Attached files
| file | filename |
|---|---|
| EX-32 - DYAX CORP | v192040_ex32.htm |
| EX-31.2 - DYAX CORP | v192040_ex31-2.htm |
| EX-10.1 - DYAX CORP | v192040_ex10-1.htm |
| EX-31.1 - DYAX CORP | v192040_ex31-1.htm |
| EX-10.2 - DYAX CORP | v192040_ex10-2.htm |
| 10-Q - DYAX CORP | v192040_10q.htm |
EXHIBIT
10.3
As
amended through March 24, 2010
DYAX
CORP.
AMENDED
AND RESTATED 1995 EQUITY INCENTIVE PLAN
Section
1. Purpose
The purpose of the Dyax Corp. 1995
Equity Incentive Plan (the “Plan”) is to attract and retain key employees and
directors and consultants of the Company and its Affiliates, to provide an
incentive for them to assist the Company to achieve long-range performance
goals, and to enable them to participate in the long-term growth of the
Company.
Section
2. Definitions
“Affiliate” means any business entity
in which the Company owns directly or indirectly 50% or more of the total
combined voting power or has a significant financial interest as determined by
the Committee.
“Award” means any Option, Stock
Appreciation Right, Performance Share, Restricted Stock, Stock Unit or Other
Stock-Based Award awarded under the Plan.
“Board” means the Board of Directors of
the Company.
“Code” means the Internal Revenue Code
of 1986, as amended from time to time, and any successor to such
Code.
“Committee” means the Compensation
Committee of the Board or such other committee of the Board appointed by the
Board to administer the Plan or a specified portion thereof; provided, however,
that in any instance the Board of Directors may take away any action delegated
to the Committee hereunder. If a Committee is authorized to grant
Awards to a Reporting Person or a “covered employee” within the meaning of
Section 162(m) of the Code, each member shall be a “Non-Employee Director” or
the equivalent within the meaning of Rule 16b-3 under the Exchange Act or an
“outside director” or the equivalent within the meaning of Section 162(m) of the
Code, respectively.
“Common Stock” or “Stock” means the
Common Stock, $0.01 par value, of the Company.
“Company” means Dyax Corp., a Delaware corporation.
“Designated Beneficiary” means the
beneficiary designated by a Participant, in a manner determined by the
Committee, to receive amounts due or exercise rights of the Participant in the
event of the Participant’s death. In the absence of an effective
designation by a Participant, “Designated Beneficiary” shall mean the
Participant’s estate.
“Effective Date” means July 13,
1995.
“Fair Market Value” means, with respect
to Common Stock or any other property, the fair market value of such property as
determined by the Committee in good faith or in the manner established by the
Committee from time to time. Unless
otherwise determined by the Committee in good faith, the per share Fair Market
Value of the Common Stock as of any date shall mean (i) if the Common Stock is
then listed or admitted to trading on a national securities exchange, the last
reported sale price on such date on the principal national securities exchange
on which the Common Stock is then listed or admitted to trading or, if no such
reported sale takes place on such date, the average of the closing bid and asked
prices on such exchange on such date or (ii) if the Common Stock is then traded
in the over-the-counter market, the average of the closing bid and asked prices
on such date, as reported by The Wall Street Journal or other appropriate
publication selected by the Committee, for the over-the-counter
market.
“Incentive Stock Option” means an
option to purchase shares of Common Stock awarded to a Participant under Section
6 that is intended to meet the requirements of Section 422 of the Code or any
successor provision, and any regulation
thereunder.
“Nonstatutory Stock Option” means an
option to purchase shares of Common Stock awarded to a Participant under Section
6 that is not intended to be an Incentive Stock Option.
“Option” means an Incentive Stock
Option or a Nonstatutory Stock Option.
“Other Stock-Based Award” means an
Award, other than an Option, Stock Appreciation Right, Performance Share,
Restricted Stock or Stock Unit, having a Common Stock element and awarded to a
Participant under Section 11.
“Participant” means a person selected
by the Committee to receive an Award under the Plan.
“Performance Cycle” or “Cycle” means
the period of time selected by the Committee during which performance is
measured for the purpose of determining the extent to which an award of
Performance Shares has been earned.
