ORASURE TECHNOLOGIES, INC.
EMPLOYEE INCENTIVE AND NON-QUALIFIED STOCK
OPTION PLAN
As Amended and Restated Effective September 29, 2000
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The STC Technologies, Inc. Employee Incentive and Non-Qualified
Stock Option Plan (the "STC Plan") was originally effective May 29, 1996. On
September 29, 2000, both STC Technologies, Inc. and Epitope, Inc. merged with
and into OraSure Technologies, Inc., a Delaware corporation. The OraSure
Technologies, Inc. Employee Incentive and Non-Qualified Stock Option Plan (the
"Plan") is an amendment and restatement of the STC Plan and is effective
September 29, 2000. The Plan reflects changes to the conditions and requirements
for employee benefit plans under Rule 16b-3, promulgated under Section 16 of the
Exchange Act (as defined below).
Section 1. Purposes.
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The purposes of the Plan are (a) to recognize and compensate
selected Employees of the Company and its Subsidiaries who contribute to the
development and success of the Company and its Subsidiaries; (b) to maintain the
competitive position of the Company and its Subsidiaries by attracting and
retaining key Employees; and (c) to provide incentive compensation to such key
Employees based upon the Company's performance, as measured by the appreciation
in Common Stock. The Options issued pursuant to the Plan are intended to
constitute either Incentive Stock Options, or non-qualified stock options, as
determined by the Committee, or the Board, if no Committee has been appointed,
at the time of Award. The type of Options Awarded will be specified in the
Option Agreement between the Company and the
Optionee. The terms of this Plan shall be incorporated into the Option Agreement
to be executed by the Optionee.
Section 2. Definitions.
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(1) "Award" shall mean a grant of Options to an Employee pursuant to
the provisions of this Plan. Each separate grant of Options to an Employee and
each group of Options which matures on a separate date is treated as a separate
Award.
(2) "Board" shall mean the Board of Directors of the Company, as
constituted from time to time.
(a) "Change in Control" shall mean the happening of an event, which
shall be deemed to have occurred upon the earliest to occur of the following
events: (i) the date the stockholders of the Company (or the Board, if
stockholder action is not required) approve a plan or other arrangement pursuant
to which the Company will be dissolved or liquidated, or (ii) the date the
stockholders of the Company (or the Board, if stockholder action is not
required) approve a definitive agreement to sell or otherwise dispose of all or
substantially all of the assets of the Company, or (iii) the date the
stockholders of the Company (or the Board, if stockholder action is not
required) and the stockholders of the other constituent corporations (or their
respective boards of directors, if and to the extent that stockholder action is
not required) have approved a definitive agreement to merge or consolidate the
Company with or into another corporation, other than, in either case, a merger
or consolidation of the Company in which holders of shares of the Company's
voting capital stock immediately prior to the merger or consolidation will have
at least 50% of the ownership of voting capital stock of the surviving
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corporation immediately after the merger or consolidation (on a fully diluted
basis), which voting capital stock is to be held in the same proportion (on a
fully diluted basis) as such holders' ownership of voting capital stock of the
Company immediately before the merger or consolidation, or (iv) the date any
entity, person or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act), other than (A) the Company, or (B) any of its
Subsidiaries, or (C) any of the holders of the capital stock of the Company, as
determined on the date that this Plan is adopted by the Board, or (D) any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any of its Subsidiaries or (E) any Affiliate (as such term is defined in Rule
405 promulgated under the Securities Act) of any of the foregoing, shall have
acquired beneficial ownership of, or shall have acquired voting control over
more than 50% of the outstanding shares of the Company's voting capital stock
(on a fully diluted basis), unless the transaction pursuant to which such
person, entity or group acquired such beneficial ownership or control resulted
from the original issuance by the Company of shares of its voting capital stock
and was approved by at least a majority of directors who shall have been either
members of the Board on the date that this Plan is adopted by the Board or
members of the Board for at least twelve (12) months prior to the date of such
approval, or (v) the first day after the date of this Plan when directors are
elected such that there shall have been a change in the composition of the Board
such that a majority of the Board shall have been members of the Board for less
than twelve (12) months, unless the nomination for election of each new director
who was not a director at the beginning of such twelve (12) month period was
approved by a vote of at least sixty percent (60%) of the directors then still
in office who were directors at the beginning of such period, or (vi) the date
upon which the Board determines (in its sole discretion) that based
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on then current available information, the events described in clause (iv) are
reasonably likely to occur.
(3) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(4) "Committee" shall mean the Committee appointed by the Board in
accordance with Section 4(a) of the Plan, if one is appointed, in which event
the Committee shall possess the power and authority of the Board.
(5) "Company" shall mean OraSure Technologies, Inc., a Delaware
corporation.
