<PAGE> 1
As filed with the Securities and Exchange Commission on Feb. 6, 1998
Registration No.______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BIONUTRICS, INC.
(Exact name of Registrant as specified in its charter)
Nevada 86-0760991
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2425 E. Camelback Road, Suite 650
Phoenix, Arizona 85016
(Address of Principal executive offices)(zip code)
BIONUTRICS, INC.
1996 Stock Option Plan
(Full Title of the Plan)
Ronald H. Lane
Chairman of the Board, President,
and Chief Executive Officer
BIONUTRICS, INC.
2425 E. Camelback Road, Suite 650, Phoenix, Arizona 85016
(602) 508-0112
(Telephone number, including area code, of agent for service)
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed maximum Proposed maximum Amount of
Title of Securities to be Amount to be offering price per aggregate offering registration fee
Registered registered(1) share price
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,221,333 Shares $ 5.00 $ 6,106,665.00 $1,801.00
Common Stock 44,500 Shares $ 7.00 $ 311,500.00 $ 92.00
Common Stock 403,600 Shares $9.125 $ 3,682,850.00 $1,086.00
Common Stock 125,000 Shares $ 8.75 $ 1,093,750.00 $ 323.00
--------- -------------- ---------
1,794,333 Shares $11,194,765.00 $3,302.00
============== =========
==========================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the 1996 Stock Option Plan by reason of
any stock dividend, stock split, recapitalization or any other similar
transaction without receipt of consideration which results in an increase in
the number of outstanding shares of Common Stock of Bionutrics, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Bionutrics, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Form 10-K as filed with the Commission on January
14, 1998, (Commission File No. 22011), and Form 10-K/A as filed on
January 30, 1998.
(b) The Registrant's report on Form 8-K as filed with the Commission on
or about November 7, 1997 and Form 8-K/A as filed on January 30,
1998.
(c) The description of the Registrant's Capital Stock contained in the
Registrant's Registration Statement on Form 10, as amended, as
filed with the Commission on January 21, 1997.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Company's Restated Articles of Incorporation provide that no
director or officer of the Company shall be personally liable to the Company or
its stockholders for monetary damages for any breach of fiduciary duty by such
person as a director or officer, except that a director or officer shall be
liable, to the extent provided by applicable law, (i) for acts or omissions
which involve intentional misconduct, fraud or a knowing violation of law, or
(ii) for the payment of dividends in violation of restrictions imposed by
Section 78.300 of the Nevada GCL. The effect of this provision in the Restated
Articles of Incorporation is to eliminate the rights of the Company and this
stockholders, either directly or through stockholders' derivative suits brought
on behalf of the Company, to recover monetary damages from a director or officer
for breach of the fiduciary duty of care as a director or officer except in
those instances provided under the Nevada GCL.
II.1
<PAGE> 3
In addition, the Company has adopted provisions in its Bylaws that
require the Company to indemnify its directors, officers and certain other
representatives of the Company against expenses, liabilities and other matters
arising out of their conduct on behalf of the Company, or otherwise referred to
in or covered by applicable provisions of the Nevada GCL, to the fullest extent
permitted by the Nevada GCL.
Section 78.751 of the Nevada GCL provides that a corporation may
indemnify its directors and officers against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and reasonably
incurred by the director or officer in connection with an action, suit or
proceeding in which the director or officer has been made or is threatened to be
made a party, if the director or officer acted in good faith and in a manner
which the director or officer reasonably believed to be in or not opposed to the
best interests of the corporation, and with respect to any criminal proceeding,
had no reason to believe the director's or officer's conduct was unlawful. Any
such indemnification may be made by the corporation only as ordered by a court
or as authorized in a specific case upon a determination made in accordance with
the Nevada GCL that such indemnification is proper in the circumstances.
Indemnification may not be made under the Nevada GCL for any claim,
issue or matter as to which the director or officer has been adjudged by a court
of competent jurisdiction, after exhausting of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which the action or suit was
brought or other court of competent jurisdiction determines that in view of all
the circumstances of the case, the director or officer is fairly and reasonably
entitled to indemnify for such expenses as the court deems proper.
To the extent that a director of or officer of a corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding or in defense of any claim, issue or matter therein, the director or
officer must be indemnified under the Nevada GCL by the corporation against
expenses, including attorneys' fees, actually and reasonably incurred by the
director or officer in connection with the defense.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
4 Bionutrics, Inc. 1996 Employee Stock Option Plan.
5 Opinion and consent of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a professional association
23.1 Consent of Independent Public Accountants - Deloitte & Touche, LLP.
23.2 Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A.
is contained in Exhibit 5
24 Power of Attorney (included on page II.4 of this Registration Statement)
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933; and (ii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
II.2
<PAGE> 4
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the 1997 Employee Stock Option Plan.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into the Registration Statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II.3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on February 4, 1998.
BIONUTRICS, INC.
By: /s/ Ronald H. Lane
-----------------------------------------
Ronald H. Lane, Chairman of the Board,
President, and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald H. Lane as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE POSITION DATE
/s/ Ronald H. Lane Chairman of the Board, President, February 4, 1998
Ronald H. Lane and Chief Executive Officer
(Principal Executive Officer)
/s/ George E. Duck, Jr. Vice President-Finance; Secretary
George E. Duck, Jr. and Treasurer (Principal Financial
and Accounting Officer) February 4, 1998
/s/ William M. McCormick Vice Chairman of the Board and December 19, 1997
William M. McCormick Director
/s/ Richard M. Feldheim Director February 4, 1998
Richard M. Feldheim
II.4
<PAGE> 6
/s/ Ian R. Ferrier Director
- ------------------------ December 19, 1997
Ian R. Ferrier
/s/ Steven Henig Director
- ------------------------ December 18, 1997
deccem Henig
/s/ C. Everett Koop Director
- ------------------------ December 20, 1997
C. Everett Koop
/s/ Milton Okin Director
- ------------------------ December 22, 1997
Milton Okin
/s/ Frederick Rentschler Director
- ------------------------ December 21, 1997
Frederick Rentschler
Director
- ------------------------ -----------, 1997
Winston A. Salser
/s/ D. Michael Wells Director
- ------------------------ December 22, 1997
D. Michael Wells
II.5
<PAGE> 1
EXHIBIT 4
BIONUTRICS, INC.
1996 STOCK OPTION PLAN
ARTICLE I
GENERAL
1.1 PURPOSE OF PLAN; TERM
(a) ADOPTION. On October 31, 1996, the Board of Directors (the
"Board") of Bionutrics, Inc., a Nevada corporation (the "Company"), adopted a
stock option plan to be known as the 1996 Stock Option Plan (the "Plan").
(b) DEFINED TERMS. All initially capitalized terms used hereby shall
have the meaning set forth in Article V hereto.
