As filed with the Securities and Exchange Commission via EDGAR on November 27,
1996.
Registration No. 33-
- ----------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
INNOTECH, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 54-1560349
- ------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5568 Airport Road
Roanoke, Virginia 24012
------------------------------------------------------------
(Address of principal executive offices, including zip code)
1992 PERFORMANCE EQUITY PLAN
PERFORMANCE EQUITY PLAN
1996 EQUITY INCENTIVE PLAN
DIRECTORS' STOCK OPTION PLAN
EMPLOYEE BASE STOCK OPTION AGREEMENTS
EMPLOYEE SUCCESS STOCK OPTION AGREEMENTS
----------------------------------------
(Full title of the plans)
STEVEN A. BENNINGTON
President and Chief Operating Officer
5568 Airport Road
Roanoke, Virginia 24012
(540) 362-2020
--------------------------------------
(Name, address and telephone number,
including area code, of agent for service)
Copies of all communications to:
STEPHEN R. CONNONI, ESQ.
Hertzog, Calamari & Gleason
100 Park Avenue
New York, New York 10017
(212) 481-9500
==============================================================================
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price fee
- -----------------------------------------------------------------------------
1992 PERFORMANCE EQUITY PLAN
- -----------------------------------------------------------------------------
Common 41,400 $8.50 $ 271,858(2) $ 82.38
Stock, shares
$.001 par
value per share
- -----------------------------------------------------------------------------
PERFORMANCE EQUITY PLAN
- -----------------------------------------------------------------------------
Common 200,000 $8.50 $ 1,799,021(3) $ 545.16
Stock, shares
$.001 par
value per share
- -----------------------------------------------------------------------------
1996 EQUITY INCENTIVE PLAN
- -----------------------------------------------------------------------------
Common 200,000 $8.50 $ 1,743,946(4) $ 528.47
Stock, shares
$.001 par
value per share
- -----------------------------------------------------------------------------
DIRECTORS' STOCK OPTION PLAN
- -----------------------------------------------------------------------------
Common 100,000 $8.50 $ 866,875(5) $ 262.69
Stock, shares
$.001 par
value per share
- -----------------------------------------------------------------------------
EMPLOYEE BASE STOCK OPTION AGREEMENTS
- -----------------------------------------------------------------------------
Common 356,800 $0.079 $ 28,187(6) $ 8.54
Stock, shares
$.001 par
value per share
- -----------------------------------------------------------------------------
EMPLOYEE SUCCESS STOCK OPTION AGREEMENTS
- -----------------------------------------------------------------------------
Common 824,000 $15.50 $12,772,000(7) $3,870.30
Stock, shares
$.001 par
value per share
- -----------------------------------------------------------------------------
TOTAL 1,722,200 $17,481,887 $5,297.54
shares
- -----------------------------------------------------------------------------
(1) Based upon the market price of the Common Stock, as reported on the
Nasdaq National Market on November 22, 1996, in accordance with Rule 457(c)
promulgated under the Securities Act of 1933, as amended.
(2) This amount is the sum of (a) the aggregate option prices of the
41,259 shares of Common Stock of the Registrant being registered hereunder
subject to options granted under the Registrant's 1992 Performance Equity Plan
and outstanding on November 22, 1996, and (b) the assumed aggregate price of
the remaining shares of Common Stock being registered hereunder pursuant to
such Plan, based upon the market price of the Common Stock as reported on the
Nasdaq National Market on November 22, 1996, in accordance with Rule 457(a),
(c) and (h) under the Securities Act of 1933, as amended.
(3) This amount is the sum of (a) the aggregate option prices of the
198,042 shares of Common Stock of the Registrant being registered hereunder
subject to options granted under the Registrant's Performance Equity Plan and
outstanding on November 22, 1996, and (b) the assumed aggregate price of the
remaining shares of Common Stock being registered hereunder pursuant to such
Plan, based upon the market price of the Common Stock as reported on the Nasdaq
National Market on November 22, 1996, in accordance with Rule 457(a), (c) and
(h) under the Securities Act of 1933, as amended.