(6) "Common Stock" shall mean common stock of the Company, $.000001
par value per share.
(7) "Disability" or "Disabled" shall mean the inability of an
Optionee to perform his or her normal employment duties for the Company, its
Parent, any of its Subsidiaries or its successors, as the case may be, resulting
from a mental or physical illness, impairment or any other similar occurrence
which can be expected to result in death or which has lasted or can be expected
to last for a period of twelve (12) consecutive months, as determined by the
Board.
(8) "Employee" shall mean any person, including officers and
directors, employed by the Company, its Parent, any of its Subsidiaries or its
successors. The payment of directors' fees by the Company, its Parent, any of
its Subsidiaries or its successors, as the case may be, shall not be sufficient
to constitute employment. Additionally, solely for purposes of determining those
persons eligible under the Plan to be recipients of Awards of Options, which
Options shall be limited to non-qualified stock options, and not for the purpose
of affecting the
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status of the relationship between such person and the Company, the term
"Employee" shall include independent contractors of and consultants to the
Company.
(9) "Exchange Act" shall mean The Securities Exchange Act of 1934,
as amended.
(10) "Fair Market Value" shall mean the fair market value of a share
of Common Stock, as determined pursuant to Section 8 hereof.
(l1) "Incentive Stock Option" shall mean an Option which is an
incentive stock option within the meaning of Section 422 of the Code.
(12) "Non-Employee Director" has the meaning set forth in Rule 16b
- -3(b)(3)(i) promulgated by the Securities and Exchange commission under the
Exchange Act, or any successor definition adopted by the Securities and Exchange
Commission; provided, however, that the Board or its Committee may, to the
extent it is deemed necessary or desirable to comply with Section 162(m) of the
Code and applicable regulations thereunder, ensure that each Non-Employee
Director also qualifies as an "outside director" as that term is defined in the
regulations under Section 162(m) of the Code.
(13) "Option" shall mean an Incentive Stock Option or a
non-qualified stock option to purchase Shares that is Awarded pursuant to the
Plan.
(14) "Option Agreement" shall mean a written agreements
substantially in the form of Exhibits A-1 and A-2, or such other form or forms
as the Board (subject to the terms and conditions of this Plan) may from time to
time approve evidencing and reflecting the terms of an Option.
(15) "Optionee" shall mean an Employee to whom an Option is Awarded.
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(16) "Parent" shall mean a "parent corporation" whether now or
hereafter existing, as defined in Sections 424(e) and (g) of the Code.
(17) "Plan" shall mean the OraSure Technologies, Inc. Employee
Incentive and Non-qualified Stock Option Plan, as amended from time to time.
(18) "Pool" shall mean the pool of shares of Common Stock subject to
the Plan, as described and set forth in Section 6 hereof.
(19) "Securities Act" shall mean The Securities Act of 1933, as
amended.
(20) "Shares" shall mean shares of Common Stock contained in the
Pool, as adjusted in accordance with Section 9 of the Plan.
(21) "Stock Purchase Agreement" shall mean an agreement
substantially in the form attached hereto as Exhibit B, or such other form as
the Board (subject to the terms and conditions of this Plan) may from time to
time approve, which an Optionee shall be required to execute as a condition of
purchasing Shares upon the exercise of an Option.
(22) "Subsidiary" shall mean a subsidiary corporation, whether now
or hereafter existing, as defined in Sections 424(f) and (g) of the Code.
Section 3. Participation.
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Participants in the Plan shall be selected by the Board from the
Employees (including Employees who also may be members of the Board) of the
Company, its Parent and its Subsidiaries or their successors. The Board may make
Awards at any time and from time to time to Employees. Any Award may include or
exclude any Employee, as the Board shall determine in its sole discretion.
Section 4. Administration.
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(1) Procedure. The Plan shall be administered by the Board. Members
of the Board who are eligible for Options or have been Awarded Options may vote
on any matters affecting the administration of the Plan or the Award of any
Options pursuant to the Plan, except that no such member shall act upon the
Award of an Option to himself, but any such member may be counted in determining
the existence of a quorum at any meeting of the Board or Committee during which
action is taken with respect to the Award of Options to him.
The Board may at any time appoint a Committee consisting of not less
than two persons to administer the Plan on behalf of the Board, subject to such
terms and conditions as the Board may prescribe. Members of the Committee shall
serve for such period of time as the Board may determine. From time to time the
Board may increase the size of the Committee and appoint additional members
thereto, remove members (with or without cause) and appoint new members in
substitution therefor, fill vacancies however caused, or remove all members of
the Committee and thereafter directly administer the Plan. Notwithstanding the
foregoing, in the event the Company has a class of equity securities registered
under the Exchange Act, the Committee shall be composed of two (2) or more
Non-Employee Directors.
