Exhibit 10.57
Bio-Plexus, Inc.
2001 STOCK INCENTIVE PLAN
Bio-Plexus, Inc.
2001 STOCK INCENTIVE PLAN
1. Purpose.
The purpose of this Plan is to strengthen Bio-Plexus, Inc., a
Delaware corporation (the "Company"), by providing an incentive to its
employees, officers, consultants and directors and thereby encouraging them to
devote their abilities and industry to the success of the Company's business
enterprise. It is intended that this purpose be achieved by extending to
Eligible Individuals (as hereinafter defined) an added long-term incentive for
high levels of performance and extraordinary efforts through the grant of
Incentive Stock Options, Nonqualified Stock Options and Restricted Stock (as
each such term is herein defined).
2. Definitions.
For purposes of the Plan:
2.1 "Agreement" means the written agreement between the Company
and an optionee or Grantee evidencing the grant of an Option or Award and
setting forth the terms and conditions thereof.
2.2 "Award" means a grant of Restricted Stock.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Cause" means, except as otherwise provided in an Agreement:
(a) in the case of an Optionee or Grantee whose employment
with the Company or a Subsidiary is subject to the terms of an employment
agreement between such Optionee or Grantee and the Company or Subsidiary, which
employment agreement includes a definition of "Cause", the term "Cause" shall
have the meaning set forth in such employment agreement during the period that
such employment agreement remains in effect; and
(b) in all other cases, (i) intentional failure to perform, or
gross negligence in performing, reasonably assigned duties, (ii) dishonesty or
willful misconduct in the performance of duties, (iii) involvement in a
transaction in connection with the performance of duties to the Company or any
of its Subsidiaries which transaction is adverse to the interests of the Company
or any of its Subsidiaries and which is engaged in for personal profit or (iv)
willful violation of any law, rule or regulation in connection with the
performance of duties (other than traffic violations or similar offenses).
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2.5 "Change in Capitalization" means any increase or reduction
in the number of Shares, any change (including, but not limited to, in the case
of a spin-off, dividend or other distribution in respect of Shares, a change in
value) in the Shares or any exchange of Shares for a different number or kind of
shares or other securities of the Company or another corporation, by reason of a
reclassification, recapitalization, merger, consolidation, reorganization,
spin-off, split-up, issuance of warrants or rights or debentures, stock
dividend, stock split or reverse stock split, cash dividend, property dividend,
combination or exchange of shares, repurchase of shares, change in corporate
structure or otherwise.
2.6 A "Change in Control" shall mean the occurrence of any of the
following:
(a) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of the
Exchange Act), immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty
percent (50%) or more of the then outstanding Shares or the combined voting
power of the Company's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred pursuant to this Section
2.8(a), Shares or Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an acquisition which
would cause a Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (i) an employee benefit plan (or a trust forming a part thereof)
maintained by (A) the Company or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or equity interest
is owned, directly or indirectly, by the Company (for purposes of this
definition, a "Related Entity"), (ii) the Company or any Related Entity, or
(iii) any Person in connection with a "Non-Control Transaction" (as hereinafter
defined);
(b) The individuals who, as of the effective date of this
Plan are members of the Board (the "Incumbent Board"), cease for any reason to
constitute at least a majority of the members of the Board or, following a
Merger which results in a Parent corporation, the board of directors of the
ultimate Parent Corporation (as defined in paragraph (c)(i)(A) below); provided,
however, that if the election, or nomination for election by the Company's
common stockholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for purposes of this
Plan, be considered as a member of the Incumbent Board; provided further,
however, that no individual shall be considered a member of the Incumbent Board
if such individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other
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than the Board (a "Proxy Contest") including by reason of any agreement intended
to avoid or settle any Election Contest or Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization with or
into the Company or in which securities of the Company are issued ( a "Merger"),
unless such Merger is a "Non-Control Transaction." A "Non-Control Transaction"
shall mean a Merger where:
(A) the stockholders of the Company, immediately
before such Merger own directly or indirectly immediately following such Merger
at least fifty percent (50%) of the combined voting power of the outstanding
voting securities of (x) the corporation resulting from such Merger (the
"Surviving Corporation") if fifty percent (50%) or more of the combined voting
power of the then outstanding voting securities of the Surviving Corporation is
not Beneficially Owned, directly or indirectly by another Person (a "Parent
Corporation"), or (y) if there are one or more Parent Corporations, the ultimate
Parent Corporation; and,
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for such Merger constitute at least a majority of the members of the board of
directors of (x) the Surviving Corporation, if there are no Parent Corporation,
or (y) if there are one or more Parent Corporations, the ultimate Parent
Corporation; and
(C) no Person other than (1) the Company, (2) any
Related Entity, (3) any employee benefit plan (or any trust forming a part
thereof) that, immediately prior to such Merger was maintained by the Company or
any Related Entity, or (4) any Person who, immediately prior to such Merger had
Beneficial Ownership of thirty percent (30%) or more of the then outstanding
Voting Securities or Shares, has Beneficial Ownership of thirty percent (30%) or
more of the combined voting power of the outstanding voting securities or common
stock of (x) the Surviving Corporation if there is no Parent Corporation, or (y)
if there are one or more Parent Corporations, the ultimate Parent Corporation.
(ii) A complete liquidation or dissolution of the
Company; or
(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Related Entity or under conditions that would constitute a
Non-Control Transaction with the disposition of assets being regarded as a
Merger for this purpose or the distribution to the Company's stockholders of the
stock of a Related Entity or any other assets).
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Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the then outstanding Shares or Voting
Securities as a result of the acquisition of Shares or Voting Securities by the
Company which, by reducing the number of Shares or Voting Securities then
outstanding, increases the proportional number of shares Beneficially Owned by
the Subject Persons, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Shares or
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Shares or Voting Securities which increases the percentage of the then
outstanding Shares or Voting Securities Beneficially Owned by the Subject
Person, then a Change in Control shall occur.
If an Eligible Individual's employment is terminated by the
Company without Cause prior to the date of a Change in Control but the Eligible
Individual reasonably demonstrates that the termination (A) was at the request
of a third party who has indicated an intention or taken steps reasonably
calculated to effect a change in control or (B) otherwise arose in connection
with, or in anticipation of, a Change in Control which has been threatened or
proposed, such termination shall be deemed to have occurred after a Change in
Control for purposes of this Plan provided a Change in Control shall actually
have occurred.
2.7 "Code" means the Internal Revenue Code of 1986, as amended.
2.8 "Committee" means a committee, as described in Section 3.1,
appointed by the Board from time to time to administer the Plan and to perform
the functions set forth herein.
2.9 "Company" means Bio-Plexus, Inc., a Delaware corporation.
2.10 "Disability" means, except as otherwise provided in an
Agreement:
(a) in the case of an Optionee or Grantee whose employment
with the Company or a Subsidiary is subject to the terms of an employment
agreement between such Optionee or Grantee and the Company or Subsidiary, which
employment agreement includes a definition of "Disability", the term
"Disability" shall have the meaning set forth in such employment agreement
during the period that such employment agreement remains in effect; and
(b) in all other cases, the term "Disability" as used in the
Plan or any Agreement shall mean a physical or mental infirmity which impairs
the Optionee's or Grantee's ability to perform substantially his or her duties
for a period of one hundred eighty (180) consecutive days.
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2.11 "Eligible Individual" means any of the following individuals
who is designated by the Committee as eligible to receive Options or Awards
subject to the conditions set forth herein: (a) any director, officer or
employee of the Company or a Subsidiary, (b) any individual to whom the Company
or a Subsidiary has extended a formal, written offer of employment, or (c) any
consultant or advisor of the Company or a Subsidiary.
2.12 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.13 "Fair Market Value" on any date means the closing sales
prices of the Shares on such date on the principal national securities exchange
on which such Shares are listed or admitted to trading, or, if such Shares are
not so listed or admitted to trading, the average of the per Share closing bid
price and per Share closing asked price on such date as quoted on the National
Association of Securities Dealers Automated Quotation System or such other
market in which such prices are regularly quoted, or, if there have been no
published bid or asked quotations with respect to Shares on such date, or if
such prices are not regularly quoted, the Fair Market Value shall be the value
established by the Committee in good faith and, in the case of an Incentive
Stock Option, in accordance with Section 422 of the Code; provided, however, on
the effective date of the initial public offering of the Shares, "Fair Market
Value" shall mean the price at which the Shares are offered to the public.
2.14 "Grantee" means a person to whom an Award has been granted
under the Plan.
2.15 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as an
Incentive Stock Option.
2.16 "Nonemployee Director" means a director of the Company who is
a "nonemployee director" within the meaning of Rule 16b-3 promulgated under the
Exchange Act.
2.17 "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
2.18 "Option" means a Nonqualified Stock Option or an Incentive
Stock Option.
2.19 "Optionee" means a person to whom an Option has been granted
under the Plan.
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2.20 "Outside Director" means a director of the Company who is an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.21 "Parent" means any corporation which is a parent corporation
(within the meaning of Section 424(e) of the Code) with respect to the Company.
2.22 "Performance-Based Compensation" means any Option or Award
that is intended to constitute "performance-based compensation" within the
meaning of Section 162(m)(4)(C) of the Code and the regulations promulgated
thereunder.
2.23 "Plan" means this Bio-Plexus, Inc. 2001 Stock Incentive Plan,
as amended and/or restated from time to time.