(c) GENERAL PURPOSE. The purpose of the Grant Program is to further
the interests of the Company and its shareholders by encouraging key persons
associated with the Company (or Parent or Subsidiary Corporations) to acquire
shares of the Company's Stock, thereby acquiring a proprietary interest in its
business and an increased personal interest in its continued success and
progress. Such purpose shall be accomplished by providing for the granting of
options to acquire the Company's Stock ("Options"), the direct granting of the
Company's Stock ("Stock Awards"), the granting of stock appreciation rights
("SARs"), or the granting of other cash awards ("Cash Awards") (Stock Awards,
SARs and Cash Awards shall be collectively referred to herein as "Awards").
(d) CHARACTER OF OPTIONS. Options granted under this Plan to
employees of the Company (or Parent or Subsidiary Corporations) that are
intended to qualify as an "incentive stock option" as defined in Code section
422 ("Incentive Stock Option") will be specified in the applicable stock option
agreement. All other Options granted under this Plan will be nonqualified
options.
(e) RULE 16b-3 PLAN. The Company expects to be subject to the
reporting requirements of the Securities Exchange Act of 1934, and therefore the
Plan is intended to comply with all applicable conditions of Rule 16b-3 (and all
subsequent revisions thereof) promulgated under the 1934 Act. In addition, the
Board may amend the Plan from time to time as it deems necessary in order to
meet the requirements of any amendments to Rule 16b-3 without the consent of the
shareholders of the Company.
(f) DURATION OF PLAN. The term of the Plan is 10 years commencing on
the date of adoption of the original Plan by the Board as specified in Section
1.1(a) hereof. No Option or Award shall be granted under the Plan unless granted
within 10 years of the adoption of the Plan by the Board, but Options or Awards
outstanding on that date shall not be terminated or otherwise affected by virtue
of the Plan's expiration.
<PAGE> 2
1.2 STOCK AND MAXIMUM NUMBER OF SHARES SUBJECT TO PLAN.
(a) DESCRIPTION OF STOCK AND MAXIMUM SHARES ALLOCATED. The shares of
stock subject to the provisions of the Plan and issuable upon the grant of Stock
Awards or upon the exercise of SARs or Options granted under the Plan are shares
of the Company's common stock, $0.001 par value per share (the "Stock"), which
may be either unissued or treasury shares. The Company may not issue more than
1,900,000 shares of Stock pursuant to the Plan, unless the Plan is amended as
provided in Section 1.3 or the maximum number of shares subject to the Plan is
adjusted as provided in Section 3.1.
(b) CALCULATION OF AVAILABLE SHARES. The number of shares of Stock
available under the Plan shall be reduced: (i) by any shares of Stock issued
(including any shares of Stock withheld for tax withholding requirements) upon
exercise of an Option and (ii) by any shares of Stock issued (including any
shares of Stock withheld for tax withholding requirements) upon the grant of a
Stock Award or the exercise of a SAR.
(c) RESTORATION OF UNPURCHASED SHARES. If an Option or SAR expires
or terminates for any reason prior to its exercise in full and before the term
of the Plan expires, the shares of Stock subject to, but not issued under, such
Option or SAR shall, without further action or by or on behalf of the Company,
again be available under the Plan.
1.3 APPROVAL; AMENDMENTS.
(a) APPROVAL BY SHAREHOLDERS. The Plan shall be submitted to the
shareholders of the Company for their approval at a regular or special meeting
to be held within 12 months after the adoption of the Plan by the Board.
Shareholder approval shall be evidenced by the affirmative vote of the holders
of a majority of the shares of the Company's Common Stock present in person or
by proxy and voting at the meeting. The date such shareholder approval has been
obtained shall be referred to herein as the "Effective Date."
(b) COMMENCEMENT OF PROGRAMS. The Grant Program is effective
immediately, but if the Plan is not approved by the shareholders within 12
months after its adoption by the Board, the Plan and all Options and Awards made
under the Grant Program will automatically terminate and be forfeited to the
same extent and with the same effect as though the Plan had never been adopted.
(c) AMENDMENTS TO PLAN. The Board may, without action on the part of
the Company's shareholders, make such amendments to, changes in and additions to
the Plan as it may, from time to time, deem necessary or appropriate and in the
best interests of the Company; provided, the Board may not, without the consent
of the applicable Optionholder, take any action which disqualifies any Option
previously granted under the Plan for treatment as an Incentive Stock Option or
which adversely affects or impairs the rights of the Optionholder of any Option
outstanding under the Plan, and further provided that, except as provided in
Article III hereof, the Board may not, without the approval of the Company's
shareholders, (i) increase the aggregate number of shares of Stock subject to
the Plan, (ii) reduce the exercise price at which
2
<PAGE> 3
Options may be granted or the exercise price at which any outstanding Option may
be exercised, (iii) extend the term of the Plan, (iv) change the class of
persons eligible to receive Options or Awards under the Plan, or (v) materially
increase the benefits accruing to participants under the Plan. Notwithstanding
the foregoing, Options or Awards may be granted under this Plan to purchase
shares of Stock in excess of the number of shares then available for issuance
under the Plan if (A) an amendment to increase the maximum number of shares
issuable under the Plan is adopted by the Board prior to the initial grant of
any such Option or Award and within one year thereafter such amendment is
approved by the Company's shareholders and (B) each such Option or Award granted
does not become exercisable or vested, in whole or in part, at any time prior to
the obtaining of such shareholder approval.
ARTICLE II
GRANT PROGRAM
2.1 PARTICIPANTS; ADMINISTRATION.
(a) ELIGIBILITY AND PARTICIPATION. Options and Awards may be granted
only to persons ("Eligible Persons") who at the time of grant are (i) key
personnel (including officers and directors) of the Company or Parent or
Subsidiary Corporations, or (ii) consultants or independent contractors who
provide valuable services to the Company or Parent or Subsidiary Corporations;
provided that (1) Incentive Stock Options may only be granted to key personnel
of the Company (and its Parent or Subsidiary Corporation) who are also employees
of the Company (or its Parent or Subsidiary Corporation) and (2) the maximum
number of shares of stock with respect to which Options or Awards may be
granted to any employee during the term of the Plan shall not exceed 50 percent
of the shares of stock covered by the Plan. A Plan Administrator shall have full
authority to determine which Eligible Persons in its administered group are to
receive Option grants under the Plan, the number of shares to be covered by each
such grant, whether or not the granted Option is to be an Incentive Stock
Option, the time or times at which each such Option is to become exercisable,
and the maximum term for which the Option is to be outstanding. A Plan
Administrator shall also have full authority to determine which Eligible Persons
in such group are to receive Awards under the Grant Program and the conditions
relating to such Award.
