EXHIBIT 10.6
TRANSGENOMIC, INC.
AMENDED AND RESTATED
1997 STOCK OPTION PLAN
ARTICLE I
NAME AND PURPOSES
Section 1.1. NAME. The name of the plan shall be the Transgenomic, Inc.
1997 Stock Option Plan (the "Plan"). The Plan was originally adopted as of the
Effective Date set forth in Section 11.3 hereof and is hereby amended and
restated as provided herein as of the 1st day of December, 1997.
Section 1.2. PURPOSE. The purpose of the Plan is to enable the
Employees, directors and Advisors of Transgenomic, Inc. (the "Company") to share
in the growth and prosperity of the Company by encouraging stock ownership by
Employees, directors and Advisors and to assist the Company to obtain and retain
key management personnel. Either Incentive Stock Options or Nonqualified Stock
Options may be granted to Employees of the Company under the Plan but only
Nonqualified Stock Options may be granted to Non-Employee Directors and Advisors
under the Plan.
ARTICLE II
DEFINITIONS
"ADVISOR" means a person who is not an employee of the Company but who
has agreed to serve as a source of information and advice regarding scientific,
technical or other matters relating to the Company's business and products.
"BOARD" means the Board of Directors of the Company.
"CAUSE" means conduct involving fraud, gross negligence, breach of a
fiduciary duty or criminal activity.
"CHANGE OF CONTROL" means the approval by the Company's shareholders of
(a) a merger or consolidation of the Company with or into another corporation
(other than a merger or consolidation in which the Company is the surviving
corporation and which does not result in any capital reorganization or
reclassification or other change in the Company's then outstanding shares of
common stock); (b) a sale or disposition of all or substantially all of the
Company's assets; or (c) a plan of liquidation or dissolution of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the Compensation Committee of the Board. If the Board
does not have a Compensation Committee, the Board shall constitute the
Compensation Committee.
"COMPANY" means Transgenomic, Inc., a Delaware corporation, and its
successors.
"COMPANY STOCK" means shares of the common stock, par value $.01 per
share, of the Company.
"EMPLOYEE" means any person employed by the Company as an employee and
not as an independent contractor.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934, as
amended.
"FAIR MARKET VALUE" means the fair market value of the Company Stock as
of the relevant time under this Agreement. If the Company Stock is not publicly
traded, Fair Market Value shall be reasonably determined by the Committee. If
the Company Stock is publicly traded, then the Fair Market Value will be equal
to the average of the closing sales price per share for the five trading days
immediately preceding the date of the determination.
"INCENTIVE STOCK OPTION" means any stock option granted to an Employee
under the Plan, which the Committee intends at the time it is granted to be an
incentive stock option within the meaning of Section 422 of the Code.
"NON-EMPLOYEE DIRECTOR" means any person who is a member of the Board
but is not an Employee of the Company and has not been an Employee of the
Company or any subsidiary of the Company at any time during the preceding 12
months. Service as a director does not in itself constitute employment for
purposes of this definition.
"NONQUALIFIED STOCK OPTION" means any stock option granted to an
Employee, Non-Employee Director or Advisor under the Plan which is not a stock
option within the meaning of Section 422 of the Code.
"OPTIONEE" is any Employee, Non-Employee Director or Advisor who has
been granted Options under the Plan.
"OPTIONS" mean Nonqualified Stock Options and Incentive Stock Options.
"PARTICIPANT" means any Employee, Non-Employee Director or Advisor who
meets the requirements for participation in the Plan as described in Article
III.
"PERMANENT AND TOTAL DISABILITY" means, as determined by the Committee,
an illness or injury of a potentially permanent nature, expected to last for a
continuous period of at least 12 months, certified by a physician selected by or
satisfactory to the Committee, which prevents the Participant from engaging in
any occupation for wage or profit for which the Participant is reasonably fitted
by training, education or experience.
"QUALIFYING STOCK" means Company Stock which has been owned by an
Employee for at least six months prior to the date of exercise of an Option and
has not been used in a stock-for-stock swap transaction within the preceding six
months.
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ARTICLE III
ELIGIBILITY AND PARTICIPATION
Every Employee, Non-Employee Director and Advisor shall be eligible to
become a Participant in the Plan. Only Employees shall be eligible for the
Incentive Stock Options, and Employees, Non-Employee Directors and Advisors
shall be eligible for the Nonqualified Stock Options. The Committee shall
determine the number and type of Options granted and Participants to receive
awards under the Plan.
