Exhibit 10.1


 


BEYOND GENOMICS, INC.


 


2001 STOCK OPTION AND INCENTIVE PLAN


 


Purpose and Eligibility


 


The purpose of this 2001 Stock Option and Incentive Plan (the “Plan”)
of Beyond Genomics, Inc. (the “Company”) is to provide stock
options and other equity interests in the Company (each an “Award”) to
employees, officers, directors, consultants and advisors of the Company and its
Subsidiaries, all of whom are eligible to receive Awards under the Plan. Any
person to whom an Award has been granted under the Plan is called a “Participant”.
Additional definitions are contained in Section 8.


 


2.                          Administration


 


a.                          Administration
by Board of Directors. The Plan will be administered by the Board of
Directors of the Company (the “Board”). The Board, in its sole discretion,
shall have the authority to grant and amend Awards, to adopt, amend and repeal rules relating
to the Plan and to interpret and correct the provisions of the Plan and any
Award. All decisions by the Board shall be final and binding on all interested persons.
Neither the Company nor any member of the Board shall be liable for any action
or determination relating to the Plan.


 


b.                         Appointment
of Committees. To the extent permitted by applicable law, the Board may
delegate any or all of its powers under the Plan to one or more committees or
subcommittees of the Board (a “Committee”). All references in the Plan
to the “Board” shall mean such Committee or the Board.


 


c.                          Delegation
to Executive Officers. To the extent permitted by applicable law, the Board
may delegate to one or more executive officers of the Company the power to
grant Awards and exercise such other powers under the Plan as the Board may
determine, provided that the
Board shall fix the maximum number of Awards to be granted and the maximum number
of shares issuable to any one Participant pursuant to Awards granted by such
executive officers.


 


3.                          Stock
Available for Awards


 


a.                          Number
of Shares. Subject to adjustment under Section 3(c), the aggregate
number of shares of Common Stock of the Company (the “Common Stock”)
that may be issued pursuant to the Plan is 1,000,000 shares. If any Award
expires, or is terminated, surrendered or forfeited, in whole or in part, the
unissued Common Stock covered by such Award shall again be available for the
grant of Awards under the Plan. If shares of Common Stock issued pursuant to
the Plan are repurchased by, or are surrendered or forfeited to, the Company at
no more than cost, such shares of Common Stock shall again be available for the
grant of Awards under the Plan; provided,
however, that the cumulative number of such shares that may be so
reissued under the Plan will not exceed 1,000,000 shares. Shares issued under
the Plan may consist in whole or in part of authorized but unissued shares or
treasury shares.


 

















 


b.                         Per
Participant Limit. Subject to adjustment under Section 3(c), no
Participant may be granted Awards during any one fiscal year to purchase more
than 750,000 shares of Common Stock.


 


c.                          Adjustment
to Common Stock. In the event of any stock split, stock dividend,
extraordinary cash dividend, recapitalization, reorganization, merger,
consolidation, combination, exchange of shares, liquidation, spin-off,
split-up, or other similar change in capitalization or event, (i) the
number and class of securities available for Awards under the Plan and the per
Participant share limit, (ii) the number and class of securities, vesting schedule and
exercise price per share subject to each outstanding Option, (iii) the
repurchase price per security subject to repurchase, and (iv) the terms of
each other outstanding stock-based Award shall be adjusted by the Company (or
substituted Awards may be made) to the extent the Board shall determine, in
good faith, that such an adjustment (or substitution) is appropriate. If Section 7(e)(i) applies
for any event, this Section 3(c) shall not be applicable.


 


4.                          Stock
Options


 


a.                          General.
The Board may grant options to purchase Common Stock (each, an “Option”)
and determine the number of shares of Common Stock to be covered by each
Option, the exercise price of each Option and the conditions and limitations
applicable to the exercise of each Option and the Common Stock issued upon the
exercise of each Option, including vesting provisions, repurchase provisions
and restrictions relating to applicable federal or state securities laws, as it
considers advisable.