(b) GENERAL ADMINISTRATION. The Eligible Persons under the Grant
Program shall be divided into two groups and there shall be a separate
administrator for each group. One group will be comprised of Eligible Persons
that are Affiliates. For purposes of this Plan, the term "Affiliates" shall mean
all "officers" (as that term is defined in Rule 16a-1(f) promulgated under the
1934 Act) and directors of the Company and all persons who own ten percent or
more of the Company's issued and outstanding equity securities. Initially, the
power to administer the Grant Program with respect to Eligible Persons that are
Affiliates shall be vested with the Board. At any time, however, the Board may
vest the power to administer the Grant Program with respect to Persons that are
Affiliates exclusively with a committee (the "Senior Committee") comprised of
two or more Non-Employee Directors which are appointed by the Board. The Senior
Committee, at its sole discretion, may require approval of the Board for
specific grants of Options or Awards under the Grant Program. The administration
of all Eligible Persons that
3
<PAGE> 4
are not Affiliates ("Non-Affiliates") shall be vested exclusively with the
Board. The Board, however, may at any time appoint a committee (the "Employee
Committee") of two or more persons who are members of the Board and delegate to
such Employee Committee the power to administer the Grant Program with respect
to the Non-Affiliates. In addition, the Board may establish an additional
committee or committees of persons who are members of the Board and delegate to
such other committee or committees the power to administer all or a portion of
the Grant program with respect to all or a portion of the Eligible Persons.
Members of the Senior Committee, Employee Committee or any other committee
allowed hereunder shall serve for such period of time as the Board may determine
and shall be subject to removal by the Board at any time. The Board may at any
time terminate all or a portion of the functions of the Senior Committee, the
Employee Committee, or any other committee allowed hereunder and reassume all or
a portion of powers and authority previously delegated to such committee. The
Board in its discretion may also require the members of the Senior Committee,
the Employee Committee or any other committee allowed hereunder to be "outside
directors" as that term is defined in any applicable regulations promulgated
under Code section 162(m).
(c) PLAN ADMINISTRATORS. The Board, the Employee Committee, Senior
Committee, and/or any other committee allowed hereunder, whichever is
applicable, shall be each referred to herein as a "Plan Administrator." Each
Plan Administrator shall have the authority and discretion, with respect to its
administered group, to select which Eligible Persons shall participate in the
Grant Program, to grant Options or Awards under the Grant Program, to establish
such rules and regulations as they may deem appropriate with respect to the
proper administration of the Grant Program and to make such determinations
under, and issue such interpretations of, the Grant Program and any outstanding
Option or Award as they may deem necessary or advisable. Unless otherwise
required by law or specified by the Board with respect to any committee,
decisions among the members of a Plan Administrator shall be by majority vote.
Decisions of a Plan Administrator shall be final and binding on all parties who
have an interest in the Grant Program or any outstanding Option or Award.
(d) GUIDELINES FOR PARTICIPATION. In designating and selecting
Eligible Persons for participation in the Grant Program, a Plan Administrator
shall consult with and give consideration to the recommendations and criticisms
submitted by appropriate managerial and executive officers of the Company. A
Plan Administrator also shall take into account the duties and responsibilities
of the Eligible Persons, their past, present and potential contributions to the
success of the Company and such other factors as a Plan Administrator shall deem
relevant in connection with accomplishing the purpose of the Plan.
2.2 TERMS AND CONDITIONS OF OPTIONS
(a) ALLOTMENT OF SHARES. A Plan Administrator shall determine the
number of shares of Stock to be optioned from time to time and the number of
shares to be optioned to any Eligible Person (the "Optioned Shares"). The grant
of an Option to a person shall neither entitle such person to, nor disqualify
such person from, participation in any other grant of Options or Stock Awards
under this Plan or any other stock option plan of the Company.
4
<PAGE> 5
(b) EXERCISE PRICE. Upon the grant of any Option, a Plan
Administrator shall specify the option price per share. If the Option is
intended to qualify as an Incentive Stock Option under the Code, the option
price per share may not be less than 100 percent of the fair market value per
share of the stock on the date the Option is granted (110 percent if the Option
is granted to a shareholder who at the time the Option is granted owns or is
deemed to own stock possessing more than 10 percent of the total combined voting
power of all classes of stock of the Company or of any Parent or Subsidiary
Corporation). The determination of the fair market value of the Stock shall be
made in accordance with the valuation provisions of Section 3.5 hereof.
(c) INDIVIDUAL STOCK OPTION AGREEMENTS. Options granted under the
Plan shall be evidenced by option agreements in such form and content as a Plan
Administrator from time to time approves, which agreements shall substantially
comply with and be subject to the terms of the Plan, including the terms and
conditions of this Section 2.2. As determined by a Plan Administrator, each
option agreement shall state (i) the total number of shares to which it
pertains, (ii) the exercise price for the shares covered by the Option, (iii)
the time at which the Options vest and become exercisable and (iv) the Option's
scheduled expiration date. The option agreements may contain such other
provisions or conditions as a Plan Administrator deems necessary or appropriate
to effectuate the sense and purpose of the Plan, including covenants by the
Optionholder not to compete and remedies for the Company in the event of the
breach of any such covenant.
(d) OPTION PERIOD. No Option granted under the Plan that is intended
to be an Incentive Stock Option shall be exercisable for a period in excess of
10 years from the date of its grant (five years if the Option is granted to a
shareholder who at the time the Option is granted owns or is deemed to own stock
possessing more than 10 percent of the total combined voting power of all
classes of stock of the Company or of any Parent or any Subsidiary Corporation),
subject to earlier termination in the event of termination of employment,
retirement or death of the Optionholder. An Option may be exercised in full or
in part at any time or from time to time during the term of the Option or
provide for its exercise in stated installments at stated times during the
Option's term.
(e) VESTING; LIMITATIONS. The time at which Options may be exercised
with respect to an Optionholder shall be in the discretion of that
Optionholder's Plan Administrator. Notwithstanding the foregoing, to the extent
an Option is intended to qualify as an Incentive Stock Option, the aggregate
fair market value (determined as of the respective date or dates of grant) of
the Stock for which one or more Options granted to any person under this Plan
(or any other option plan of the Company or its Parent or Subsidiary
Corporations) may for the first time become exercisable as Incentive Stock
Options during any one calendar year shall not exceed the sum of $100,000
(referred to herein as the "$100,000 Limitation"). To the extent that any person
holds two or more Options which become exercisable for the first time in the
same calendar year, the foregoing limitation on the exercisability as an
Incentive Stock Option shall be applied on the basis of the order in which such
Options are granted.
5
<PAGE> 6
(f) NO FRACTIONAL SHARES. Options shall be exercisable only for
whole shares; no fractional shares will be issuable upon exercise of any Option
granted under the Plan.