“Performance Goals” means with respect to any
Performance Cycle, one or more objective performance goals based on one or more
of the following objective criteria established by the Committee prior to the
beginning of such Performance Cycle or within such period after the beginning of
the Performance Cycle as shall meet the requirements to be considered
“pre-established performance goals” for purposes of Code Section
162(m): (i) increases in the price of the Common Stock, (ii) product
or service sales or market share, (iii) revenues, (iv) return on equity, assets,
or capital, (v) economic profit (economic value added), (vi) total shareholder
return, (vii) costs, (viii) expenses, (ix) margins, (x) earnings or earnings per
share, (xi) cash flow, (xii) cash balances (xiii) customer satisfaction, (xiv)
operating profit, (xv) research and development progress, (xvi) clinical trial
progress, (xvii) licensing, (xviii) product development, (xix) manufacturing, or
(xx) any combination of the foregoing, including without limitation, goals based
on any of such measures relative to appropriate peer groups or market
indices. Such Performance Goals may be particular to a Participant or
may be based, in whole or in part, on the performance of the division, department, line of
business, subsidiary, or other business unit, whether or not legally
constituted, in which the Participant works or on the performance of the Company
generally.
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“Performance Shares” mean shares of
Common Stock, which may be earned by the achievement of performance goals,
awarded to a Participant under Section 8.
“Reporting Person” means a person
subject to Section 16 of the Securities Exchange Act of 1934 or any successor
provision.
“Restricted Period” means the period of
time selected by the Committee during which an Award may be forfeited to the
Company pursuant to the terms and conditions of such Award.
“Restricted Stock” means shares of
Common Stock subject to forfeiture awarded to a Participant under Section
9.
“Stock Appreciation Right” or “SAR”
means a right to receive any excess in value of shares of Common Stock over the
exercise price awarded to a Participant under Section 7.
“Stock Unit” means an award of Common
Stock or units, including without limitation units
of Restricted Stock, that are valued in whole or in part by reference to,
or otherwise based on, the value of Common Stock, awarded to a Participant under
Section 10.
“Transferable for value” means a transfer on terms that
would prevent the Company from relying on Securities and Exchange Commission
Form S-8 (or any successor form) with respect to the issuance of the Common
Stock underlying the respective Award.
Section
3. Administration
The Plan shall be administered by the
Committee; provided, however, that in any instance the Board of Directors may
take any action delegated hereunder to the Committee. The Committee
shall have authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the operation of the Plan as it shall from
time to time consider advisable, and to interpret the provisions of the
Plan. The Committee’s decisions shall be final and
binding. To the extent permitted by applicable law, the Committee may
delegate to one or more executive officers of the Company the power to make
Awards to Participants who are not Reporting Persons or covered employees and
all determinations under the Plan with respect thereto, provided that the
Committee shall fix the maximum amount of such Awards for all such Participants
and a maximum for any one Participant.
Section
4. Eligibility
All employees and, in the case of
Awards other than Incentive Stock Options, directors and consultants of the
Company or any Affiliate, capable of contributing significantly to the
successful performance of the Company, other than a person who has irrevocably
elected not to be eligible, are eligible to be Participants in the
Plan. Incentive Stock Options may be awarded only to persons eligible
to receive such Options under the Code.
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Section
5. Stock
Available for Awards
(a) Subject
to adjustment under subsection (b), and
after giving effect to the 0.652-for-one reverse stock split of the Company’s
Common Stock affected in March 1998, Awards may be made under the Plan for up to
Eighteen Million Three Hundred Fifty Thousand (18,350,000) shares of Common Stock, which number
includes shares previously issued upon exercise of options granted under the
Plan. The maximum number of shares of Common Stock subject to Awards
that may be granted to any Participant shall not exceed 750,000 shares in the
aggregate in any calendar year, except that for grants to a new employee during
the calendar year in which his or her service as an employee first commences
such number shall not exceed 1,500,000 shares, and that both limits are subject
to adjustment under subsection (b). If any Award in respect of shares
of Common Stock expires or is terminated unexercised or is forfeited, the shares
subject to such Award, to the extent of such expiration, termination or
forfeiture, shall again be available for award under the Plan. Common
Stock issued through the assumption or substitution of outstanding grants from
an acquired company shall not reduce the shares available for Awards under the
Plan. Shares issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares.
(b) In
the event that any stock dividend, extraordinary cash dividend, creation of a
class of equity securities, recapitalization, reorganization, merger,
consolidation, split-up, spin-off, combination, exchange of shares, warrants or
rights offering to purchase Common Stock at a price substantially below fair
market value, or other similar transaction affects the Common Stock then an equitable
adjustment shall be made (subject,
in the case of Incentive Stock Options, to any limitation required under the
Code) to any or all of (i) the number and
kind of shares in respect of which Awards may be made under the Plan, (ii) the
number and kind of shares subject to outstanding Awards, and (iii) the award,
exercise or conversion price with respect to any of the foregoing as determined by the Committee to be appropriate,
and if considered appropriate, the Committee may make provision for a cash
payment with respect to an outstanding Award, provided that the number of shares
subject to any Award shall always be a whole number.