(2) Powers of the Board. Subject to the provisions of the Plan, the
Board or its Committee shall have the authority, in its discretion: (i) to Award
Options; (ii) to determine, upon review of relevant information and in
accordance with Section 8 of the Plan, the Fair Market Value per Share; (iii) to
determine the exercise price of the Options to be Awarded in accordance with
Sections 7 and 8 of the Plan; (iv) to determine the Employees to whom, and the
time or times at which, Options shall be Awarded, and the number of Shares to be
subject to each Option; (v) to prescribe, amend and rescind rules and
regulations relating to the Plan; (vi) to
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determine the terms and provisions of each Option Awarded under the Plan, each
Option Agreement and each Stock Purchase Agreement (which need not be identical
with the terms of other Options, Option Agreements and Stock Purchase
Agreements) and, with the consent of the Optionee, to modify or amend an
outstanding Option, Option Agreement or Stock Purchase Agreement; (vii) to
accelerate the vesting or exercise date of any Option; (viii) to determine
whether any Optionee will be required to execute a stock repurchase agreement or
other agreement as a condition to the exercise of an Option, and to determine
the terms and provisions of any such agreement (which need not be identical with
the terms of any other such agreement) and, with the consent of the Optionee, to
amend any such agreement; (ix) to interpret the Plan or any agreement entered
into with respect to the Award or exercise of Options; (x) to authorize any
person to execute on behalf of the Company any instrument required to effectuate
the Award of an Option previously Awarded by the Board or to take such other
actions as may be necessary or appropriate with respect to the Company's rights
pursuant to Options or agreements relating to the Award or exercise thereof; and
(xi) to make such other determinations and establish such other procedures as it
deems necessary or advisable for the administration of the Plan.
(3) Effect of the Board's or Committee's Decision. All decisions,
determinations and interpretations of the Board or the Committee shall be final
and binding with respect to all Options and Optionees.
(4) Limitation of Liability. Notwithstanding anything herein to the
contrary (with the exception of Section 31 hereof), no member of the Board or of
the Committee shall be liable for any good faith determination, act or failure
to act in connection with the Plan or any Option Awarded hereunder.
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Section 5. Eligibility.
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Options may be Awarded only to Employees. An Employee who has been
Awarded an Option, if he or she is otherwise eligible, may be Awarded additional
Options.
Section 6. Stock Subject to the Plan.
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Subject to the provisions of Section 9 of the Plan, the maximum
aggregate number of Shares which may be Awarded and sold under the Plan is Two
Hundred Forty Thousand (240,000) Shares (collectively, the "Pool"). Options
Awarded from the Pool may be either Incentive Stock Options or non-qualified
stock options, as determined by the Board. If an Option should expire or become
unexercisable for any reason without having been exercised in full, or, if
Shares are subsequently repurchased by the Company, the unpurchased or
repurchased Shares which were subject thereto shall, unless the Plan shall have
been terminated, return to the Plan and become available for future Award under
the Plan.
Section 7. Terms and Conditions of Options.
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Each Option Awarded pursuant to the Plan shall be authorized by the
Board and shall be evidenced by an Option Agreement in such form as the Board
may from time to time determine. Each Option Agreement shall incorporate by
reference all other terms and conditions of the Plan, including the following
terms and conditions:
(1) Number of Shares. The number of Shares subject to the Option,
which may include fractional Shares.
(2) Option Price. The price per Share payable on the exercise of any
Option which is an Incentive Stock Option shall be stated in the Option
Agreement and shall be no less than the Fair Market Value per share of the
Common Stock on the date such Option is Awarded,
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without regard to any restriction other than a restriction which will never
lapse. Notwithstanding the foregoing, if an Option which is an Incentive Stock
Option shall be Awarded under this Plan to any Employee who, at the time of the
Award of such Option, owns stock possessing more than 10% of the total combined
voting power of all classes of the stock of the Company (or its Parent or
Subsidiaries), the price per Share payable upon exercise of such Option shall be
no less than 110 percent (110%) of the Fair Market Value of the stock on the
date such Option is Awarded. The price per Share payable on the exercise of an
Option which is a non-qualified stock option shall be at least $.01 per Share
and shall be stated in the Option Agreement.
(3) Consideration. The consideration to be paid for the Shares to be
issued upon the exercise of an Option, including the method of payment, shall be
determined by the Board and may consist entirely of cash, check, promissory
notes or shares of Common Stock having a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised, or any combination of such methods of payment, or
such other consideration and method of payment permitted under any laws to which
the Company is subject and which is approved by the Board. In making its
determination as to the type of consideration to accept, the Board shall
consider if acceptance of such consideration may be reasonably expected to
benefit the Company.