2.24 "Pooling Transaction" means an acquisition of the Company in
a transaction which is intended to be treated as a "pooling of interests" under
generally accepted accounting principles.
2.25 "Restricted Stock" means Shares issued or transferred to an
Eligible Individual pursuant to Section 7.
2.26 "Shares" means shares of the common stock, par value $0.001
per share, of the Company and any other securities into which such shares are
changed or for which such Shares are exchanged.
2.27 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect to
the Company.
2.28 "Successor Corporation" means a corporation, or a parent or
subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes an Option in a transaction to which Section 424(a) of the Code
applies.
2.29 "Ten-Percent Stockholder" means an Eligible Individual, who,
at the time an Incentive Stock Option is to be granted to him or her, owns
(within the meaning of Section 422(b)(6) of the Code) stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company, or of a Parent or a Subsidiary.
3. Administration.
3.1 The Plan shall be administered by the Committee, which shall
hold meetings at such times as may be necessary for the proper administration of
the Plan. The Committee shall consist of no fewer than two individuals, each of
whom is a
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Nonemployee Director and an Outside Director. The Committee shall keep minutes
of its meetings. A quorum shall consist of not fewer than two (2) members of the
Committee and a majority of a quorum may authorize any action. Any decision or
determination reduced to writing and signed by all of the members of the
Committee (or a majority thereof if permitted by applicable law) shall be as
fully effective as if made by a majority vote at a meeting duly called and held.
3.2 No member of the Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with respect
to the Plan or any transaction hereunder. The Company hereby agrees to indemnify
each member of the Committee for all costs and expenses and, to the extent
permitted by applicable law, any liability incurred in connection with defending
against, responding to, negotiating for the settlement of or otherwise dealing
with any claim, cause of action or dispute of any kind arising in connection
with any actions in administering the Plan or in authorizing or denying
authorization to any transaction hereunder.
3.3 Subject to the express terms and conditions set forth herein,
the Committee shall have the power from time to time to:
(a) select those Eligible Individuals to whom Options and/or
Awards shall be granted under the Plan and to determine the number of Shares in
respect of which each such Option and/or Award is granted, the terms and
conditions (which need not be identical) of each such Option and/or Award, and
make any amendment or modification to any Agreement consistent with the terms of
the Plan;
(b) to construe and interpret the Plan and any Agreements made
hereunder and to establish, amend and revoke rules and regulations for the
administration of the Plan, including, but not limited to, correcting any defect
or supplying any omission, or reconciling any inconsistency in the Plan or in
any Agreement, in the manner and to the extent it shall deem necessary or
advisable, including so that the Plan and the operation of the Plan complies
with Rule 16b-3 under the Exchange Act, the Code to the extent applicable and
other applicable law, and otherwise to make the Plan fully effective. All
decisions and determinations by the Committee in the exercise of this power
shall be final, binding and conclusive upon the Company, its Subsidiaries, the
Optionees and Grantees, and all other persons having any interest therein;
(c) to determine the duration and purposes for leaves of
absence which may be granted to an Optionee or Grantee on an individual basis
without constituting a termination of employment or service for purposes of the
Plan;
(d) to exercise its discretion with respect to the powers and
rights granted to it as set forth in the Plan; and
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(e) generally, to exercise such powers and to perform such
acts as it deems necessary or advisable to promote the best interests of the
Company with respect to the Plan.
4. Stock Subject to the Plan; Grant Limitations.
4.1 The maximum number of Shares that may be made the subject of
Options and Awards granted under the Plan is 1,111,271. The maximum number of
Shares that may be the subject of Options and Awards granted to any Eligible
Individual during any calendar year is 1,000,000. Upon a Change in
Capitalization, the maximum number of Shares referred to in the first three
sentences of this Section 4.1 shall be adjusted in number and kind pursuant to
Section 9. The Company shall reserve for the purposes of the Plan, out of its
authorized but unissued Shares or out of Shares held in the Company's treasury,
or partly out of each, such number of Shares as shall be determined by the
Board.
4.2 Upon the granting of an Option or an Award, the number of
Shares available under Section 4.1 for the granting of further Options and
Awards shall be reduced by the number of Shares in respect of which the Option
or Award is granted; provided, however, that if any Option is exercised by
tendering Shares, either actually or by attestation, to the Company as full or
partial payment of the exercise price, the maximum number of Shares available
under Section 4.1 shall be increased by the number of Shares so tendered.
4.3 Whenever any outstanding Option or Award or portion thereof
expires, is canceled, is settled in cash (including the settlement of tax
withholding obligations using Shares) or is otherwise terminated for any reason
without having been exercised or payment having been made in respect of the
entire Option or Award, the Shares allocable to the expired, canceled, settled
or otherwise terminated portion of the Option or Award may again be the subject
of Options or Awards granted hereunder.
5. Option Grants for Eligible Individuals.
5.1 Authority of Committee. Subject to the provisions of the Plan,
the Committee shall have full and final authority to select those Eligible
Individuals who will receive Options, and the terms and conditions of the grant
to such Eligible Individuals shall be set forth in an Agreement. Incentive Stock
Options may be granted only to Eligible Individuals who are employees of the
Company or any Subsidiary and prior to the earlier of ten (10) years from the
date this Plan is adopted by the Board or approved by the stockholders of the
Company.
5.2 Exercise Price. The purchase price or the manner in which the
exercise price is to be determined for Shares under each Option shall be
determined by
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the Committee and set forth in the Agreement; provided, however, that the
exercise price per Share under each Incentive Stock Option shall not be less
than 100% of the Fair Market Value of a Share on the date the Option is granted
(110% in the case of an Incentive Stock Option granted to a Ten-Percent
Stockholder).
5.3 Maximum Duration. Options granted hereunder shall be for such
term as the Committee shall determine, provided that an Incentive Stock Option
shall not be exercisable after the expiration of ten (10) years from the date it
is granted (five (5) years in the case of an Incentive Stock Option granted to a
Ten-Percent Stockholder) and a Nonqualified Stock Option shall not be
exercisable after the expiration of ten (10) years from the date it is granted.
The Committee may, subsequent to the granting of any Option, extend the term
thereof, but in no event shall the term of an Incentive Stock Option as so
extended exceed the maximum term provided for in the preceding sentence.
5.4 Vesting. Each Option shall become exercisable in such
installments (which need not be equal) and at such times as may be designated by
the Committee and set forth in the Agreement. Such exercisablity may be based on
performance criteria. To the extent not exercised, installments shall accumulate
and be exercisable, in whole or in part, at any time after becoming exercisable,
but not later than the date the Option expires. The Committee may accelerate the
exercisability of any Option or portion thereof at any time.
5.5 Deferred Delivery of Option Shares. The Committee may, in its
discretion, permit Optionees to elect to defer the issuance of Shares upon the
exercise of one or more Nonqualified Stock Options granted pursuant to the Plan.
The terms and conditions of such deferral shall be determined at the time of the
grant of the Option or thereafter.
5.6 Limitations on Incentive Stock Options. To the extent that the
aggregate Fair Market Value (determined as of the date of the grant) of Shares
with respect to which Incentive Stock Options granted under the Plan and
"incentive stock options" (within the meaning of Section 422 of the Code)
granted under all other plans of the Company or its Subsidiaries (in either case
determined without regard to this Section 5.6) are exercisable by an Optionee
for the first time during any calendar year exceeds $100,000, such Incentive
Stock Options shall be treated as Nonqualified Stock Options. In applying the
limitation in the preceding sentence in the case of multiple Option grants,
Options which were intended to be Incentive Stock Options shall be treated as
Nonqualified Stock Options according to the order in which they were granted
such that the most recently granted Options are first treated as Nonqualified
Stock Options.
5.7 Certain Events. The Agreement may provide for the treatment of
Options upon a Change in Control. In the event of a Change in Control, the
Company shall provide written notice thereof to Grantees and Optionees.
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6. Terms and Conditions Applicable to All Options.
6.1 Non-Transferability. Except as otherwise determined by the
Committee at the time of grant or thereafter with respect to a Nonqualified
Stock Option, no Option shall be transferable by the Optionee other than by will
or by the laws of descent and distribution or, in the case of an Option other
than an Incentive Stock Option, pursuant to a domestic relations order (within
the meaning of Rule 16a-12 promulgated under the Exchange Act), and an Option
shall be exercisable during the lifetime of such Optionee only by the Optionee
or his or her guardian or legal representative. The terms of an Option shall be
final, binding and conclusive upon the transferees, beneficiaries, executors,
administrators, heirs and successors of the Optionee.
6.2 Method of Exercise. The exercise of an Option shall be made only by
a written notice delivered in person or by mail to the Secretary of the Company
at the Company's principal executive office, specifying the number of Shares to
be exercised and, to the extent applicable, accompanied by payment therefor and
otherwise in accordance with the Agreement pursuant to which the Option was
granted. The exercise price for any Shares purchased pursuant to the exercise of
an Option shall be paid, as determined by the Committee in its discretion, in
either of the following forms (or any combination thereof): (a) cash or (b) the
transfer, either actually or by attestation, to the Company of Shares upon such
terms and conditions as determined by the Committee. In addition, Options may be
exercised through a registered broker-dealer pursuant to such cashless exercise
procedures which are, from time to time, deemed acceptable by the Committee. Any
Shares transferred to the Company (or withheld upon exercise) as payment of the
exercise price under an Option shall be valued at their Fair Market Value on the
date of exercise of such Option. If requested by the Committee, the Optionee
shall deliver the Agreement evidencing the Option to the Secretary of the
Company who shall endorse thereon a notation of such exercise and return such
Agreement to the Optionee. No fractional Shares (or cash in lieu thereof) shall
be issued upon exercise of an Option and the number of Shares that may be
purchased upon exercise shall be rounded to the nearest number of whole Shares.
