the "Shares") of the
common stock, par value $1.00 per share (the "Common
Stock"), of the Company pursuant to the Molecular
Informatics, Inc. 1997 Equity Ownership Plan (the "Plan").
For purposes of the opinion expressed herein, I, or
attorneys under my supervision, have conducted such
investigations of law and fact as I have deemed necessary or
appropriate.
Based upon the foregoing, I am of the opinion that,
assuming that there shall have been compliance with the
applicable provisions of the Securities Act and of state
securities or "blue sky" laws and that the consideration
received for the Shares is not less than the par value
thereof, upon the issuance and delivery of the Shares in
accordance with the terms of the Plan, the Shares will be
validly issued, fully paid and non-assessable.
Please note that if at any time in the future the
Common Stock is not listed on a national securities exchange
or regularly quoted in an over-the-counter market by one or
more members of a national or an affiliated securities
association, then, pursuant to Section 630 of the New York
Business Corporation Law, the ten largest shareholders of
the Company will be jointly and severally liable for all
debts, wages or salaries due and owing to any of the
Company's laborers, servants or employees, other than
contractors, for services performed by such persons for the
Company.
No opinion is expressed with respect to the laws of any
jurisdiction other than the United States of America and the
State of New York.
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I hereby consent to the use of this opinion as an
Exhibit to the Registration Statement and to the reference
to me in Item 5 of the Registration Statement, and any
amendments thereto filed in connection with the Plan.
Very truly yours,
/s/ William B. Sawch
William B. Sawch
Senior Vice President, General
Counsel and Secretary
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in
this Registration Statement on Form S-8 of our report dated
July 23, 1997, which appears on page 62 of the 1997 Annual
Report to Shareholders of The Perkin-Elmer Corporation, which
is incorporated by reference in The Perkin-Elmer
Corporation's Annual Report on Form 10-K for the year ended
June 30, 1997. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule,
which appears on page 20 of such Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Stamford, CT
December 17, 1997
MOLECULAR INFORMATICS, INC
1997 EQUITY OWNERSHIP PLAN
Molecular Informatics, Inc. hereby establishes this Plan to
be called the Molecular Informatics, Inc. 1997 Equity Ownership
Plan to encourage employees and directors of the Company to
acquire an equity interest in the Company, to make monetary
payments to certain employees based upon the value of the
Company's Stock, or based upon achieving certain goals on a basis
mutually advantageous to such employees and the Company and thus
provide an incentive for continuation of the efforts of the
employees and directors for the success of the Company, for
continuity of employment or service as a director and to further
the interests of the shareholders.
SECTION 1 DEFINITIONS
1.1 Definitions. Whenever used herein, the masculine
pronoun shall be deemed to include the feminine, the singular to
include the plural, unless the context clearly indicates
otherwise, and the following capitalized words and phrases are
used herein with the meaning thereafter ascribed:
(a) "Administrator" means the Board or its
designee(s).
(b) "Award" means any Stock Option, Stock Appreciation
Right, Restricted Stock or Performance Award granted under the
Plan.
(c) "Beneficiary" means the person or persons
designated by a Participant to exercise an Award in the event of
the Participant's death while employed by the Company, or in the
absence of such designation, the executor or administrator of the
Participant's estate.
(d) "Board" means the Board of Directors of the
Company.
(e) "Cause" means conduct by the Participant amounting
to (1) fraud or dishonesty against the Company, (2) willful
misconduct, repeated refusal to follow the reasonable directions
of an individual or group authorized to give such directions, or
knowing violation of law in the course of performance of the
duties of Participant's employment with the Company, (3) repeated
absences from work without a reasonable excuse, (4) intoxication
with alcohol or drugs while on the Company's premises during
regular business hours, (5) a conviction or plea of guilty or
nolo contendere to a felony or a crime involving dishonesty, or
(6) a breach or violation of the terms of any employment or other
agreement to which Participant and the employer are party.
(f) "Change in Control" shall be deemed to have
occurred if (i) a tender offer shall be made and consummated of
the ownership of 50% or more of the outstanding voting securities
of the Company, (ii) the Company shall be merged or consolidated
with another corporation and as a result of such merger or
consolidation less than 50% of the outstanding voting
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securities of the surviving or resulting corporation shall be owned
in the aggregate by the former shareholders of the Company, other than
affiliates (within the meaning of the Securities Exchange Act of
1934) of any party to such merger or consolidation, (iii) the
Company shall sell substantially all of its assets to another
corporation which corporation is not wholly owned by the Company,
or (iv) a person, within the meaning of Section 3(a)(9) or of
Section 13(d)(3) (as in effect on the date hereof) of the
Securities Exchange Act of 1934, shall acquire 50% or more of the
outstanding voting securities of the Company (whether directly,
indirectly beneficially or of record). For purposes hereof,
ownership of voting securities shall take into account and shall
include ownership as determined by applying the provisions of
Rule 13d-3(d)(1)(i)(as in effect on the date hereof) pursuant to
the Securities Exchange Act of 1934.