(1) If the consideration for the exercise of an Option is a
promissory note, it shall bear interest at a per annum rate which is not less
than the applicable federal rate determined in accordance with Section 1274(d)
of the Code as of the date of exercise. In such an instance the Company may
retain the Shares purchased upon the exercise of the Option in escrow as
security for payment of the promissory note.
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(2) If the consideration for the exercise of an Option is the
surrender of previously acquired and owned shares of Common Stock, the Optionee
will be required to make representations and warranties satisfactory to the
Company regarding his title to the shares of Common Stock used to effect the
purchase, including without limitation, representations and warranties that the
Optionee has good and marketable title to such shares of Common Stock free and
clear of any and all liens, encumbrances, charges, equities, claims, security
interests, options or restrictions, and has full power to deliver such shares of
Common Stock without obtaining the consent or approval of any person or
governmental authority other than those which have already given consent or
approval in a manner satisfactory to the Company. The value of the shares of
Common Stock used to effect the purchase shall be the Fair Market Value of such
shares of Common Stock on the date of exercise as determined by the Board in its
sole discretion, exercised in good faith.
(4) Form of Option. The OptionAgreement will state whether the
Option Awarded is an Incentive Stock Option or a non-qualified stock Option, and
will constitute a binding determination as to the form of Option Awarded.
(5) Exercise of Options. Any Option Awarded hereunder shall be
exercisable at such times and under such conditions as may be determined by the
Board and as shall be permissible under the terms of the Plan, including
performance criteria with respect to the Company and/or the Optionee, and as
shall be permissible under the terms of the Plan.
An Option may be exercised in accordance with the provisions
of this Plan as to all or any portion of the Shares then exercisable under an
Option from time to time during the term of the Option. An Option may not be
exercised solely for a fraction of a Share.
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An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company at its principal executive office
in accordance with the terms of the Option Agreement by the person entitled to
exercise the Option and full payment for the Shares with respect to which the
Option is exercised has been received by the Company, accompanied by an executed
Stock Purchase Agreement and any other agreements required by the terms of the
Plan and/or Option Agreement. Full payment may consist of such consideration and
method of payment allowable under Section 7 of the Plan. No adjustment shall be
made for a dividend or other right for which the record date is prior to the
date the Option is exercised, except as provided in Section 9 of the Plan.
As soon as practicable after any proper exercise of an Option
in accordance with the provisions of the Plan, the Company shall, without
transfer or issue tax to the Optionee, deliver to the Optionee at the principal
executive office of the Company or such other place as shall be mutually agreed
upon between the Company and the Optionee, a certificate or certificates
representing the Shares for which the Option shall have been exercised. The time
of issuance and delivery of the certificate(s) representing the Shares for which
the Option shall have been exercised may be postponed by the Company for such
period as may be required by the Company, with reasonable diligence, to comply
with any applicable listing requirements of any national or regional securities
exchange or any law or regulation applicable to the issuance or delivery of such
Shares.
Exercise of an Option in any manner shall result in a decrease in
the number of Shares which thereafter may be available, both for Award under the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
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(6) Term and Vesting of Options.
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(1) Notwithstanding any other provision of this Plan, no
Option shall be (A) Awarded under this Plan after ten (10) years from the date
on which this Plan is adopted by the Board, or (B) exercisable more than ten
(10) years from the date of Award; provided, however, that if an Incentive Stock
Option shall be Awarded under this Plan to any Employee who, at the time of the
Award of such Option, owns stock possessing more than 10% of the total combined
voting power for all classes of the stock of he Company (or its Parent or
Subsidiaries), the foregoing clause (B) shall be deemed modified by substituting
"five (5) years" for the term "ten (10) years" that appears therein.
(2) No Option Awarded to any Optionee shall be treated as an
Incentive Stock Option, to the extent such Option would cause the aggregate Fair
Market Value of all Shares with respect to which Incentive Stock Options are
exercisable by such Optionee for the first time during any calendar year
(determined as of the date of Award of each such Option) to exceed $100,000. For
purposes of determining whether an Incentive Stock Option would cause such
aggregate Fair Market Value to exceed the $100,000 limitation, such Incentive
Stock Options shall be taken into account in the order Awarded. For purposes of
this subsection, Incentive Stock Options include all incentive stock options
under all plans of the Company and its Parent and Subsidiaries that are
incentive stock option plans within the meaning of Section 422 of the Code.
Options Awarded hereunder shall mature and become exercisable in whole or in
part, in accordance with such vesting schedule as the Board shall determine,
which schedule shall be stated in the Option Agreement. Options may be exercised
in any order elected by the
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Optionee whether or not the Optionee holds any unexercised Options under this
Plan or any other plan of the Company.