(4) This amount is the sum of (a) the aggregate option prices of the
87,891 shares of Common Stock of the Registrant being registered hereunder
subject to options granted under the Registrant's 1996 Equity Incentive Plan
and outstanding on November 22, 1996, and (b) the assumed aggregate price of
the remaining shares of Common Stock being registered hereunder pursuant to
such Plan, based upon the market price of the Common Stock as reported on the
Nasdaq National Market on November 22, 1996, in accordance with Rule 457(a),
(c) and (h) under the Securities Act of 1933, as amended.
(5) This amount is the sum of (a) the aggregate option prices of the
15,000 shares of Common Stock of the Registrant being registered hereunder
subject to options granted under the Registrant's Directors' Stock Option Plan
and outstanding on November 22, 1996, and (b) the assumed aggregate price of
the remaining shares of Common Stock being registered hereunder pursuant to
such Plan, based upon the market price of the Common Stock as reported on the
Nasdaq National Market on November 22, 1996, in accordance with Rule 457(a),
(c) and (h) under the Securities Act of 1933, as amended.
(6) This amount is the aggregate option prices of the 356,800 shares of
Common Stock of the Registrant being registered hereunder subject to options
granted under the Registrant's Employee Base Stock Option Agreements and
outstanding on November 22, 1996, in accordance with Rule 457(a) and (h) under
the Securities Act of 1933, as amended.
(7) This amount is the aggregate option prices of the 824,000 shares of
Common Stock of the Registrant being registered hereunder subject to options
granted under the Registrant's Employee Success Stock Option Agreements and
outstanding on November 22, 1996, in accordance with Rule 457(a) and (h) under
the Securities Act of 1933, as amended.
In accordance with the provisions of Rule 462 promulgated under the
Securities Act of 1933, as amended, this Registration Statement will become
effective upon filing with the Securities and Exchange Commission.
This Registration Statement, including all exhibits and attachments,
contains 101 pages. The exhibit index may be found on page II-9 of the
consecutively numbered pages of this Registration Statement.
------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
----------------------------------------
The Registrant hereby incorporates by reference in this
Registration Statement the following documents and information hereto-
fore filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's prospectus filed with the Commission
pursuant to Rule 424(b) promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), on March 15, 1996;
(b) All other documents and reports filed by the
Registrant with the Commission since March 15, 1996, pursuant to Sec-
tions 13(a) and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and
(c) The description of the Registrant's common stock,
$.001 par value per share ("Common Stock"), set forth in the
Registrant's Amendment No. 2 to Registration Statement on Form 8-A
(Commission No. 0-27746), filed with the Commission on March 13, 1996,
and any amendment or report filed hereafter for the purpose of updating
such description.
All documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the filing of this Registration Statement, and prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 5. Interests of Named Experts and Counsel.
---------------------------------------
As of the date of this Registration Statement, an attorney
associated with Hertzog, Calamari & Gleason, special counsel to the
Registrant, is the Assistant Secretary of the Registrant and benefi-
cially owns 9,381 shares of Common Stock, including 1,267 shares in
connection with the offering of securities registered under this Regis-
tration Statement.
ITEM 6. Indemnification of Directors and Officers.
------------------------------------------
The Amended and Restated Certificate of Incorporation and the
First Amended and Restated By-Laws, as amended, of the Registrant
provide that the Registrant shall indemnify its officers, directors and
certain others to the fullest extent permitted by the Delaware General
Corporation Law ("DGCL"). Section 145 of the DGCL provides in perti-
nent part as follows:
(a) A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corpo-
ration, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or mater
therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under subsection (a) and (b) of
this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determina-
tion that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable stan-
dard of conduct set forth in subsections (a) and (b) of this section.
Such determination shall be made (1) by a majority vote of the
directors who were not parties to such action, suit or proceeding even
though less than a quorum, or (2) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written
opinion, or (3) by the stockholders.
(e) Expenses (including reasonable attorneys' fees) in-
curred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses (including attorneys'
fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the subsections of this section
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expense may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
(g) A corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its sepa-
rate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agent, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enter-
prise, shall stand in the same position under this section with respect
to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had contin-
ued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation, which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants or benefi-
ciaries; and a person who acted in good faith and in a manner he rea-
sonably believed to be in the interest of the participants and benefi-
ciaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as
referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such
a person.
(k) The Court of Chancery is vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees).