 


b.                         Incentive
Stock Options. An Option that the Board intends to be an “incentive stock
option” as defined in Section 422 of the Code (an “Incentive Stock
Option”) shall be granted only to employees of the Company and shall be
subject to and shall be construed consistently with the requirements of Section 422
of the Code. The Board and the Company shall have no liability if an Option or
any part thereof that is intended to be an Incentive Stock Option does not
qualify as such. An Option or any part thereof that does not qualify as an
Incentive Stock Option is referred to herein as a “Nonstatutory Stock Option.”


 


c.                          Exercise
Price. The Board shall establish the exercise price (or determine the
method by which the exercise price shall be determined) at the time each Option
is granted and specify it in the applicable option agreement.


 


d.                         Duration
of Options. Each Option shall be exercisable at such times and subject to
such terms and conditions as the Board may specify in the applicable option
agreement.


 


e.                          Exercise
of Option. Options may be exercised only by delivery to the Company of a
written notice of exercise signed by the proper person together with payment in
full as specified in Section 4(f) for the number of shares for which
the Option is exercised.


 


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f.                            Payment
Upon Exercise. Common Stock purchased upon the exercise of an Option shall
be paid for by one or any combination of the following forms of payment:


 


(i)                         by
check payable to the order of the Company;


 


(ii)                      except
as otherwise explicitly provided in the applicable option agreement, and only
if the Common Stock is then publicly traded, delivery of an irrevocable and unconditional
undertaking by a creditworthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price, or delivery by the Participant to
the Company of a copy of irrevocable and unconditional instructions to a
creditworthy broker to deliver promptly to the Company cash or a check
sufficient to pay the exercise price; or


 


(iii)                   to
the extent explicitly provided in the applicable option agreement, by (x)
delivery of shares of Common Stock owned by the Participant valued at fair
market value (as determined by the Board or as determined pursuant to the
applicable option agreement), (y) delivery of a promissory note of the
Participant to the Company (and delivery to the Company by the Participant of a
check in an amount equal to the par value of the shares purchased), or (z)
payment of such other lawful consideration as the Board may determine.


 


5.                          Restricted
Stock


 


a.                          Grants.
The Board may grant Awards entitling recipients to acquire shares of Common
Stock, subject to (i) delivery to the Company by the Participant of a
check in an amount at least equal to the par value of the shares purchased, and
(ii) the right of the Company to repurchase all or part of such shares at
their issue price or other stated or formula price from the Participant in the
event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a “Restricted Stock Award”).


 


b.                         Terms
and Conditions. The Board shall determine the terms and conditions of any
such Restricted Stock Award. Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and,
unless otherwise determined by the Board, deposited by the Participant,
together with a stock power endorsed in blank, with the Company (or its
designee). After the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or, if the Participant has died, to the
beneficiary designated by a Participant, in a manner determined by the Board,
to receive amounts due or exercise rights of the Participant in the event of
the Participant’s death (the “Designated Beneficiary”). In the absence
of an effective designation by a Participant, Designated Beneficiary shall mean
the Participant’s estate.


 


6.                          Other
Stock-Based Awards


 


The Board shall have the right to grant other Awards based upon the
Common Stock having such terms and conditions as the Board may determine,
including, without limitation, the


 


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grant of shares
based upon certain conditions, the grant of securities convertible into Common
Stock and the grant of stock appreciation rights, phantom stock awards or stock
units.


 


7.                          General
Provisions Applicable to Awards


 


a.                          Transferability
of Awards. Except as the Board may otherwise determine or provide in an
Award, Awards shall not be sold, assigned, transferred, pledged or otherwise
encumbered by the person to whom they are granted, either voluntarily or by
operation of law, except by will or the laws of descent and distribution, and,
during the life of the Participant, shall be exercisable only by the
Participant. References to a Participant, to the extent relevant in the
context, shall include references to authorized transferees.


