Exhibit 10.1
1991 STOCK PLAN OF
INCYTE CORPORATION
(As amended on March 10,
2009)
SECTION 1.
ESTABLISHMENT AND PURPOSE .
The Plan was adopted on
November 7, 1991, amended and restated on February 15,
2001, and last amended on March 10, 2009. The purpose of the
Plan is to offer selected employees and consultants an opportunity
to acquire a proprietary interest in the success of the Company, or
to increase such interest, by purchasing Shares of the
Company’s Stock. The Plan provides both for the direct
award or sale of Shares and for the grant of Options to purchase
Shares. Options granted under the Plan may include
Nonstatutory Options as well as ISOs intended to qualify under
section 422 of the Code.
The Plan is intended to comply in
all respects with Rule 16b-3 (or its successor) under the
Exchange Act and shall be construed accordingly.
SECTION 2.
DEFINITIONS .
(a) “ Board of
Directors ” shall mean the Board of Directors of the
Company, as constituted from time to time.
(b) “ Change in
Control ” shall mean the occurrence of either of the
following events:
(i) A change in the
composition of the Board of Directors, as a result of which fewer
than one-half of the incumbent directors are directors who
either:
(A) Had been directors of the
Company 24 months prior to such change; or
(B) Were elected, or nominated
for election, to the Board of Directors with the affirmative votes
of at least a majority of the directors who had been directors of
the Company 24 months prior to such change and who were still
in office at the time of the election or nomination; or
(ii) Any “person”
(as such term is used in sections 13(d) and 14(d) of the
Exchange Act) by the acquisition or aggregation of securities is or
becomes the beneficial owner, directly or indirectly, of securities
of the Company representing 50 percent or more of the combined
voting power of the Company’s then outstanding securities
ordinarily (and apart from rights accruing under special
circumstances) having the right to vote at elections of directors
(the “Base Capital Stock”); except that any change in
the relative beneficial ownership of the Company’s securities
by any person resulting solely from a reduction in the aggregate
number of outstanding shares of Base Capital Stock, and any
decrease thereafter in such person’s ownership of securities,
shall be disregarded until such person increases in any manner,
directly or indirectly, such person’s beneficial ownership of
any securities of the Company.
(c) “ Code
” shall mean the Internal Revenue Code of 1986, as
amended.
(d) “ Committee
” shall mean a committee of the Board of Directors, as
described in Section 3(a).
(e) “ Company
” shall mean Incyte Corporation (formerly Incyte
Genomics, Inc.), a Delaware corporation.
(f) “ Employee
” shall mean (i) any individual who is a common-law
employee of the Company or of a Subsidiary or (ii) an
independent contractor who performs services for the Company or a
Subsidiary and who is
not a member of the Board of
Directors. Service as an independent contractor shall be
considered employment for all purposes of the Plan except the
second sentence of Section 4(a).
(g) “ Exchange
Act ” shall mean the Securities Exchange Act of 1934, as
amended.
(h) “ Exercise
Price ” shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee
in the applicable Stock Option Agreement.
(i) “ Fair Market
Value ” with respect to a Share, shall mean the market
price of one Share of Stock, determined by the Committee as
follows:
(i) If the Stock was traded
over-the-counter on the date in question but was not traded on The
Nasdaq Stock Market, then the Fair Market Value shall be equal to
the last-transaction price quoted for such date by the OTC Bulletin
Board or, if not so quoted, shall be equal to the mean between the
last reported representative bid and asked prices quoted for such
date by the principal automated inter-dealer quotation system on
which the Stock is quoted or, if the Stock is not quoted on any
such system, by the “Pink Sheets” published by the
National Quotation Bureau, Inc.;
(ii) If the Stock was traded
on The Nasdaq Stock Market, then the Fair Market Value shall be
equal to the last reported sale price quoted for such date by The
Nasdaq Stock Market;
(iii) If the Stock was traded
on a United States stock exchange on the date in question, then the
Fair Market Value shall be equal to the closing price reported for
such date by the applicable composite-transactions report;
and
(iv) If none of the foregoing
provisions is applicable, then the Fair Market Value shall be
determined by the Committee in good faith on such basis as it deems
appropriate.
In all cases, the determination of
Fair Market Value by the Committee shall be conclusive and binding
on all persons.
(j) “ ISO ”
shall mean an employee incentive stock option described in section
422(b) of the Code.
(k) “ Nonstatutory
Option ” shall mean an employee stock option not
described in sections 422(b) or 423(b) of the
Code.
(l) “ Offeree
” shall mean an individual to whom the Committee has offered
the right to acquire Shares under the Plan (other than upon
exercise of an Option).
(m) “ Option
” shall mean an ISO or Nonstatutory Option granted under the
Plan and entitling the holder to purchase Shares.
(n) “ Optionee
” shall mean an individual who holds an Option.
(o) “ Plan
” shall mean this Amended and Restated 1991 Stock Plan of
Incyte Corporation.
(p) “ Purchase
Price ” shall mean the consideration for which one Share
may be acquired under the Plan (other than upon exercise of an
Option), as specified by the Committee.
(q) “ Service
” shall mean service as an Employee.
(r) “ Share
” shall mean one share of Stock, as adjusted in accordance
with Section 9 (if applicable).
(s) “ Stock
” shall mean the Common Stock, $.001 par value, of the
Company.
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(t) “ Stock Option
Agreement ” shall mean the agreement between the Company
and an Optionee which contains the terms, conditions and
restrictions pertaining to his or her Option.
(u) “ Stock Purchase
Agreement ” shall mean the agreement between the Company
and an Offeree who acquires Shares under the Plan which contains
the terms, conditions and restrictions pertaining to the
acquisition of such Shares.