In accordance with Section 102(a)(7) of the DGCL, the Amended
and Restated Certificate of Incorporation of the Registrant eliminates
the personal liability of the Registrant's directors to the Registrant
or its stockholders for monetary damages for breach of their fiduciary
duties as a director, with certain exceptions set forth in said Section
102(a)(7).
Item 8. Exhibits.
----------
Exhibit No. Description
- ----------- -----------
4.1 1992 Performance Equity Plan.
4.2 Performance Equity Plan.
4.3 1996 Equity Incentive Plan.
4.4 Directors' Stock Option Plan.
4.5 Form of Employee Base Stock Option Agreement.
4.6 Form of Employee Success Stock Option
Agreement.
5.1 Opinion of Hertzog, Calamari & Gleason,
special counsel to the Registrant.
23.1 Consent of KPMG Peat Marwick LLP,
independent certified public accountants
for the Registrant.
23.2 Consent of Hertzog, Calamari & Gleason,
special counsel to the Registrant (included
in the opinion filed as Exhibit 5.1 hereto).
ITEM 9. Undertakings.
-------------
Undertaking Required by Regulation S-K, Item 512(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
to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
(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 offering.
Undertaking Required by Regulation S-K, Item 512(b).
----------------------------------------------------
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Undertaking Required by Regulation S-K, Item 512(h).
----------------------------------------------------
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and 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 direc-
tor, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such direc-
tor, officer or controlling person in connection with the securities
being offered, the Registrant will, unless in the opinion of 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 person, thereunto duly authorized, in the
City of Roanoke, Commonwealth of Virginia, on this 27th day of
November, 1996.
INNOTECH, INC.
(Registrant)
By: /s/ Ronald D. Blum, O.D.
----------------------------------
Ronald D. Blum, O.D.
Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in their respective capacities with Innotech, Inc. and on the
dates indicated.
/s/ Ronald D. Blum, O.D. Chairman of the Board November 27, 1996
- ------------------------ of Directors, Chief
Ronald D. Blum, O.D. Executive Officer,
Secretary and Director
/s/ Steven A. Bennington President and Chief November 27, 1996
- ------------------------ Operating Officer
Steven A. Bennington (Principal Financial and
Accounting Officer)
/s/ Amitava Gupta, Ph.D. Director November 27, 1996
- -------------------------
Amitava Gupta, Ph.D.
/s/ Gregory J. Forrest Director November 27, 1996
- --------------------------
Gregory J. Forrest
/s/ Ian M. Kidson Director November 27, 1996
- --------------------------
Ian M. Kidson
/s/ Michael B. Packard Director November 27, 1996
- --------------------------
Michael B. Packard
/s/ Damion E. Wicker, M.D. Director November 27, 1996
- ---------------------------
Damion E. Wicker, M.D.
<PAGE>
Exhibit Index
-------------
Exhibit No. Description Page
----------- ----------- ----
4.1 1992 Performance Equity Plan. 12
4.2 Performance Equity Plan. 29
4.3 1996 Equity Incentive Plan. 48
4.4 Directors' Stock Option Plan. 66
4.5 Form of Employee Base Stock 83
Option Agreement.
4.6 Form of Employee Success Stock 90
Option Agreement.
5.1 Opinion of Hertzog, Calamari 97
& Gleason, special counsel to
the Registrant.
23.1 Consent of KPMG Peat Marwick 100
LLP, independent certified public
accountants for the Registrant.
23.2 Consent of Hertzog, Calamari 97
& Gleason, special counsel to the
Registrant (included in the opinion
filed as Exhibit 5.1 hereto).
Exhibit 4.1
INNOTECH, INC.
1992 PERFORMANCE EQUITY PLAN
1. Purpose; Definitions.
1.1 Purpose. The purpose of the 1992 Performance
Equity Plan (the "Plan") of Innotech, Inc. (the "Company")
is to enable the Company and its subsidiaries to offer to
its officers and employees, prospective employees,
consultants and independent contractors, long term
performance-based stock and/or other equity interests in the
Company, thereby enhancing its ability to attract, retain
and reward such individuals, and to increase the mutuality
of interests between those individuals and the stockholders
of the Company. The various types of long-term incentive
awards which may be provided under the Plan will enable the
Company to respond to changes in compensation practices, tax
laws, accounting regulations and the size and diversity of
its businesses.