Section
6. Stock
Options
(a) Subject
to the provisions of the Plan, the Committee may award Incentive Stock Options
and Nonstatutory Stock Options and determine the number of shares to be covered
by each Option, the option price therefor and the conditions and limitations
applicable to the exercise of the Option. The terms and conditions of
Incentive Stock Options shall be subject to and comply with Section 422 of the
Code or any successor provision and any regulations thereunder. No
Incentive Stock Option may be granted hereunder more than ten years after the
last date on which the Plan was approved for purposes of Section 422 of the
Code.
(b) The
Committee shall establish the option price at the time each Option is awarded,
which price shall not be less than 100% of the Fair Market Value of the Common
Stock on the date of award.
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(c) Each
Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may specify in the applicable Award or
thereafter. The Committee may impose such conditions with respect to
the exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(d) No
shares shall be delivered pursuant to any exercise of an Option until payment in
full of the option price therefor is received by the Company. Such
payment may be made in whole or in part in cash or, to the extent permitted by
the Committee at or after the award of the Option, by delivery of a note or
shares of Common Stock owned by the optionee, including Restricted Stock, or by
retaining shares otherwise issuable pursuant to the Option, in each case valued
at their Fair Market Value on the date of delivery or retention, or such other
lawful consideration as the Committee may determine.
(e) The
Committee may provide that, subject to such conditions as it considers
appropriate, upon the delivery or retention of shares to the Company in payment
of an Option, the Participant automatically be awarded an Option for up to the
number of shares so delivered.
Section
7. Stock
Appreciation Rights
(a) Subject
to the provisions of the Plan, the Committee may award SARs in tandem with an
Option (at or after the award of the Option), or alone and unrelated to an
Option. SARs in tandem with an Option shall terminate to the extent
that the related Option is exercised, and the related Option shall terminate to
the extent that the tandem SARs are exercised. SARs granted in tandem
with Options shall have an exercise price not less than the exercise price of
the related Option. SARs granted alone and unrelated to an
Option shall have an exercise price not less than 100% of the
Fair Market Value of the Common Stock on the date of award may be granted at such
exercise prices as the Committee may determine. The Committee shall determine the manner of calculating
the excess in value of the shares of Common Stock over the exercise price of a
Stock Appreciation Right.
(b) An
SAR related to an Option, which SAR can only be exercised upon or during limited
periods following a change in control of the Company, may entitle the
Participant to receive an amount based upon the highest price paid or offered
for Common Stock in any transaction relating to the change in control or paid
during the thirty-day period immediately preceding the occurrence of the change
in control in any transaction reported in any stock market in which the Common
Stock is usually traded.
Section
8. Performance
Shares
(a) Subject
to the provisions of the Plan, the Committee may award Performance Shares and
determine the number of such shares for each Performance Cycle and the duration
of each Performance Cycle. There may be more than one Performance
Cycle in existence at any one time, and the duration of Performance Cycles may
differ from each other. The payment value of Performance Shares shall
be equal to the Fair Market Value of the Common Stock on the date the
Performance Shares are earned or, in the discretion of the Committee, on the
date the Committee determines that the Performance Shares have been
earned.
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(b) The
Committee shall establish Performance Goals
for each Cycle, for the purpose of determining the extent to which Performance
Shares awarded for such Cycle are earned, on the basis of such criteria and to
accomplish such objectives as the Committee may from time to time
select. During any Cycle, the Committee may adjust the performance
goals for such Cycle as it deems equitable in recognition of unusual or
non-recurring events affecting the Company, changes in applicable tax laws or
accounting principles, or such other factors as the Committee may
determine.
(c) As
soon as practicable after the end of a Performance Cycle, the Committee shall
determine the number of Performance Shares that have been earned on the basis of
performance in relation to the established performance goals. The
payment values of earned Performance Shares shall be distributed to the
Participant or, if the Participant has died, to the Participant’s Designated
Beneficiary, as soon as practicable thereafter. The Committee shall
determine, at or after the time of award, whether payment values will be settled
in whole or in part in cash or other property, including Common Stock or
Awards.