(g) METHOD OF EXERCISE. To exercise an Option, an Optionholder (or
in the case of an exercise after an Optionholder's death, such Optionholder's
executor, administrator, heir or legatee, as the case may be) must take the
following action:
(i) execute and deliver to the Company a written notice of
exercise signed in writing by the person exercising the Option specifying the
number of shares of Stock with respect to which the Option is being exercised;
(ii) pay the aggregate Option Price in one of the alternate
forms as set forth in Section 2.2(h) below; and
(iii) furnish appropriate documentation that the person or
persons exercising the Option (if other than the Optionholder) has the right to
exercise such Option.
As soon as practical after the Exercise Date, the Company will mail or deliver
to or on behalf of the Optionholder (or any other person or persons exercising
this Option under the Plan) a certificate or certificates representing the Stock
acquired upon exercise of the Option.
(h) PAYMENT PRICE. The aggregate Option Price shall be payable in
one of the alternative forms specified below:
(i) Full payment in cash or check made payable to the
Company's order; or
(ii) Full payment in other shares of previously owned stock of
the Company, surrender of which does not trigger tax consequences to the
Company, and valued at fair market value on the Exercise Date (as determined in
accordance with Section 3.5 hereof); or
(iii) Full payment through a sale and remittance procedure
pursuant to which the Optionholder (A) shall provide irrevocable written
instructions to a designated brokerage firm to effect the immediate sale of the
Optioned Shares to be purchased and remit to the Company, out of the sale
proceeds available on the settlement date, sufficient funds to cover the
aggregate exercise price payable for the Optioned Shares to be purchased and (B)
shall concurrently provide written directives to the Company to deliver the
certificates for the Optioned Shares to be purchased directly to such brokerage
firm in order to complete the sale transaction.
(i) RELOAD OPTIONS. Concurrently with the award of Options, the Plan
Administrator may authorize the grant of reload Options. Reload Options shall
equal (i) the number of shares of previously owned stock used to exercise the
underlying Options and (ii) the number of shares withheld or the number of
shares of previously owned stock used to satisfy
6
<PAGE> 7
tax withholding requirements incident to the exercise of the underlying Options.
The grant of such reload Options shall become effective upon the exercise of the
underlying Options by the surrender of shares of stock held for such period of
time so as not to trigger tax consequences to the Company. The exercise price of
the reload Options shall be the fair market value on the date of grant of the
reload Options and such Options shall have a term equal to the remaining term of
the underlying Options. No reload Options shall be granted when the exercise of
the underlying Options occurs following termination of the Optionholder's
employment. To the extent not inconsistent herewith, the other provisions of the
Plan set forth herein shall be applicable to reload Options.
(j) RIGHTS OF A SHAREHOLDER. An Optionholder shall not have any of
the rights of a shareholder with respect to Optioned Shares until such
individual shall have exercised the Option and paid the Option Price for the
Optioned Shares. No adjustment will be made for dividends or other rights for
which the record date is prior to the date such stock certificate is issued.
(k) REPURCHASE RIGHT. The Plan Administrator may, in its sole
discretion, set forth other terms and conditions upon which the Company (or its
assigns) shall have the right to repurchase shares of Stock acquired by an
Optionholder pursuant to an Option. Any repurchase right of the Company shall be
exercisable by the Company (or its assignees) upon such terms and conditions as
the Plan Administrator may specify in the Stock Repurchase Agreement evidencing
such right. The Plan Administrator may also in its discretion establish as a
term and condition of one or more Options granted under the Plan that the
Company shall have a right of first refusal with respect to any proposed sale or
other disposition by the Optionholder of any shares of Stock issued upon the
exercise of such Options. Any such right of first refusal shall be exercisable
by the Company (or its assigns) in accordance with the terms and conditions set
forth in the Stock Repurchase Agreement. The terms of the Stock Repurchase
Agreement shall provide for a reasonable Notice period not to exceed two
business days for the exercise of such repurchase or right of first refusal by
the Company.
(l) TERMINATION OF INCENTIVE STOCK OPTIONS.
(i) TERMINATION OF SERVICE. If any Optionholder ceases to be
in Service to the Company for a reason other than permanent disability or death
and the Option held by such Optionholder is an Incentive Stock Option, then such
Optionholder must, within 90 days after the date of termination of such Service,
but in no event after the Option's stated expiration date, exercise some or all
of the Options that the Optionholder was entitled to exercise on the date the
Optionholder's Service terminated; provided, that if the Optionholder is
discharged for Cause or commits acts detrimental to the Company's interests
after the Service of the Optionholder has been terminated, then the Option will
thereafter be void for all purposes. "Cause" shall mean a termination of Service
based upon a finding by the applicable Plan Administrator that the Optionholder:
(i) has committed a felony involving dishonesty, fraud, theft or embezzlement;
(ii) after written notice from the Company has repeatedly failed or refused, in
a material respect, to follow reasonable policies or directives established by
the Company; (iii) after written notice from the Company, has willfully and
persistently failed to attend to
7
<PAGE> 8
material duties or obligations; (iv) has performed an act or failed to act,
which, if he were prosecuted and convicted, would constitute a theft of money or
property of the Company; or (v) has misrepresented or concealed a material fact
for purposes of securing employment with the Company. If any Optionholder ceases
to be in Service to the Company by reason of permanent disability within the
meaning of section 22(e)(3) of the Code (as determined by the applicable Plan
Administrator), the Optionholder will have 12 months after the date of
termination of Service, but in no event after the stated expiration date of the
Optionholder's Options, to exercise Options that the Optionholder was entitled
to exercise on the date the Optionholder's Service terminated as a result of the
disability.
(ii) DEATH OF OPTIONHOLDER. If an Optionholder dies while in
the Company's Service, any Options that are Incentive Stock Options that the
Optionholder was entitled to exercise on the date of death will be exercisable
within three months after such date or until the stated expiration date of the
Optionholder's Option, whichever occurs first, by the person or persons
("successors") to whom the Optionholder's rights pass under a will or by the
laws of descent and distribution. As soon as practicable after receipt by the
Company of such notice and of payment in full of the Option Price, a certificate
or certificates representing the Optioned Shares shall be registered in the name
or names specified by the successors in the written notice of exercise and shall
be delivered to the successors.
(m) TERMINATION OF NONQUALIFIED OPTIONS. Options that are not
Incentive Stock Options and that are outstanding at the time an Optionholder
ceases to be in Service to the Company shall remain exercisable (i) for a period
of one year after termination resulting from death or permanent disability
within the meaning of Section 22(e)(3) of the Code (as determined by the Plan
Administrator); (ii) for no period should the Optionholder be discharged for
Cause; (iii) for 90 days after termination for any other reason; or (iv) for a
longer period if determined by the Plan Administrator; provided however, that no
Option shall be exercisable after the Option's stated expiration date.