1.2 Definitions. For purposes of the Plan, the
following terms shall be defined as set forth herein:
(a) "Agreement" means the agreement between the
Company and the Holder setting forth the terms and
conditions of an award under the Plan.
(b) "Board" means the Board of Directors of the
Company.
(c) "Change of Control" means a change of
control of the Company pursuant to Section 10 hereof.
(d) "Code" means the Internal Revenue Code of
1986, as amended from time to time, and any successor
statute or statutes thereto.
(e) "Committee" means the Compensation
Committee of the Board or any other committee of the Board
which the Board may designate.
(f) "Common Stock" means the Common Stock of
the Company, no par value, per share.
(g) "Company" means Innotech, Inc., a
corporation organized under the laws of the Commonwealth of
Virginia and any successor thereto.
(h) "Deferred Stock" means Stock to be
received, under an award made pursuant to Section 8 hereof,
at the end of a specified deferral period.
(i) "Disability" means disability as determined
under procedures established by the Committee for purposes
of the Plan.
(j) "Exchange Act" means the Securities
Exchange Act of 1934, as amended from time to time, or any
successor statute or statutes thereto.
(k) "Exchange Act Holder" means such officer or
director or 10% beneficial owner of Common Stock subject to
Section 16(b) of the Exchange Act.
(l) "Fair Market Value", unless otherwise
required by any applicable provision of the Code or any
regulations issued thereunder, means, as of any given date:
(i) if the Common Stock is listed on a national securities
exchange or quoted on the NASDAQ National Market System, the
closing price of the Common Stock on the last preceding day
on which the Common Stock was traded, as reported on the
composite tape or by NASDAQ/NMS System Statistics, as the
case may be; (ii) if the Common Stock is not listed on a
national securities exchange or quoted on the NASDAQ
National Market System, but is traded in the
over-the-counter market, the average of the bid and asked
prices for the Common Stock on the last preceding day for
which such quotations are reported by NASDAQ; and (iii) if
the fair market value of the Common Stock cannot be
determined pursuant to clause (i) or (ii) hereof, such price
as the Committee shall determine.
(m) "Formula Price Per Share" means the highest
gross price (before brokerage commissions, soliciting
dealers' fees and similar charges) paid for any share of
Common Stock at any time during the ninety-day period
immediately prior to the Change of Control (whether by way
of exchange, conversion, distribution, liquidation or
otherwise) paid or to be paid for any share of Common Stock
in connection with a Change of Control. If the
consideration paid or to be paid in any transaction that
results in a Change of Control consists, in whole or in
part, of consideration other than cash, the Board shall take
such action, as in its judgment it deems appropriate, to
establish the cash value of such consideration, but such
valuation shall not be less than the value, if any,
attributed to such consideration by any other party to such
transaction that results in a Change of Control.
(n) "Holder" means an eligible employee,
prospective employee, consultant or independent contractor
of the Company or a Subsidiary who has received an award
under the Plan.
(o) "Non-Qualified Stock Option" means any
Stock Option that is not an Incentive stock option within
the meaning of Section 422 of the Code.
(p) "Other Stock-Based Award" means an award
under Section 9 hereof that is valued in whole or in part by
reference to, or is otherwise based upon, Common Stock.
(q) "Plan" means this 1992 Performance Equity
Plan, as hereinafter amended from time to time.
(r) "Restricted Stock" means Common Stock,
received under an award made pursuant to Section 7 hereof,
that is subject to restrictions under said Section 7.
(s) "SAR Value" means the excess of the Fair
Market Value of one share of Common Stock over the exercise
price per share specified in a related Stock Option in the
case of a Stock Appreciation Right granted in tandem with a
Stock Option and the Stock Appreciation Right price per
share in the case of a Stock Appreciation Right awarded on a
free standing basis multiplied by the number of shares in
respect of which the Stock Appreciation Right shall be
exercised, on the date of exercise.
(t) "Stock Appreciation Right" means the right,
pursuant to an award granted under Section 6 hereof, to
recover an amount equal to the SAR Value.
(u) "Stock Option" or "Option" means any
Non-Qualified Stock Option to purchase shares of Stock which
is awarded pursuant to the Plan.