(7) Termination of Options.
----------------------
(1) Unless sooner terminated as provided in this Plan, each
Option shall be exercisable for the period of time as shall be determined by the
Board and set forth in the Option Agreement, and shall be void and unexercisable
thereafter.
(i) Except as otherwise provided herein or in the Option
Agreement, upon the termination of the Optionee's employment or other
relationship with the Company for any reason, Options exercisable on the date of
termination of employment or such other relationship shall be exercisable by the
Optionee (or in the case of the Optionee's death subsequent to termination of
employment or such other relationship, by the Optionee's executor(s) or
administrator(s)) for a period of three (3) months from the date of the
Optionee's termination of employment or such other relationship.
(2) Upon the Disability or death of an Optionee while in the
employ of or engagement by the Company, Options held by such Optionee which are
exercisable on the date of Disability or death shall be exercisable for a period
of twelve (12) months commencing on the date of the Optionee's Disability or
death, by the Optionee or his legal guardian or representative or, in the case
of death, by his executor(s) or administrator(s); provided, however, that if
such disabled Optionee shall commence any employment or engagement during such
one (1) year period with or by a competitor of the Company (including, but not
limited to, full or part-time employment or independent consulting work), as
determined solely in the judgment of
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the Board, all Options held by such Optionee which have not yet been exercised
shall terminate immediately upon the commencement thereof.
(3) Options may be terminated at any time by agreement between
the Company and the Optionee.
(8) Forfeiture. Notwithstanding any other provision of this Plan,
if the Optionee's employment or engagement is terminated for "cause" (as such
term is defined in the Optionee's employment agreement or invention and
non-disclosure agreement with the Company, but if the Optionee is not a party to
any such agreement, then, as such term is defined in the Stock Purchase
Agreement) or if the Board makes a determination that the Optionee (i) has
engaged in any type of disloyalty to the Company, including without limitation,
fraud, embezzlement, theft, or dishonesty in the course of his employment or
engagement, or (ii) has been convicted of a felony or (iii) has disclosed trade
secrets or confidential information of the Company or (iv) has breached any
agreement with or duty to the Company in respect of confidentiality,
non-disclosure, non-competition or otherwise, all unexercised Options shall
terminate upon the earlier of the date of termination of employment or
engagement for "cause" or the date of such a finding. In the event of such a
finding, in addition to immediate termination of all unexercised Options, the
Optionee shall forfeit all Shares for which the Company has not yet delivered
share certificates to the Optionee and the Company shall refund to the Optionee
the Option purchase price paid to it. Notwithstanding anything herein to the
contrary, the Company may withhold delivery of share certificates pending the
resolution of any inquiry that could lead to a finding resulting in forfeiture.
Section 8. Determination of Fair Market Value of Common Stock.
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(1) Except to the extent otherwise provided in this Section 8, the
Fair Market Value of a share of Common Stock shall be determined by the Board in
its sole discretion.
(2) Notwithstanding the provisions of Section 8(a), in the event
that shares of Common Stock are traded in the over-the-counter market, the Fair
Market Value of a share of Common Stock shall be the mean of the bid and asked
prices for a share of Common Stock on the relevant valuation date as reported in
The Wall Street Journal (or, if not so reported, as otherwise reported by the
National Association of Securities Dealers Automated Quotations ("NASDAQ")
System), as applicable or, if there is no trading on such date, on the next
trading date. In the event shares of Common Stock are listed on a national or
regional securities exchange or traded through NASDAQ/NMS, the Fair Market Value
of a share of Common Stock shall be the closing price for a share of Common
Stock on the exchange or on NASDAQ/NMS, as reported in The Wall Street Journal
on the relevant valuation date, or if there is no trading on that date, on the
next trading date.
Section 9. Adjustments.
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(1) Subject to required action by the stockholders, if any, the
number of Shares as to which Options may be Awarded under this Plan and the
number of Shares subject to outstanding Options and the option prices thereof
shall be adjusted proportionately for any increase or decrease in the number of
outstanding shares of Common Stock of the Company resulting from stock splits,
reverse stock splits, stock dividends, reclassifications and recapitalizations.
(2) No fractional Shares shall be issuable on account of any action
aforesaid, and the aggregate number of Shares into which Shares then covered by
the Option, when
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changed as the result of such action, shall be reduced to the number of whole
Shares resulting from such action, unless the Board, in its sole discretion,
shall determine to issue scrip certificates in respect to any fractional Shares,
which scrip certificates, in such event, shall be in a form and have such terms
and conditions as the Board in its discretion shall prescribe.
Section 10. Rights as a Stockholder.
