Exhibit 10.2
1993 DIRECTORS’ STOCK
OPTION PLAN OF
INCYTE CORPORATION
(As amended on March 10,
2009)
SECTION 1.
INTRODUCTION.
The Plan was adopted on
July 28, 1993, amended and restated as of March 30, 2001,
and last amended on March 10, 2009. The purpose of the Plan is
to offer the Company’s Nonemployee Directors 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 seeks to achieve this purpose
by providing for the grant of nonstatutory options to purchase
Stock.
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% 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)
“ Company ” shall mean Incyte Corporation
(formerly Incyte Genomics, Inc.), a Delaware
corporation.
(e)
“ Employee ” shall mean an employee (within the
meaning of section 3401(c) of the Code and the regulations
thereunder) of the Company or of a Subsidiary of the
Company.
(f)
“ Exchange Act ” shall mean the Securities
Exchange Act of 1934, as amended.
(g)
“ Exercise Price ” shall mean the amount for
which one Share may be purchased upon exercise of an Option, as
specified in the applicable Stock Option Agreement.
(h)
“ Fair Market Value ” shall mean the market
price of Stock, determined by the Board of Directors as
follows:
(i)
If 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 mean between the last reported
representative bid and asked prices quoted for such date by the
principal automated inter-dealer quotation system on which 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 Stock was traded over-the-counter on the date in question and
was 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 Nasdaq Stock Market;
(iii)
If Stock was traded on a 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 Board of Directors in good
faith on such basis as it deems appropriate.
In all cases, the determination of Fair Market
Value by the Board of Directors shall be conclusive and binding on
all persons.
(i)
“Full Retirement” shall mean the retirement from
the Board of Directors of a member after such member reaches the
age of 70.
(j)
“ Nonemployee Director ” shall mean a member of
the Board of Directors who is not an Employee.
(k)
“ Nonstatutory Option ” shall mean a stock
option not described in sections 422(b) or 423(b) of
the Code.
(l)
“ Option ” shall mean a Nonstatutory Option
granted under the Plan and entitling the holder to purchase
Shares.
(m)
“ Optionee ” shall mean an individual who holds
an Option.
(n)
“ Plan ” shall mean this 1993 Directors’
Stock Option Plan of Incyte Corporation (formerly Incyte
Genomics, Inc.), as it may be amended from time to
time.
(o)
“ Reverse Split ” shall mean the one-for-two
reverse split of the Stock authorized by the Board of Directors
prior to the initial adoption of the Plan.
(p)
“ Service ” shall mean service as a member of
the Board of Directors, whether or not as a Nonemployee
Director.
(q)
“ Share ” shall mean one share of Stock, as
adjusted in accordance with Section 6 (if applicable).
All references to numbers of Shares in Section 3 hereof give
effect to the Reverse Split and the 100% stock dividends paid in
November 1997 and August 2000.
(r)
“ Stock ” shall mean the Common Stock ($.001 par
value) of the Company.
(s)
“ Stock Option Agreement ” shall mean the
agreement between the Company and an Optionee that contains the
terms, conditions and restrictions pertaining to his or her
Option.
2
(t)
“ 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.
(u)
“ 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.
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 shall
not exceed 1,575,000 Shares, subject to adjustment pursuant to
Section 6. The number of
Shares that are subject to Options at any time 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 the event that any outstanding
Option for any reason expires or is canceled or otherwise
terminated, the Shares allocable to the unexercised portion of such
Option shall again be available for the purposes of the
Plan.
SECTION 4.
TERMS AND CONDITIONS OF OPTIONS.
(a)
Stock Option Agreement . Each grant of an Option under
the Plan shall be evidenced by a Stock Option Agreement between the
Optionee and the Company. Such Option shall be subject to all
applicable terms and conditions of the Plan and may be subject to
any other terms and conditions that are not inconsistent with the
Plan and that the Board of Directors deems appropriate for
inclusion in a Stock Option Agreement.
(b)
Initial Grants . Each new Nonemployee Director who
first joins the Board of Directors after June 1, 2005 shall
receive an Option covering 35,000 Shares within one business day
after his or her initial election to the Board of Directors.
The number of Shares included in an Option shall be subject to
adjustment under Section 6.
(c)
Annual Grants . On the first business day following
the conclusion of each regular annual meeting of the
Company’s stockholders, each Nonemployee Director who will
continue serving as a member of the Board of Directors thereafter
shall receive an Option covering 20,000 Shares, subject to
adjustment under Section 6. Each Nonemployee Director
who is not initially elected at a regular annual meeting of the
Company’s stockholders shall receive an Option to purchase a
pro rata portion of 20,000 Shares within ten business days of such
Director’s election based on the number of full months
remaining from dat
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