(v) "Subsidiary" means any present or future
subsidiary corporation of the Company, as such term is
defined in Section 424(f) of the Code.
2. Administration.
2.1 Committee. The Plan shall be administered by
the Committee. The Committee shall have all the powers,
privileges and duties of the Board as set forth herein. The
Board may from time to time appoint members of the Committee
in substitution for or in addition to members previously
appointed, may fill vacancies in the Committee and may
discharge the Committee. The Committee shall select one of
its members as its chairman and shall hold its meetings at
such times and places as it shall deem advisable. A
majority of its members shall constitute a quorum and all
determinations shall be made by a majority of such quorum.
Any determination reduced to writing and signed by all of
the members shall be fully as effective as if it had been
made by a majority vote at a meeting duly called and held.
The membership of the Committee shall at all times,
commencing at such time the Company becomes subject to the
Exchange Act, be constituted so as to not adversely affect
the compliance of the Plan with the requirements of Rule
16b-3 under the Exchange Act, to the extent it is
applicable, or with the requirements of any other applicable
law, rule or regulation.
2.2 Powers. The Committee shall have full authority
to award, pursuant to the terms of the Plan, to eligible
individuals described under Section 4 hereof: (i) Stock
Options, (ii) Stock Appreciation Rights, (iii) Restricted
Stock, (iv) Deferred Stock, and/or (v) Other Stock-Based
Awards. For purposes of illustration and not of limitation,
the Committee shall have the authority (subject to the
express provisions of this Plan):
(a) to select the eligible individuals to whom
Stock Options, Stock Appreciation Rights, Restricted Stock,
Deferred Stock and/or Other Stock-Based Awards may from time
to time be awarded hereunder;
(b) to determine the Stock Options, Stock
Appreciation Rights, Restricted Stock, Deferred Stock and/or
Other Stock-Based Awards, or any combination thereof, if
any, to be awarded hereunder to one or more eligible
employees or persons;
(c) to determine the number of shares to be
covered by each award granted hereunder;
(d) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award
hereunder (including, but not limited to, share price, any
restrictions or limitations, and any vesting, exchange,
surrender, cancellation, acceleration, termination, exercise
or forfeiture provisions) as the Committee shall determine;
(e) to determine any specified performance
goals or such other factors or criteria which need to be
attained for the vesting of an award granted hereunder;
(f) to determine the terms and conditions under
which awards hereunder are to operate on a tandem basis
and/or in conjunction with or apart from other equity
awarded under this Plan and cash awards made by the Company
or any Subsidiary outside of this Plan;
(g) to determine the extent and circumstances
under which Common Stock and other amounts payable with
respect to an award hereunder shall be deferred, which may
be either automatic or at the election of the Holder; and
(h) to substitute (A) new Stock Options for
previously granted Stock Options, which previously granted
Stock Options have higher option exercise prices and/or
contain other less favorable terms, and (B) new awards of
any other type for previously granted awards of the same or
other type, which previously granted awards are upon less
favorable terms.
2.3 Interpretation of Plan. Subject to Section 11
hereof, the Committee shall have the authority to adopt,
alter and repeal such administrative rules, guidelines and
practices governing the Plan as it shall, from time to time,
deem advisable, to interpret the terms and provisions of the
Plan and any award issued under the Plan (and to determine
the form and substance of all Agreements relating thereto),
and to otherwise supervise the administration of the Plan.
Subject to Section 11 hereof, all decisions made by
the Committee pursuant to the provisions of the Plan shall
be made in the Committee's sole discretion and shall be
final and binding upon all persons, including the Company,
its Subsidiaries and the Holders.
2.4 Annual Recommendations. The President of the
Company shall submit to the Committee from time to time, and
at such times as he may determine, a recommendation as to
the award, type of award and the terms and conditions
thereof for employees, prospective employees, consultants or
independent contractors. Such recommendations shall be
advisory only and will not limit or otherwise affect the
authority of the Committee.