ARTICLE IV
OPTION CONDITIONS
Section 4.1. NO OPTION COMBINATIONS. Options under the Plan may only be
granted as either Incentive Stock Options or as Nonqualified Stock Options
dependent upon whether the Participant is an Employee, a Non-Employee Director
or an Advisor. Incentive Stock Options may only be granted to Employees, and
Nonqualified Stock Options may be granted to Employees, Non-Employee Directors
or Advisors.
Section 4.2. OPTION CONDITIONS. Without limiting the Committee's
authority, the Committee may make the grant of Options conditional upon an
election by a Participant to defer payment of a portion of his or her
compensation and subject to any condition or conditions consistent with the
terms of the Plan that the Committee in its sole discretion may determine.
Section 4.3. COMMITTEE MEMBERS. Voting members of the Committee shall
neither receive any Option pursuant to the Plan while serving on the Committee
unless such an Option is a formula award within the meaning of Rule 16b-3 under
the Exchange Act nor have received any such Option or any other grant or award
of equity securities pursuant to the Plan or any other plan of the Company or
any of its affiliates or subsidiaries at any time within one year prior to his
or her service on the Committee or, if different, for the time period necessary
to fulfill the then current requirements of Rule 16b-3 under the Exchange Act.
However, provided that, if for any reason the Committee does not qualify to
administer the Plan, as contemplated by Rule 16b-3 of the Exchange Act, then the
Board may appoint a new Committee so as to comply with Rule 16b-3.
Section 4.4. EFFECTIVE DATE OF PRIOR SECTION. Section 4.3 hereof shall
take effect on the day following the date on which a registration statement
filed by the Company with the Securities and Exchange Commission is first
declared effective under the Securities Act of 1933, as amended.
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ARTICLE V
COMPANY STOCK SUBJECT TO PLAN
The total number of Company Stock for which Options may be granted
under the Plan shall not exceed 4,000,000 shares of Company Stock subject always
to the provisions of Article VIII. The Company Stock issued under the Plan may
be authorized and unissued shares or treasury shares.
In the event that any outstanding Option issued pursuant to the Plan
shall expire or terminate, additional Options for the number of shares of
Company Stock which were subject to such expired or terminated Options may be
granted under the Plan. In addition, if shares of Company Stock are used by an
Optionee to pay all or a part of the exercise price of any Option (or applicable
withholding taxes), additional Options for the number of shares of Company Stock
so used may be granted under the Plan, including Replacement Options granted
under Section 6.3 hereof.
ARTICLE VI
OPTIONS
Section 6.1. TERMS OF OPTIONS. (a) The Committee from time to time may
grant Options. Each Option granted shall be embodied in a written agreement
between the Company and the Participant in such form and containing such
provisions as the Committee from time to time shall deem appropriate, consistent
with the requirements of the Plan and this Amendment. Option agreements need not
be identical, and the Option agreement shall specify whether or not an Option is
an Incentive Stock Option.
(b) The exercise price for each Option granted under the Plan shall be
fixed by the Committee in good faith, but in no event shall the exercise price
of any Incentive Stock Option be less than 100% of the Fair Market Value of the
Company Stock on the date such Incentive Stock Option is granted.
(c) The Committee shall fix the term or duration of all Options issued
under this Plan, provided that such term shall not exceed ten years after the
date on which the Option was granted.
(d) At all times during the period beginning on the date of the grant
of an Incentive Stock Option and ending on the day three months before the date
of the exercise of such Incentive Stock Option, the Optionee must be an Employee
of the Company. Options designated as Incentive Stock Options that fail to meet
the requirements of Section 422 of the Code shall be redesignated as
Nonqualified Stock Options for federal income tax purposes automatically without
further action by the Committee on the date of such failure to continue to meet
the requirements of Section 422 of the Code.
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Section 6.2. TRANSFERABILITY OF OPTIONS. Options shall not be
transferable otherwise than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order, as defined in the Code, and
during the Participant's lifetime such Options shall be exercisable only by the
Participant.
