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EXHIBIT 4.10
INFORMAX, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made as of the
First day of May, 1997, by and between InforMax, Inc., a corporation organized
and existing under the laws of Delaware (the "Corporation") and Xxxxxx Xxxxxx
(the "Optionee").
Recital: The Corporation has determined that it is desirable to
recognize the contributions made to the Corporation by the Optionee, the
Corporation intends to grant hereunder to the Optionee an option to
purchase a certain number of shares of common stock of the Corporation,
all according to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
W I T N E S S E T H:
1. Grant of Option. The Corporation hereby affirms the grant to the
Optionee, as of May 1, 1997 (the "Original Grant Date"), the right and option
(the "Option") to purchase from the Corporation, on the terms and subject to the
conditions hereinafter set forth, One Thousand (1000) shares of common nonvoting
stock of the Corporation (the "Stock"). The Option shall not constitute an
"incentive stock option" within the meaning of Section 422A of the Internal
Revenue Code of 1986, as amended (the "Code"). Corporation reserves 1000 shares
for Optionee to be exercised as described in Section 3.
2. Price. The purchase price (the "Option Price") for the shares of
Stock subject to the Option granted by this Agreement shall be $1 per share.
3. Exercise of Option. Except as otherwise provided herein, the
Option shall be exercised as follows:
A. Option Terms. Until the Option is terminated, the Optionee
may exercise the Option (up to the total number of shares set forth in
Section 1 above) in whole or in part, at any time and from time to time,
by delivering written notice of the intention to exercise the Option
along with proper payment therefore, provided, that in no event may the
Option be exercised for a fractional share.
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B. Exercise by Optionee. During the lifetime of the Optionee,
only the Optionee (or, in the event of the Optionee's legal incapacity
or incompetence, the Optionee's guardian or legal representative) may
exercise the Option.
C. Termination of Employment. In the event that the Optionee is
employed by the Corporation, except as provided in subsections D and E
of this Section 3 the Optionee may exercise the Option only while the
Optionee is employed by the Corporation or for three months after the
termination of his employment, after which period the Option shall
terminate.
D. Death. In the event of the Optionee's death prior to the
termination of the Option, the Optionee's personal representative and/or
other successors-in-interest, as the case may be, shall have the right
(subject to the limitations on exercise set forth in Subsection F below)
to exercise all or any part of the Option.
E. Disability. If the Optionee's termination of employment is by
reason of "permanent and total disability" (within the meaning of
Section 22 (e) (3) of the Internal Revenue Code), the Optionee or his
guardian or legal representative shall have the right (subject to the
limitations on exercise set forth in Subsection F below) to exercise all
or any part of the Option.
F. Limitations on Exercise of Option. Notwithstanding the
foregoing provisions of this Section 3, in no event may the Option be
exercised, in whole or in part, more than ten years following the
Original Grant Date, or after the occurrence of an event referred to in
Section 7 below that results in termination of the Option.
4. How to Exercise the Option. Subject to the terms and conditions of
this Agreement, the Option may be exercised by delivering written notice of
exercise to the Corporation, at its principal office. Such notice shall specify
the number of shares for which the Option is being exercised and shall be
accompanied by payment in full of the Option Price of the shares for which the
Option is being exercised. Payment of the Option Price for the shares of Stock
purchased pursuant to the exercise of the Option shall be made either (i) in
cash or in cash equivalent; (ii) through the tender to the Corporation of shares
of stock, which shares shall be valued, for the purposes of determining the
extent to which the Option Price has been paid thereby, at their fair market
value (as determined by the Board of Directors of the Corporation) on the date
of exercise; or (iii) by a combination of the methods described in (i) and (ii).
If the person exercising the Option is not the Optionee, such person shall also
deliver with the notice of exercise appropriate proof of his or her right to
exercise the Option. An attempt to exercise the
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which the Corporation gives notice thereof to its stockholders.
C. Reorganization in Which the Corporation Is Not the Surviving
Corporation or Sale of Assets or Stock. Upon the dissolution or
liquidation of the Corporation, or upon a merger, consolidation or
reorganization of the Corporation with one or more other corporations in
which the Corporation is not the surviving corporation, or upon a sale
of substantially all of the assets of the Corporation to another
corporation, or upon any transaction (including, with limitation, a
merger or reorganization in which the Corporation is the surviving
corporation) approved by the Board of Directors of the Corporation which
results in any person or entity owning eighty percent (80%) or more of
the combined voting power of all classes of stock of the Corporation,
the Option hereunder shall terminate, except to the extent provision is
made in connection with such transaction for the continuation and/or the
assumption of the Option, or for the substitution for the Option of new
Options or stock appreciation rights covering the stock of a successor
employer corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kinds of shares and
exercise prices, in which event the Option shall continue in the manner
and under the terms so provided. In such event, the Optionee shall have
the right for 30 days immediately prior to the occurrence of such
termination to exercise the Option in whole or in part. The Corporation
shall send written notice of an event that will result in such a
termination to the Optionee not later than the time at which the
Corporation gives notice thereof to its stockholders.
