Exhibit 10.45
2003 Employee, Director and Consultant Stock
Plan
ICORIA, INC.
f/k/a Paradigm Genetics,
Inc.
2003 EMPLOYEE, DIRECTOR AND
CONSULTANT STOCK PLAN
Unless otherwise specified or unless
the context otherwise requires, the following terms, as used in
this Icoria, Inc. 2003 Employee, Director and Consultant Stock
Plan, 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.
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.
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, $0.01 par value per share.
Company means Icoria, 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 Stock Rights under the Plan.
Fair Market Value
of a Share of Common Stock
means:
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(1)
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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 the
trading day immediately preceding the applicable date;
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(2)
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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 the trading day on which Common Stock
was traded immediately preceding the applicable date;
and
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(3)
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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.
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ISO means an option meant to qualify as an incentive
stock option under Section 422 of the Code.
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 Stock
Rights are granted under the Plan. As used herein,
“Participant” shall include “Participant’s
Survivors” where the context requires.
Plan means this Icoria, Inc. 2003 Employee, Director
and Consultant Stock Plan.
Shares means shares of the Common Stock as to which
Stock Rights 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 under the Plan may be authorized and
unissued shares or shares held by the Company in its treasury, or
both.
Stock Grant
means a grant by the Company of
Shares under the Plan.
Stock Grant Agreement
means an agreement between the
Company and a Participant delivered pursuant to the Plan, in such
form as the Administrator shall approve.
Stock Right
means a right to Shares of the
Company granted pursuant to the Plan — an ISO, a
Non-Qualified Option or a Stock Grant.
Survivor means a deceased Participant’s legal
representatives and/or any person or persons who acquired the
Participant’s rights to a Stock Right by will or by the laws
of descent and distribution.
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, Non-Qualified Options and Stock
Grants.
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3.
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SHARES
SUBJECT TO THE PLAN.
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(a)
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The number of
Shares which may be issued from time to time pursuant to this Plan
shall be 2,500,000, or the equivalent of such number of Shares
after the Administrator, in its sole discretion, has interpreted
the effect of any stock split, stock dividend, combination,
recapitalization or similar transaction in accordance with
Paragraph 23 of the Plan.
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(b)
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If an Option
ceases to be “outstanding”, in whole or in part, or if
the Company shall reacquire any Shares issued pursuant to a Stock
Grant, the Shares which were subject to such Option and any Shares
so reacquired by the Company shall be available for the granting of
other Stock Rights 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.
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4.
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ADMINISTRATION OF THE PLAN.
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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.
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Interpret the
provisions of the Plan or of any Option or Stock Grant and to make
all rules and determinations which it deems necessary or advisable
for the administration of the Plan;
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b.
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Determine which
Employees, directors and consultants shall be granted Stock
Rights;
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c.
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Determine the
number of Shares for which a Stock Right or Stock Rights shall be
granted, provided, however, that in no event shall Stock Rights
with respect to more than 500,000 Shares be granted to any
Participant in any fiscal year;
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d.
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Specify the
terms and conditions upon which a Stock Right or Stock Rights may
be granted; and
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e.
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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;
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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 Stock Right 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.
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5.
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ELIGIBILITY
FOR PARTICIPATION.
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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 a Stock Right is
granted. Notwithstanding the foregoing, the Administrator may
authorize the grant of a Stock Right 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 Stock Right shall
be conditioned upon such person becoming eligible to become a
Participant at or prior to the time of the execution of the
Agreement evidencing such Stock Right. ISOs may be granted only to
Employees. Non-Qualified Options and Stock Grants may be granted to
any Employee, director or consultant of the Company or an
Affiliate. The granting of any Stock Right to any individual shall
neither entitle that individual to, nor disqualify him or her from,
participation in any other grant of Stock Rights.
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6.
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TERMS AND
CONDITIONS OF OPTIONS.
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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
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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.
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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.
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Option Price:
Each Option Agreement shall state the option price (per share) of
the Shares covered by each Option, which option price shall be
determined by the Administrator but shall not be less than the par
value per share of Common Stock.
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b.
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Each Option
Agreement shall state the number of Shares to which it
pertains;
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c.
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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.
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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.
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The
Participant’s or the Participant’s Survivors’
right to sell or transfer the Shares may be restricted;
and
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ii.
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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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B.
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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.
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Minimum
standards: The ISO shall meet the minimum standards required of
Non-Qualified Options, as described in Paragraph 6(A) above, except
clause (a) thereunder.
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b.
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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.
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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.
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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.
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c.
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Term of Option:
For Participants who own:
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i.
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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.
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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 date of the grant or at such earlier time as
the Option Agreement may provide.
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d.
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Limitation on
Yearly Exercise: The Option Agreements shall restrict the amount of
ISOs which may become exercisable in any calendar year (under this
or any other ISO plan of the Company or an Affiliate) so that the
aggregate Fair Market Value (determined at the time each ISO is
granted) of the stock with respect to which ISOs are exercisable
for the first time by the Participant in any calendar year does not
exceed $100,000.
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7.
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TERMS AND
CONDITIONS OF STOCK GRANTS.