(g) "Code" means the Internal Revenue Code of 1986, as
amended.
(h) "Company" means Molecular Informatics, Inc., a
Delaware corporation.
(i) "Constructive Discharge" means a Termination of
Employment by the Participant on account of (i) any material
reduction in the Participant's compensation, (ii) any material
reduction in the level or scope of job responsibility or status
of the Participant occurring without the consent of the
Participant, or (iii) any relocation to an office of the Company
which is more than fifty (50) miles from the office where the
Participant was previously located to which the Participant has
not agreed.
(j) "Disability" has the same meaning as provided in
the long-term disability plan maintained by the Company. In the
event of a dispute, the determination of Disability shall be made
by the Administrator. If, at any time during the period that this
Plan is in operation, the Company does not maintain a long term
disability plan, Disability shall mean a physical or mental
condition which, in the judgment of the Administrator,
permanently prevents a Participant from performing his usual
duties for the Company or such other position or job which the
Company makes available to him and for which the Participant is
qualified by reason of his education, training and experience. In
making its determination the Administrator may, but is not
required to, rely on advice of a physician competent in the area
to which such Disability relates. The Administrator may make the
determination in its sole discretion and any decision of the
Administrator will be binding on all parties.
(k) "Disposition" means any conveyance, sale,
transfer, assignment, pledge or hypothecation, whether outright
or as security, inter vivos or testamentary, with or without
consideration, voluntary or involuntary.
(1) "Dividend Equivalent Rights" means certain rights
to receive cash payments as described in Plan Section 3.5.
(m) "Equity Ownership Agreement" means an agreement
between the Company and a Participant or other documentation
evidencing an Award.
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(n) "Expiration Date" means, the last date upon which
an Award can be exercised.
(o) "Fair Market Value" means, for any particular
date, (i) for any period during which the Stock shall be listed
for trading on a national securities exchange or the National
Association of Securities Dealers Automated Quotation System
("NASDAQ"), the closing price per share of Stock on such exchange
or the NASDAQ closing bid price as of the close of such trading
day, or (ii) the market price per share of Stock as determined in
good faith by the Board using its best efforts in the event (i)
above shall not be applicable. If the Fair Market Value is to be
determined as of a day when the securities markets are not open,
the Fair Market Value on that day shall be the Fair Market Value
on the next succeeding day when the markets are open.
(p) "Incentive Stock Option" means an incentive stock
option, as defined in Code Section 422, and described in Plan
Section 3.2.
(q) "Initial Public Offering" means the first instance
in which the Company Stock is offered for sale to the public
following successful registration of the Stock with the
Securities and Exchange Commission.
(r) "Involuntary Termination" means a Termination of
Employment but does not include a Termination of Employment for
Cause or a Voluntary Resignation.
(s) "Nonqualified Stock Option " means a stock option,
other than an option qualifying as an Incentive Stock Option,
described in Plan Section 3.2.
(t) "Option" means a Nonqualified Stock Option or an
Incentive Stock Option.
(u) "Over 10% Owner" means an individual who at the
time an Incentive Stock Option is granted owns Stock possessing
more than 10% of the total combined voting power of the Company
or one of its Parents or Subsidiaries, determined by applying the
attribution rules of Code Section 424(d).
(v) "Parent" means any corporation (other than the
Company) in an unbroken chain of corporations ending with the
Company if, with respect to Incentive Stock Options, at the time
of granting of the Option, each of the corporations other than
the Company owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in the chain.
(w) "Participant" means an individual who receives an
Award hereunder.
(x) "Performance Unit Award" refers to a performance
unit award described in Plan Section 3.6.
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(y) "Phantom Shares" refers to the rights described in
Plan Section 3.7.
(z) "Plan" means the 1997 Molecular Informatics, Inc.,
Equity Ownership Plan.
(aa) "Retirement" means a Termination of Employment
after attaining normal retirement age as specified in the
qualified retirement plan maintained by the Company.
(ab) "Stock" means the Company's non-voting common
stock.