Section
9. Restricted
Stock
(a) Subject
to the provisions of the Plan, the Committee may award shares of Restricted
Stock and determine the duration of the Restricted Period during which, and the
conditions under which, the shares may be forfeited to the Company and the other
terms and conditions of such Awards. Shares of Restricted Stock may
be issued for no cash consideration or such minimum consideration as may be
required by applicable law.
(b) Shares
of Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered, except as permitted by the Committee, during the Restricted
Period. Shares of Restricted Stock shall be evidenced in such manner
as the Committee may determine. Any certificates issued in respect of
shares of Restricted Stock shall be registered in the name of the Participant
and unless otherwise determined by the Committee, deposited by the Participant,
together with a stock power endorsed in blank, with the Company. At
the expiration of the Restricted Period, the Company shall deliver such
certificates to the Participant or if the Participant has died, to the
Participant’s Designated Beneficiary.
Section
10. Stock
Units
(a) Subject
to the provisions of the Plan, the Committee may award Stock Units subject to
such terms, restrictions, conditions, performance criteria, vesting requirements
and payment rules as the Committee shall determine.
(b) Shares
of Common Stock awarded in connection with a Stock Unit Award shall be issued
for no cash consideration or such minimum consideration as may be required by
applicable law.
Section
11. Other Stock-Based
Awards
(a) Subject
to the provisions of the Plan, the Committee may make other awards of Common
Stock and other awards that are valued in whole or in part by reference to, or
are otherwise based on, Common Stock, including without limitation convertible
preferred stock, convertible debentures, exchangeable securities and Common
Stock awards or options. Other Stock-Based Awards may be granted
either alone or in tandem with other Awards granted under the Plan and/or cash
awards made outside of the Plan.
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(b) The
Committee may establish performance goals, which may be based on performance
goals related to book value, subsidiary performance or such other criteria as
the Committee may determine, Restricted Periods, Performance Cycles, conversion
prices, maturities and security, if any, for any Other Stock-Based
Award. Other Stock-Based Awards may be sold to Participants at the
face value thereof or any discount therefrom or awarded for no consideration or
such minimum consideration as may be required by applicable law.
Section
12. General
Provisions Applicable to Awards
(a) Documentation. Each
Award under the Plan shall be evidenced by a writing delivered to the
Participant specifying the terms and conditions thereof and containing such
other terms and conditions not inconsistent with the provisions of the Plan as
the Committee considers necessary or advisable to achieve the purposes of the
Plan or to comply with applicable tax and regulatory laws and accounting
principles.
(b) Committee
Discretion. Each type of Award may be made alone, in addition
to or in relation to any other type of Award, in
the discretion of the Committee. The terms of each type of
Award need not be identical, and the Committee need not treat Participants
uniformly. Except as otherwise provided by the Plan or a
particular Award, any determination with respect to an Award may be made by the
Committee at the time of award or at any time thereafter, including without limitation any determination
regarding the achievement or satisfaction of any Performance Goals, restrictions
or other conditions to vesting, exercise, or settlement of an Award.
(c) Settlement. The
Committee shall determine whether Awards are settled in whole or in part in
cash, Common Stock, other securities of the Company, Awards or other
property, and the manner of determining the amount
or value thereof. Without limiting the foregoing, the Committee
may, subject to applicable law, permit such payment to be made in whole or in
part in cash or by surrender of shares of Common Stock (which may be shares
retained from the respective Award) valued at their Fair Market Value on the
date of surrender, or such other lawful consideration, including a payment
commitment of a financial or brokerage institution, as the Committee may
determine. The Company may accept, in lieu of actual delivery of
stock certificates, an attestation by the Participant in form acceptable to the
Committee that he or she owns of record the shares to be tendered free and clear
of claims and other encumbrances. The Committee may permit
a Participant to defer all or any portion of a payment under the Plan, including
the crediting of interest on deferred amounts denominated in cash and dividend
equivalents on amounts denominated in Common Stock.
(d) Dividends and Cash
Awards. In the discretion of the Committee, any Award under
the Plan may provide the Participant with (i) dividends or dividend equivalents
payable currently or deferred with or without interest, and (ii) cash payments
in lieu of or in addition to an Award.
(e) Termination of Service. The Committee
shall determine the effect on an Award of the disability, death, retirement or
other termination of employment or other service
of a Participant and the extent to which, and the period during which,
the Participant’s legal representative, guardian or Designated Beneficiary may
receive payment of an Award or exercise rights thereunder. Unless the Committee otherwise provides in
any case, a Participant’s employment or other service shall have terminated for
purposes of this Plan at the time the entity by which the Participant is
employed or to which he or she renders such service ceases to be an Affiliate of
the Company.