 


b.                         Documentation.
Each Award under the Plan shall be evidenced by a written instrument in such
form as the Board shall determine or as executed by an officer of the Company
pursuant to authority delegated by the Board. Each Award may contain terms and
conditions in addition to those set forth in the Plan provided that such terms and conditions do
not contravene the provisions of the Plan.


 


c.                          Board
Discretion. The terms of each type of Award need not be identical, and the
Board need not treat Participants uniformly.


 


d.                         Termination
of Status. The Board shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other change in
the employment or other status of a Participant and the extent to which, and
the period during which, the Participant, or the Participant’s legal
representative, conservator, guardian or Designated Beneficiary, may exercise
rights under the Award.


 


e.                          Acquisition
of the Company


 


(i)                         Consquences
of an Acquisition.


 


(A)                  Effect
on Options, Restricted Stock Awards and Other Stock-Based Awards. In
addition to any acceleration provisions expressly provided in the applicable
option agreement, stock restriction agreement or any other agreement between a
Participant and the Company in respect of an Award, upon consummation of an
Acquisition (as defined below), the Board shall have the authority to accelerate
the date(s) that (x) any outstanding Options shall become exercisable, (y) any
Restricted Stock Awards then outstanding shall become free of repurchase
provisions, and (z) any other stock-based Awards shall become exercisable,
realizable or vested, or shall become free of repurchase provisions, as the
case may be. Upon consummation of an Acquisition, the Board or the board of
directors of the surviving or acquiring entity (as used in this Section 7(e)(i)(A),
also the “Board”), shall, as to such outstanding Awards (on the same
basis or on different bases, as the Board shall specify), make appropriate
provision for the continuation of such Awards by the Company or the assumption
of such Awards by the surviving or acquiring entity and by substituting on an equitable
basis for the shares then subject to such Awards either (a) the
consideration payable with respect to the


 


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outstanding shares
of Common Stock in connection with the Acquisition, (b) shares of stock of
the surviving or acquiring corporation or (c) such other securities as the
Board deems appropriate, the fair market value of which (as determined by the
Board in its sole discretion) shall not materially differ from the fair market
value of the shares of Common Stock subject to such Awards immediately
preceding the Acquisition. In addition to or in lieu of the foregoing, with
respect to outstanding Options, the Board may, upon written notice to the
affected Participants, provide that one or more Options then outstanding shall
become immediately exercisable in full and that such Options must be exercised
within a specified number of days of the date of such notice, at the end of
which period such Options shall terminate; or provide that one or more Options
then outstanding shall become immediately exercisable in full and shall be
terminated in exchange for a cash payment equal to the excess of the fair
market value (as determined by the Board in its sole discretion) for the shares
subject to such Options over the exercise price thereof.


 


(B)                    Acquisition
Defined. An “Acquisition” shall mean: (x) the sale of the Company by
merger in which the shareholders of the Company in their capacity as such no
longer own a majority of the outstanding equity securities of the Company (or
its successor); or (y) any sale of all or substantially all of the assets or
capital stock of the Company (other than in a spin-off or similar transaction)
or (z) any other acquisition of the business of the Company, as determined by
the Board.


 


(ii)                      Assumption
of Options Upon Certain Events. In connection with a merger or
consolidation of an entity with the Company or the acquisition by the Company
of property or stock of an entity, the Board may grant Awards under the Plan in
substitution for stock and stock-based awards issued by such entity or an
affiliate thereof. The substitute Awards shall be granted on such terms and
conditions as the Board considers appropriate in the circumstances.