(ac) "Stock Appreciation Right" means a stock
appreciation right described in Plan Section 3.3.
(ad) "Stock Award" means a stock award described in
Plan Section 3.4.
(ae) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the
Company if, with respect to Incentive Stock Options, at the time
of the granting of the Option, each of the corporations other
than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in the chain.
(af) "Termination of Employment" means the termination
of the employee-employer relationship between a Participant and
the Company and its affiliates regardless of the fact that
severance or similar payments are made to the Participant, for
any reason, including, but not by way of limitation, a Voluntary
Resignation, Constructive Discharge, Involuntary Termination,
death, Disability or Retirement. The Administrator shall, in its
absolute discretion, determine the effect of all matters and
questions relating to Termination of Employment, including, but
not by way of limitation, the question of whether a leave of
absence constitutes a Termination of Employment, or whether a
Termination of Employment is for Cause or is a Constructive
Discharge. With regard to a member of the Board, Termination of
Employment shall mean the date upon which said individual ceases
to be a member of the Board for any reason.
(ag) "Vested" means that an Award is nonforfeitable and
exercisable with regard to a designated number of shares of
Stock.
(ah) "Voluntary Resignation" means a Termination of
Employment as a result of the Participant's resignation but does
not include a Constructive Discharge.
SECTION 2 GENERAL TERMS
2.1 Purpose of the Plan. The Plan is intended to (a) provide incentive
to employees of the Company and its affiliates to stimulate their
efforts toward the continued success of the Company and to operate and
manage the business in a manner that will provide for the long-term
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growth and profitability of the Company; (b) encourage stock
ownership by employees by providing them with a means to acquire
a proprietary interest in the Company by acquiring shares of Stock
or to receive compensation which is based upon appreciation in the
value of Stock; and (c) provide a means of obtaining and rewarding
employees.
2.2 Stock Subject to the Plan. Subject to adjustment in
accordance with Section 5.2, 2,984,333 shares of Stock (the
"Maximum Plan Shares") are hereby reserved and subject to
issuance under the Plan. At no time shall the Company have
outstanding Awards and shares of Stock issued in respect to
Awards in excess of the Maximum Plan Shares. To the extent
permitted by law, the shares of Stock attributable to nonvested,
unpaid, unexercised, unconverted or otherwise unsettled portion
of any Award that is forfeited, canceled, expired or terminated
for any reason without becoming vested, paid, exercised,
converted or otherwise settled in full shall again be available
for purposes of the Plan.
2.3 Administration of the Plan. The Plan shall be
administered by the Administrator. The Administrator shall have
full authority in its discretion to determine the employees of
the Company or its affiliates to whom Awards shall be granted and
the terms and provisions of Awards, subject to the Plan. Subject
to the provisions of the Plan, the Administrator shall have full
and conclusive authority to interpret the Plan; to prescribe,
amend and rescind rules and regulations relating to the Plan; to
determine the terms and provisions of the respective Equity
Ownership Agreements and to make all other determinations
necessary or advisable for the proper administration of the Plan.
The Administrator's determination under the Plan need not be
uniform and may be made by it selectively among persons who
receive, or are eligible to receive, Awards under the Plan
(whether or not such persons are similarly situated). The
Administrator's decisions shall be final and binding on all
Participants.
2.4 Eligibility and Limits. Participants in the Plan shall
be selected by the Administrator. In the case of Incentive Stock
Options, the aggregate Fair Market Value (determined as at the
date an Incentive Stock Option is granted) of Stock with respect
to which Stock Options intended to meet the requirements of Code
Section 422 become exercisable for the first time by an
individual during any calendar year under all plans of the
Company and its Parents and Subsidiaries shall not exceed
$100,000; provided further that if the limitation is exceeded,
the Incentive Stock Option(s) which cause the limitation to be
exceeded shall be treated as Nonqualified Stock Option(s).
SECTION 3 TERMS OF AWARDS
3.1 Terms and Conditions of All Awards.
(a) The number of shares of Stock as to which an Award shall be
granted to an employee of the Company shall be determined by
the Administrator in its sole discretion, subject to the provisions
of Sections 2.2 and 2.4 as to the total number of shares available
for grants under the Plan. Each individual who is a member of
the Board and who is not also an employee of the Company on the
first business day following the first meeting of the Board each
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calendar year shall receive an Award of Nonqualified Stock Options
on such date; provided, also, that each individual who was a member
of the Board and who is not also an employee of the Company on April
18, 1997 shall receive an Award of Nonqualified Stock Options for the
1997 year.
