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Exhibit 99.1
MYRIAD GENETICS,
INC.
2003 EMPLOYEE, DIRECTOR
AND CONSULTANT STOCK OPTION PLAN,
AS AMENDED
(as amended on
November 15, 2007)
Unless otherwise specified or
unless the context otherwise requires, the following terms, as used
in this Myriad Genetics, Inc. 2003 Employee, Director and
Consultant Stock Option Plan, as amended, have the following
meanings:
Administrator means
the Board of Directors, unless it has delegated power to act on its
behalf to the Committee, in which case the Administrator means the
Committee. (See paragraph 4)
Affiliate means a
corporation which, for purposes of Section 424 of the Code, is
a parent or subsidiary of the Company, direct or
indirect.
Board of Directors
means the Board of Directors of the Company.
Change of Control
means the occurrence of any of the following events:
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(i) |
Ownership. Any “Person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) becomes the “Beneficial Owner” (as defined in
Rule 13d-3 under said Act), directly or indirectly, of securities
of the Company representing 50% or more of the total voting power
represented by the Company’s then outstanding voting
securities (excluding for this purpose the Company or its
Affiliates or any employee benefit plan of the Company) pursuant to
a transaction or a series of related transactions which the Board
of Directors does not approve; or |
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(ii) |
Merger/Sale of Assets. A merger or consolidation of the Company
whether or not approved by the Board of Directors, other than a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or the parent of
such corporation) at least 50% of the total voting power
represented by the voting securities of the Company or such
surviving entity or parent of such corporation outstanding
immediately after such merger or consolidation, or the stockholders
of the Company approve an agreement for the sale or disposition by
the Company of all or substantially all of the Company’s
assets. |
Code means the United
States Internal Revenue Code of 1986, as amended.
Committee means the
committee of the Board of Directors to which the Board of Directors
has delegated power to act under or pursuant to the provisions of
the Plan.
Common Stock means
shares of the Company’s common stock, $.01 par value per
share.
Company means Myriad
Genetics, Inc., a Delaware corporation.
Disability or
Disabled means permanent and total disability as defined in
Section 22(e)(3) of the Code.
Employee means any
employee of the Company or of an Affiliate (including, without
limitation, an employee who is also serving as an officer or
director of the Company or of an Affiliate), designated by the
Administrator to be eligible to be granted one or more Options
under the Plan.
Fair Market Value of a
Share of Common Stock means:
(1) If the Common Stock is
listed on a national securities exchange or traded in the
over-the-counter market and sales prices are regularly reported for
the Common Stock, the closing or last price of the Common Stock on
the Composite Tape or other comparable reporting system for
(i) the applicable date, or (ii) if the applicable date
is not a trading day, the trading day immediately preceding the
applicable date.
(2) If the Common Stock is
not traded on a national securities exchange but is traded on the
over-the-counter market, if sales prices are not regularly reported
for the Common Stock for the trading day referred to in
clause (1), and if bid and asked prices for the Common Stock
are regularly reported, the mean between the bid and the asked
price for the Common Stock at the close of trading in the
over-the-counter market for (i) the applicable date, or
(ii) if the applicable date is not a trading day, the trading
day immediately preceding the applicable date.
(3) If the Common Stock is
neither listed on a national securities exchange nor traded in the
over-the-counter market, such value as the Administrator, in good
faith, shall determine.
ISO means an option
meant to qualify as an incentive stock option under
Section 422 of the Code.
Non-Employee Director
means a member of the Board of Directors of the Company or any
Affiliate who is not an employee of the Company or any Affiliate or
nominated or elected pursuant to or in satisfaction of a
contractual obligation of the Company or any Affiliate.
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Non-Qualified Option
means an option which is not intended to qualify as an
ISO.
Option means an ISO or
Non-Qualified Option granted under the Plan.
Option Agreement means
an agreement between the Company and a Participant delivered
pursuant to the Plan, in such form as the Administrator shall
approve.
Participant means an
Employee, director or consultant of the Company or an Affiliate to
whom one or more Options are granted under the Plan. As used
herein, “Participant” shall include
“Participant’s Survivors” where the context
requires.
Plan means this Myriad
Genetics, Inc. 2003 Employee, Director and Consultant Stock Option
Plan, as amended.
Shares means shares of
the Common Stock as to which Options have been or may be granted
under the Plan or any shares of capital stock into which the Shares
are changed or for which they are exchanged within the provisions
of Paragraph 3 of the Plan. The Shares issued upon exercise of
Options granted under the Plan may be authorized and unissued
shares or shares held by the Company in its treasury, or
both.
Survivor means a
deceased Participant’s legal representatives and/or any
person or persons who acquired the Participant’s rights to an
Option by will or by the laws of descent and
distribution.
| 2. |
PURPOSES OF THE PLAN . |
The Plan is intended to
encourage ownership of Shares by Employees and directors of and
certain consultants to the Company in order to attract such people,
to induce them to work for the benefit of the Company or of an
Affiliate and to provide additional incentive for them to promote
the success of the Company or of an Affiliate. The Plan provides
for the granting of ISOs and Non-Qualified Options.