6.3 Rights of Optionees. No Optionee shall be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (a) the Option
shall have been exercised (including payment of the Withholding Taxes) pursuant
to the terms thereof, (b) the Company shall have issued and delivered Shares to
the Optionee, and (c) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company. Thereupon, the Optionee shall
have full voting, dividend and other ownership rights with respect to such
Shares, subject to such terms and conditions as may be set forth in the
applicable Agreement.
6.4 Effect of Certain Transactions.
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(a) Unless otherwise provided in an Agreement, in the event of
a merger of the Company with or into another corporation, or the sale of
substantially all of the assets of the Company, each outstanding Option and
Award shall be assumed or an equivalent option or award, as the case may be,
substituted by the Successor Corporation; provided, however, that, unless
otherwise determined by the Committee, such Options and Awards shall remain
subject to all of the conditions, restrictions and performance criteria which
were applicable to such Options and Awards prior to such assumption or
substitution. In the event that the Successor Corporation refuses to or does not
assume the Option or Award or substitute an equivalent option or award therefor,
the Optionee shall have the right to exercise the Option as to all of the Shares
subject to the Option as described below, including Shares as to which it would
not otherwise be exercisable and all restrictions relating to the Award shall
lapse (a "Transaction Acceleration").
(b) Notwithstanding anything to the contrary contained in
Section 6.4(a), in the event of a Transaction Acceleration, or in the event that
the Committee determines to accelerate the exercisability of any Options in
connection with any transaction involving the Company or its capital stock
pursuant to Section 5.4 or 5.7, the Committee may, in its sole discretion,
authorize the redemption of the unexercised portion of the Option for a
consideration per share of Common Stock equal to the excess of (i) the
consideration payable per share of Common Stock in connection with such
transaction, over (ii) the purchase price per Share subject to the Option.
(c) Notwithstanding anything to the contrary contained in
Section 6.4(a), in the event of a Transaction Acceleration, or in the event that
the Committee determines to cause the restrictions of any Award to lapse in
connection with any transaction involving the Company or its capital stock
pursuant to Section 7.4(b), the Committee may, in its sole discretion, authorize
the redemption of the Shares relating to such Award for a consideration per
share of Common Stock equal to the consideration payable per share of Common
Stock in connection with such transaction.
(d) If an Option is exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Secretary shall
notify the Optionee that the Option shall be fully exercisable for a period of
fifteen (15) days (or such other period as shall be determined by the Committee)
from the date of such notice, and the Option shall terminate upon the expiration
of such period.
(e) For the purposes of this Section 6, the Option or Award
shall be considered assumed if, following the merger or sale of assets, the
option confers the right to purchase or receive upon exercise, or the award
confers the right to receive upon the lapse of all restrictions, for each Share
subject to the Option or Award, as the case may be, immediately prior to the
merger or sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets for each Share
held on the effective date of the transaction (and if holders were offered a
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choice of consideration, the type of consideration chosen by the holders of a
majority of the outstanding Shares).
7. Restricted Stock.
7.1 Grant. The Committee may grant Awards to Eligible Individuals of
Restricted Stock, which shall be evidenced by an Agreement between the Company
and the Grantee. Each Agreement shall contain such restrictions, terms and
conditions as the Committee may, in its discretion, determine and (without
limiting the generality of the foregoing) such Agreements may require that an
appropriate legend be placed on Share certificates. Awards of Restricted Stock
shall be subject to the terms and provisions set forth below in this Section 7.
7.2 Rights of Grantee. Shares of Restricted Stock granted pursuant to
an Award hereunder shall be issued in the name of the Grantee as soon as
reasonably practicable after the Award is granted provided that the Grantee has
executed an Agreement evidencing the Award, the appropriate blank stock powers
and, in the discretion of the Committee, an escrow agreement and any other
documents which the Committee may require as a condition to the issuance of such
Shares. If a Grantee shall fail to execute the Agreement evidencing a Restricted
Stock Award, or any documents which the Committee may require within the time
period prescribed by the Committee at the time the Award is granted, the Award
shall be null and void. At the discretion of the Committee, Shares issued in
connection with a Restricted Stock Award shall be deposited together with the
stock powers with an escrow agent (which may be the Company) designated by the
Committee. Unless the Committee determines otherwise and as set forth in the
Agreement, upon delivery of the Shares to the escrow agent, the Grantee shall
have all of the rights of a stockholder with respect to such Shares, including
the right to vote the Shares and to receive all dividends or other distributions
paid or made with respect to the Shares.
7.3 Non-transferability. Until all restrictions upon the Shares of
Restricted Stock awarded to a Grantee shall have lapsed in the manner set forth
in Section 7.4, such Shares shall not be sold, transferred or otherwise disposed
of and shall not be pledged or otherwise hypothecated.
7.4 Lapse of Restrictions.
(a) Generally. Restrictions upon Shares of Restricted Stock
awarded hereunder shall lapse at such time or times and on such terms and
conditions as the Committee may determine. The Agreement evidencing the Award
shall set forth any such restrictions.
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(b) Effect of Change in Control. Certain Events. The Agreement
may provide for the treatment, including the lapse of restrictions, of an Award
upon a Change in Control
7.5 Treatment of Dividends. At the time an Award of Shares of
Restricted Stock is granted, the Committee may, in its discretion, determine
that the payment to the Grantee of dividends, or a specified portion thereof,
declared or paid on such Shares by the Company shall be (a) deferred until the
lapsing of the restrictions imposed upon such Shares and (b) held by the Company
for the account of the Grantee until such time. In the event that dividends are
to be deferred, the Committee shall determine whether such dividends are to be
reinvested in Shares (which shall be held as additional Shares of Restricted
Stock) or held in cash. If deferred dividends are to be held in cash, there may
be credited at the end of each year (or portion thereof) interest on the amount
of the account at the beginning of the year at a rate per annum as the
Committee, in its discretion, may determine. Payment of deferred dividends in
respect of Shares of Restricted Stock (whether held in cash or as additional
Shares of Restricted Stock), together with interest accrued thereon, if any,
shall be made upon the lapsing of restrictions imposed on the Shares in respect
of which the deferred dividends were paid, and any dividends deferred (together
with any interest accrued thereon) in respect of any Shares of Restricted Stock
shall be forfeited upon the forfeiture of such Shares.
7.6 Delivery of Shares. Upon the lapse of the restrictions on Shares of
Restricted Stock, the Committee shall cause a stock certificate to be delivered
to the Grantee with respect to such Shares, free of all restrictions hereunder.
8. Effect of a Termination of Employment.
The Agreement evidencing the grant of each Option and each Award shall
set forth the terms and conditions applicable to such Option or Award upon a
termination or change in the status of the employment of the Optionee or Grantee
by the Company or a Subsidiary (including a termination for Cause or by reason
of Disability or change by reason of the sale of a Subsidiary), which shall be
as the Committee may, in its discretion, determine at the time the Option or
Award is granted or thereafter.
9. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the Committee
shall conclusively determine the appropriate adjustments, if any, to (i) the
maximum number and class of Shares or other stock or securities with respect to
which Options (including Incentive Stock Options) or Awards may be granted
under the Plan, (ii) the maximum number and class of Shares of other stock or
securities with respect to which
-13-
Options or Awards may be granted to any Eligible Individual during any calendar
year, and (iii) the number and class of Shares or other stock or securities
which are subject to outstanding Options or Awards granted under the Plan and
the exercise price therefor, if applicable.
(b) Any such adjustment in the Shares or other stock or
securities (i) subject to outstanding Incentive Stock Options (including any
adjustments in the exercise price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and only
to the extent otherwise permitted by Sections 422 and 424 of the Code or (ii)
subject to outstanding Options or Awards that are intended to qualify as
Performance-Based Compensation shall be made in such a manner as not to
adversely affect the treatment of the Options or Awards as Performance-Based
Compensation.
(c) Except as the Committee may determine, if, by reason of a
Change in Capitalization, a Grantee of an Award shall be entitled to, or an
Optionee shall be entitled to exercise an Option with respect to new, additional
or different shares of stock or securities, such new, additional or different
shares shall thereupon be subject to all of the conditions, restrictions and
performance criteria which were applicable to the Shares subject to the Award or
Option prior to such Change in Capitalization.
9. Effect of Liquidation.
Except as otherwise provided in an Agreement, in the event of the
liquidation or dissolution of the Company (a "Liquidation"), the Plan and the
Options and Awards issued hereunder shall continue in effect in accordance with
their respective terms, except that following a Liquidation each Optionee and
Grantee shall be entitled to receive in respect of each Share subject to an
outstanding Option or Award, as the case may be, upon exercise of such Option or
payment or transfer in respect of any Award, the same number and kind of stock,
securities, cash, property or other consideration that each holder of a Share
was entitled to receive in the Liquidation in respect of a Share; provided,
however, that such stock, securities, cash, property, or other consideration
shall remain subject to all of the conditions, restrictions and performance
criteria which were applicable to the Option or Award prior to such Liquidation.