(b) Each Award shall be evidenced by an Equity
Ownership Agreement in such form as the Administrator may
determine is appropriate, subject to the provisions of the Plan.
(c) The date an Award is granted to an employee of the
Company shall be the date on which the Administrator has approved
the terms and conditions of the Equity Ownership Agreement and
has determined the recipient of the Award and the number of
shares covered by the Award and has taken all such other action
necessary to complete the grant of the Award.
(d) The Administrator may provide in any Equity
Ownership Agreement with an employee of the Company a vesting
schedule. The vesting schedule shall specify when such Awards
shall become Vested and thus exercisable. The Administrator may
accelerate the vesting schedule set forth in the Equity Ownership
Agreement with an employee of the Company if the Administrator
determines that it is in the best interests of the Company and
Participant to do so. With regard to the Nonqualified Stock
Options granted to members of the Board who are not also
employees of the Company, the vesting schedule shall specify that
25% of the Nonqualified Stock Options will be vested on the first
anniversary of the date the option is granted and that an
additional 25% will vest on each of the three anniversaries of
the date of grant thereafter. Notwithstanding any vesting
schedule which may be specified in an Equity Ownership Agreement,
or any determination made by the Administrator, no Award will
vest if, to do so, would create a situation in which the
exercisability of any such Award would result in an "excess
parachute payment" within the meaning of Section 28OG of the
Code.
(e) Awards shall not be transferable or assignable
except by will or by the laws of descent and distribution and
shall be exercisable, during the Participant's lifetime, only by
the Participant, or in the event of the Disability of the
Participant, by the legal representative of the Participant.
3.2 Terms and Conditions of Options. At the time any Option
is granted, the Administrator shall determine whether the Option
is to be an Incentive Stock Option or a Nonqualified Stock
Option, and the Option shall be clearly identified as to its
status as an Incentive Stock Option or a Nonqualified Stock
Option. At the time any Incentive Stock Option is exercised, the
Company shall be entitled to place a legend on the certificates
representing the shares of Stock purchased pursuant to the Option
to clearly identify them as shares of Stock purchased upon
exercise of an Incentive Stock Option. An Incentive Stock Option
may only be granted within ten (10) years from the date the Plan,
as amended and restated, is adopted or the date such Plan is
approved by the Company's stockholders, whichever is earlier. A
member of the Board who is not an employee of the Company may not
be granted Incentive Stock Options.
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(a) Option Price. Subject to adjustment in accordance
with Section 5.2 and the other provisions of this Section 3.2,
the exercise price (the "Exercise Price") per share of the Stock
purchasable under any Option shall be as set forth in the
applicable Equity Ownership Agreement. With respect to each grant
of an Incentive Stock Option to a Participant who is not an Over
10% Owner, and each grant of a Nonqualified Stock Option to a
member of the Board who is not an employee of the Company, the
Exercise Price per share shall not be less than the Fair Market
Value on the date the Option is granted. With respect to each
grant for an Incentive Stock Option to a Participant who is an
Over 10% Owner, the Exercise Price shall not be less than 110% of
the Fair Market Value on the date the Option is granted.
(b) Option Term. The Equity Ownership Agreement shall
set forth the term of each option. Any Incentive Stock Option
granted to a Participant who is not an Over 10% Owner shall not
be exercisable after the expiration of ten (10) years after the
date the Option is granted. Any Incentive Stock Option granted to
an Over 10% Owner shall not be exercisable after the expiration
of five (5) years after the date the Option is granted. In either
case, the Administrator may specify a shorter term and state such
term in the Equity Ownership Agreement. Any Nonqualified Stock
Option granted to a member of the Board who is not an employee of
the Company shall have a term of ten (10) years.
(c) Payment. Payment for all shares of Stock purchased
pursuant to exercise of an Option shall be made in any form or
manner authorized by the Administrator in the Equity Ownership
Agreement or by amendment thereto, including, but not limited to,
cash or, if the Equity Ownership Agreement provides, (i) by
delivery or deemed delivery (based on an attestation to the
ownership thereof) to the Company of a number of shares of Stock
which have been owned by the holder for at least six (6) months
prior to the date of exercise having an aggregate Fair Market
Value on the date of exercise equal to the Exercise Price or (ii)
by tendering a combination of cash, and Stock. Payment shall be
made at the time that the Option or any part thereof is
exercised, and no shares shall be issued or delivered upon
exercise of an option until full payment has been made by the
Participant. The holder of an Option, as such, shall have none of
the rights of a stockholder.