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The Optionee shall have no rights as a stockholder of the Company
and shall not have the right to vote nor receive dividends with respect to any
Shares subject to an Option until such Option has been exercised and a
certificate with respect to the Shares purchased upon such exercise has been
issued to him.
Section 11. Time of Awarding Options.
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The date of Award of an Option shall, for all purposes, be the date
on which the Board makes the determination Awarding such Option. Notice of the
determination shall be given to each Employee to whom an Option is so Awarded
within a reasonable time after the date of such Award.
Section 12. Modification, Extension and Renewal of Option.
---------------------------------------------
Subject to the terms and conditions of the Plan, the Board may
modify, extend or renew an Option, or accept the surrender of an Option (to the
extent not theretofore exercised). Notwithstanding the foregoing, (a) no
modification of an Option which adversely affects the Optionee shall be made
without the consent of the Optionee, and (b) no Incentive Stock Option may be
modified, extended or renewed if such action would cause it to cease to be an
"incentive stock option" within the meaning of Section 422 of the Code.
Section 13. Purchase for Investment and Other Restrictions.
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The issuance of Shares on the exercise of an Option shall be
conditioned on obtaining such appropriate representations, warranties,
restrictions and agreements of the Optionee as set forth in the applicable Stock
Purchase Agreement. Among other representations, warranties, restrictions and
agreements, the Optionee shall represent and agree that the purchase of Shares
under the applicable Option Agreement shall be for investment, and not with a
view to the public resale or distribution thereof, unless the Shares subject to
the Option are registered under the Securities Act and the transfer or sale of
such Shares complies with all other laws, rules and regulations applicable
thereto. Unless the Shares are registered under the Securities Act, the Optionee
shall acknowledge that the Shares purchased on exercise of the Option are not
registered under the Securities Act and may not be sold or otherwise transferred
unless the Shares have been registered under the Securities Act in connection
with the sale or other transfer thereof, or that counsel satisfactory to the
Company has issued an opinion satisfactory to the Company that the sale or other
transfer of such Shares is exempt from registration under the Securities Act,
and unless said sale or transfer is in compliance with all other applicable
laws, rules and regulations, including all applicable federal and state
securities laws, rules and regulations. Additionally, the Shares, when issued
upon the exercise of an Option, shall be subject to other transfer restrictions,
rights of first refusal and rights of repurchase as set forth in or incorporated
by reference into the applicable Stock Purchase Agreement. The certificates
representing the Shares shall contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY APPLICABLE STATE
SECURITIES LAWS. THESE SHARES HAVE
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NOT BEEN ACQUIRED WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT
BE SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED OR DISPOSED OF, BY GIFT OR OTHERWISE, OR IN
ANY WAY ENCUMBERED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS, OR A SATISFACTORY OPINION OF
COUNSEL SATISFACTORY TO ORASURE TECHNOLOGIES, INC. THAT REGISTRATION
IS NOT REQUIRED UNDER SUCH ACT AND UNDER APPLICABLE STATE SECURITIES
LAWS. MOREOVER, THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO AND RESTRICTED BY THE PROVISIONS OF A CERTAIN STOCK
PURCHASE AND RESTRICTION AGREEMENT BETWEEN ORASURE TECHNOLOGIES,
INC. AND THE STOCKHOLDER, A COPY OF WHICH AGREEMENT WILL BE
FURNISHED BY ORASURE TECHNOLOGIES, INC. UPON WRITTEN REQUEST AND
WITHOUT CHARGE, AND ALL OF THE PROVISIONS OF SUCH AGREEMENT ARE
INCORPORATED BY REFERENCE IN THIS CERTIFICATE.
Section 14. Transferability.
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No Option shall be assignable or transferable otherwise than by will
or by the laws of descent and distribution. During the lifetime of the Optionee,
his Options shall be exercisable
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only by him, or, in the event of his legal incapacity or Disability by his legal
guardian or representative.
Section 15. Other Provisions.
----------------
The Option Agreement and Stock Purchase Agreement may contain such
other provisions as the Board in its discretion deems advisable and which are
not inconsistent with the provisions of this Plan, including, without
limitation, restrictions upon or conditions precedent to the exercise of the
Option.
Section 16. Power of Board in Case of Change in Control.