D. Adjustments. Adjustments specified in this Section relating
to stock or securities of the Corporation shall be made by the Board of
Directors of the Corporation, whose determination in that respect shall
be final, binding and conclusive. No fractional shares of Stock or units
of other securities shall be issued pursuant to any such adjustment, and
such fractional shares shall be eliminated in each case by rounding
downward to the nearest whole share or unit.
8. General Restrictions. The Corporation shall not be required to sell
or issue any shares of Stock under the Option if the sale or issuance of such
shares would constitute a violation by the individual exercising the Option or
by the Corporation of any provision of any law or regulation of any governmental
authority, including, without limitation, any U.S. Federal securities laws or
regulations or any U.S. state securities laws or regulations. If at any time the
Corporation shall determine, in its discretion, that the listing, registration
or qualification of any shares subject to the Option upon any securities
exchange or under any state, or federal law, or the consent or approval of any
government regulatory body is
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necessary or desirable as a condition of, or in connection with, the issuance or
purchase of share, the Option may not be exercised in whole or in part unless
such listing, registration, qualification, consent of approval shall have been
effected or obtained free of any conditions that are unacceptable to the
Corporation, and delay caused thereby or failure of the Corporation to take
necessary steps in pursuit thereof shall prolong the date of termination of the
Option for the time required to finalize mentioned above procedures.
9. Withholding of Taxes. The Parties hereto recognize that the
Corporation may be obligated to withhold federal and local income taxes and
Social Security taxes to the extent that the Optionee realizes ordinary income
in connection with the exercise of the Option. The Optionee agrees that the
Corporation may withhold amounts needed to cover such taxes from payments
otherwise due and owing to the Optionee, and also agrees that upon demand the
Optionee will promptly pay to the Corporation having such obligation any
additional amounts as may be necessary to satisfy such withholding tax
obligation. Such payment shall be made in cash or equivalent.
10. Disclaimer of Rights. No provision in this Agreement shall be
construed to confer upon the Optionee the right to be employed by the
Corporation, or to interfere an any way with the right and authority of the
Corporation either to increase or decrease the compensation of the Optionee at
any time, or to terminate any employment or other relationship between the
Optionee and the Corporation.
11. Interpretation of this Agreement. All decisions of the Board of
Directors of the Corporation with regard to any questions arising under this
Agreement shall be binding and conclusive on the Corporation and the Optionee
and any other person entitled to exercise the Option as provided for herein.
12. Governing Law. This Agreement is executed pursuant to and shall be
governed by the laws of the State of Maryland (but not including the choice of
law rules thereof).
13. Binding Effect. Subject to all restrictions provided for in this
Agreement and the Option provided for herein, this Agreement shall be biding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
14. Notice. Any notice hereunder by the Optionee to the Corporation
shall be in writing and shall be deemed duly given if mailed or delivered to the
Corporation at its principal office, or if so mailed or delivered to such other
address as the Corporation may hereafter designate by notice to the Optionee.
Any notice hereunder by the Corporation to the Optionee shall be in writing and
shall be deemed duly given if mailed or delivered to the Optionee at the address
specified below by the Optionee
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for such purpose, or if so mailed or delivered to such other address as the
Optionee may hereafter designate by written notice given the Corporation.
15. Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all prior understandings and agreements, written or oral, of the
parties hereto with respect to the subject matter hereof, including, but not
limited to, the Agreement. Neither this Agreement nor any term hereof may be
amended, waived, discharged, or terminated except by a written instrument signed
by the Corporation unilaterally may waive any provision hereof in writing to the
extent that such a waiver does not adversely affect the interests of the
Optionee hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or caused this Agreement to be duly executed on their behalf, as of
the day and year first above written.
InforMax, Inc. Optionee
By: /s/ XX XXXXXXXXX XXXXXXXXX By: /s/ XXXXXX XXXXXX
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Name: XXXX XXXXXXXXX
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Title: PRESIDENT/CEO Name: XXXXXX XXXXXX
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