Section 6.3. REPLACEMENT OPTION. The Committee may grant a replacement
option (a "Replacement Option") to any Employee who exercises all or part of an
Option granted under this Plan using Qualifying Stock as payment for the
exercise price. A Replacement Option shall grant to the Employee the right to
purchase, at a price not less than the Fair Market Value of the Company Stock as
of the date of said grant, the number of shares of stock equal to the sum of the
number of whole shares (i) used by the Employee in payment of the exercise price
for the Option which was exercised and (ii) used by the Employee in connection
with applicable withholding taxes on such transaction. A Replacement Option may
not be exercised for six months following the date of grant, and shall expire on
the same date as the Option which it replaces.
ARTICLE VII
ADMINISTRATION
Section 7.1. AUTHORITY OF THE COMMITTEE. (a) The Plan shall be
administered by the Committee. A majority vote of the Committee at which a
quorum is present, or acts reduced to or approved in writing by a majority of
the members of the Committee, shall be the valid acts of the Committee for the
purposes of this Plan.
(b) The Committee shall have plenary authority in its discretion, but
subject to the express provisions of the Plan, to determine the terms of all
Options granted under the Plan, including, without limitation, the purchase
price, if any, the Participants to whom and the time or times at which Options
shall be granted, when an Option can be exercised and whether in whole or in
installments, and the number of shares covered by an Option and to interpret the
Plan and to make all other determinations deemed advisable for the
administration of the Plan. All determinations of the Committee shall be made by
not less than a majority of its members. The Committee may designate Employees
of the Company to assist the Committee in the administration of the Plan and may
grant authority to such persons to execute Option agreements or other documents
on behalf of the Committee.
(c) The Committee may make such rules and regulations and establish
such procedures as it deems appropriate for the administration of the Plan.
(d) In the event of a disagreement as to the interpretation of the Plan
or any amendment hereto or any rule, regulation or procedure thereunder or as to
any right or obligation arising from or related to the Plan, the decision of the
Committee shall be final and binding. No member of the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any benefit granted under it.
Section 7.2. PAYMENT FOR OPTIONS. Payment in full for the number of
shares purchased under any Option shall be made to the Company at the time of
such exercise. The Committee, in its discretion, may provide that any Option by
its terms may permit a Participant to elect, subject to Committee approval, to
pay for an exercised Option in any combination of cash and Company
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Stock. Shares of Company Stock used to pay all or a part of the exercise price
of an Option will be valued at their Fair Market Value on the date of the
exercise of the Option.
ARTICLE VIII
ADJUSTMENT UPON CHANGES OF STOCK
If any change is made with respect to the Company Stock by reason of
any stock dividend, stock split or combination of shares, appropriate
adjustments shall be made by the Committee to the maximum number of shares
subject to the Plan and the number of shares and price per share of Company
Stock subject to each outstanding Option. No fractional shares of Company Stock
resulting from any such adjustment shall be issued upon exercise of an Option,
but the Fair Market Value of any such fractional share shall be paid in cash
upon such exercise.
ARTICLE IX
EFFECT OF CORPORATE CHANGES
An Optionee shall not have any additional right to exercise any
outstanding Options, whether or not vested, in whole or in part, solely by
reason of any Change of Control, merger, consolidation, reorganization,
recapitalization, exchange of shares, or change in corporate structure
(including an initial public offering), than such Optionee had prior to such an
event. If a Change of Control, merger, consolidation, reorganization,
recapitalization, exchange of shares, or change in corporate structure
(including an initial public offering) shall occur, the Committee may, but shall
not be required to, accelerate or adjust the vesting of Options, solely at the
discretion of the Committee and subject to the terms of the Plan.
ARTICLE X
TERMINATION OF OPTIONS
Section 10.1. DEATH OF OPTIONEE. (a) If the Optionee shall die at any
time after the date an Option is granted and prior to any termination thereof,
the executor or administrator of the estate of the Optionee or the person or
persons to whom the Option shall have been validly transferred by the executor
or the administrator pursuant to will or the laws of descent and distribution
shall have the right, during the period ending one year after the date of the
Optionee's death, to exercise the Option to the extent that it was exercisable
at the date of death and shall not have been exercised. Any Options not
exercised within said time period shall terminate and all rights thereunder
shall cease. In the event of the Optionee's death, any Options not vested as of
the date of the Optionee's death shall become immediately vested; provided,
however, that the Optionee was continuously employed by the Company, or
continuously served on the Board or as an Advisor, for at least three years, or
such shorter period as the Committee determines in its sole discretion.