-------------------------------------------
Notwithstanding anything to the contrary set forth in this Plan
(with the exception of Section 31 hereof), in the event of a Change in Control,
the Board shall have the right, in its sole discretion, to accelerate the
vesting and exercisability of all unmatured Options and/or to establish an
earlier date for the expiration of the exercise of an Option (notwithstanding a
later expiration of exercisability set forth in an Option Agreement). In
addition, in the event of a Change in Control of the Company, the Board shall
have the right, in its sole discretion, subject to and conditioned upon the
consummation of the transactions which result in the Change in Control, to (1)
arrange for the successor company (or other entity) to assume all of the rights
and obligations of the Company under this Plan; or (2) terminate this Plan and
(a) to pay to all Optionees cash with respect to those Options that are vested
as of the date of such consummation in an amount equal to the difference between
the exercise price and the Fair Market Value of a Share of Common Stock
(determined as of the date the Plan is terminated) multiplied by the number of
Options that are vested as of the date of the consummation of the transactions
which result in the Change in Control which are held by the Optionee as of such
date, or (b) to arrange
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for the exchange of all Options for options to purchase common stock in the
successor corporation, or (c) to distribute to each Optionee other property in
an amount equal to and in the same form as the Optionee would have received from
the successor corporation if the Optionee had owned the Shares subject to
Options that are vested as of the date of the consummation of the transactions
which result in the Change in Control rather than the Option at the time of such
consummation. The form of payment or distribution to the Optionee pursuant to
this Section shall be determined by the Board in its sole discretion.
Section 17. Amendment of the Plan.
---------------------
Insofar as permitted by law and the Plan, the Board may from time to
time suspend, terminate or discontinue the Plan or revise or amend it in any
respect whatsoever with respect to any Shares at the time not subject to an
Option; provided, however, that without approval of the stockholders, no such
revision or amendment may change the aggregate number of Shares for which
Options may be Awarded hereunder, change the designation of the class of
Employees eligible to receive Options or decrease the price at which Options may
be Awarded.
Any other provision of this Section 17 notwithstanding (with the
exception of Section 31 hereof), the Board specifically is authorized to adopt
any amendment to this Plan deemed by the Board to be necessary or advisable to
assure that the Incentive Stock Options or the non-qualified stock Options
available under the Plan continue to be treated as such, respectively, under all
applicable laws.
Section 18. Application of Funds.
--------------------
The proceeds received by the Company from the sale of Shares
pursuant to the exercise of Options shall be used for general corporate
purposes.
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Section 19. No Obligation to Exercise Option.
--------------------------------
The Awarding of an Option shall impose no obligation upon the
Optionee to exercise such Option.
Section 20. Approval of Stockholders.
------------------------
This Plan shall become effective on the date that it is adopted by
the Board; provided, however, that it shall become limited to a non-qualified
stock option plan if it is not approved by the holders of a majority of the
Company's outstanding voting stock within one year (365 days) of its adoption by
the Board. The Board may Award Options hereunder prior to approval of the Plan
or any material amendments thereto by the holders of a majority of the Company's
outstanding voting stock; provided, however, that any and all Options so Awarded
automatically shall be converted into non-qualified stock options if the Plan is
not approved by such stockholders within 365 days of its adoption or material
amendment.
Section 21. Conditions Upon Issuance of Shares.
----------------------------------
(1) Options Awarded under the Plan are conditioned upon the Company
obtaining any required permit or order from appropriate governmental agencies,
authorizing the Company to issue such Options and Shares issuable upon the
exercise thereof.
(2) Shares shall not be issued pursuant to the exercise of an Option
unless the exercise of such Option and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act, the Exchange Act, the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
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(3) As a condition to the exercise of an Option, the Board may
require the person exercising such Option to execute an agreement with, and/or
may require the person exercising such Option to make any representation and/or
warranty to, the Company as may be, in the judgment of counsel to the Company,
required under applicable law or regulation, including but not limited to a
representation and warranty that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares
if, in the opinion of counsel for the Company, such a representation and
warranty is appropriate under any of the aforementioned relevant provisions of
law.
Section 22. Reservation of Shares.
---------------------
The Company, during the term of this Plan, shall at all times
reserve and keep available such number of Shares as shall be sufficient to
satisfy the requirements of the Plan.
The Company, during the term of this Plan, shall use its best
efforts to seek to obtain from appropriate regulatory agencies any requisite
authorization in order to issue and sell such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. The inability of the Company
to obtain from any such regulatory agency having jurisdiction the requisite
authorization(s) deemed by the Company's counsel to be necessary for the lawful
issuance and sale of any Shares hereunder, or the inability of the Company to
confirm to its satisfaction that any issuance and sale of any Shares hereunder
will meet applicable legal requirements, shall relieve the Company of any
liability in respect to the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
Section 23. Stock Option and Stock Purchase Agreements.
------------------------------------------
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Options shall be evidenced by an Option Agreement in such form or
forms as the Board shall approve from time to time. Upon the exercise of an
Option, the Optionee shall sign and deliver to the Company a Stock Purchase
Agreement in such form or forms as the Board shall approve from time to time.