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Each offer of a Stock Grant to a Participant
shall state the date prior to which the Stock Grant must be
accepted by the Participant, and the principal terms of each Stock
Grant shall be set forth in a Stock Grant Agreement, duly executed
by the Company and, to the extent required by law or requested by
the Company, by the Participant. The Stock Grant Agreement shall be
in a form approved by the Administrator and shall contain terms and
conditions which the Administrator determines to be appropriate and
in the best interest of the Company, subject to the following
minimum standards:
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(a)
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Each Stock
Grant Agreement shall state the purchase price (per share), if any,
of the Shares covered by each Stock Grant, which purchase price
shall be determined by the Administrator but shall not be less than
the minimum consideration required by the Delaware General
Corporation Law on the date of the grant of the Stock
Grant;
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(b)
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Each Stock
Grant Agreement shall state the number of Shares to which the Stock
Grant pertains; and
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(c)
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Each Stock
Grant Agreement shall include the terms of any right of the Company
to restrict or reacquire the Shares subject to the Stock Grant,
including the time and events upon which such reacquisition rights
shall accrue and the purchase price therefor, if any.
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8.
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EXERCISE OF
OPTIONS AND ISSUE OF SHARES.
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An Option (or any part or
installment thereof) shall be exercised by giving written notice to
the Company or its designee, together with provision for payment of
the full purchase price in accordance with this Paragraph for the
Shares as to which the Option is being exercised, and upon
compliance with any other condition(s) set forth in the Option
Agreement. Such notice shall be signed by the person exercising the
Option, shall state the number of Shares with respect to which the
Option is being exercised and shall contain any representation
required by the Plan or the Option Agreement. Payment of the
purchase price for the Shares as to which such Option is being
exercised shall be made (a) in United States dollars in cash or by
check, or (b) at the discretion of the Administrator, through
delivery of shares of Common Stock having a Fair Market Value equal
as of the date of the exercise to the cash exercise price of the
Option and held for at least six months, or (c) at the discretion
of the Administrator, by delivery of the grantee’s personal
note, for full, partial or no recourse, bearing interest payable
not less than annually at market rate on the date of exercise and
at no less than 100% of the applicable Federal rate, as defined in
Section 1274(d) of the Code, with or without the pledge of such
Shares as collateral, or (d) at the discretion of the
Administrator, in accordance with a cashless exercise program
established with a securities brokerage firm, and approved by the
Administrator, or (e) at the discretion of the Administrator, by
any combination of (a), (b), (c) and (d) above. Notwithstanding the
foregoing, the Administrator shall accept only such payment on
exercise of an ISO as is permitted by Section 422 of the
Code.
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The Company shall then reasonably
promptly deliver the Shares as to which such Option was exercised
to the Participant (or to the Participant’s Survivors, as the
case may be). In determining what constitutes “reasonably
promptly,” it is expressly understood that the issuance and
delivery of the Shares may be delayed by the Company in order to
comply with any law or regulation (including, without limitation,
state securities or “blue sky” laws) which requires the
Company to take any action with respect to the Shares prior to
their issuance. The Shares shall, upon delivery, be fully paid,
non-assessable Shares.
The Administrator shall have the
right to accelerate the date of exercise of any installment of any
Option; provided that the Administrator shall not accelerate the
exercise date of any installment of any Option granted to an
Employee as an ISO (and not previously converted into a
Non-Qualified Option pursuant to Paragraph 26) if such acceleration
would violate the annual vesting limitation contained in Section
422(d) of the Code, as described in Paragraph 6.B.d.
The Administrator may, in its
discretion, amend any term or condition of an outstanding Option
provided (i) such term or condition as amended is permitted by the
Plan, (ii) any such amendment shall be made only with the consent
of the Participant to whom the Option was granted, or in the event
of the death of the Participant, the Participant’s Survivors,
if the amendment is adverse to the Participant, and (iii) any such
amendment of any ISO shall be made only after the Administrator
determines whether such amendment would constitute a
“modification” of any Option which is an ISO (as that
term is defined in Section 424(h) of the Code) or would cause any
adverse tax consequences for the holder of such ISO.
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9.
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ACCEPTANCE
OF STOCK GRANT AND ISSUE OF SHARES.
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A Stock Grant (or any part or
installment thereof) shall be accepted by executing the Stock Grant
Agreement and delivering it to the Company or its designee,
together with provision for payment of the full purchase price, if
any, in accordance with this Paragraph for the Shares as to which
such Stock Grant is being accepted, and upon compliance with any
other conditions set forth in the Stock Grant Agreement. Payment of
the purchase price for the Shares as to which such Stock Grant is
being accepted shall be made (a) in United States dollars in cash
or by check, or (b) at the discretion of the Administrator, through
delivery of shares of Common Stock held for at least six months and
having a Fair Market Value equal as of the date of acceptance of
the Stock Grant to the purchase price of the Stock Grant, or (c) at
the discretion of the Administrator, by delivery of the
grantee’s personal note, for full or partial recourse as
determined by the Administrator, bearing interest payable not less
than annually at no less than 100% of the applicable Federal rate,
as defined in Section 1274(d) of the Code, or (d) at the discretion
of the Administrator, by any combination of (a), (b) and (c)
above.
The Company shall then reasonably
promptly deliver the Shares as to which such Stock Grant was
accepted to the Participant (or to the Participant’s
Survivors, as the case may be), subject to any escrow provision set
forth in the Stock Grant Agreement. In determining what constitutes
“reasonably promptly,” it is expressly understood that
the issuance and delivery of the Shares may be delayed by the
Company in order to comply with any law or regulation (including,
without limitation, state securities or “blue sky”
laws) which requires the Company to take any action with respect to
the Shares prior to their issuance.
The Administrator may, in its
discretion, amend any term or condition of an outstanding Stock
Grant or Stock Grant Agreement provided (i) such term or condition
as amended is permitted by the Plan, and (ii) any such amendment
shall be made only with the consent of the Participant to whom the
Stock Grant was made, i