10. Interpretation.
(a) The Plan is intended to comply with Rule 16b-3 promulgated
under the Exchange Act and the Committee shall interpret and administer the
provisions of the Plan or any Agreement in a manner consistent therewith. Any
provisions
-14-
inconsistent with such rule shall be inoperative and shall not affect the
validity of the Plan.
(b) Unless otherwise expressly stated in the relevant
Agreement, each Option granted under the Plan is intended to be
Performance-Based Compensation. The Committee shall not be entitled to exercise
any discretion otherwise authorized hereunder with respect to such Options if
the ability to exercise such discretion or the exercise of such discretion
itself would cause the compensation attributable to such Options to fail to
qualify as Performance-Based Compensation.
11. Pooling Transactions.
Notwithstanding anything contained in the Plan or any Agreement to the
contrary, in the event of a transaction which is intended to constitute a
Pooling Transaction, the Committee shall take such actions, if any, as are
specifically recommended by an independent accounting firm retained by the
Company to the extent reasonably necessary in order to assure that the Pooling
Transaction will qualify as such, including but not limited to (a) deferring the
vesting, exercise, payment, settlement or lapsing of restrictions with respect
to any Option or Award, (b) providing that the payment or settlement in respect
of any Option or Award be made in the form of cash, Shares or securities of a
successor or acquirer of the Company, or a combination of the foregoing, and (c)
providing for the extension of the term of any Option or Award to the extent
necessary to accommodate the foregoing, but not beyond the maximum term
permitted for any Option or Award.
12. Termination and Amendment of the Plan or Modification of Options
and Awards.
12.1 Plan Amendment or Termination. The Plan shall terminate on the day
preceding the tenth anniversary of the date of its adoption by the Board and no
Option or Award may be granted thereafter. The Board may sooner terminate the
Plan and the Board may at any time and from time to time amend, modify or
suspend the Plan; provided, however, that:
(a) no such amendment, modification, suspension or termination
shall impair or adversely alter any Options or Awards theretofore granted under
the Plan, except with the consent of the Optionee or Grantee, nor shall any
amendment, modification, suspension or termination deprive any Optionee or
Grantee of any Shares which he or she may have acquired through or as a result
of the Plan; and
(b) to the extent necessary under any applicable law,
regulation or exchange requirement, no amendment shall be effective unless
approved by the stockholders of the Company in accordance with applicable law,
regulation or exchange requirement.
-15-
12.2 Modification of Options and Awards. No modification of an Option
or Award shall adversely alter or impair any rights or obligations under the
Option or Award without the consent of the Optionee or the Grantee, as the case
may be.
13. Non-Exclusivity of the Plan.
The adoption of the Plan by the Board shall not be construed as
amending, modifying or rescinding any previously approved incentive arrangement
or as creating any limitations on the power of the Board to adopt such other
incentive arrangements as it may deem desirable, including, without limitation,
the granting of stock options other than under the Plan, and such arrangements
may be either applicable generally or only in specific cases.
14. Limitation of Liability.
As illustrative of the limitations of liability of the Company, but not
intended to be exhaustive thereof, nothing in the Plan shall be construed to:
(a) give any person any right to be granted an Option or Award
other than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(c) limit in any way the right of the Company or any
Subsidiary to terminate the employment or service of any person at any time; or
(d) be evidence of any agreement or understanding, expressed
or implied, that the Company will employ any person at any particular rate of
compensation or for any particular period of time.
15. Regulations and Other Approvals; Governing Law.
15.1 Except as to matters of federal law, the Plan and the rights of
all persons claiming hereunder shall be construed and determined in accordance
with the laws of the State of Delaware without giving effect to conflicts of
laws principles thereof.
15.2 The obligation of the Company to sell or deliver Shares with
respect to Options and Awards granted under the Plan shall be subject to all
applicable laws,
-16-
rules and regulations, including all applicable federal and state securities
laws, and the obtaining of all such approvals by governmental agencies as may be
deemed necessary or appropriate by the Committee.
15.3 The Board may make such changes to the Plan and any Agreement
as may be necessary or appropriate to comply with the rules and regulations of
any government authority, or to obtain for Eligible Individuals granted
Incentive Stock Options the tax benefits under the applicable provisions of the
Code and regulations promulgated thereunder.
15.4 Each Option and Award is subject to the requirement that, if
at any time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option or
Award or the issuance of Shares, no Options or Awards shall be granted or
payment made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or obtained
free of any conditions as acceptable to the Committee.
15.5 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of Shares acquired
pursuant to the Plan is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, such Shares shall be restricted against
transfer to the extent required by the Securities Act and Rule 144 or other
regulations thereunder. The Committee may require any individual receiving
Shares pursuant to an Option or Award granted under the Plan, as a condition
precedent to receipt of such Shares, to represent and warrant to the Company in
writing that the Shares acquired by such individual are acquired without a view
to any distribution thereof and will not be sold or transferred other than
pursuant to an effective registration thereof under the Securities Act or
pursuant to an exemption applicable under the Securities Act or the rules and
regulations promulgated thereunder. The certificates evidencing any of such
Shares shall be appropriately amended to reflect their status as restricted
securities as aforesaid.
16. Miscellaneous.
16.1 Multiple Agreements. The terms of each Option or Award may
differ from other Options or Awards granted under the Plan at the same time, or
at some other time. The Committee may also grant more than one Option or Award
to a given Eligible Individual during the term of the Plan, either in addition
to, or in substitution for, one or more Options or Awards previously granted to
that Eligible Individual.
-17-
16.2 Withholding of Taxes.
(a) At such times as an Optionee or Grantee recognizes taxable
income in connection with the receipt of Shares hereunder (a "Taxable Event"),
the Optionee or Grantee shall pay to the Company an amount equal to the federal,
state and local income taxes and other amounts as may be required by law to be
withheld by the Company in connection with the Taxable Event (the "Withholding
Taxes") prior to the issuance of such Shares. The Company shall have the right
to deduct from any payment of cash to an Optionee or Grantee an amount equal to
the Withholding Taxes in satisfaction of the obligation to pay Withholding
Taxes. The Committee may provide in the Agreement, at the time of grant or at
any time thereafter, that the Optionee or Grantee, in satisfaction of the
obligation to pay Withholding Taxes, may elect to have withheld a portion of the
Shares then issuable to him or her having an aggregate Fair Market Value equal
to the Withholding Taxes.
(b) If an Optionee makes a disposition, within the meaning of
Section 424(c) of the Code and regulations promulgated thereunder, of any Share
or Shares issued to such Optionee pursuant to the exercise of an Incentive Stock
Option within the two-year period commencing on the day after the date of the
grant or within the one-year period commencing on the day after the date of
transfer of such Share or Shares to the Optionee pursuant to such exercise, the
Optionee shall, within ten (10) days of such disposition, notify the Company
thereof, by delivery of written notice to the Company at its principal executive
office.
(c) If a Grantee makes an election under Section 83(b) of the
Code with respect to an Award, such Grantee shall promptly notify the Company
thereof by delivery of written notice to the Company at its principal executive
office.
16.3 Effective Date. The effective date of the Plan shall be the date
it is approved by the Board.
-18-
BIO-PLEXUS, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the 19th day of July, 2001 (the
"Grant Date"), by and between Bio-Plexus, Inc. (the "Company"), and ___________
(the "Optionee").
WHEREAS, the Company has adopted the Bio-Plexus, Inc. 2001
Stock Incentive Plan (the "Plan") in order to provide an incentive to certain
employees, officers, consultants, advisors and directors of the Company and its
Subsidiaries, and thereby encourage them to devote their abilities and industry
to the success of the Company's business enterprise; and
WHEREAS, the Committee has determined to grant the Option to
the Optionee as provided herein:
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
1.1 The Company hereby grants to the Optionee the right and option (the
"Option") to purchase all or any part of an aggregate of _____________ whole
Shares subject to, and in accordance with, the terms and conditions set forth in
this Agreement and the Plan.
1.2 The Option is intended to qualify as an "incentive stock option"
within the meaning of Section 422 of the Code; provided, however, that nothing
in this Agreement shall be interpreted as a representation, guarantee or other
undertaking on the part of the Company that the Option is or will be determined
to be an "incentive stock option" within the meaning of Section 422 of the Code.
1.3 This Agreement shall be construed in accordance and consistent
with, and subject to, the terms of the Plan (the provisions of which are
incorporated herein by reference) and, except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the same
definitions as set forth in the Plan.
2. Exercise Price.
The price at which the Optionee shall be entitled to purchase Shares
upon the exercise of the Option shall be $2.283 per Share.
3. Duration of Option.
The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten (10) years from the Grant Date (the
"Exercise Term"); provided, however, that the Option may be earlier terminated
as provided in Section 6 hereof.
4. Exercisability of Option.
4.1 Subject to the provisions of this Agreement and the Plan: (a) on
the first anniversary of the Grant Date, the Option shall become exercisable
with respect to one-third of the Shares subject to the Option, and (b)
thereafter, on the second and third anniversaries of the Grant Date, the Option
shall become exercisable with respect to an additional one-third of the Shares
subject to the Option, provided that the Optionee continues to be employed by
the Company or a Subsidiary through each such vesting date. Any fractional
number of Shares resulting from the application of the foregoing provision shall
be rounded to the nearest whole number of Shares.