Section 24. Taxes, Fees, Expenses and Withholding of Taxes.
----------------------------------------------
(1) The Company shall pay all original issue and transfer taxes (but
not income taxes, if any) with respect to the Award of Options and/or the issue
and transfer of Shares pursuant to the exercise thereof, and all other fees and
expenses necessarily incurred by the Company in connection therewith, and will
from time to time use its best efforts to comply with all laws and regulations
which, in the opinion of counsel for the Company, shall be applicable thereto.
(b) The Award of Options hereunder and the issuance of Shares
pursuant to the exercise thereof is conditioned upon the Company's reservation
of the right to withhold in accordance with any applicable law, from any
compensation or other amounts payable to the Optionee, any taxes required to be
withheld under federal, state or local law as a result of the Award or exercise
of such Option or the sale of the Shares issued upon exercise thereof. To the
extent that compensation or other amounts, if any, payable to the Optionee is
insufficient to pay any taxes required to be so withheld, the Company may, in
its sole discretion, require the Optionee (or such other person entitled herein
to exercise the Option), as a condition of the exercise of an Option, to pay in
cash to the Company an amount sufficient to cover such tax liability or
otherwise to make adequate provision for the Company's satisfaction of its
withholding obligations under federal, state and local law.
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Section 25. Notices.
-------
Any notice to be given to the Company pursuant to the provisions of
this Plan shall be addressed to the Company in care of its Secretary (or such
other person as the Company may designate from time to time) at its principal
executive office, and any notice to be given to an Optionee shall be delivered
personally or addressed to him or her at the address given beneath his or her
signature on his or her Option Agreement, or at such other address as such
Optionee or his or her permitted transferee (upon the transfer of the Shares)
may hereafter designate in writing to the Company. Any such notice shall be
deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, registered or certified, and deposited, postage and
registry or certification fee prepaid, in a post office or branch post office
regularly maintained by the United States Postal Service. It shall be the
obligation of each Optionee and each permitted transferee holding Shares
purchased upon exercise of an Option to provide the Secretary of the Company, by
letter mailed as provided herein, with written notice of his or her direct
mailing address.
Section 26. No Enlargement of Employee Rights.
---------------------------------
This Plan is purely voluntary on the part of the Company, and the
continuance of the Plan shall not be deemed to constitute a contract between the
Company and any Employee, or to be consideration for or a condition of the
employment or service of any Employee. Nothing contained in this Plan shall be
deemed to give any Employee the right to be retained in the employ or service of
the Company, its Parent, any Subsidiary or a successor corporation, or to
interfere with the right of the Company or any such corporation to discharge or
retire any Employee thereof at any time. No Employee shall have any right to or
interest in Options authorized hereunder prior to the Award thereof to such
Employee, and upon such Award he shall have only such rights and interests as
are expressly provided herein, subject, however, to all applicable provisions of
the Company's Certificate of Incorporation, as the same may be amended from time
to time.
Section 27. Information to Optionees.
------------------------
The Company, upon request, shall provide without charge to each
Optionee copies of such annual and periodic reports as are provided by the
Company to its stockholders generally.
Section 28. Availability of Plan.
--------------------
A copy of this Plan shall be delivered to the Secretary of the
Company and shall be shown by him to any eligible person making reasonable
inquiry concerning it.
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Section 29. Invalid Provisions.
------------------
In the event that any provision of this Plan is found to be invalid
or otherwise unenforceable under any applicable law, such invalidity or
unenforceability shall not be construed as rendering any other provisions
contained herein as invalid or unenforceable, and all such other provisions
shall be given full force and effect to the same extent as though the invalid or
unenforceable provision was not contained herein.
Section 30. Applicable Law.
--------------
This Plan shall be governed by and construed in accordance with the
laws of the State of Delaware.
Section 31. Board Action.
------------
Notwithstanding anything to the contrary set forth in this Plan, any
and all actions of the Board or Committee, as the case may be, taken under or in
connection with this Plan and any agreements, instruments, documents,
certificates or other writings entered into, executed, granted, issued and/or
delivered pursuant to the terms hereof, shall be subject to and limited by any
and all votes, consents, approvals, waivers or other actions of all or certain
stockholders of the Company or other persons required pursuant to (i) the
Company's Certificate of Incorporation (as the same may be amended and/or
restated from time to time), (ii) the Company's Bylaws (as the same may be
amended and/or restated from time to time), and (iii) any agreement, instrument,
document or writing now or hereafter existing, between or among the Company and
its stockholders or other persons (as the same may be amended from time to
time).
ADOPTION AND APPROVAL OF PLAN Date Plan adopted by Board:
Date Plan approved by Stockholders:
Effective Date of Plan:
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