(v) “ Subsidiary
” shall mean any corporation, if the Company and/or one or
more other Subsidiaries own not less than 50 percent of the
total combined voting power of all classes of outstanding stock of
such corporation. A corporation that attains the status of a
Subsidiary on a date after the adoption of the Plan shall be
considered a Subsidiary commencing as of such date.
(w) “ Total and
Permanent Disability ” shall mean that the Optionee is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted, or can be
expected to last, for a continuous period of not less than one
year.
SECTION 3.
ADMINISTRATION .
(a) Committee
Composition . The Plan shall be administered by the
Committee. The Committee shall consist of two or more
directors of the Company who shall satisfy the requirements of
Rule 16b-3 (or its successor) under the Exchange Act with
respect to the grant of Awards to persons who are officers or
directors of the Company under Section 16 of the Exchange Act
or the Board itself. The Board may also appoint one or more
separate committees of the Board, each composed of one or more
directors of the Company who need not qualify under
Rule 16b-3, who may administer the Plan with respect to
Employees who are not considered officers or directors of the
Company under Section 16 of the Exchange Act, may grant Shares
and Options under the Plan to such Employees and may determine all
terms of such grants.
(b) Committee
Procedures . The Board of Directors shall designate one
of the members of the Committee as chairman. The Committee
may hold meetings at such times and places as it shall
determine. The acts of a majority of the Committee members
present at meetings at which a quorum exists, or acts reduced to or
approved in writing by all Committee members, shall be valid acts
of the Committee.
(c) Committee
Responsibilities . Subject to the provisions of the Plan,
the Committee shall have full authority and discretion to take the
following actions:
(i) To interpret the Plan and
to apply its provisions;
(ii) To adopt, amend or
rescind rules, procedures and forms relating to the
Plan;
(iii) To authorize any person
to execute, on behalf of the Company, any instrument required to
carry out the purposes of the Plan;
(iv) To determine when Shares
are to be awarded or offered for sale and when Options are to be
granted under the Plan;
(v) To select the Offerees and
Optionees;
(vi) To determine the number
of Shares to be offered to each Offeree or to be made subject to
each Option;
(vii) To prescribe the terms
and conditions of each award or sale of Shares, including (without
limitation) the Purchase Price, and to specify the provisions of
the Stock Purchase Agreement relating to such award or
sale;
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(viii) To prescribe the terms
and conditions of each Option, including (without limitation) the
Exercise Price, to determine whether such Option is to be
classified as an ISO or as a Nonstatutory Option, and to specify
the provisions of the Stock Option Agreement relating to such
Option;
(ix) To amend any outstanding
Stock Purchase Agreement or Stock Option Agreement, subject to
applicable legal restrictions and to the consent of the Offeree or
Optionee who entered into such agreement;
(x) To prescribe the
consideration for the grant of each Option or other right under the
Plan and to determine the sufficiency of such consideration;
and
(xi) To take any other actions
deemed necessary or advisable for the administration of the
Plan.
All decisions, interpretations and
other actions of the Committee shall be final and binding on all
Offerees, all Optionees, and all persons deriving their rights from
an Offeree or Optionee. No member of the Committee shall be
liable for any action that he or she has taken or has failed to
take in good faith with respect to the Plan, any Option, or any
right to acquire Shares under the Plan.
SECTION 4.
ELIGIBILITY .
(a) General Rule
. Only Employees, as defined in Section 2(f), shall be
eligible for designation as Optionees or Offerees by the
Committee. In addition, only individuals who are employed as
common-law employees by the Company or a Subsidiary shall be
eligible for the grant of ISOs.
(b) Ten-Percent
Stockholders . An Employee who owns more than
10 percent of the total combined voting power of all classes
of outstanding stock of the Company or any of its Subsidiaries
shall not be eligible for the grant of an ISO unless (i) the
Exercise Price is at least 110 percent of the Fair Market
Value of a Share on the date of grant and (ii) such ISO by its
terms is not exercisable after the expiration of five years from
the date of grant.
(c) Attribution Rules
. For purposes of Subsection (b) above, in determining
stock ownership, an Employee shall be deemed to own the stock
owned, directly or indirectly, by or for such Employee’s
brothers, sisters, spouse, ancestors and lineal descendants.
Stock owned, directly or indirectly, by or for a corporation,
partnership, estate or trust shall be deemed to be owned
proportionately by or for its stockholders, partners or
beneficiaries. Stock with respect to which such Employee
holds an option shall not be counted.
(d) Outstanding Stock
. For purposes of Subsection (b) above,
“outstanding stock” shall include all stock actually
issued and outstanding immediately after the grant.
“Outstanding stock” shall not include shares authorized
for issuance under outstanding options held by the Employee or by
any other person.
SECTION 5. STOCK
SUBJECT TO PLAN .
(a) Basic Limitation
. Shares offered under the Plan shall be authorized but
unissued Shares or treasury Shares. The aggregate number of
Shares which may be issued under the Plan (upon exercise of Options
or other rights to acquire Shares) shall not exceed 30,475,000
Shares, subject to adjustment pursuant to Section 9.
Notwithstanding the foregoing, the number of Shares that may be
issued under the Plan, other than (i) upon exercise of Options
or (ii) pursuant to any sale under a Stock Purchase Agreement
for a Purchase Price at least equal to 100 percent of the Fair
Market Value of a Share on the date of such Stock Purchase
Agreement, shall not exceed 200,000 Shares, subject to adjustment
pursuant to Section 9. The number of Shares that are subject
to Options or other rights outstanding at any time under the Plan
shall not exceed the number of Shares that then remain available
for issuance under the Plan. The Company, during the term of
the Plan, shall at all times reserve and keep available sufficient
Shares to satisfy the requirements of the Plan.
(b) Additional Shares
. In t