(n) OTHER PLAN PROVISIONS STILL APPLICABLE. If an Option is
exercised upon the termination of Service or death of an Optionholder under this
Section 2.2, the other provisions of the Plan will continue to apply to such
exercise, including the requirement that the Optionholder or its successor may
be required to enter into a Stock Repurchase Agreement.
(o) DEFINITION OF "SERVICE". For purposes of this Plan, unless it is
evidenced otherwise in the option agreement with the Optionholder, the
Optionholder is deemed to be in "Service" to the Company so long as such
individual renders continuous services on a periodic basis to the Company (or to
any Parent or Subsidiary Corporation) in the capacity of an employee, director,
or an independent consultant or advisor. In the discretion of the applicable
Plan Administrator, an Optionholder will be considered to be rendering
continuous services to the Company even if the type of services change, e.g.,
from employee to independent consultant. The Optionholder will be considered to
be an employee for so long as such individual remains in the employ of the
Company or one or more of its Parent or Subsidiary Corporations.
8
<PAGE> 9
2.3 TERMS AND CONDITIONS OF STOCK AWARDS
(a) ELIGIBILITY. All Eligible Persons shall be eligible to receive
Stock Awards. The Plan Administrator of each administered group shall determine
the number of shares of Stock to be awarded from time to time to any Eligible
Person in such group. Except as provided otherwise in this Plan, the grant of a
Stock Award to a person (a "Grantee") shall neither entitle such person to, nor
disqualify such person from participation in, any other grant of options or
awards by the Company, whether under this Plan or under any other stock option
or award plan of the Company.
(b) AWARD FOR SERVICES RENDERED. Stock Awards shall be granted in
recognition of an Eligible Person's services to the Company. The grantee of any
such Stock Award shall not be required to pay any consideration to the Company
upon receipt of such Stock Award, except as may be required to satisfy any
applicable Arizona corporate law, employment tax and/or income tax withholding
requirements.
(c) CONDITIONS TO AWARD. All Stock Awards shall be subject to such
terms, conditions, restrictions, or limitations as the applicable Plan
Administrator deems appropriate, including, by way of illustration but not by
way of limitation, restrictions on transferability, requirements of continued
employment, individual performance or the financial performance of the Company,
or payment by the recipient of any applicable employment or withholding taxes.
Such Plan Administrator may ease or accelerate the termination of the
restrictions applicable to any Stock Award under the circumstances as it deems
appropriate.
(d) AWARD AGREEMENTS. A Plan Administrator may require as a
condition to a Stock Award that the recipient of such Stock Award enter into an
award agreement in such form and content as that Plan Administrator from time to
time approves.
2.4 TERMS AND CONDITIONS OF SARs
(a) ELIGIBILITY. All Eligible Persons shall be eligible to receive
SARs. The Plan Administrator of each administered group shall determine the SARs
to be awarded from time to time to any Eligible Person in such group. The grant
of a SAR to a person shall neither entitle such person to, nor disqualify such
person from participation in, any other grant of options or awards by the
Company, whether under this Plan or under any other stock option or award plan
of the Company.
(b) AWARD OF SARs. Concurrently with or subsequent to the grant of
any Option to purchase one or more shares of Stock, the Plan Administrator may
award to the Optionholder with respect to each share of Stock, underlying the
Option, a related SAR permitting the Optionholder to be paid any appreciation on
that Stock in lieu of exercising the Option. In addition, a Plan Administrator
may award to any Eligible Person a SAR permitting the Eligible Person to be paid
the appreciation on a designated number of shares of the Stock, whether or not
such Shares are actually issued.
9
<PAGE> 10
(c) CONDITIONS TO SAR. All SARs shall be subject to such terms,
conditions, restrictions or limitations as the applicable Plan Administrator
deems appropriate, including, by way of illustration but not by way of
limitation, restrictions on transferability, requirements of continued
employment, individual performance, financial performance of the Company, or
payment by the recipient of any applicable employment or withholding taxes. Such
Plan Administrator may modify or accelerate the termination of the restrictions
applicable to any SAR under the circumstances as it deems appropriate.
(d) SAR AGREEMENTS. A Plan Administrator may require as a condition
to the grant of a SAR that the recipient of such SAR enter into a SAR agreement
in such form and content as that Plan Administrator from time to time approves.
(e) EXERCISE. An Eligible Person who has been granted a SAR may
exercise such SAR subject to the conditions specified in the SAR agreement by
the Plan Administrator.
(f) AMOUNT OF PAYMENT. The amount of payment to which the grantee of
a SAR shall be entitled upon the exercise of each SAR shall be equal to the
amount, if any, by which the fair market value of the specified shares of Stock
on the exercise date exceeds the fair market value of the specified shares of
Stock on the date the Option related to the SAR was granted or became effective,
or, if the SAR is not related to any Option, on the date the SAR was granted or
became effective.
(g) FORM OF PAYMENT. The SAR may be paid in either cash or Stock, as
determined in the discretion of the applicable Plan Administrator and set forth
in the SAR agreement. If the payment is in Stock, the number of shares to be
paid to the participant shall be determined by dividing the amount of the
payment determined pursuant to Section 2.4(f) by the fair market value of a
share of Stock on the exercise date of such SAR. As soon as practical after
exercise, the Company shall deliver to the SAR grantee a certificate or
certificates for such shares of Stock.
(h) TERMINATION OF EMPLOYMENT; DEATH. Sections 2.2(k) and (l),
applicable to Options, shall apply equally to SARs.
2.5 OTHER CASH AWARDS
(a) IN GENERAL. The Plan Administrator of each administered group
shall have the discretion to make other awards of cash to Eligible Persons in
such group ("Cash Awards"). Such Cash Awards may relate to existing Options or
to the appreciation in the value of the Stock or other Company securities.
(b) CONDITIONS TO AWARD. All Cash Awards shall be subject to such
terms, conditions, restrictions or limitations as the applicable Plan
Administrator deems appropriate, and such Plan Administrator may require as a
condition to such Cash Award that the recipient of such Cash Award enter into an
award agreement in such form and content as the Plan Administrator from time to
time approves.
10
<PAGE> 11
ARTICLE III
MISCELLANEOUS
3.1 CAPITAL ADJUSTMENTS. The aggregate number of shares of Stock subject
to the Plan, the number of shares of Stock covered by outstanding Options and
Awards, and the price per share stated in all outstanding Options and Awards
shall be proportionately adjusted for any increase or decrease in the number of
outstanding shares of Stock of the Company resulting from a subdivision or
consolidation of shares or any other capital adjustment or the payment of a
stock dividend or any other increase or decrease in the number of such shares
effected without the Company's receipt of consideration therefor in money,
services or property.