(d) Conditions to the Exercise of an Option. Each
Option granted under the Plan shall be exercisable by whom, at
such time or times, or upon the occurrence of such event or
events, and in such amounts, as the Administrator shall specify
in the Equity Ownership Agreement; provided, however, that
subsequent to the grant of an Option, the Administrator, at any
time before complete termination of such Option granted to an
employee of the Company, may accelerate the time or times at
which such Option may be exercised in whole or in part,
including, without limitation, upon a Change in Control and may
permit the Participant or any other designated person acting for
the benefit of the Participant to exercise the Option, or any
portion thereof, for all or part of the remaining Option term
notwithstanding any provision of the Equity Ownership Agreement
to the contrary.
(e) Termination of Incentive Stock Option. With respect to an
Incentive Stock Option, in the event of Termination of Employment
of a Participant, the Option or portion thereof held by the
Participant which is unexercised shall expire, terminate, and become
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unexercisable no later than the expiration of three (3) months after
the date of Termination of Employment; provided, however, that in the
case of a holder whose Termination of Employment is due to death or
Disability, one (1) year shall be substituted for such three (3) month
period. For purposes of this Subsection (e), Termination of Employment
of the Participant shall not be deemed to have occurred if the Participant
is employed by another corporation (or a parent or subsidiary
corporation of such other corporation) which has assumed the
Incentive Stock Option of the Participant in a transaction to
which Code Section 424(a) is applicable.
(f) Special Provisions for Certain Substitute Options.
Notwithstanding anything to the contrary in this Section 3.2, any
Option issued in substitution for an option previously issued by
another entity, which substitution occurs in connection with a
transaction to which Code Section 424(a) is applicable, may
provide for an exercise price computed in accordance with such
Code Section and the regulations thereunder and may contain such
other terms and conditions as the Administrator may prescribe to
cause such substitute Option to contain as nearly as possible the
same terms and conditions (including the applicable vesting and
termination provisions) as those contained in the previously
issued option being replaced thereby.
3.3 Terms and Conditions of Stock Appreciation Rights. A
Stock Appreciation Right may be granted in connection with all or
any portion of a previously or contemporaneously granted Award or
not in connection with an Award. A Stock Appreciation Right shall
entitle the Participant to receive the excess of (1) the Fair
Market Value of a specified or determinable number of shares of
the Stock at the time of payment or exercise over (2) a specified
price which, in the case of a Stock Appreciation Right granted in
connection with an Option, shall be not less than the Exercise
Price for that number of shares. A Stock Appreciation Right
granted in connection with an Award may only be exercised to the
extent that the related Award has not been exercised, paid or
otherwise settled. The exercise of a Stock Appreciation Right
granted in connection with an Award shall result in a pro rata
surrender or cancellation of any related Award to the extent the
Stock Appreciation Right has been exercised.
(a) Payment. Upon payment or exercise of a Stock
Appreciation Right, the Company shall pay to the Participant the
appreciation in cash or shares of Stock (valued at the aggregate
Fair Market Value on the date of payment or exercise) as provided
in the Equity Ownership Agreement or, in the absence of such
provision, as the Administrator may determine.
(b) Conditions to Exercise. Each Stock Appreciation
Right granted under the Plan shall be exercisable or payable at
such time or times, or upon the occurrence of such event or
events, and in such amounts, as the Administrator shall specify
in the Equity Ownership Agreement; provided, however, that
subsequent to the grant of a Stock Appreciation Right, the
Administrator, at any time before complete termination of such
Stock Appreciation Right, may accelerate the time or times at
which such Stock Appreciation Right may be exercised or paid in
whole or in part.
3.4 Terms and Conditions of Stock Awards. The number of shares of
Stock subject to a Stock Award and restrictions or conditions on such
shares, if any, shall be as the Administrator determines, and the
certificate for such shares shall bear evidence of any restrictions or
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conditions. Subsequent to thedate of the grant of the Stock Award,
the Administrator shall have the power to permit, in its discretion,
an acceleration of the expiration of an applicable restriction period
with respect to any part or all of the shares awarded to a Participant.
The Administrator may require a cash payment from the Participant in
an amount no greater than the aggregate Fair Market Value of the
shares of Stock awarded determined at the date of grant in
exchange for the grant of a Stock Award or may grant a Stock
Award without the requirement of a cash payment.