3. Stock Subject to Plan.
3.1 Number of Shares. The total number of shares of
Common Stock reserved and available for distribution under
the Plan shall be Two Hundred (200) shares. If any shares
of Common Stock that are subject to a Stock Option or Stock
Appreciation Right cease to be subject to such Option or
Stock Appreciation Right, or if any shares that are subject
to a Restricted Stock or Deferred Stock award or Other
Stock-Based Award granted hereunder are forfeited or any
such award otherwise terminates without a payment being made
to the Holder with respect to such Common Stock (including
dividends), such shares shall again be available for
distribution in connection with future grants and awards
under the Plan.
3.2 Character of Shares. Shares of Common Stock
under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares.
3.3 Adjustment Upon Changes in Capitalization, Etc.
In the event of any merger, reorganization, consolidation,
recapitalization, dividend (other than a dividend or its
equivalent which is credited to a Holder or a regular cash
dividend), stock split, reverse stock split, or other change
in corporate structure affecting the Common Stock, such
substitution or adjustment shall be made in the aggregate
number of shares reserved for issuance under the Plan, in
the number and exercise price of shares subject to
outstanding Options, in the number of shares and Stock
Appreciation Right price relating to Stock Appreciation
Rights, and in the number of shares subject to, and related
terms of, other outstanding awards (including but not
limited to awards of Restricted Stock, Deferred Stock and
Other Stock-Based Awards) as may be determined to be
appropriate by the Committee in order to prevent dilution or
enlargement of each Holder's rights, provided that the
number of shares subject to any award shall always be a
whole number.
4. Eligibility.
4.1 General. Awards under the Plan may be made to
(i) officers and other employees of the Company or any
Subsidiary (including officers and employees serving as
directors of the Company) who are at the time of the grant
of an award under this Plan regularly employed by the
Company or any Subsidiary; (ii) prospective employees of the
Company or its Subsidiaries; and (iii) consultants or
independent contractors who the Committee believes have
contributed or will contribute to the success of the
Company. The exercise of any Stock Option and the vesting
of any award hereunder granted to a prospective employee
shall be conditioned upon such person becoming an employee
of the Company or a Subsidiary. The term "prospective
employee" shall mean any person who holds an outstanding
offer of regular employment on specific terms from the
Company or a Subsidiary.
4.2 Ineligibility for Awards. No person designated
by the Board to serve on the Committee, effective at a
future time, shall be eligible to receive any awards under
the Plan during the period from the date such designation is
made to the date such designation becomes effective.
Notwithstanding Section 4.1 hereof, no member of the
Committee, while serving as such, shall be eligible to
receive an award under the Plan.
5. Stock Options.
5.1 Grant and Exercise. Stock Options granted under
the Plan are Non-Qualified Stock Options. Any Stock Option
granted under the Plan shall contain such terms, not
inconsistent with this Plan, as the Committee may from time
to time approve. The Committee shall have the authority to
grant to any Holder hereof Non-Qualified Stock Options (with
or without Stock Appreciation Rights) which may be granted
alone, or in tandem with or in addition to other awards
under the Plan. Unless granted in substitution for another
outstanding award, Options shall be granted for no
consideration other than services.
5.2 Terms and Conditions. Stock Options granted
under the Plan shall be subject to the following terms and
conditions:
(a) Exercise Price. The exercise price per
share of Common Stock purchasable under a Stock Option shall
be determined by the Committee at the time of grant but
shall be not less than 100% of the Fair Market Value of the
Common Stock at the time of grant.
(b) Option Term. The term of each Stock Option
shall be fixed by the Committee, but no Stock Option shall
be exercisable more than ten years after the date on which
the Option is granted.
(c) Exercisability. Stock Options shall be
exercisable at such time or times and subject to such terms
and conditions as shall be determined by the Committee. If
the Committee provides, in its discretion, that any Stock
Option is exercisable only in installments, the Committee
may waive such installment exercise provisions at any time
at or after the time of grant in whole or in part, based
upon such factors as the Committee shall determine.
