EXHIBIT 10.38
MOLECULAR DEVICES CORPORATION
2001 STOCK OPTION PLAN
ADOPTED BY THE BOARD OF DIRECTORS ON JULY 26, 2001
AMENDED BY THE BOARD ON FEBRUARY 6, 2003
AMENDED BY THE BOARD ON JULY 29, 2004
STOCKHOLDER APPROVAL NOT REQUIRED
1. PURPOSES.
(a) The purpose of the Plan is to provide a means by which selected
Employees of the Company or its Affiliates who are working or residing
outside of the United States and are not Officers or Directors may be
given an opportunity to purchase stock of the Company.
(b) The Company, by means of the Plan, seeks to retain the services of
persons who are eligible to receive Options, to secure and retain the
services of new members of this group and to provide incentives for such
persons to exert maximum efforts for the success of the Company and its
Affiliates.
2. DEFINITIONS.
(a) "Affiliate" means any "parent" or "subsidiary", whether now or
hereafter existing, as those terms are defined in Rule 405 promulgated
under the Securities Act of 1933, as amended of the United States of
America.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a Committee appointed by the Board in accordance
with subsection 3(c) of the Plan.
(e) "Company" means Molecular Devices Corporation.
(f) "Consultant" means any person, including an advisor, engaged by the
Company or an Affiliate to render consulting services and who is
compensated for such services, provided that the term "Consultant" shall
not include Directors who are paid only a director's fee by the Company or
who are not compensated by the Company for their services as Directors.
(g) "Continuous Status as an Employee, Director or Consultant" means the
employment or relationship as a Director or Consultant with the Company or
an Affiliate of the Company is not interrupted or terminated. The Board,
in its sole discretion, may determine whether Continuous Status as an
Employee, Director or Consultant shall be considered interrupted in the
case of any leave of absence approved by the Board, including sick leave,
military leave, or any other personal leave.
(i) "Director" means a member of the Board.
(j) "Employee" means any person, including an Officer, classified for tax
purposes as an "employee" by the Company or any Affiliate of the Company.
Neither service as a Director nor payment of a director's fee by the
Company shall be sufficient to constitute status as an "employee."
(k) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(l) "Fair Market Value" means as of any date, the value of the Common
Stock of the Company determined as follows:
(1) If the common stock is listed on any established stock exchange
or a national market system, including without limitation the
National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") System, the Fair Market
Value of a share of common stock shall be the closing sales price
for such stock (or the closing bid, if no sales were reported) as
quoted on such system or exchange (or the exchange with the greatest
volume of trading in common stock) on the last market trading day
prior to the day of determination, as reported in the Wall Street
Journal or such other source as the Board deems reliable;
(2) If the common stock is quoted on the NASDAQ System (but not on
the National Market System thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported,
the Fair Market Value of a share of common stock shall be the mean
between the bid and asked prices for the common stock on the last
market trading day prior to the day of determination, as reported in
the Wall Street Journal or such other source as the Board deems
reliable;
(3) In the absence of an established market for the common stock,
the Fair Market Value shall be determined in good faith by the
Board.
(n) "Non-Employee Director" means a Director of the Company who either (i)
is not a current Employee or Officer of the Company or its parent or a
subsidiary, does not receive compensation (directly or indirectly) from
the Company or its parent or a subsidiary for services rendered as a
consultant or in any capacity other than as a Director (except for an
amount as to which disclosure would not be required under Item 404(a) of
Regulation S-K promulgated pursuant to the Securities Act ("Regulation
S-K")), does not possess an interest in any other transaction as to which
disclosure would be required under Item 404(a) of Regulation S-K and is
not engaged in a business relationship as to which disclosure would be
required under Item 404(b) of Regulation S-K; or (ii) is otherwise
considered a "non-employee director" for purposes of Rule 16b-3.
(o) "Nonstatutory Stock Option" means an Option not intended to qualify as
an "incentive stock option" under Section 422 of the Code.
(p) "Officer" means a person who is an officer of the Company within the
meaning of that term in Rule 4350(i)(1)(A) of the Rules of the National
Association of Securities Dealers, Inc. (or any successor to that rule).
(q) "Option" means a Nonstatutory Stock Option granted pursuant to the
Plan.
(r) "Option Agreement" means a written agreement between the Company and
an Optionee evidencing the terms and conditions of an individual Option
grant. Each Option Agreement shall be subject to the terms and conditions
of the Plan.
(s) "Optionee" means an Employee, Director or Consultant who holds an
outstanding Option.
(u) "Plan" means this Molecular Devices Corporation 2001 Stock Option
Plan.
(v) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor to
Rule 16b-3, as in effect when discretion is being exercised with respect
to the Plan.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless and until the Board
delegates administration to a Committee, as provided in subsection 3(c).