3.5 Terms and Conditions of Dividend Equivalent Rights. A
Dividend Equivalent Right shall entitle the Participant to
receive payments from the Company in an amount determined by
reference to any cash dividends paid on a specified number of
shares of Stock to Company stockholders of record during the
period such rights are effective. The Administrator may impose
such restrictions and conditions on any Dividend Equivalent Right
as the Administrator in its discretion shall determine, including
the date any such right shall terminate and may reserve the right
to terminate, amend or suspend any such right at any time.
(a) Payment. Payment in respect of a Dividend
Equivalent Right may be made by the Company in cash or shares of
Stock (valued at Fair Market Value on the date of payment) as
provided in the Equity Ownership Agreement or, in the absence of
such provision, as the Administrator may determine.
(b) Conditions to Payment. Each Dividend Equivalent
Right granted under the Plan shall be payable at such time or
times, or upon the occurrence of such event or events, and in
such amounts, as the Administrator shall specify in the Equity
Ownership Agreement; provided, however, that subsequent to the
grant of a Dividend Equivalent Right, the Administrator, at any
time before complete termination of such Dividend Equivalent
Right, may accelerate the time or times at which such Dividend
Equivalent Right may be paid in whole or in part.
3.6 Terms and Conditions of Performance Unit Awards. A
Performance Unit Award shall entitle the Participant to receive,
at a specific future date, payment of an amount equal to all or a
portion of the value of a specified number of units (stated in
terms of a designated dollar amount per unit) granted by the
Administrator. At the time of the grant, the Administrator must
determine the base value of each unit, the number of units
subject to a Performance Unit Award, the performance factors
applicable to the determination of the ultimate payment value of
the Performance Unit Award and the period over which Company
performance shall be measured. The Administrator may provide for
an alternate base value for each unit under certain specified
conditions.
(a) Payment. Payment in respect of Performance Unit
Awards may be made by the Company in cash or shares of Stock
(valued at Fair Market Value on the date of payment) as provided
in the Equity Ownership Agreement or, in the absence of such
provision, as the Administrator may determine.
(b) Conditions to Payment. Each Performance Unit Award
granted under the Plan shall be payable at such time or
times, or upon the occurrence of such event or events and as
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the Administrator shall specify in the Equity Ownership Agreement;
provided, however, that subsequent to the grant of a Performance
Unit Award, the Administrator, at any time before complete
termination of such Performance Unit Award, may accelerate the
time or times at which such Performance Unit Award may be paid in
whole or in part.
3.7 Terms and Conditions of Phantom Shares. Phantom Shares
shall entitle the participant to receive, at a specified future
date, payment of an amount equal to all or a portion of the Fair
Market Value of a specified number of shares of Stock at the end
of a specified period. At the time of the grant, the
Administrator shall determine the factors which will govern the
portion of the rights so payable, including, at the discretion of
the Administrator, any performance criteria that must be
satisfied as a condition to payment.
(a) Payment. Payment in respect of Phantom Shares may
be made by the Company in cash or shares of Stock (valued at Fair
Market Value on the date of payment) as provided in the Equity
Ownership Agreement or, in the absence of such provision, as the
Administrator may determine.
(b) Conditions to Payment. Each Phantom Share granted
under the Plan shall be payable at such time or times, or upon
the occurrence of such event or events, and in such amounts, as
the Administrator shall specify in the Equity Ownership
Agreement; provided, however, that subsequent to the grant of a
Phantom Share, the Administrator, at any time before complete
termination of such Phantom Share, may accelerate the time or
times at which such Phantom Share may be paid in whole or in
part.
3.8 Treatment of Awards Upon Termination of Employment.
Except as otherwise provided by Plan Section 3.2(e), any award
under this Plan to a Participant who incurs a Termination of
Employment may be canceled, accelerated, paid or continued, as
provided in the Equity Ownership Agreement or, in the absence of
such provision, as the Administrator may determine. The portion
of any award exercisable in the event of continuation or the
amount of any payment due under a continued award may be adjusted
by the Administrator to reflect the Participant's period of
service from the date of grant through the date of the
Participant's Termination of Employment or such other factors as
the Administrator determines are relevant to its decision to
continue the award.