(d) Method of Exercise. Subject to whatever
installment, exercise and waiting period provisions are
applicable in a particular case, Stock Options may be
exercised in whole or in part at any time during the term of
the Option, by giving written notice of exercise to the
Company specifying the number of shares of Common Stock to
be purchased. Such notice shall be accompanied by payment
in full of the purchase price, which shall be in cash or,
unless otherwise provided in the Agreement, in whole shares
of Common Stock which are already owned by the Holder of the
Stock Option or, unless otherwise provided in the Stock
Option Agreement, partly in cash and partly in such Common
Stock. Cash payments shall be made by wire transfer,
certified or bank check or personal check, in each case
payable to the order of the Company; provided, however, that
the Company shall not be required to deliver certificates
for shares of Common Stock with respect to which a Stock
Option is exercised until the Company has confirmed the
receipt of good and available funds in payment of the
purchase price thereof. Payments in the form of Common
Stock (which shall be valued at the Fair Market Value of a
share of Common Stock on the date of exercise) shall be made
by delivery of stock certificates in negotiable form which
are effective to transfer good and valid title thereto to
the Company, free of any liens or encumbrances. Subject to
the terms of the Agreement, the Committee may, in its sole
discretion, at the request of the Holder, deliver upon the
exercise of a Non-Qualified Stock Option a combination of
shares of Deferred Stock and Common Stock; provided that,
notwithstanding the provisions of Section 8 of the Plan,
such Deferred Stock shall be fully vested and not subject to
forfeiture. The Holder of a Stock Option shall have none of
the rights of a stockholder with respect to the shares
subject to the Stock Option until such shares shall be
transferred to the Holder upon the exercise of the Stock
Option.
(e) Buyout and Settlement Provisions. The
Committee may at any time offer to buy out for cash or
otherwise settle a Stock Option previously granted, based
upon such terms and conditions as the Committee shall
establish and communicate to the Holder at the time that
such offer is made, including a settlement by exchange of a
different award under the Plan for the surrender of the
Option.
6. Stock Appreciation Rights.
6.1 Grant and Exercise. Stock Appreciation Rights
may be granted in tandem with ("Tandem Stock Appreciation
Right") or in conjunction with all or part of any Stock
Option granted under the Plan or may be granted on a
free-standing basis. In the case of a Non-Qualified Stock
Option, a Tandem Stock Appreciation Right may be granted
either at or after the time of the grant of such Non-
Qualified Stock Option. Unless granted in substitution for
another outstanding award, Stock Appreciation Rights shall
be granted for no consideration other than services.
A Tandem Stock Appreciation Right shall terminate and shall
no longer be exercisable upon the termination or exercise of
the related Stock Option, except that, unless otherwise
determined by the Committee, a Tandem Stock Appreciation
Right granted with respect to less than the full number of
shares covered by a related Stock Option shall not be
reduced until after the number of shares remaining under the
related Stock Option equals the number of shares covered by
the Tandem Stock Appreciation Right.
A Tandem Stock Appreciation Right may be exercised by a
Holder, in accordance with Section 6.2 hereof, by
surrendering the applicable portion of the related Stock
Option. Upon such exercise and surrender, the Holder shall
be entitled to receive such amount in the form of payment
determined in the manner prescribed in Section 6.2 hereof.
Stock Options which have been so surrendered, in whole or in
part, shall no longer be exercisable to the extent Tandem
Stock Appreciation Rights have been exercised.
6.2 Terms and Conditions. Stock Appreciation Rights
shall be subject to the following terms and conditions:
(a) Exercisability. Tandem Stock Appreciation
Rights shall be exercisable only at such time or times and
to the extent that the Stock Options to which they relate
shall be exercisable in accordance with the provisions of
Section 5 hereof and this Section 6, and may be subject to
such additional limitations on exercisability as shall be
determined by the Committee and set forth in the Agreement.
Other Stock Appreciation Rights shall be exercisable at such
time or times and subject to such terms and conditions as
shall be determined by the Committee and set forth in the
Agreement. Notwithstanding anything to the contrary
contained herein (including the provisions of Section 10.1
hereof), any Stock Appreciation Right granted to an Exchange
Act Holder to be settled wholly or partially in cash (i)
shall not be exercisable during the first six months of the
term of such Stock Appreciation Right, except that this
special limitation shall not apply in the event of death or
Disability of such Holder prior to the expiration of the
six-month period, and shall not be exercisable prior to the
first anniversary of the date on which the Company became
subject to Section 13(a) of the Exchange Act, and (ii) shall
only be exercisable during the period beginning on the third
business day following the date of release for publication
of the Company of quarterly or annual summary statements of
sales and earnings and ending on the twelfth business day
following such date.