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(f) Change in
Control. In order to preserve a Participant’s rights under an
Award in the event of a change in control of the Company (as defined by the
Committee), the Committee in its discretion may, at the time an Award is made or
at any time thereafter, take one or more of the following actions: (i) provide
for the acceleration of any time period relating to the exercise or realization
of the Award, (ii) provide for the purchase of the Award upon the Participant’s
request for an amount of cash or other property that could have been received
upon the exercise or realization of the Award had the Award been currently
exercisable or payable, (iii) adjust the terms of the Award in a manner
determined by the Committee to reflect the change in control, (iv) cause the
Award to be assumed, or new rights substituted therefor, by another entity, or
(v) make such other provision as the Committee may consider equitable and in the
best interests of the Company.
(g) Loans. The
Committee may authorize the making of loans or cash payments to Participants in
connection with any Award under the Plan, which loans may be secured by any
security, including Common Stock, underlying or related to such Award (provided
that such Loan shall not exceed the Fair Market Value of the security subject to
such Award), and which may be forgiven upon such terms and conditions as the
Committee may establish at the time of such loan or at any time
thereafter.
(h) Withholding
Taxes. The Participant shall pay to the Company, or make
provision satisfactory to the Committee for payment of, any taxes required by
law to be withheld in respect of Awards under the Plan no later than the date of
the event creating the tax liability. In the Committee’s discretion,
such tax obligations may be paid in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation, valued at
their Fair Market Value on the date of delivery. The Company and its
Affiliates may, to the extent permitted by law, deduct any such tax obligations
from any payment of any kind otherwise due to the Participant.
(i) Foreign
Nationals. Awards may be made to Participants who are foreign
nationals or employed outside the United States on such terms and conditions
different from those specified in the Plan as the Committee considers necessary
or advisable to achieve the purposes of the Plan or to comply with applicable
laws.
(j) Amendment of
Award. The Committee may amend, modify or terminate any
outstanding Award, including changing the date of vesting, exercise or settlement, causing the Award to be assumed by another
entity, and
converting an Incentive Stock Option to a Nonstatutory Stock Option, provided
that the Participant’s consent to such action shall be required unless the
Committee determines that the action, taking into account any related action,
would not materially and adversely affect the Participant. The foregoing notwithstanding, without
further approval of the stockholders of the Company, the Committee shall not
authorize the amendment of any outstanding Option or Stock Appreciation Right to
reduce the exercise price and no Option or Stock Appreciation Right shall be
canceled and replaced with an Award exercisable for Common Stock at a lower
exercise price.
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(k) Limitations on Transferability of
Awards. No Award shall be
transferable except upon such terms and conditions and to such extent as the
Committee determines, provided that no Award shall be transferable for value and
Incentive Stock Options may be transferable only to the extent permitted by the
Code.
(l) Section
409A. No Award to any
Participant subject to United States income taxation shall provide for the
deferral of compensation that does not comply with Section 409A of the Code and
any regulations thereunder.
Section
13. Miscellaneous
(a) No Right To
Employment. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as giving a
Participant the right to continued employment Neither the adoption, maintenance, or operation of the
Plan nor any Award hereunder shall confer upon any person any right with respect
to the continuance of his or her employment by or other service with the Company
or any Affiliate nor shall they interfere with the rights of the Company or any
Affiliate to terminate or otherwise change the terms of such service at any
time, including, without limitation, the right to promote, demote or otherwise
re-assign any person from one position to another within the Company or any
Affiliate. Unless the Committee otherwise provides in any case, the
service of a Participant with an Affiliate shall be deemed to terminate for
purposes of the Plan when such Affiliate ceases to be an Affiliate of the
Company.
(b) No Rights As
Stockholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed under
the Plan until he or she becomes the holder thereof. A Participant to
whom Common Stock is awarded shall be considered the holder of the Stock at the
time of the Award except as otherwise provided in the applicable
Award.
(c) Effective
Date. Subject to the approval of the stockholders of the
Company, the Plan shall be effective on the Effective Date. Before
such approval, Awards may be made under the Plan expressly subject to such
approval.
(d) Amendment of
Plan. The Committee may amend, suspend or terminate the Plan
or any portion thereof at any time, subject to any stockholder approval that the
Committee determines to be necessary or advisable.
(e) Governing Law. The
provisions of the Plan shall be governed by and interpreted in accordance with
the laws of the State of Delaware.
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