 


(iii)                   Pooling-of
Interests-Accounting. If the Company proposes to engage in an Acquisition
intended to be accounted for as a pooling-of-interests, and in the event that
the provisions of this Plan or of any Award hereunder, or any actions of the
Board taken in connection with such Acquisition, are determined by the Company’s
or the acquiring company’s independent public accountants to cause such
Acquisition to fail to be accounted for as a pooling-or-interests, then such
provisions or actions shall be amended or rescinded by the Board, without the
consent of any Participant, to be consistent with pooling-of-interests
accounting treatment for such Acquisition.


 


(iv)                  Parachute
Awards. Notwithstanding the provisions of Section 7(e)(i)(A), if, in
connection with an Acquisition described therein, a tax under Section 4999
of the Code would be imposed on the Participant (after taking into account the
exceptions set forth in Sections 280G(b)(4) and 280G(b)(5) of the
Code), then the number of Awards which shall become exercisable, realizable or
vested as provided in such section shall be reduced (or delayed), to the
minimum extent necessary, so that no such tax would be imposed on the
Participant (the Awards not becoming so accelerated, realizable or vested, the “Parachute
Awards”); provided, however, that
if the “aggregate present value” of the Parachute Awards would exceed
the tax that, but for this sentence, would be imposed on the Participant under


 


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Section 4999
of the Code in connection with the Acquisition, then the Awards shall become
immediately exercisable, realizable and vested without regard to the provisions
of this sentence. For purposes of the preceding sentence, the “aggregate
present value” of an Award shall be calculated on an after-tax basis (other
than taxes imposed by Section 4999 of the Code) and shall be based on
economic principles rather than the principles set forth under Section 280G
of the Code and the regulations promulgated thereunder. All determinations
required to be made under this Section 7(e)(iv) shall be made by the
Company.


 


f.                            Withholding.
Each Participant shall pay to the Company, or make provisions satisfactory to
the Company for payment of, any taxes required by law to be withheld in
connection with Awards to such Participant no later than the date of the event
creating the tax liability. The Board may allow Participants to satisfy such
tax obligations in whole or in part by transferring shares of Common Stock,
including shares retained from the Award creating the tax obligation, valued at
their fair market value (as determined by the Board or as determined pursuant
to the applicable option agreement). The Company may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind otherwise
due to a Participant.


 


g.                         Amendment
of Awards. The Board may amend, modify or terminate any outstanding Award
including, but not limited to, substituting therefor another Award of the same
or a different type, changing the date of exercise or realization, and converting
an Incentive Stock Option to a Nonstatutory Stock Option, provided that, except as otherwise
provided in Section 7(e)(iii), the Participant’s consent to such action
shall be required unless the Board determines that the action, taking into
account any related action, would not materially and adversely affect the
Participant.


 


h.                         Conditions
on Delivery of Stock. The Company will not be obligated to deliver any
shares of Common Stock pursuant to the Plan or to remove restrictions from
shares previously delivered under the Plan until (i) all conditions of the
Award have been met or removed to the satisfaction of the Company, (ii) in
the opinion of the Company’s counsel, all other legal matters in connection
with the issuance and delivery of such shares have been satisfied, including
any applicable securities laws and any applicable stock exchange or stock
market rules and regulations, and (iii) the Participant has executed
and delivered to the Company such representations or agreements as the Company
may consider appropriate to satisfy the requirements of any applicable laws, rules or
regulations.


 


i.                             Acceleration.
The Board may at any time provide that any Options shall become immediately
exercisable in full or in part, that any Restricted Stock Awards shall be free
of some or all restrictions, or that any other stock-based Awards may become
exercisable in full or in part or free of some or all restrictions or
conditions, or otherwise realizable in full or in part, as the case may be,
despite the fact that the foregoing actions may (i) cause the application
of Sections 280G and 4999 of the Code if a change in control of the Company
occurs, or (ii) disqualify all or part of the Option as an Incentive Stock
Option.


 


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8.                          Miscellaneous


 


a. Definitions.