(b) The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted Options; when and how each Option
shall be granted; the provisions of each Option granted (which need
not be identical), including the time or times such Option may be
exercised in whole or in part; and the number of shares for which an
Option shall be granted to each such person.
(2) To construe and interpret the Plan and Options granted under it,
and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may
correct any defect, omission or inconsistency in the Plan or in any
Option Agreement, in a manner and to the extent it shall deem
necessary or expedient to make the Plan fully effective.
(3) Subject to the provisions of Section 13 hereof, to amend the
Plan or an Option as provided in Section 11.
(4) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests
of the Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members (the "Committee"), all of the
members of which Committee may be Non-Employee Directors if exemption of
an Option or Options from the restrictions of Section 16(b) of the
Exchange Act is deemed necessary or
desirable. If administration is delegated to a Committee, the Committee
shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board (and references in this Plan to the
Board shall thereafter be to the Committee), subject, however, to such
resolutions, not inconsistent with the provisions of the Plan, as may be
adopted from time to time by the Board. The Board may abolish the
Committee at any time and revest in the Board the administration of the
Plan. Notwithstanding anything in this Section 3 to the contrary, the
Board or the Committee may delegate to a committee of one or more members
of the Board the authority to grant Options to eligible persons who are
not then subject to Section 16 of the Exchange Act.
(d) All determinations, interpretations and constructions made by the
Board in good faith shall not be subject to review by any person and shall
be final, binding and conclusive on all persons.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 10 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to Options shall not
exceed in the aggregate one hundred thousand (100,000) shares of Company
common stock. If any Option granted under the Plan shall for any reason
expire or otherwise terminate, in whole or in part, without having been
exercised in full, the stock not acquired shall revert to and again become
available for issuance under this Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
5. ELIGIBILITY.
Options may be granted only to Employees who, at the time of grant, are working
or residing outside of the United States and are not Officers or Directors.
6. OPTION PROVISIONS.
Each Option shall be in such form and shall contain such terms and conditions as
the Board shall deem appropriate. The provisions of separate Options need not be
identical, but each Option shall include (through incorporation of provisions
hereof by reference in the Option or otherwise) the substance of each of the
following provisions:
(a) Term. No Option shall be exercisable after the expiration of twelve
(12) years from the date it was granted.
(b) Price. Unless otherwise provided expressly by the Board or Committee,
the per share exercise price of each Option shall not be less than
eighty-five percent (85%) of the Fair Market Value of a share of the
Company's Common Stock on the date of grant.
(c) Consideration. The purchase price of stock acquired pursuant to
exercise of an Option shall be paid, to the extent permitted by applicable
statutes and regulations,
either (i) in cash at the time the Option is exercised, or (ii) at the
discretion of the Board or the Committee, at the time of the grant of the
Option, (A) by delivery to the Company of other common stock of the
Company, (B) according to a deferred payment or other arrangement (which
may include, without limiting the generality of the foregoing, the use of
other common stock of the Company) with the person to whom the Option is
granted or to whom the Option is transferred pursuant to subsection 6(d),
or (C) in any other form of legal consideration that may be acceptable to
the Board.
In the case of any deferred payment arrangement, interest shall be
compounded at least annually and shall be charged at the minimum rate of
interest necessary to avoid (1) the treatment as interest, under any
applicable provisions of the Code, of any amounts other than amounts
stated to be interest under the deferred payment arrangement and (2) the
treatment of the Option as a variable award for financial accounting
purposes.
(d) Transferability. In the absence of a provision on transferability in
an Option Agreement, a Nonstatutory Stock Option shall not be transferable
except by will or by the laws of descent and distribution or pursuant to a
domestic relations order satisfying the requirements of Rule 16b-3 and the
rules thereunder (a "DRO"), and shall be exercisable during the lifetime
of the person to whom the Option is granted only by such person or any
transferee pursuant to a DRO. The person to whom a Nonstatutory Stock
Option is granted may, by delivering written notice to the Company, in a
form satisfactory to the Company, designate a third party who, in the
event of the death of the Optionee, shall thereafter be entitled to
exercise the Nonstatutory Stock Option.
(e) Vesting. The total number of shares of stock subject to an Option may,
but need not, be allotted in periodic installments (which may, but need
not, be equal). The Option Agreement may provide that from time to time
during each of such installment periods, the Option may become exercisable
("vest") with respect to some or all of the shares allotted to that
period, and may be exercised with respect to some or all of the shares
allotted to such period and/or any prior period as to which the Option
became vested but was not fully exercised. The Option may be subject to
such other terms and conditions on the time or times when it may be
exercised (which may be based on performance or other criteria) as the
Board may deem appropriate. The provisions of this subsection 6(e) are
subject to any Option provisions governing the minimum number of shares as
to which an Option may be exercised.