4.2 In the event of a Change in Control that occurs while the Optionee
is employed by the Company or a Subsidiary, the Option shall immediately vest in
full.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and the Plan,
the Option may be exercised by written notice delivered in person or by mail to
the Secretary of the Company, at its principal executive office. Such notice
shall state that the Optionee is electing to exercise the Option and the number
of Shares in respect of which the Option is being exercised, and shall be signed
by the person or persons exercising the Option. If requested by the Committee,
such person or persons shall (a) deliver this Agreement to the Secretary of the
Company who shall endorse thereon a notation of such exercise, and (b) provide
satisfactory proof as to the right of such person or persons to exercise the
Option.
5.2 The notice of exercise described in Section 5.1 hereof shall be
accompanied by the full exercise price for the Shares in respect of which the
Option is being exercised. The exercise price for any Shires purchased pursuant
to the exercise of
-2-
the Option shall be paid, as determined by the Committee in its discretion, in
either of the following forms (or any combination thereof): (a) cash or (b) the
transfer, either actually or by attestation, to the Company of Shares upon such
terms and conditions as determined by the Committee. In addition, Options may be
exercised through a registered broker-dealer pursuant to such cashless exercise
procedures which are, from time to time, deemed acceptable by the Committee.
5.3 Upon receipt of notice of exercise and full payment for the Shares
in respect of which the Option is being exercised, the Company shall, subject to
Section 6 of the Plan, take such action as may be necessary to effect the
transfer to the Optionee of the number of Shares as to which such exercise was
effective.
5.4 The Optionee shall not be deemed to be the holder of, or to have
any of the rights of a holder with respect to, any Shares subject to the Option
until (a) the Option shall have been exercised pursuant to the terms of this
Agreement and the Optionee shall have paid the full exercise price for the
number of Shares in respect of which the Option was exercised, (b) the Company
shall have issued and delivered the Shares to the Optionee, and (c) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company, whereupon the Optionee shall have full voting and other
ownership rights with respect to such Shares.
6. Termination of Option. Unless otherwise required by Section 6.4 of
the Plan or as otherwise determined by the Committee, each Option shall
terminate on the date which is the tenth anniversary of the Grant Date, unless
terminated earlier as follows:
6.1 Unless otherwise determined by the Committee, if the employment of
the Optionee is terminated for any reason other than Disability, death or Cause,
the Optionee may for a period of three (3) months after such termination
exercise the Option to the extent, and only to the extent, that such Option or
portion thereof was vested and exercisable as of the date of such termination,
after which time the Option shall automatically terminate in full.
6.2 Unless otherwise determined by the Committee, if the employment of
the Optionee is terminated by reason of Disability, the Optionee may, for a
period of twelve (12) months after such termination, exercise the Option to the
extent, and only to the extent, that such Option or portion thereof was vested
and exercisable as of the date of such termination, after which time the Option
shall automatically terminate in full.
-3-
6.3 Unless otherwise determined by the Committee, if the employment of
the Optionee is terminated for Cause, the Option granted to the Optionee
hereunder shall immediately terminate in full and no rights thereunder may be
exercised.
6.4 Unless otherwise determined by the Committee, if the employment of
the Optionee is terminated by reason of death, the Option may be exercised at
any time within twelve (12) months after the Optionee's death by the person or
persons to whom such rights under the Option shall pass by will, or by the laws
of descent or distribution, after which time the Option shall terminate in full;
provided, however, that the Option may be exercised to the extent, and only to
the extent, that the Option or portion thereof was exercisable on the date of
the Optionee's death.
7. Non-Transferability.
The Option shall not be transferable other than by will or by the laws
of descent and distribution. The Option shall be exercisable only by the
Optionee or the Optionee's guardian or legal representative during the lifetime
of the Optionee. The transfer of an Option shall be null and void unless the
transferee agrees in writing prior to such transfer to be bound by the terms of
the Plan and this Agreement with respect to such Option, and upon a valid
transfer, for purposes of the Plan and this Agreement, such transferee shall be
deemed to be the Optionee.
8. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or construed
to confer upon the Optionee any right with respect to continuance of employment
by the Company, nor shall this Agreement or the Plan interfere in any way with
the right of the Company to terminate the Optionee's employment at any time.
9. Adjustments Upon Change in Capitalization.
If, by reason of a Change in Capitalization, new, additional or
different shares of stock or securities of the Company or any successor
corporation or entity, or other property, are issuable in addition to, or in
lieu of, the Shares, then the Committee may, if, in its sole discretion, it
deems appropriate, adjust the number or type of securities covered by this
Option and the purchase price thereof, in accordance with the terms of the Plan.
10. Securities Law Considerations
-4-
The Option is subject to the requirement that, if at any time the
Committee determines, in its discretion, that the listing, registration or
qualification of the Shares is required by any securities exchange or under any
state or federal law, or the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of, or in connection with, the
grant of the Option or the issuance of the Shares, then no Shares may be issued,
in whole or in part, unless listing, registration, qualification, consent or
approval has been effected or obtained free of any conditions, as acceptable to
the Committee.
In addition, notwithstanding anything contained in the Plan or
herein to the contrary, in the event that the disposition of any Shares acquired
pursuant to the Option is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, then the Shares shall be restricted
against transfer to the extent required by the Securities Act and Rule 144 or
other regulations thereunder. The Committee may require the Optionee, as a
condition precedent to receipt of the Shares, to represent and warrant to the
Company in writing that the Shares acquired by the Optionee are acquired without
a view to any distribution thereof and will not be sold or transferred other
than pursuant to an effective registration thereof under the Securities Act or
pursuant to an exemption applicable under the Securities Act or the rules and
regulations promulgated thereunder. The certificates evidencing any such Shares
shall contain an appropriate legend to reflect their status as restricted
securities as aforesaid.
11. Required Notification by Optionee.
If the Optionee shall dispose of any Shares issued pursuant to the
exercise of the Option under the circumstances described in Section 421(b) of
the Internal Revenue Code (whereby the Optionee makes a disqualifying
disposition of the shares within the two-year period commencing on the day after
the date of grant of the Option or within the one-year period commencing on the
day after the date of transfer of the Shares to the Optionee pursuant to the
exercise of the Option), then the Optionee shall notify the Company of such
disqualifying disposition within ten (10) days of the disposition.
12. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof. If there is any
inconsistency between the terms of the Plan and this Agreement, the terms of the
Plan shall prevail.
-5-
13. Modification of Agreement.
Except as set forth in the Plan and herein, this Agreement may be
modified, amended, suspended or terminated, and any terms or conditions may be
waived, but only by a written instrument executed by the parties hereto.
14. Severability.
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and shall
continue in full force and effect in accordance with their terms.
15. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without giving
effect to the conflicts of laws principles thereof.
16. Successors in Interest.
This Agreement shall inure to the benefit of and be binding upon any
successor to the Company. This Agreement shall inure to the benefit of the
Optionee's legal representatives. All obligations imposed upon the Optionee and
all rights granted to the Company under this Agreement shall be final, binding
and conclusive upon the Optionee's heirs, executors, administrators and
successors.
17. Resolution of Disputes.
Any dispute or disagreement which may arise under, or as a result of,
or in any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made hereunder
shall be final, binding and conclusive on the Optionee and the Company for all
purposes.
-6-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Attest: BIO-PLEXUS, INC.
By:
- --------------------------- ---------------------------------
Secretary Name: John S. Metz
Title: President
------------------------------------
[Optionee]
-7-
BIO-PLEXUS, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the 19th day of July, 2001 (the
"Grant Date"), by and between BioPlexus, Inc. (the "Company"), and ------ (the
"Optionee").
WHEREAS, the Company has adopted the Bio-Plexus, Inc. 2001
Stock Incentive Plan (the "Plan") in order to provide an incentive to certain
employees, officers, consultants, advisors and directors of the Company and its
Subsidiaries, and thereby encourage them to devote their abilities and industry
to the success of the Company's business enterprise; and
WHEREAS, the Committee has determined to grant the Option to
the Optionee as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
1.1 The Company hereby grants to the Optionee the right and option (the
"Option") to purchase all or any part of an aggregate of ------ whole Shares
subject to, and in accordance with, the terms and conditions set forth in this
Agreement and the Plan.
1.2 The Option is not intended to qualify as an "incentive stock
option" within the meaning of Section 422 of the Code.
1.3 This Agreement shall be construed in accordance and consistent
with, and subject to, the terms of the Plan (the provisions of which are
incorporated herein by reference) and, except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the same
definitions as set forth in the Plan.
2. Exercise Price.
The price at which the Optionee shall be entitled to purchase Shares
upon the exercise of the Option shall be $2.283 per Share.
3. Duration of Option.
The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten (10) years from the Grant Date (the
"Exercise Term"); provided, however, that the Option may be earlier terminated
as provided in Section 6 hereof.
4. Exercisability of Option.
4.1 Subject to the provisions of this Agreement and the Plan: (a) on
the first anniversary of the Grant Date the Option shall become exercisable with
respect to one-third of the Shares subject to the Option, and (b) thereafter, on
the second and third anniversaries of the Grant Date, the Option shall become
exercisable with respect to an additional one-third of the Shares subject to the
Option, provided that the Optionee continues to be employed by the Company or a
Subsidiary through each such vesting date. Any fractional number of Shares
resulting from the application of the foregoing provision shall be rounded to
the nearest whole number of Shares.