 


(i)                         “Company,”
for purposes of eligibility under the Plan, shall include any present or future
subsidiary corporations of Beyond Genomics, Inc., as defined in Section 424(f) of
the Code (a “Subsidiary”), and any present or future parent corporation
of Beyond Genomics, Inc., as defined in Section 424(e) of the
Code. For purposes of Awards other than Incentive Stock Options, the term “Company”
shall include any other business venture in which the Company has a direct or indirect
significant interest, as determined by the Board in its sole discretion.


 


(ii)                      “Code”
means the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder.


 


(iii)                   “employee”
for purposes of eligibility under the Plan (but not for purposes of Section 4(b) or
Section 7(e)(i)(A)) shall include a person to whom an offer of employment
has been extended by the Company.


 


b.                         No
Right To Employment or Other Status. 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 or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan.


 


c.                          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 with respect to an
Award until becoming the record holder thereof.


 


d.                         Effective
Date and Term of Plan. The Plan shall become effective on the date on which
it is adopted by the Board. No Awards shall be granted under the Plan after the
completion of ten years from the date on which the Plan was adopted by the
Board, but Awards previously granted may extend beyond that date.


 


e.                          Amendment
of Plan. The Board may amend, suspend or terminate the Plan or any portion
thereof at any time.


 


f.                            Governing
Law. The provisions of the Plan and all Awards made hereunder shall be
governed by and interpreted in accordance with the laws of the Commonwealth of
Massachusetts, without regard to any applicable conflicts of law.


 


	
   

  	
  Adopted by the Board of Directors on

  
	
   

  	
  June 6, 2001

  
	
   

  	
   

  
	
   

  	
  Approved by the stockholders on

  
	
   

  	
  March 20, 2002

  



 


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AMENDMENT NO. 1 TO THE

BEYOND GENOMICS, INC.

2001 STOCK OPTION AND INCENTIVE PLAN


 


This Amendment No. 1 (the “Amendment”) to the Beyond Genomics, Inc.
2001 Stock Option and Incentive Plan dated June 6, 2001 (the “Plan”) is
made in accordance with the provisions of Section 8(e) of the Plan.
Any capitalized terms not defined herein shall have the meaning set forth in the
Plan.


 


A.       Section 3(a) of the Plan shall
be amended and replaced in its entirety with the following:


 


“Number of Shares. Subject
to adjustment under Section 3(c), the aggregate number of shares of Common
Stock of the Company (the “Common Stock”) that may be issued pursuant to
the Plan is 3,500,000 shares. If any Award expires, or is terminated,
surrendered or forfeited, in whole or in part, the unissued Common Stock
covered by such Award shall again be available for the grant of Awards under
the Plan. If shares of Common Stock issued pursuant to the Plan are repurchased
by, or are surrendered or forfeited to, the Company at no more than cost, such
shares of Common Stock shall again be available for the grant of Awards under
the Plan; provided, however, that
the cumulative number of such shares that may be so reissued under the Plan
will not exceed 3,500,000 shares. Shares issued under the Plan may consist in
whole or in part of authorized but unissued shares or treasury shares.”


 


B.        Section 3(b) shall be amended
and replaced in its entirety with the following:


 


“Per Participant Limit. Subject
to adjustment under Section 3(c), no Participant may be granted Awards
during any one fiscal year to purchase more than 2,625,000 shares of Common
Stock.”


 


Except as expressly set forth herein, no other terms or provisions of
the Plan are amended or modified, and all such provisions and terms are hereby
ratified and confirmed in all respects.


 


 


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IN WITNESS WHEREOF, the undersigned has executed this Amendment this
26th day of April, 2002.


 


 


	
   

  	
   

  	
  BEYOND
  GENOMICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  N. Stephen Ober

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  N.
  Stephen Ober, MD

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
						



 

















 


Amendment No. 2 to
the

BEYOND GENOMICS, INC.