(f) Investment Assurances. The Company may require any Optionee, or any
person to whom an Option is transferred under subsection 6(d), as a
condition of exercising any such Option, (1) to give written assurances
satisfactory to the Company as to the Optionee's knowledge and experience
in financial and business matters and/or to employ a purchaser
representative reasonably satisfactory to the Company who is knowledgeable
and experienced in financial and business matters, and that he or she is
capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the Option; and (2) to
give written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the Option for such person's own
account and not with any present intention of selling or otherwise
distributing the stock. The foregoing requirements, and any assurances
given pursuant
to such requirements, shall be inoperative if (i) the issuance of the
shares upon the exercise of the Option has been registered under a then
currently effective registration statement under the Securities Act of
1933, as amended (the "Securities Act"), or (ii) as to any particular
requirement, a determination is made by counsel for the Company that such
requirement need not be met in the circumstances under the then applicable
securities laws. The Company may, upon advice of counsel to the Company,
place legends on stock certificates issued under the Plan as such counsel
deems necessary or appropriate in order to comply with applicable
securities laws, including, but not limited to, legends restricting the
transfer of the stock.
(g) Termination of Employment or Relationship as a Director or Consultant.
In the event an Optionee's Continuous Status as an Employee, Director or
Consultant terminates (other than upon the Optionee's death or
disability), the Optionee may exercise his or her Option (to the extent
that the Optionee was entitled to exercise it at the date of termination)
but only within such period of time ending on the earlier of (i) the date
three (3) months after the termination of the Optionee's Continuous Status
as an Employee, Director or Consultant, or such longer or shorter period
specified in the Option Agreement, or (ii) the expiration of the term of
the Option as set forth in the Option Agreement. If, after termination,
the Optionee does not exercise his or her Option within the time specified
in the Option Agreement, the Option shall terminate, and the shares
covered by such Option shall revert to and again become available for
issuance under the Plan.
(h) Disability of Optionee. In the event an Optionee's Continuous Status
as an Employee, Director or Consultant terminates as a result of the
Optionee's disability, the Optionee may exercise his or her Option (to the
extent that the Optionee was entitled to exercise it at the date of
termination), but only within such period of time ending on the earlier of
(i) the date twelve (12) months following such termination (or such longer
or shorter period specified in the Option Agreement), or (ii) the
expiration of the term of the Option as set forth in the Option Agreement.
If, at the date of termination, the Optionee is not entitled to exercise
his or her entire Option, the shares covered by the unexercisable portion
of the Option shall revert to and again become available for issuance
under the Plan. If, after termination, the Optionee does not exercise his
or her Option within the time specified herein, the Option shall
terminate, and the shares covered by such Option shall revert to and again
become available for issuance under the Plan.
(i) Death of Optionee. In the event of the death of an Optionee during, or
within a period specified in the Option after the termination of, the
Optionee's Continuous Status as an Employee, Director or Consultant, the
Option may be exercised (to the extent the Optionee was entitled to
exercise the Option at the date of death) by the Optionee's estate, by a
person who acquired the right to exercise the Option by bequest or
inheritance or by a person designated to exercise the option upon the
Optionee's death pursuant to subsection 6(d), but only within the period
ending on the earlier of (i) the date eighteen (18) months following the
date of death (or such longer or shorter period specified in the Option
Agreement), or (ii) the expiration of the term of such Option as set forth
in the Option Agreement. If, at the time of death, the Optionee was
not entitled to exercise his or her entire Option, the shares covered by
the unexercisable portion of the Option shall revert to and again become
available for issuance under the Plan. If, after death, the Option is not
exercised within the time specified herein, the Option shall terminate,
and the shares covered by such Option shall revert to and again become
available for issuance under the Plan.
(j) Early Exercise. The Option may, but need not, include a provision
whereby the Optionee may elect at any time while an Employee, Director or
Consultant to exercise the Option as to any part or all of the shares
subject to the Option prior to the full vesting of the Option. Any
unvested shares so purchased may be subject to a repurchase right in favor
of the Company or to any other restriction the Board determines to be
appropriate.