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| 3. |
SHARES SUBJECT TO THE PLAN . |
The number of Shares which
may be issued from time to time pursuant to this Plan shall not
exceed (a) 6,900,000 Shares, plus (b) such additional
Shares as are represented by Options previously granted under the
Company’s 2002 Amended and Restated Employee, Director and
Consultant Stock Option Plan (the “2002 Plan”) which
are cancelled or expire after November 12, 2003 without
delivery of shares of stock by the Company and any Shares which
have been reserved but not granted under the 2002 Plan as of
November 12, 2003; provided however, that no more than
5,611,646 1
Shares (which equals the
number of outstanding Options and Shares available to be granted
under the 2002 Plan as of September 26, 2003) shall be added
to the Plan pursuant to this subsection (b). The Administrator, in
its sole discretion, shall adjust appropriately the number of
Shares set forth in the previous sentence after interpreting the
effect of any stock split, stock dividend, combination,
recapitalization or similar transaction in accordance with
Paragraph 16 of the Plan.
If an Option ceases to be
“outstanding”, in whole or in part, the Shares which
were subject to such Option shall be available for the granting of
other Options under the Plan. Any Option shall be treated as
“outstanding” until such Option is exercised in full,
or terminates or expires under the provisions of the Plan, or by
agreement of the parties to the pertinent Option
Agreement.
| 4. |
ADMINISTRATION OF THE PLAN . |
The Administrator of the Plan
will be the Board of Directors, except to the extent the Board of
Directors delegates its authority to the Committee, in which case
the Committee shall be the Administrator. Subject to the provisions
of the Plan, the Administrator is authorized to:
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a. |
Interpret the provisions of the Plan or of any Option or Option
Agreement and to make all rules and determinations which it deems
necessary or advisable for the administration of the
Plan; |
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b. |
Determine which Employees, directors and consultants shall be
granted Options; |
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c. |
Determine the number of Shares for which an Option or Options
shall be granted, provided, however, that in no event shall Options
to purchase more than 500,000 Shares be granted to any Participant
in any fiscal year; |
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While this represents the maximum number of shares that
could be added to the Plan pursuant to subsection (b), the actual
number of Shares transferred to the Plan is anticipated to be
substantially less. As of September 30, 2007, 754,917 Shares
have been transferred to this Plan pursuant to this provision, and
3,450,295 Shares represented by Options remain outstanding under
the 2002 Plan that can be transferred to this Plan if they are
cancelled or expire without delivery of shares of stock by the
Company.
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d. |
Specify the terms and conditions upon which an Option or
Options may be granted; and |
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e. |
Adopt any sub-plans applicable to residents of any specified
jurisdiction as it deems necessary or appropriate in order to
comply with or take advantage of any tax laws applicable to the
Company or to Plan Participants or to otherwise facilitate the
administration of the Plan, which sub-plans may include additional
restrictions or conditions applicable to Options or Shares acquired
upon exercise of Options; |
provided, however, that all such
interpretations, rules, determinations, terms and conditions shall
be made and prescribed in the context of preserving the tax status
under Section 422 of the Code of those Options which are
designated as ISOs. Subject to the foregoing, the interpretation
and construction by the Administrator of any provisions of the Plan
or of any Option granted under it shall be final, unless otherwise
determined by the Board of Directors, if the Administrator is the
Committee. In addition, if the Administrator is the Committee, the
Board of Directors may take any action under the Plan that would
otherwise be the responsibility of the Committee.
If permissible under
applicable law, the Board of Directors or the Committee may
allocate all or any portion of its responsibilities and powers to
any one or more of its members and may delegate all or any portion
of its responsibilities and powers to any other person selected by
it. Any such allocation or delegation may be revoked by the Board
of Directors or the Committee at any time.
| 5. |
ELIGIBILITY FOR PARTICIPATION . |
The Administrator will, in
its sole discretion, name the Participants in the Plan, provided,
however, that each Participant must be an Employee, director or
consultant of the Company or of an Affiliate at the time an Option
is granted. Notwithstanding the foregoing, the Administrator may
authorize the grant of an Option to a person not then an Employee,
director or consultant of the Company or of an Affiliate; provided,
however, that the actual grant of such Option shall be conditioned
upon such person becoming eligible to become a Participant at or
prior to the time of the execution of the Option Agreement
evidencing such Option. ISOs may be granted only to Employees.
Non-Qualified Options may be granted to any Employee, director or
consultant of the Company or an Affiliate. The granting of any
Option to any individual shall neither entitle that individual to,
nor disqualify him or her from, participation in any other grant of
Options.