SECTION 4 RESTRICTIONS ON STOCK
4.1 Escrow of Shares. Any certificates representing the
shares of Stock issued under the Plan shall be issued in the
Participant's name, but, if the Equity Ownership Agreement so
provides, the shares of Stock shall be held by a custodian
designated by the Administrator (the "Custodian"). Each Equity
Ownership Agreement providing for transfer of shares of Stock to
the Custodian shall appoint the Custodian as the attorney-in-fact
for the Participant for the term specified in the Equity
Ownership Agreement, with full power and authority in the Participant's
name, place and stead to transfer, assign and convey to the Company
any shares of Stock held by the Custodian for such Participant,
if the Participant forfeits the shares under the terms of the
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Equity Ownership Agreement. During the period that the Custodian
holds the shares subject to this Section, the Participant shall be
entitled to all rights, except as provided in the Equity Ownership
Agreement, applicable to shares of Stock not so held. Any dividends
declared on shares of Stock held by the Custodian shall, as the
Administrator may provide in the Equity Ownership Agreement, be paid
directly to the Participant or, in the alternative, be retained by the
Custodian until the expiration of the term specified in the
Equity Ownership Agreement and shall then be delivered, together
with any proceeds, with the shares of Stock to the Participant or
the Company, as applicable.
4.2 Forfeiture of Shares. Notwithstanding any vesting
schedule set forth in any Equity Ownership Agreement, in the
event that the Participant violates a non competition agreement
as set forth in the Equity Ownership Agreement, all Awards and
shares of Stock issued to the holder pursuant to the Plan shall
be forfeited; provided, however, that the Company shall return to
the holder the lesser of any consideration paid by the
Participant in exchange for Stock issued to the Participant
pursuant to the Plan or the then Fair Market Value of the Stock
forfeited hereunder.
4.3 Restrictions on Transfer. The Participant shall not
have the right to make or permit to exist any Disposition of the
shares of Stock issued pursuant to the Plan except as provided in
the Plan or the Equity Ownership Agreement. Any Disposition of
the shares of Stock issued under the Plan by the Participant, not
made in accordance with the Plan or the Equity Ownership
Agreement, including, but not limited to, any right of repurchase
or right of first refusal, shall be void. The Company shall not
recognize, or have the duty to recognize, any Disposition not
made in accordance with the Plan and the Equity Ownership
Agreement, and the shares of Stock so transferred shall continue
to be bound by the Plan and the Equity Ownership Agreement.
SECTION 5 GENERAL PROVISIONS
5.1 Withholding. The Company shall deduct from all cash
distributions under the Plan any taxes required to be withheld by
federal, state or local government. Whenever the Company proposes
or is required to issue or transfer shares of Stock under the
Plan or upon the vesting of any Stock Award, the Company shall
have the right to require the recipient to remit to the Company
an amount sufficient to satisfy any federal, state and local
withholding tax requirements prior to the delivery of any
certificate or certificates for such shares or the vesting of
such Stock Award. A Participant may pay the withholding tax in
cash, or, if the Equity Ownership Agreement provides, a
Participant may also elect to have the number of shares of Stock
he is to receive reduced by, or with respect to a Stock Award,
tender back to the Company, the smallest number of whole shares
of Stock which, when multiplied by the Fair Market Value of the
shares determined as of the Tax Date (defined below), is
sufficient to satisfy federal, state and local, if any,
withholding taxes arising from exercise or payment of an Award (a
"Withholding Election"). A Participant may make a Withholding
Election only if both of the following conditions are met:
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(a) The Withholding Election must be made on or prior
to the date on which the amount of tax required to be withheld is
determined (the "Tax Date") by executing and delivering to the
Company a properly completed notice of Withholding Election as
prescribed by the Administrator; and
(b) Any Withholding Election made will be irrevocable;
however, the Administrator may in its sole discretion approve and
give no effect to the Withholding Election.
5.2 Changes in Capitalization: Merger, Liquidation.
(a) The number of shares of Stock reserved for the
grant of Options, Dividend Equivalent Rights, Performance Unit
Awards, Phantom Shares, Stock Appreciation Rights and Stock
Awards; the number of shares of Stock reserved for issuance upon
the exercise or payment, as applicable, of each outstanding
Option, Dividend Equivalent Right, Performance Unit Award,
Phantom Share and Stock Appreciation Right and upon vesting or
grant, as applicable, of each Stock Award; the Exercise Price of
each outstanding Option and the specified number of shares of
Stock to which each outstanding Dividend Equivalent Right,
Phantom Share and Stock Appreciation Right pertains may be
proportionately adjusted by the Administrator for any increase or
decrease in the number of issued shares of Stock resulting from a
subdivision or combination of shares or the payment of a stock
dividend in shares of Stock to holders of outstanding shares of
Stock or any other increase or decrease in the number of shares
of Stock outstanding effected without receipt of consideration by
the Company.