(k) Withholding. To the extent provided by the terms of an Option
Agreement for an Option, the Participant may satisfy any federal, state,
local, or other tax withholding obligation relating to the exercise of
such Option by any of the following means (in addition to the Company's
right to withhold from any compensation paid to the Optionee by the
Company) or by a combination of such means: (i) tendering a cash payment;
(ii) authorizing the Company to withhold shares of common stock from the
shares of common stock otherwise issuable to the Optionee as a result of
the exercise of the Option; provided, however, that no shares of common
stock are withheld with a value exceeding the minimum amount of tax
required to be withheld by law (or such lesser amount as may be necessary
to avoid variable award accounting); or (iii) delivering to the Company
owned and unencumbered shares of common stock.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the Options, the Company shall keep available at
all times the number of shares of stock required to satisfy such Options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required
to issue and sell shares of stock upon exercise of the Options; provided,
however, that this undertaking shall not require the Company to register
under the Securities Act either the Plan, any Option or any stock issued
or issuable pursuant to any such Option. If, after reasonable efforts, the
Company is unable to obtain from any such regulatory commission or agency
the authority which counsel for the Company deems necessary for the lawful
issuance and sale of stock under the Plan, the Company shall be relieved
from any liability for failure to issue and sell stock upon exercise of
such Options unless and until such authority is obtained.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Options shall constitute general
funds of the Company.
9. MISCELLANEOUS.
(a) The Board shall have the power to accelerate the time at which an
Option may first be exercised or the time during which an Option or any
part thereof will vest pursuant to subsection 6(e), notwithstanding the
provisions in the Option stating the time at which it may first be
exercised or the time during which it will vest.
(b) Neither an Optionee nor any person to whom an Option is transferred
under subsection 6(d) shall be deemed to be the holder of, or to have any
of the rights of a holder with respect to, any shares subject to such
Option unless and until such person has satisfied all requirements for
exercise of the Option pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Option granted
pursuant thereto shall confer upon any Employee, Director, Consultant or
Optionee any right to continue in the employ of the Company or any
Affiliate (or to continue acting as a Director or Consultant) or shall
affect the right of the Company or any Affiliate to terminate the
employment or relationship as a Director or Consultant of any Employee,
Director, or Consultant for any reason, with or without cause.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or subject to
any Option (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash,
stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or other transaction not involving
the receipt of consideration), the Plan will be appropriately adjusted in
the types of securities and maximum number of shares subject to the Plan
pursuant to subsection 4(a), and the outstanding Options will be
appropriately adjusted in the types of securities and number of shares and
price per share of stock subject to such outstanding Options.
(b) In the event of: (1) a dissolution, liquidation or sale of
substantially all of the assets of the Company; (2) a merger or
consolidation in which the Company is not the surviving corporation; or
(3) a reverse merger in which the Company is the surviving corporation but
the shares of the Company's common stock outstanding immediately preceding
the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise, then to the extent
permitted by applicable law: (i) any surviving corporation shall either
assume any Options outstanding under the Plan or shall substitute similar
Options for those outstanding under the Plan, or (ii) such Options shall
terminate to the extent not exercised prior to such event; provided,
however, that the time during which some or all of such Options may be
exercised may, at the discretion of the Board, be accelerated to prior to
such event.
11. AMENDMENT OF THE PLAN AND OPTIONS.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 10 relating to adjustments upon
changes in stock, no amendment shall be effective unless approved by the
stockholders of the Company
within twelve (12) months before or after the adoption of the amendment,
where the amendment will modify the Plan in any way (including, but not
limited to, the modification of the eligibility requirements for
participation in the Plan) if such modification requires stockholder
approval in order for the Plan to comply with any NASDAQ or securities
exchange listing requirements.
(b) The Board may in its sole discretion submit any other amendment to the
Plan for stockholder approval.
(c) It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide Optionees with
the maximum benefits provided or to be provided under the provisions of
the Code and the regulations promulgated thereunder relating to Options
and/or to bring the Plan and/or Options granted under it into compliance
therewith.
(d) Rights and obligations under any Option granted before amendment of
the Plan shall not be impaired by any amendment of the Plan unless (i) the
Company requests the consent of the person to whom the Option was granted
and (ii) such person consents in writing.
(e) Subject to the provisions of Section 13 hereof, the Board at any time,
and from time to time, may amend the terms of any one or more Options;
provided, however, that the rights and obligations under any Option shall
not be impaired by any such amendment unless (i) the Company requests the
consent of the person to whom the Option was granted and (ii) such person
consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. No Options
may be granted under the Plan while the Plan is suspended or after it is
terminated.
(b) Rights and obligations under any Option granted while the Plan is in
effect shall not be impaired by suspension or termination of the Plan,
except with the consent of the person to whom the Option was granted.
13. PRIOR STOCKHOLDER APPROVAL OF OPTION REPRICINGS.
Notwithstanding anything to the contrary herein, the Board shall not, without
first obtaining the approval of the stockholders of the Company, (i) reduce the
exercise price of any outstanding Option under the Plan, (ii) cancel any
outstanding Option under the Plan and replace it with an Option with a lower
exercise price, (iii) accept any outstanding Option in exchange for a new Option
with a lower exercise price, or (iv) take any other action that is treated as a
"repricing" under generally accepted accounting principles.
14. EFFECTIVE DATE OF PLAN.
The Plan shall become effective upon adoption by the Board.