2001 Stock Option and Incentive Plan


 


This Amendment No. 2 (the “Amendment”) to the Beyond Genomics, Inc.
2001 Stock Option and Incentive Plan dated December 19, 2003 (the “Plan”)
is made in accordance with the provisions of Section 8(e) of the
Plan. Any capitalized terms not defined herein shall have the meaning set forth
in the Plan.


 


A.       Section 3(a) of the Plan shall
be amended and replaced in its entirety with the following


 


“Number of Shares. Subject
to adjustment under Section 3(c), the aggregate number of shares of Common
Stock of the Company (the “Common Stock”) that may be issued pursuant to
the Plan is 4,000,000 shares. If any Award expires, or is terminated,
surrendered or forfeited, in whole or in part, the unissued Common Stock
covered by such Award shall again be available for the grant of Awards under
the Plan. If shares of Common Stock issued pursuant to the Plan are repurchased
by, or are surrendered or forfeited to, the Company at no more than cost, such
shares of Common Stock shall again be available for the grant of Awards under
the Plan; provided, however, that
the cumulative number of such shares that may be so reissued under the Plan
will not exceed 4,000,000 shares. Shares issued under the Plan may consist in
whole or in part of authorized but unissued shares or treasury shares.”


 


B.        Section 3(b) shall be amended
and replaced in its entirety with the following:


 


“Per Participant Limit. Subject
to adjustment under Section 3(c), no Participant may be granted Awards
during any one fiscal year to purchase more than 3,000,000 shares of Common
Stock.”


 


Except as expressly set forth herein, no other terms or provisions of
the Plan are amended or modified, and all such provisions and terms are hereby
ratified and confirmed in all respects.


 


 


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IN WITNESS WHEREOF, the undersigned has executed this Amendment this 19th
day of December, 2003.


 


 


	
   

  	
   

  	
  BEYOND
  GENOMICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  N. Stephen Ober

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  N.
  Stephen Ober

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
						



 


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Amendment No. 3 to
the

BEYOND GENOMICS, INC.

2001 Stock Option and Incentive Plan


 


This Amendment No. 3 (the “Amendment”) to the Beyond Genomics, Inc.
2001 Stock Option and Incentive Plan dated March 2, 2004 (the “Plan”) is
made in accordance with the provisions of Section 8(e) of the Plan.
Any capitalized terms not defined herein shall have the meaning set forth in
the Plan.


 


A.       Section 3(a) of the Plan shall
be amended and replaced in its entirety with the following:


 


“Number of Shares. Subject
to adjustment under Section 3(c), the aggregate number of shares of Common
Stock of the Company (the “Common Stock”) that may be issued pursuant to
the Plan is 7,000,000 shares. If any Award expires, or is terminated,
surrendered or forfeited, in whole or in part, the unissued Common Stock
covered by such Award shall again be available for the grant of Awards under
the Plan. If shares of Common Stock issued pursuant to the Plan are repurchased
by, or are surrendered or forfeited to, the Company at no more than cost, such
shares of Common Stock shall again be available for the grant of Awards under
the Plan; provided, however, that
the cumulative number of such shares that may be so reissued under the Plan
will not exceed 7,000,000 shares. Shares issued under the Plan may consist in
whole or in part of authorized but unissued shares or treasury shares.”


 


B.        Section 3(b) shall be amended
and replaced in its entirety with the following:


 


“Per Participant Limit. Subject
to adjustment under Section 3(c), no Participant may be granted Awards
during any one fiscal year to purchase more than 5,250,000 shares of Common
Stock.”


 


Except as expressly set forth herein, no other terms or provisions of
the Plan are amended or modified, and all such provisions and terms are hereby
ratified and confirmed in all respects.


 


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IN WITNESS WHEREOF, the undersigned has executed this Amendment this 2nd
day of March, 2004.


 


 


	
   

  	
   

  	
  BEYOND
  GENOMICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Muzammil Mansuri

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Muzammil
  Mansuri, Ph.D

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Chairman

  
						



 


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