3.2 MERGERS, ETC. If the Company is the surviving corporation in any
merger or consolidation (not including a Corporate Transaction), any Option or
Award granted under the Plan shall pertain to and apply to the securities to
which a holder of the number of shares of Stock subject to the Option or Award
would have been entitled prior to the merger or consolidation. Except as
provided in Section 3.3 hereof, a dissolution or liquidation of the Company
shall cause every Option or Award outstanding hereunder to terminate.
3.3 CORPORATE TRANSACTION. In the event of shareholder approval of a
Corporate Transaction, the Plan Administrator shall have the discretion and
authority, exercisable at any time, to provide for the automatic acceleration of
one or more of the outstanding Options or Awards granted by it under the Plan.
Upon the consummation of the Corporate Transaction, all Options shall, to the
extent not previously exercised, terminate and cease to be outstanding.
3.4 CHANGE IN CONTROL.
(a) GRANT PROGRAM. In the event of a Change in Control, a Plan
Administrator shall have the discretion and authority, exercisable at any time,
whether before or after the Change in Control, to provide for the automatic
acceleration of one or more outstanding Options or Awards granted by it under
the Plan. Any Options or Awards accelerated upon a Change in Control will remain
fully exercisable until the expiration or sooner termination of the Option term.
(b) INCENTIVE STOCK OPTION LIMITS. The exercisability of any Options
which are intended to qualify as Incentive Stock Options and which are
accelerated by the Plan Administrator in connection with a pending Corporation
Transaction or Change in Control shall, except as otherwise provided in the
discretion of the Plan Administrator and the Optionholder, remain subject to the
$100,000 Limitation and vest as quickly as possible without violating the
$100,000 Limitation.
3.5 CALCULATION OF FAIR MARKET VALUE OF STOCK. The fair market value of
a share of Stock on any relevant date shall be determined in accordance with the
following provisions:
(a) If the Stock is not at the time listed or admitted to trading on
any stock exchange but is traded in the over-the-counter market, the fair market
value shall be the mean
11
<PAGE> 12
between the highest bid and lowest asked prices (or, if such information is
available, the closing selling price) per share of Stock on the date in question
in the over-the-counter market, as such prices are reported by the National
Association of Securities Dealers through its Nasdaq system or any successor
system. If there are no reported bid and asked prices (or closing selling price)
for the Stock on the date in question, then the mean between the highest bid
price and lowest asked price (or the closing selling price) on the last
preceding date for which such quotations exist shall be determinative of fair
market value.
(b) If the Stock is at the time listed or admitted to trading on any
stock exchange, then the fair market value shall be the closing selling price
per share of Stock on the date in question on the stock exchange determined by
the Board to be the primary market for the Stock, as such price is officially
quoted in the composite tape of transactions on such exchange. If there is no
reported sale of Stock on such exchange on the date in question, then the fair
market value shall be the closing selling price on the exchange on the last
preceding date for which such quotation exists.
(c) If the Stock at the time is neither listed nor admitted to
trading on any stock exchange nor traded in the over-the-counter market, then
the fair market value shall be determined by the Board after taking into account
such factors as the Board shall deem appropriate, including one or more
independent professional appraisals.
3.6 USE OF PROCEEDS. The proceeds received by the Company from the sale
of Stock pursuant to the exercise of Options or Awards hereunder, if any, shall
be used for general corporate purposes.
3.7 CANCELLATION OF OPTIONS. Each Plan Administrator shall have the
authority to effect, at any time and from time to time, with the consent of the
affected Optionholders, the cancellation of any or all outstanding Options
granted under the Plan by that Plan Administrator and to grant in substitution
therefore new Options under the Plan covering the same or different numbers of
shares of Stock as long as such new Options have an exercise price per share of
Stock no less than the minimum exercise price as set forth in Section 2.2(b)
hereof on the new grant date.
3.8 REGULATORY APPROVALS. The implementation of the Plan, the granting
of any Option or Award hereunder, and the issuance of Stock upon the exercise of
any such Option or Award shall be subject to the procurement by the Company of
all approvals and permits required by regulatory authorities having jurisdiction
over the Plan, the Options or Awards granted under it and the Stock issued
pursuant to it.
3.9 INDEMNIFICATION. In addition to such other rights of indemnification
as they may have, the members of a Plan Administrator shall be indemnified and
held harmless by the Company, to the extent permitted under applicable law, for,
from and against all costs and expenses reasonably incurred by them in
connection with any action, legal proceeding to which any member thereof may be
a party by reason of any action taken, failure to act under or in connection
with the Plan or any rights granted thereunder and against all amounts paid by
them
12
<PAGE> 13
in settlement thereof or paid by them in satisfaction of a judgment of any such
action, suit or proceeding, except a judgment based upon a finding of bad faith.
3.10 PLAN NOT EXCLUSIVE. This Plan is not intended to be the exclusive
means by which the Company may issue options or warrants to acquire its Stock,
stock awards or any other type of award. To the extent permitted by applicable
law, any such other option, warrants or awards may be issued by the Company
other than pursuant to this Plan without shareholder approval.
3.11 COMPANY RIGHTS. The grants of Options shall in no way affect the
right of the Company to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
3.12 ASSIGNMENT. The right to acquire Stock or other assets under the
Plan may not be assigned, encumbered or otherwise transferred by any
Optionholder except as specifically provided herein. No Option or Award granted
under the Plan or any of the rights and privileges conferred thereby shall be
assignable or transferable by an Optionholder or grantee other than by will or
the laws of descent and distribution, and such Option or Award shall be
exercisable during the Optionholder's or grantee's lifetime only by the
Optionholder or grantee. Notwithstanding the foregoing, any Options or Awards
granted pursuant to the Grant Program may be assigned, encumbered or otherwise
transferred by the Optionholder or grantee if specifically allowed by the Plan
Administrator upon the grant of such Option or Award and subject to compliance
with policies and guidelines established by the Board. The provisions of the
Plan shall inure to the benefit of, and be binding upon, the Company and its
successors or assigns, and the Optionholders, the legal representatives of their
respective estates, their respective heirs or legatees and their permitted
assignees.