4.2 In the event of a Change in Control that occurs while the Optionee
is employed by the Company or a Subsidiary, the Option shall immediately vest in
full.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and the Plan,
the Option may be exercised by written notice delivered in person or by mail to
the Secretary of the Company, at its principal executive office. Such notice
shall state that the Optionee is electing to exercise the Option and the number
of Shares in respect of which the Option is being exercised, and shall be signed
by the person or persons exercising the Option. If requested by the Committee,
such person or persons shall (a) deliver this Agreement to the Secretary of the
Company who shall endorse thereon a notation of such exercise, and (b) provide
satisfactory proof as to the right of such person or persons to exercise the
Option.
5.2 The notice of exercise described in Section 5.1 hereof shall be
accompanied by the full exercise price for the Shares in respect of which the
Option is being exercised. The exercise price for any Shares purchased pursuant
to the exercise of
-2-
the Option shall be paid, as determined by the Committee in its discretion, in
either of the following forms (or any combination thereof): (a) cash or (b) the
transfer, either actually or by attestation, to the Company of Shares upon such
terms and conditions as determined by the Committee. In addition, Options may be
exercised through a registered broker-dealer pursuant to such cashless exercise
procedures which are, from time to time, deemed acceptable by the Committee.
5.3 Upon receipt of notice of exercise and full payment for the Shares
in respect of which the Option is being exercised, the Company shall, subject to
Section 6 of the Plan, take such action as may be necessary to effect the
transfer to the Optionee of the number of Shares as to which such exercise was
effective.
5.4 The Optionee shall not be deemed to be the holder of, or to have
any of the rights of a holder with respect to, any Shares subject to the Option
until (a) the Option shall have been exercised pursuant to the terms of this
Agreement and the Optionee shall have paid the full exercise price for the
number of Shares in respect of which the Option was exercised, (b) the Company
shall have issued and delivered the Shares to the Optionee, and (c) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company, whereupon the Optionee shall have full voting and other
ownership rights with respect to such Shares.
6. Termination of Option. Unless otherwise required by Section 6.4 of
the Plan or as otherwise determined by the Committee, each Option shall
terminate on the date which is the tenth anniversary of the Grant Date (or if
later, the first anniversary of the date of the Optionee's death if such death
occurs prior to such tenth anniversary), unless terminated earlier as follows:
6.1 Unless otherwise determined by the Committee, if the employment of
the Optionee is terminated for any reason other than Disability, death or Cause,
the Optionee may for a period of three (3) months after such termination
exercise the Option to the extent, and only to the extent, that such Option or
portion thereof was vested and exercisable as of the date of such termination,
after which time the Option shall automatically terminate in full.
6.2 Unless otherwise determined by the Committee, if the employment of
the Optionee is terminated by reason of Disability, the Optionee may, for a
period of twelve (12) months after such termination, exercise the Option to the
extent, and only to the extent, that such Option or portion thereof was vested
and exercisable as of the date of such termination, after which time the Option
shall automatically terminate in full.
-3-
6.3 Unless otherwise determined by the Committee, if the employment of
the Optionee is terminated for Cause, the Option granted to the Optionee
hereunder shall immediately terminate in full and no rights thereunder may be
exercised.
6.4 Unless otherwise determined by the Committee, if the employment of
the Optionee is terminated by reason of death, the Option may be exercised at
any time within twelve (12) months after the Optionee's death by the person or
persons to whom such rights under the Option shall pass by will, or by the laws
of descent or distribution, after which time the Option shall terminate in full;
provided, however, that the Option may be exercised to the extent, and only to
the extent, that the Option or portion thereof was exercisable on the date of
the Optionee's death.
7. Non-Transferability.
Except as otherwise determined by the Committee, the Option shall not
be transferable other than by will or by the laws of descent and distribution or
pursuant to a domestic relations order.
8. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or construed
to confer upon the Optionee any right with respect to continuance of employment
by the Company, nor shall this Agreement or the Plan interfere in any way with
the right of the Company to terminate the Optionee's employment at any time.
9. Adjustments Upon Change in Capitalization.
If, by reason of a Change in Capitalization, new, additional or
different shares of stock or securities of the Company or any successor
corporation or entity, or other property, are issuable in addition to, or in
lieu of, the Shares, then the Committee may, if, in its sole discretion, it
deems appropriate, adjust the number or type of securities covered by this
Option and the purchase price thereof, in accordance with the terms of the Plan.
10. Securities Law Considerations.
The Option is subject to the requirement that, if at any time the
Committee determines, in its discretion, that the listing, registration or
qualification of the Shares is required by any securities exchange or under any
state or federal law, or the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of,
-4-
or in connection with, the grant of the Option or the issuance of the Shares,
then no Shares may be issued, in whole or in part, unless listing, registration,
qualification, consent or approval has been effected or obtained free of any
conditions, as acceptable to the Committee.
In addition, notwithstanding anything contained in the Plan or herein
to the contrary, in the event that the disposition of any Shares acquired
pursuant to the Option is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, then the Shares shall be restricted
against transfer to the extent required by the Securities Act and Rule 144 or
other regulations thereunder. The Committee may require the Optionee, as a
condition precedent to receipt of the Shares, to represent and warrant to the
Company in writing that the Shares acquired by the Optionee are acquired without
a view to any distribution thereof and will not be sold or transferred other
than pursuant to an effective registration thereof under the Securities Act or
pursuant to an exemption applicable under the Securities Act or the rules and
regulations promulgated thereunder. The certificates evidencing any such Shares
shall contain an appropriate legend to reflect their status as restricted
securities as aforesaid.
11. Withholding of Taxes.
If the Optionee exercises the Option, the issuance of the Shares shall
be conditioned upon the prompt payment by the Optionee to the Company of an
amount equal to the applicable federal, state and local income taxes and other
amounts required by law to be withheld (the "Withholding Taxes") in connection
with such exercise. The Company shall have the right to deduct from any payment
of cash to the Optionee an amount equal to the Withholding Taxes in satisfaction
of the Optionee's obligation to pay the Withholding Taxes.
12. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof. If there is any
inconsistency between the terms of the Plan and this Agreement, the terms of the
Plan shall prevail.
13. Modification of Agreement.
Except as set forth in the Plan and herein, this Agreement may be
modified, amended, suspended or terminated, and any terms or conditions may be
waived, but only by a written instrument executed by the parties hereto.
-5-
14. Severability.
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and shall
continue in full force and effect in accordance with their terms.
15. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without giving
effect to the conflicts of laws principles thereof.
16. Successors in Interest.
This Agreement shall inure to the benefit of and be binding upon any
successor to the Company. This Agreement shall inure to the benefit of the
Optionee's legal representatives. All obligations imposed upon the Optionee and
all rights granted to the Company under this Agreement shall be final, binding
and conclusive upon the Optionee's heirs, executors, administrators and
successors.
17. Resolution of Disputes.
Any dispute or disagreement which may arise under, or as a result of,
or in any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made hereunder
shall be final, binding and conclusive on the Optionee and the Company for all
purposes.
-6-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Attest: BIO-PLEXUS, INC.
By:
- ------------------------------- --------------------------------
Secretary Name: John S. Metz
Title: President
-------------------------------
[Optionee]
-7-
BIO-PLEXUS, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, made as of the 19th day of July, 2001 (the "Grant
Date"), by and between Bio-Plexus, Inc. (the "Company"), and ________________
(the "Grantee").
WHEREAS, the Company has adopted the Bio-Plexus, Inc. 2001 Stock
Incentive Plan (the "Plan") in order to provide an incentive to certain
employees, officers, consultants and directors of the Company and its
Subsidiaries, and thereby encourage them to devote their abilities and industry
to the success of the Company's business enterprise; and
WHEREAS, the Committee has determined to grant shares of
Restricted Stock to the Grantee as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Restricted Stock.
1.1 The Company hereby grants to the Grantee ________ shares of
Restricted Stock on the terms and conditions set forth in this Agreement.
1.2 The Grantee's rights with respect to the shares of Restricted
Stock shall remain forfeitable at all times prior to the corresponding Lapse
Date (as hereinafter defined).
1.3 This Agreement shall be construed in accordance and consistent
with, and subject to, the terms of the Plan (the provisions of which are
incorporated herein by reference) and, except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the same
definitions set forth in the Plan.
2. Rights of Grantee.
Except as otherwise provided in this Agreement, the Grantee shall
be entitled, at all times on and after the Grant Date, to exercise all rights of
a shareholder with respect to the shares of Restricted Stock (whether or not the
restrictions thereon shall have lapsed), other than with respect to those
shares of Restricted Stock which have been
forfeited pursuant to Section 3.3 hereof. Such rights shall include the right to
vote the shares of Restricted Stock and the right, subject to Section 5 hereof,
to receive dividends thereon. Notwithstanding the foregoing, prior to the
corresponding Lapse Date, the Grantee shall not be entitled to transfer, sell,
pledge, hypothecate or assign shares of Restricted Stock (collectively, the
"Transfer Restrictions").