(b) In the event of a merger, consolidation or other
reorganization of the Company or tender offer for shares of
Stock, the Administrator may make such adjustments with respect
to awards and take such other action as it deems necessary or
appropriate to reflect or in anticipation of such merger,
consolidation, reorganization or tender offer, including, without
limitation, the substitution of new awards, the termination or
adjustment of outstanding awards, the acceleration of awards or
the removal of restrictions on outstanding awards. Any adjustment
pursuant to this Section 5.2 may provide, in the Administrator's
discretion, for the elimination without payment therefor of any
fractional shares that might otherwise become subject to any
Award.
(c) The existence of the Plan and the Awards granted
pursuant to the Plan shall not affect in any way the right or
power of the Company to make or authorize any adjustment,
reclassification, reorganization or other change in its capital
or business structure, any merger or consolidation of the
Company, any issue of debt or equity securities having
preferences or priorities as to the Stock or the rights thereof,
the dissolution or liquidation of the Company, any sale or
transfer of all or any part of its business or assets, or any
other corporate act or proceeding.
5.3 Cash Awards. The Administrator may, at any time and in its discretion,
grant to any holder of an Award the right to receive, at such
times and in such amounts as determined by the Administrator in its
discretion, a cash amount which is intended to reimburse such person
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for all or a portion of the federal,state and local income taxes
imposed upon such person as a consequence of the receipt of the Award
or the exercise of rights thereunder.
5.4 Compliance with Code. All Incentive Stock Options to be
granted hereunder are intended to comply with Code Section 422,
and all provisions of the Plan and all Incentive Stock Options
granted hereunder shall be construed in such manner as to
effectuate that intent.
5.5 Right to Terminate Employment. Nothing in the Plan or
in any Award shall confer upon any Participant the right to
continue as an employee or officer of the Company or any of its
affiliates or affect the right of the Company or any of its
affiliates to terminate the Participant's employment at any time.
5.6 Restrictions on Delivery and Sale of Shares, Legends.
Each Award is subject to the condition that if at any time the
Administrator, in its discretion, shall determine that the
listing, registration or qualification of the shares covered by
such Award upon any securities exchange or under any state or
federal law is necessary or desirable as a condition of or in
connection with the granting of such Award or the purchase or
delivery of shares thereunder, the delivery of any or all shares
pursuant to such Award may be withheld unless and until such
listing, registration or qualification shall have been effected.
If a registration statement is not in effect under the Securities
Act of 1933 or any applicable state securities laws with respect
to the shares of Stock purchasable or otherwise deliverable under
Awards then outstanding, the Administrator may require, as a
condition of exercise of any Option or as a condition to any
other delivery of Stock pursuant to an, Award, that the
Participant or other recipient of an Award represent, in writing,
that the shares received pursuant to the Award are being acquired
for investment and not with a view to distribution and agree that
shares will not be disposed of except pursuant to an effective
registration statement, unless the Company shall have received an
opinion of counsel that such disposition is exempt from such
requirement under the Securities Act of 1933 and any applicable
state securities laws. The Company may include on certificates
representing shares delivered pursuant to an Award such legends
referring to the foregoing representations or restrictions or any
other applicable restrictions on resale as the Company, in its
discretion, shall deem appropriate.
5.7 Non-alienation of Benefits. Other than as specifically
provided with regard to the death of a Participant, no benefit
under the Plan shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or
charge; and any attempt to do so shall be void. No such benefit
shall, prior to receipt by the Participant, be in any manner
liable for or subject to the debts, contracts, liabilities,
engagements or torts of the Participant.
5.8 Termination and Amendment of the Plan. The Board at any
time may amend or terminate the Plan without stockholder
approval; provided, however, that the Board may condition any
amendment on the approval of stockholders of the Company if such
approval is necessary or advisable with respect to tax,
securities or other applicable laws. No such termination or
amendment without the consent of the holder of an Award shall
adversely affect the rights of the Participant under such Award.
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5.9 Stockholder Approval. The Plan shall be submitted to
the stockholders of the Company for their approval within twelve
(12) months after the adoption of the Plan by the Board. If such
approval is not obtained, any Award granted hereunder shall be
void.
5.10 Choice of Law. The laws of the State of New Mexico
shall govern the Plan, to the extent not preempted by federal
law.
5.11 Effective Date of Plan. The Plan, shall become
effective April 18, 1997.
MOLECULAR INFORMATICS, INC.
By: /s/ Edward W. Cantrall
Edward W. Cantrall, Ph. D.,
President
Attest:
/s/ Chris Clary
Chris Clary
Assistant Secretary
[CORPORATE SEAL]
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