3.13 SECURITIES RESTRICTIONS
(a) LEGEND ON CERTIFICATES. All certificates representing shares of
Stock issued under the Plan shall be endorsed with a legend reading as follows:
The shares of Common Stock evidenced by this certificate have
been issued to the registered owner in reliance upon written
representations that these shares have been purchased solely
for investment. These shares may not be sold, transferred or
assigned unless in the opinion of the Company and its legal
counsel such sale, transfer or assignment will not be in
violation of the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
(b) PRIVATE OFFERING FOR INVESTMENT ONLY. The Options and Awards are
and shall be made available only to a limited number of present and future key
executives, directors
13
<PAGE> 14
and employees who have knowledge of the Company's financial condition,
management and its affairs. The Plan is not intended to provide additional
capital for the Company, but to encourage ownership of Stock among the Company's
key personnel. By the act of accepting an Option or Award, each grantee agrees
(i) that, any shares of Stock acquired will be solely for investment not with
any intention to resell or redistribute those shares (except as delivery of such
Stock is permitted as payment upon option exercise or for tax withholding
requirements) and (ii) such intention will be confirmed by an appropriate
certificate at the time the Stock is acquired if requested by the Company. The
neglect or failure to execute such a certificate, however, shall not limit or
negate the foregoing agreement.
(c) REGISTRATION STATEMENT. If a Registration Statement covering the
shares of Stock issuable under the Plan as filed under the Securities Exchange
Act of 1933, as amended, and is declared effective by the Securities Exchange
Commission, the provisions of Sections 3.13(a) and (b) shall terminate during
the period of time that such Registration Statement, as periodically amended,
remains effective.
3.14 TAX WITHHOLDING.
(a) GENERAL. The Company's obligation to deliver Stock under the
Plan shall be subject to the satisfaction of all applicable federal, state and
local income tax withholding requirements.
(b) SHARES TO PAY FOR WITHHOLDING. The Board may, in its discretion
and in accordance with the provisions of this Section 3.14(b) and such
supplemental rules as it may from time to time adopt (including the applicable
safe-harbor provisions of SEC Rule 16b-3), provide any or all Optionholders or
Grantees with the right to use shares of Stock in satisfaction of all or part of
the federal, state and local income tax liabilities incurred by such
Optionholders or Grantees in connection with the receipt of Stock ("Taxes").
Such right may be provided to any such Optionholder or Grantee in either or both
of the following formats:
(i) STOCK WITHHOLDING. An Optionholder or Grantee may be
provided with the election, which may be subject to approval by the Plan
Administrator, to have the Company withhold, from the Stock otherwise issuable,
a portion of those shares of Stock with an aggregate fair market value equal to
the percentage of the applicable Taxes (not to exceed 100 percent) designated by
the Optionholder or Grantee.
(ii) STOCK DELIVERY. The Board may, in its discretion, provide
the Optionholder or Grantee with the election to deliver to the Company, at the
time the Option is exercised or Stock is awarded, one or more shares of Stock
previously acquired by such individual (other than pursuant to the transaction
triggering the Taxes) with an aggregate fair market value equal to the
percentage of the taxes incurred in connection with such Option exercise or
Stock Award (not to exceed 100 percent) designated by the Optionholder or
Grantee.
3.15 GOVERNING LAW. The Plan shall be governed by and all questions
hereunder shall be determined in accordance with the laws of the State of
Arizona.
14
<PAGE> 15
ARTICLE IV
DEFINITIONS
The following capitalized terms used in this Plan shall have the meaning
described below:
"AFFILIATES" shall mean all "officers" (as that term is defined in Rule
16a-1(f) promulgated under the 1934 Act) and directors of the Company and all
persons who own ten percent or more of the Company's issued and outstanding
Stock.
"ANNUAL GRANT DATE" shall mean the date of the Company's annual
shareholder meeting.
"AWARD" shall mean a Stock Award, SAR or Cash Award under the Grant
Program.
"BOARD" shall mean the Board of Directors of the Company.
"CASH AWARD" shall mean an award to be paid in cash and granted under
Section 2.5 hereunder.
"CHANGE IN CONTROL" shall mean and include the following transactions or
situations:
(i) A sale, transfer, or other disposition by the Company through a
single transaction or a series of transactions of securities of the Company
representing 30 percent or more of the combined voting power of the Company's
then outstanding securities to any "Unrelated Person" or "Unrelated Persons"
acting in concert with one another. For purposes of this Section, the term
"Person" shall mean and include any individual, partnership, joint venture,
association, trust corporation, or other entity (including a "group" as referred
to in Section 13(d)(3) of the 1934 Act). For purposes of this Section, the term
"Unrelated Person" shall mean and include any Person other than the Company, a
wholly-owned subsidiary of the Company, or an employee benefit plan of the
Company.
(ii) A sale, transfer, or other disposition through a single
transaction or a series of transactions of all or substantially all of the
assets of the Company to an Unrelated Person or Unrelated Persons acting in
concert with one another.
(iii) A change in the ownership of the Company through a single
transaction or a series of transactions such that any Unrelated Person or
Unrelated Persons acting in concert with one another become the "Beneficial
Owner," directly or indirectly, of securities of the Company representing at
least 30 percent of the combined voting power of the Company's then outstanding
securities. For purposes of this Section, the term "Beneficial Owner" shall have
the same meaning as given to that term in Rule 13d-3 promulgated under the Act,
provided that any pledgee of voting securities is not deemed to be the
Beneficial Owner thereof prior to its acquisition of voting rights with respect
to such securities.
(iv) Any consolidation or merger of the Company with or into an
Unrelated Person, unless immediately after the consolidation or merger the
holders of the common stock
15
<PAGE> 16
of the Company immediately prior to the consolidation or merger are the
Beneficial Owners of securities of the surviving corporation representing at
least 50 percent of the combined voting power of the surviving corporation's
then outstanding securities.
(v) During any period of two years, individuals who, at the
beginning of such period, constituted the Board of Directors of the Company
cease, for any reason, to constitute at least a majority thereof, unless the
election or nomination for election of each new director was approved by the
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of such period.
(vi) A change in control of the Company of a nature that would be
required to be reported in response to item 6(e) of Schedule 14A of Regulation
14A promulgated under the 1934 Act, or any successor regulation of similar
import, regardless of whether the Company is subject to such reporting
requirement.
Notwithstanding any provision hereof to the contrary, the filing of a
proceeding for the reorganization of the Company under Chapter 11 of the General
Bankruptcy Code or any successor or other statute of similar import shall not be
deemed to be a Change of Control for purposes of this Plan.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMPANY" shall mean Bionutrics, Inc., a Nevada corporation.
"CORPORATE TRANSACTION" shall mean (a) a merger or consolidation in which
the Company is not the surviving entity, except for a transaction the principal
purposes of which is to change the state in which the Company is incorporated;
(b) the sale, transfer of or other disposition of all or substantially all of
the assets of the Company and complete liquidation or dissolution of the
Company, or (c) any reverse merger in which the Company is the surviving entity
but in which the securities possessing more than 50 percent of the total
combined voting power of the Company's outstanding securities are transferred to
a person or persons different from those who held such securities immediately
prior to such merger.