3. Lapse of Restrictions.
3.1 Subject to the provisions of this Agreement and the Plan, the
Transfer Restrictions shall lapse on the following dates (each, a "Lapse Date"):
(a) on the first anniversary of the Grant Date, the Transfer Restrictions shall
lapse with respect to one-third of the shares of Restricted Stock, and (b)
thereafter, on the second and third anniversaries of the Grant Date, the
Transfer Restrictions shall lapse with respect to an additional one-third of the
shares of Restricted Stock, provided that the Grantee continues to be employed
by the Company or a Subsidiary through each such Lapse Date. Any fractional
number of shares of Restricted Stock resulting from the application of the
foregoing provision shall be rounded to the nearest whole number of shares.
3.2 In the event of a Change in Control that occurs while the
Grantee is employed by the Company or a Subsidiary, the Transfer Restrictions on
all of the remaining shares of Restricted Stock shall immediately lapse.
3.3 Notwithstanding anything in this Agreement to the contrary,
upon the termination of the Grantee's employment with the Company for any
reason, all shares of Restricted Stock in respect of which the Transfer
Restrictions have not previously lapsed in accordance with Section 3.1 or
Section 3.2 hereof shall be forfeited, and such shares shall be automatically
transferred to and reacquired by the Company at no cost to the Company. Neither
the Grantee, nor any heirs, executors, administrators or successors of the
Grantee, shall thereafter have any right or interest in such shares of
Restricted Stock.
4. Escrow and Delivery of Shares.
4.1 Certificates representing the shares of Restricted Stock shall
be issued and held by the Company in escrow and shall remain in the custody of
the Company until (a) their delivery to the Grantee or his or her estate as set
forth in Section 4.2 hereof, subject to the Grantee's or the estate's delivery
of any documents which the Committee in its discretion may require as a
condition to the issuance of shares and the delivery of shares to the Grantee or
his or her estate, including a stockholder's agreement, or (b) their forfeiture
and transfer to the Company as set forth in Section 3.3 hereof.
-2-
4.2 (a) Subject to paragraph (b) of this Section 4.2, certificates
representing those shares of Restricted Stock in respect of which the Transfer
Restrictions have lapsed pursuant to Section 3.1 or Section 3.2 hereof shall be
delivered to the Grantee as soon as practicable following the corresponding
Lapse Date, provided that the Grantee has satisfied all applicable withholding
requirements with respect to the Restricted Stock.
(b) The Grantee, or the executors or administrators of the
Grantee's estate, as the case may be, may receive, hold, sell or otherwise
dispose of those shares of Restricted Stock delivered to him or her pursuant to
this Section 4.2 free and clear of the Transfer Restrictions, but subject to the
right of first refusal described in Section 6 and the requirements of the
federal and state securities laws described in Section 9.
4.3 (a) Each stock certificate representing the shares of
Restricted Stock shall bear a legend in substantially the following form:
This certificate and the shares of stock represented hereby are subject to the
terms and conditions (including forfeiture and restrictions against transfer)
contained in the Bio-Plexus, Inc. 2001 Stock Incentive Plan (the "Plan") and a
Restricted Stock Agreement (the "Agreement") between the registered owner of the
shares represented hereby and the Company. Release from such terms and
conditions shall be made only in accordance with the provisions of the Plan and
the Agreement. Copies of the Plan and the Agreement are on file in the office of
the Secretary of the Company.
(b) As soon as practicable following a Lapse Date, the Company
shall issue new certificates representing the shares of Restricted Stock as to
which the Transfer Restrictions shall have lapsed on such date. Such
certificates shall not bear the legend set forth in paragraph (a) of this
Section 4.3 and shall be delivered in accordance with Section 4.2 hereof.
5. Dividends.
Dividends declared and paid by the Company on shares of Restricted
Stock shall be deferred until the lapsing of the corresponding Transfer
Restrictions pursuant to Section 3.1 or Section 3.2. The deferred dividends
shall be held by the Company for the account of the Grantee until the
corresponding Lapse Date, at which time the dividends, with no interest thereon,
shall be paid to the Grantee or his or her estate, as the case may be. Upon the
forfeiture of the shares of Restricted Stock pursuant to Section 3.3, any
deferred dividends shall also be forfeited.
- 3 -
6. Right of First Refusal.
6.1 Any shares of Restricted Stock on which the Transfer
Restrictions have lapsed shall be subject to a right of first refusal in favor
of the Company. Under the right of first refusal, the holder of such shares
shall first offer to the Company (or its designee), in writing, the opportunity
to purchase all or a portion of such shares which a third-party buyer has made a
good faith offer to purchase from such holder. In his or her offer to the
Company (or its designee), the holder of the shares shall identify the name of
the third party buyer, the price at which the third party buyer has offered to
purchase the shares, and the other terms of the offer. The holder shall also
offer the Company (or its designee), in writing, the opportunity to purchase all
or a portion of such shares which the holder becomes obligated to transfer to a
third party due to divorce, bankruptcy or operation of law.
The purchase price payable by the Company (or its designee) to the
holder pursuant to this right of first refusal shall equal $0.01 per share.
Any acceptance by the Company (or its designee) of the holder's
offer shall be in writing addressed to the holder at the address designated in
the offer to sell.
If the Company (or its designee) does not agree to purchase all or
any portion of the shares offered to it pursuant to this Section 6 within thirty
(30) days of the date of its receipt of the written offer by the holder, then
the holder may sell any shares not accepted by the Company (or its designee),
but only to the third-party buyer and only at the price and on the other terms
offered by the third party buyer. The sale must occur during the thirty (30) day
period following the expiration of the thirty (30) day acceptance period. Any
shares so sold shall continue to be subject to the right of first refusal set
forth herein.
Nothing in this Section 6 shall prevent a holder from transferring
any shares, without consideration, to a member of the holder's family or to a
trust established solely for the benefit of the holder and his or her family, or
to a partnership in which the holder and his or her family are the only
partners. For this purpose, family shall include the holder's spouse, children,
grandchildren and parents. In the event of such a transfer, the terms of this
Agreement relating to the right of first refusal set forth herein shall be
binding upon such transferee.
6.2 Upon the issuance of any shares of Restricted Stock (or upon
the transfer of any such shares subject to the right of first refusal set forth
herein), the certificate or certificates representing such shares shall have
affixed thereto a legend, substantially in the following form, in addition to
any other legends required by the Plan,
- 4 -
this Agreement or applicable law:
This certificate and the shares of stock represented hereby are subject
to the right of first refusal described in a Restricted Stock Agreement
(the "Agreement") between the registered owner of the shares
represented hereby (or a predecessor holder of such shares) and the
Company. A copy of the Agreement is on file in the office of the
Secretary of the Company. The shares may not be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of except in
accordance with the terms of such right of first refusal.
7. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Grantee any right with respect to continuance of
employment by the Company, nor shall this Agreement or the Plan interfere in any
way with the right of the Company to terminate the Grantee's employment at any
time.
8. Adjustments Upon Change in Capitalization.
If, by reason of a Change in Capitalization, the Grantee shall be
entitled to new, additional or different shares of stock or securities of the
Company or any successor corporation or entity, or other property, with respect
to the shares of Restricted Stock, such new, additional or different shares or
other property shall be subject to all of the conditions and restrictions which
were applicable to the shares of Restricted Stock immediately prior to such
Change in Capitalization.
9. Securities Law Considerations
The shares of Restricted Stock are subject to the requirement
that, if at any time the Committee determines, in its discretion, that the
listing, registration or qualification of the shares is required by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the issuance of the shares, then no shares
may be issued, in whole or in part, unless listing, registration, qualification,
consent or approval has been effected or obtained free of any conditions, as
acceptable to the Committee.
In addition, notwithstanding anything contained in the Plan or
herein to the contrary, in the event that the disposition of any shares of
Restricted Stock is not covered by a then current registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, then the shares
-5-
shall be restricted against transfer to the extent required by the Securities
Act and Rule 144 or other regulations thereunder. The Committee may require the
Grantee, as a condition precedent to receipt of the shares, to represent and
warrant to the Company in writing that the shares acquired by the Grantee are
acquired without a view to any distribution thereof and will not be sold or
transferred other than pursuant to an effective registration thereof under the
Securities Act or pursuant to an exemption applicable under the Securities Act
or the rules and regulations promulgated thereunder. The certificates evidencing
any such shares shall contain an appropriate legend to reflect their status as
restricted securities as aforesaid.
10. Required Notification by the Grantee.
If the Grantee shall, in connection with the grant of the shares
of Restricted Stock, make an election pursuant to Section 83(b) of the Internal
Revenue Code (whereby the Grantee elects to include in gross income in the year
of the grant the amounts specified in Section 83(b) of the Internal Revenue
Code), then the Grantee shall notify the Company of such election within ten
(10) days of the filing of such election with the Internal Revenue Service.
11. Withholding of Taxes.
If the Grantee makes an election under Section 83(b) of the
Internal Revenue Code with respect to the grant of shares of Restricted Stock,
the grant of the shares of Restricted Stock shall be conditioned upon the prompt
payment by the Grantee to the Company of an amount equal to the applicable
federal, state and local income taxes and other amounts required by law to be
withheld (the "Withholding Taxes") in connection with such election. If the
Grantee does not make an election under Section 83(b) of the Internal Revenue
Code with respect to the grant of shares of Restricted Stock, the Grantee shall
pay to the Company the Withholding Taxes corresponding to the shares of
Restricted Stock upon the lapse of the Transfer Restrictions on such shares, and
the delivery of such Restricted Stock and any deferred dividends thereon shall
be conditioned upon the prior payment of the applicable Withholding Taxes by the
Grantee. The Company shall have the right to deduct from any payment of cash to
the Grantee an amount equal to the Withholding Taxes in satisfaction of the
Grantee's obligation to pay Withholding Taxes.