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| 6. |
TERMS AND CONDITIONS OF OPTIONS . |
Each Option shall be set
forth in writing in an Option Agreement, duly executed by the
Company and, to the extent required by law or requested by the
Company, by the Participant. The Administrator may provide that
Options be granted subject to such terms and conditions, consistent
with the terms and conditions specifically required under this
Plan, as the Administrator may deem appropriate including, without
limitation, subsequent approval by the shareholders of the Company
of this Plan or any amendments thereto. The Option Agreements shall
be subject to at least the following terms and
conditions:
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A. |
Non-Qualified Options : Each Option intended to be a
Non-Qualified Option shall be subject to the terms and conditions
which the Administrator determines to be appropriate and in the
best interest of the Company, subject to the following minimum
standards for any such Non-Qualified Option: |
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a. |
Option Price: Each Option Agreement shall state the option
price (per share) of the Shares covered by each Option, which
option price shall be at least the Fair Market Value per share of
Common Stock on the date of the grant of the Option; |
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b. |
Each Option Agreement shall state the number of Shares to which
it pertains; |
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c. |
Each Option Agreement shall state the date or dates on which it
first is exercisable and the date after which it may no longer be
exercised, and may provide that the Option rights accrue or become
exercisable in installments over a period of months or years, or
upon the occurrence of certain conditions or the attainment of
stated goals or events; and |
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d. |
Exercise of any Option may be conditioned upon the
Participant’s execution of a Share purchase agreement in form
satisfactory to the Administrator providing for certain protections
for the Company and its other shareholders, including requirements
that: |
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i. |
The Participant’s or the Participant’s
Survivors’ right to sell or transfer the Shares may be
restricted; and |
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ii. |
The Participant or the Participant’s Survivors may be
required to execute letters of investment intent and must also
acknowledge that the Shares will bear legends noting any applicable
restrictions. |
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e. |
Non-Employee Directors’ Options : |
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i. |
Initial Grant: Upon initial election or appointment to the
Board of Directors, each Non-Employee Director shall automatically
be granted a Non-Qualified Option to purchase 15,000
Shares. |
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ii. |
Annual Grant: On the date of each annual meeting of the
Company’s stockholders, each Non-Employee Director who was
not initially elected or appointed to the Board of Directors within
six months prior to such annual meeting shall automatically be
granted a Non-Qualified Option to purchase 15,000
Shares. |
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iii. |
Terms of Options: Each Option granted to a Non-Employee
Director shall (a) have an exercise price equal to the Fair
Market Value per share of the Shares on the date of the grant of
the Option; (b) have a term of ten years unless such director
is terminated “for cause,” in which case the terms of
Paragraph 11 hereof shall apply; and (c)(i) if granted prior to the
2007 annual meeting of stockholders, shall become cumulatively
exercisable in three equal annual installments of 33.33% each, upon
completion of one full year of service on the Board of Directors
after the date of grant, and continuing on each of the next two
full years of service thereafter, or (ii) if granted on or
after the 2007 annual meeting of stockholders, shall become
cumulatively exercisable upon completion of one full year of
service on the Board of Directors after the date of
grant. |
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iv. |
Acceleration Upon Certain Events: The vesting of Options
granted to a Non-Employee Director shall be accelerated as follows:
(a) in the event of a Change of Control of the Company, such
Options shall become fully exercisable as of the date of the Change
of Control; (b) in the event of the death of such director,
the Option shall become fully exercisable as of the date of death;
and (c) in the event of the Disability of such director, the
Option shall vest to the extent of a pro rata portion through the
date of Disability of any additional vesting rights that would have
accrued on the next vesting date had the director not become
Disabled. The proration shall be based upon the number of days
accrued in the current vesting period prior to the date of
Disability. |
The provisions of Paragraphs
10, 12 and 13 below shall not apply to Options granted pursuant to
this subparagraph. Any Non-Employee Director entitled to receive an
Option grant under this subparagraph may elect to decline the
Option.
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B. |
ISOs : Each Option intended to be an ISO shall be issued
only to an Employee and be subject to the following terms and
conditions, with such additional restrictions or changes as the
Administrator determines are appropriate but not in conflict with
Section 422 of the Code and relevant regulations and rulings
of the Internal Revenue Service: |
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a. |
Minimum standards: The ISO shall meet the minimum standards
required of Non-Qualified Options, as described in Paragraph 6(A)
above, except clauses (a) and (e) thereunder. |
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b. |
Option Price: Immediately before the ISO is granted, if the
Participant owns, directly or by reason of the applicable
attribution rules in Section 424(d) of the Code: |
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i. |
10% or less of the total combined voting power of all
classes of stock of the Company or an Affiliate, the Option price
per share of the Shares covered by each ISO shall not be less than
100% of the Fair Market Value per share of the Shares on the date
of the grant of the Option; or |
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ii. |
More than 10% of the total combined voting power of all classes
of stock of the Company or an Affiliate, the Option price per share
of the Shares covered by each ISO shall not be less than 110% of
the said Fair Market Value on the date of grant of the
Option. |
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c. |
Term of Option: For Participants who own: |
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i. |
10% or less of the total combined voting power of all
classes of stock of the Company or an Affiliate, each ISO shall
terminate not more than ten years from the date of the grant or at
such earlier time as the Option Agreement may provide;
or |
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ii. |
More than 10% of the total combined voting power of all classes
of stock of the Company or an Affiliate, each ISO shall terminate
not more than five years from the d |
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