(b) Notwithstanding the foregoing, no transfer of an Option by will or
the laws of descent and distribution shall be effective to bind the Company
unless the Company shall have been furnished with written notice thereof and an
authenticated copy of the will and/or such
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other evidence as the Committee may deem necessary to establish the validity of
the transfer and the acceptance by the transferee or transferees of the terms
and conditions of the Option.
Section 10.2. PERMANENT AND TOTAL DISABILITY. If the Optionee becomes
Permanently and Totally Disabled at any time after the date an Option is granted
and prior to any termination thereof, the Optionee (or in the case of the
Optionee becoming mentally incapacitated, his guardian or legal representative)
shall have the right, during a period ending one year after such Permanent and
Total Disability, to exercise the Option to the extent that it was exercisable
at the date of such Permanent and Total Disability and shall not have been
exercised. Any Options not exercised within said time period shall terminate and
all rights thereunder shall cease. In the event of the Optionee's Permanent and
Total Disability, any Options not vested as of the date of the Optionee's
Permanent and Total Disability shall become immediately vested; provided,
however, that the Optionee was continuously employed by the Company, or
continuously served on the Board or as an Advisor, for at least three years, or
such shorter period as the Committee determines in its sole discretion.
Section 10.3. OTHER. (a) In the event of an Optionee's termination of
employment with the Company or from the Board or as an Advisor, or in the event
an Optionee's employment is terminated for any reason other than death or
Permanent and Total Disability, any Options not vested as of the date of the
Optionee's resignation or termination shall immediately terminate and all rights
thereunder shall cease unless the Committee determines otherwise in its sole
discretion.
(b) If the Optionee's employment or directorship with the Company or
service as an Advisor is terminated by the Company for Cause, the Optionee's
right to exercise an Option, whether or not vested, shall immediately terminate
and all rights thereunder shall cease unless the Committee determines otherwise
in its sole discretion.
ARTICLE XI
MISCELLANEOUS
Section 11.1. RIGHTS OF EMPLOYEES AND NON-EMPLOYEE DIRECTORS. Neither
this Plan nor any Option granted hereunder shall confer upon any Employee or
Non-Employee Director any right to continue to serve as an employee or director
of the Company.
Section 11.2. WITHHOLDING. The Company shall have the right to withhold
with respect to any payments made to Participants under the Plan any taxes
required by law to be withheld because of such payments. With respect to any
such withholding:
(a) Each Participant shall take whatever action that the
Committee deems appropriate to comply with the law regarding
withholding of federal, state and local taxes.
(b) When a Participant is obligated to pay to the Company an
amount required to be withheld under applicable income tax laws in
connection with an Option, the Committee may, in its discretion and
subject to such rules as it may adopt, permit the Participant to
satisfy this obligation, in whole or in part, either (i) by having the
Company
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withhold from the shares to be issued upon the exercise of an Option or
(ii) by delivering to the Company already-owned shares to satisfy the
withholding amount.
Section 11.3. EFFECTIVE DATE. This Plan is effective on June 27, 1997
("Effective Date"). Options hereunder may be granted at any time subject to the
limitations contained within the Plan. No Company Stock may be issued unless the
Plan is approved by a vote of the holders of a majority, or as otherwise
provided in the Company's First Amended and Restated Articles of Incorporation,
of the outstanding shares of the Company's common stock at a meeting of the
stockholders of the Company held within 12 months following the Effective Date.
ARTICLE XII
MISCELLANEOUS
Section 12.1. AMENDMENT. The Board may amend the Plan from time to time
as it deems desirable or as necessitated by any applicable rules and regulations
and such amendments shall include the ability of the Board to amend the Plan
and, with shareholder approval, to increase the number of shares subject to the
Plan; provided, however, the Plan may not be amended to decrease the price at
which Incentive Stock Options may be granted. Any amendment to the Plan shall
not apply to (i) Options granted to Non-Employee Directors prior to the
effective date of the amendment or (ii) Options granted to Employees or Advisors
that have vested prior to the effective date of the amendment unless, in either
case, it has been otherwise agreed to, in writing, by the Committee and the
affected Plan Participant.
Section 12.2. TERMINATION OF PLAN. The Board may, in its discretion,
terminate the Plan at any time, but no such termination shall deprive
Participants of their rights under outstanding Options.
Section 12.3. GOVERNING LAW. This Plan shall be construed in accordance
with and governed by the laws of the State of Delaware.
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