"EFFECTIVE DATE" shall mean the date that the Plan has been approved by
the shareholders as required by Section 1.3(a) hereof.
"ELIGIBLE PERSONS" shall mean, with respect to the Grant Program, those
persons who, at the time that the Option or Award is granted, are (i) key
personnel (including officers and directors) of the Company or Parent or
Subsidiary Corporations, or (ii) consultants or independent contractors who
provide valuable services to the Company or Parent or Subsidiary Corporations.
"EMPLOYEE COMMITTEE" shall mean that committee appointed by the Board to
administer the Plan with respect to the Non-Affiliates and comprised of one or
more persons who are members of the Board.
16
<PAGE> 17
"EXERCISE DATE" shall be the date on which written notice of the exercise
of an Option is delivered to the Company in accordance with the requirements of
the Plan.
"GRANTEE" shall mean an Eligible Person or Eligible Director that has
received an Award.
"GRANT PROGRAM" shall mean the program described in Article II of this
Agreement pursuant to which certain Eligible Persons are granted Options or
Awards in the discretion of the Plan Administrator.
"INCENTIVE STOCK OPTION" shall mean an Option that is intended to qualify
as an "incentive stock option" under Code section 422.
"NON-AFFILIATES" shall mean all persons who are not Affiliates.
"NON-EMPLOYEE DIRECTORS" shall mean those Directors who satisfy the
definition of "Non-Employee Director" under Rule 16b-3(b)(3)(i) promulgated
under the 1934 Act.
"$100,000 LIMITATION" shall mean the limitation in which the aggregate
fair market value (determined as of the respective date or dates of grant) of
the Stock for which one or more Options granted to any person under this Plan
(or any other option plan of the Company or any Parent or Subsidiary
Corporation) may for the first time be exercisable as Incentive Stock Options
during any one calendar year shall not exceed the sum of $100,000.
"OPTIONHOLDER" shall mean an Eligible Person to whom Options have been
granted.
"OPTIONED SHARES" shall be those shares of Stock to be optioned from time
to time to any Eligible Person.
"OPTION PRICE" shall mean the option price per share as specified by the
Plan Administrator or by the terms of the Plan.
"OPTIONS" shall mean options granted under the Plan to acquire Stock.
"PARENT CORPORATION" shall mean any corporation in the unbroken chain of
corporations ending with the employer corporation, where, at each link of the
chain, the corporation and the link above owns at least 50 percent of the
combined total voting power of all classes of the stock in the corporation in
the link below.
"PLAN" shall mean this stock option plan for Bionutrics, Inc.
"PLAN ADMINISTRATOR" shall mean (a) either the Board, the Senior
Committee, or any other committee, whichever is applicable, with respect to the
administration of the Grant Program as it relates to Affiliates and (b) either
the Board, the Employee Committee, or any
17
<PAGE> 18
other committee, whichever is applicable, with respect to the administration of
the Grant Program as it relates to Non-Affiliates.
"SAR" shall mean stock appreciation rights granted pursuant to Section 2.4
hereof.
"SENIOR COMMITTEE" shall mean that committee appointed by the Board to
administer the Grant Program with respect to the Affiliates and comprised of two
or more Non-Employee Directors.
"SERVICE" shall have the meaning set forth in Section 2.2(n) hereof.
"STOCK" shall mean shares of the Company's common stock, $.01 par value
per share, which may be unissued or treasury shares, as the Board may from time
to time determine.
"STOCK AWARDS" shall mean Stock directly granted under the Grant Program.
"SUBSIDIARY CORPORATION" shall mean any corporation in the unbroken chain
of corporations starting with the employer corporation, where, at each link of
the chain, the corporation and the link above owns at least 50 percent of the
combined voting power of all classes of stock in the corporation below.
EXECUTED as of the 31st day of October, 1996.
BIONUTRICS, INC.
By: /s/ Ronald H. Lane
-----------------------------------------
Name:Ronald H. Lane
Its:President
ATTESTED BY:
/s/ D. Michael Wells
- -----------------------------------
Secretary
18
<PAGE> 1
EXHIBIT 5
[O'CONNOR CAVANAGH LETTERHEAD]
February 4, 1998
Bionutrics, Inc.
2425 East Camelback Road, Suite 650
Phoenix, Arizona 85016
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
As special legal counsel to Bionutrics, Inc., a Nevada corporation (the
"Company"), we have assisted in the preparation of the Company's Registration
Statement on Form S-8 to be filed on or about February 5, 1998 with the
Securities and Exchange Commission (the "Registration Statement"), in connection
with the registration under the Securities Act of 1933, as amended, of 1,794,333
shares of common stock, par value $.001 per share, of the Company (the "Shares")
issuable pursuant to the Company's 1996 Stock Option Plan (the "Plan"). The
facts, as we understand them, are set forth in the Registration Statement.
With respect to the opinion set forth below, we have examined originals,
certified copies, or copies otherwise identified to our satisfaction as being
true copies, only of the following:
A. The Articles of Incorporation of the Company as amended and
initially filed with the Secretary of State of the State of Nevada on October
22, 1990.
B. The Bylaws of the Company, as amended through the date hereof;
C. The Registration Statement;
D. The Resolutions of the Board of Directors of the Company dated
December 12, 1997 relating to the approval of the filing of the Registration
Statement and the transactions in connection therewith;
<PAGE> 2
O'C O N N O R C A V A N A G H
Bionutrics, Inc.
February 4, 1998
Page 2
Subject to the assumptions that (i) the documents and signatures
examined by us are genuine and authentic and (ii) the persons executing the
documents examined by us have the legal capacity to execute such documents, and
subject to the further limitations and qualifications set forth below, it is
our opinion that the Shares, when issued and sold in accordance with the terms
of the Plan, will be validly issued, fully paid and nonassessable.
Please be advised that we are members of the State Bar of Arizona,
and our opinion is limited to the legality of matters under the laws of
the State of Arizona and the General Corporation Laws of the State of Nevada.
Further, our opinion is based solely upon existing laws, rules and regulations,
and we undertake no obligation to advise you of any changes that may be brought
to our attention after the date hereof.
We hereby expressly consent to any reference to our firm in the
Registration Statement, inclusion of this Opinion as an exhibit to the
Registration Statement, and to the filing of this Opinion with any other
appropriate governmental agency.
Very truly yours,
O'Connor, Cavanagh, Anderson
Killingsworth & Beshears,
a Professional Association
<PAGE> 1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Bionutrics, Inc. on Form S-8 of our report dated January 13, 1998 (which
expresses an unqualified opinion and includes an explanatory paragraph relating
to the ability of the Company to continue as a going concern), appearing in the
Annual Report on form 10-K of Bionutrics, Inc. for the year ended October 31,
1997.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
February 4, 1998