12. Grantee Bound by the Plan.
The Grantee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof. If there is any
inconsistency between the terms of the Plan and this Agreement, the terms of the
Plan shall prevail.
- 6 -
13. Modification of Agreement.
Except as set forth in the Plan and herein, this Agreement may be
modified, amended, suspended or terminated, and any terms or conditions may be
waived, but only by a written instrument executed by the parties hereto.
14. Severability.
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by such holding and
shall continue in full force and effect in accordance with their terms.
15. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without giving
effect to the conflicts of laws principles thereof.
16. Successors in Interest.
This Agreement shall inure to the benefit of and be binding upon
any successor to the Company. This Agreement shall inure to the benefit of the
Grantee's legal representatives. All obligations imposed upon the Grantee and
all rights granted to the Company under this Agreement shall be final, binding
and conclusive upon the Grantee's heirs, executors, administrators and
successors.
17. Resolution of Disputes.
Any dispute or disagreement which may arise under, or as a result
of, or in any way relate to, the interpretation, construction or application of
this Agreement shall be determined by the Committee. Any determination made
hereunder shall be final, binding and conclusive on the Grantee and the Company
for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
- 7 -
Attest: BIO-PLEXUS, INC.
By:
- -------------- ------------------
Secretary Name: John S. Metz
Title: President
------------------
[Grantee]
- 8 -
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS
OF
BIO-PLEXUS, INC.
The undersigned, being all of the members of the Board of
Directors of Bio-Plexus, Inc., acting without formal meeting pursuant to Section
141(f) of the General Corporation Law of the State of Delaware, by adoption of
the following resolutions, do hereby authorize and consent to the corporate
action specified therein:
WHEREAS, the Corporation adopted a stock incentive plan for the
benefit of its employees, officers, consultants and directors entitled the
Bio-Plexus, Inc. 2001 Stock Incentive Plan (the "Plan"); and
WHEREAS, the Plan permits the grant of stock options and the award
of shares of restricted stock authorizing the issuance of up to 1,111,271 shares
of the common stock of the Corporation; and
WHEREAS, it is desirable that the Plan be amended in order to
increase from 1,111,271 to 2,000,000 the number of shares of common stock of the
Corporation which can be subject to grants and awards issued under the Plan.
NOW, THEREFORE, BE IT
RESOLVED: That Amendment No. 1 to the Bio-Plexus, Inc. 2001 Stock
Incentive Plan (which increases from 1,111,271 to 2,000,000 the
number of shares of common stock of the Corporation that can be
subject to grants and awards issued under the Plan) be and hereby
is approved and adopted in substantially the form attached hereto,
together with such modifications as in the opinion of counsel for
the Corporation are necessary or desirable to effectuate the
intention thereof and to comply with the requirements of the
Internal Revenue Code of 1986, as amended, and the federal and
state securities laws; and further
RESOLVED: That the Corporation reserve 2,000,000 authorized but
unissued shares of common stock of the Corporation for issuance
upon the exercise of stock options or the award of shares of
restricted stock under the Plan; and further
RESOLVED: That the proper officers of the Corporation be, and
hereby are, authorized and empowered to execute, acknowledge,
verify, deliver, file and publish in the name of and on behalf of
the Corporation and under its corporate seal all applications,
reports, statements, issuers' covenants, resolutions, votes,
consents to service of process, powers of attorney, appointments,
designations and such other papers and instruments as may be
required or desirable under the federal securities laws or the
blue sky laws or securities
acts of such of the states of the United States of America as said
officers or any of them may deem necessary or desirable in order
to register, qualify or exempt from registration any or all of the
shares of stock set aside and reserved for issuance pursuant to
the terms of the Plan and in order to qualify or register the
Corporation or any of its officers, directors or employees as a
broker or dealer in connection with the issuance and sale of such
shares, and to make all such payments and to take any and all such
further action that said officers or any of them may deem
appropriate or convenient in connection with any of the foregoing;
and further
RESOLVED: That the president of the Corporation or any other
officer designated by him be, and each of them hereby is,
authorized and empowered, for and on behalf of the Corporation, to
take any and all actions which may be necessary or desirable to
effectuate the intention of the foregoing resolutions.
Dated as of July 19, 2001.
/s/ James E. Bolin /s/ Kenneth Maiman
- ------------------- -------------------
James E. Bolin Kenneth Maiman
/s/ John S. Metz /s/ Scott M. Tepper
- ------------------- -------------------
John S. Metz Scott M. Tepper
- 2 -
AMENDMENT NO. 1
TO THE
BIO-PLEXUS, INC. 2001 STOCK INCENTIVE PLAN
The Bio-Plexus, Inc. 2001 Stock Incentive Plan (the "Plan") is hereby
amended as follows, effective as of the date of adoption of this amendment:
Section 4.1 of the Plan is amended to read as follows:
"4.1 The maximum number of Shares that may be made the subject
of Options and Awards granted under the Plan is 2,000,000. The maximum
number of Shares that may be the subject of Options and Awards granted
to any Eligible Individual during any calendar year is 1,000,000. Upon
a Change in Capitalization, the maximum number of Shares referred to in
the first three sentences of this Section 4.1 shall be adjusted in
number and kind pursuant to Section 9. The Company shall reserve for
the purposes of the Plan, out of its authorized but unissued Shares or
out of Shares held in the Company's treasury, or partly out of each,
such number of Shares as shall be determined by the Board."
Dated as of July 19, 2001.
BIO-PLEXUS, INC.
By /s/ John S. Metz
------------------------------
Name: John S. Metz
Title: President and CEO
WRITTEN CONSENT OF THE HOLDERS OF
A MAJORITY OF THE VOTING SHARES
OF
BIO-PLEXUS, INC.
The undersigned, being the holders of a majority of the voting shares
of Bio-Plexus, Inc., acting without formal meeting pursuant to Section 228(a) of
the General Corporation Law of the State of Delaware, by adoption of the
following resolutions, do hereby authorize and consent to the corporate action
specified therein:
WHEREAS, the Corporation adopted a stock incentive plan for the benefit
of its employees, officers, consultants and directors entitled the Bio-Plexus,
Inc. 2001 Stock Incentive Plan (the "Plan"); and
WHEREAS, the Plan permits the grant of stock options and the award of
shares of restricted stock authorizing the issuance of up to 1,111,271 shares of
the common stock of the Corporation; and
WHEREAS, it is desirable that the Plan be amended in order to increase
from 1,111,271 to 2,000,000 the number of shares of common stock of the
Corporation which can be subject to grants and awards issued under the Plan.
NOW, THEREFORE, BE IT
RESOLVED: That Amendment No. 1 to the Bio-Plexus, Inc. 2001 Stock
Incentive Plan (which increases from 1,111,271 to 2,000,000 the number
of shares of common stock of the Corporation that can be subject to
grants and awards issued under the Plan) be and hereby is approved and
adopted in substantially the form attached hereto, together with such
modifications as in the opinion of counsel for the Corporation are
necessary or desirable to effectuate the intention thereof and to
comply with the requirements of the Internal Revenue Code of 1986, as
amended, and the federal and state securities laws; and further
RESOLVED: That the Corporation reserve 2,000,000 authorized but
unissued shares of common stock of the Corporation for issuance upon
the exercise of stock options or the award of shares of restricted
stock under the Plan; and further
RESOLVED: That the proper officers of the Corporation be, and hereby
are, authorized and empowered to execute, acknowledge, verify, deliver,
file and publish in the name of and on behalf of the Corporation and
under its corporate seal all applications, reports, statements,
issuers' covenants, resolutions, votes, consents to service of process,
powers of attorney, appointments, designations and such other papers
and instruments as may be
required or desirable under the federal securities laws or the blue sky
laws or securities acts of such of the states of the United States of
America as said officers or any of them may deem necessary or desirable
in order to register, qualify or exempt from registration any or all of
the shares of stock set aside and reserved for issuance pursuant to the
terms of the Plan and in order to qualify or register the Corporation
or any of its officers, directors or employees as a broker or dealer in
connection with the issuance and sale of such shares, and to make all
such payments and to take any and all such further action that said
officers or any of them may deem appropriate or convenient in
connection with any of the foregoing; and further
RESOLVED: That the president of the Corporation or any other officer
designated by him be, and each of them hereby is, authorized and
empowered, for and on behalf of the Corporation, to take any and all
actions which may be necessary or desirable to effectuate the intention
of the foregoing resolutions.
Dated as of July 19, 2001.
APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I
By: Appaloosa Management L.P., its
General Partner
By: Appaloosa Partners, Inc., its
General Partner
By: /s/ James E. Bolin
----------------------------------
Name: James E. Bolin
Title: Vice President
PALOMINO FUND LTD.
By: Appaloosa Management L.P., its
Investment Adviser
By: Appaloosa Partners, Inc., its
General Partner
By: /s/ James E. Bolin
----------------------------------
Name: James E. Bolin
Title: Vice President
-2-