(b) Receipt of SAR Value. Upon the exercise of
a Stock Appreciation Right, a Holder shall be entitled to
receive up to, but not more than, an amount in cash and/or
shares of Common Stock equal to the SAR Value with the
Committee having the right to determine the form of payment.
(c) Shares Affected Under Plan. Upon the
exercise of a Tandem Stock Appreciation Right, the Stock
Option or part thereof to which such Tandem Stock
Appreciation Right is related shall be deemed to have been
exercised for the purpose of the limitation set forth in
Section 3 hereof on the number of shares of Common Stock to
be issued under the Plan, but only to the extent of the
number of shares, if any, issued under the Tandem Stock
Appreciation Right at the time of exercise based upon the
SAR Value.
(d) Limited Stock Appreciation Rights. The
Committee may grant "Limited Stock Appreciation Rights"
i.e., Stock Appreciation Rights that become exercisable upon
the occurrence of one or more of the events which trigger a
Change of Control as defined in Section 10 hereof, and shall
be settled in an amount equal to the Formula Price Per
Share, subject to such other terms and conditions as the
Committee may specify; provided, however, if any Limited
Stock Appreciation Right is granted to an Exchange Act
Holder such Limited Stock Appreciation Right (i) shall only
be exercisable within sixty (60) days after the event
triggering the Change of Control; and (ii) may not be
exercised during the first six months after the date of
grant of such Limited Stock Appreciation Right (except in
the event of death or Disability of such Holder prior to the
expiration of the six-month period); and (iii) shall only be
exercisable in the event that the date of the Change of
Control was outside the control of such Holder; and (iv)
shall only be settled in cash in an amount equal to the
Formula Price Per Share.
7. Restricted Stock.
7.1 Grant. Shares of Restricted Stock may be
awarded either alone or in addition to other awards granted
under the Plan. The Committee shall determine the eligible
persons to whom, and the time or times at which, grants of
Restricted Stock will be awarded, the number of shares to be
awarded, the time or times within which such awards may be
subject to forfeiture (the "Restriction Period"), the
vesting schedule and rights to acceleration thereof, and all
other terms and conditions of the awards. Unless granted in
substitution for another outstanding award, Restricted Stock
shall be granted for no consideration other than services.
7.2 Terms and Conditions. Each Restricted Stock
award shall be subject to the following terms and
conditions:
(a) Certificates. Restricted Stock, when
issued, will be represented by a stock certificate or
certificates registered in the name of the Holder to whom
such Restricted Stock shall have been awarded. During the
Restriction Period, certificates representing the Restricted
Stock and any securities constituting Retained Distributions
(as hereinafter defined) shall bear a restrictive legend to
the effect that ownership of the Restricted Stock (and such
Retained Distributions), and the enjoyment of all rights
appurtenant thereto, are subject to the restrictions, terms
and conditions provided in the Plan and the Agreement. Such
certificates shall be deposited by the Holder with the
Company, together with stock powers or other instruments of
assignment, each endorsed in blank, which will permit
transfer to the Company of all or any portion of the
Restricted Stock and any securities constituting Retained
Distributions that shall be forfeited or that shall not
become vested in accordance with the Plan and the Agreement.
(b) Rights of Holder. Restricted Stock shall
constitute issued and outstanding shares of Common Stock for
all corporate purposes. The Holder will have the right to
vote such Restricted Stock, to receive and retain all
regular cash dividends and other cash equivalent
distributions as the Committee may in its sole discretion
designate, pay or distribute on such Restricted Stock and to
exercise all other rights, powers and privileges of a Holder
of Common Stock with respect to such Restricted Stock, with
the exceptions that (A) the Holder will not be entitled to
delivery of the stock certificate or certificates
representing such Restricted Stock until the Restriction
Period shall have expired and unless all other vesting
requirements with respect thereto shall have been fulfilled;
(B) the Company will retain custody of the stock certificate
or certificates representing the Restricted Stock during the
Restriction Period; (C) other than regular cash dividends
and other cash equivalent distributions as the Committee may
in its sole discretion designate, pay or distribute, the
Company will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the
Restricted Stock (and such Retained Distributions will be
subject to the same restrictions, terms and conditions as
are applicable to the Restricted Stock) until such time, if
ever, as the Restricted Stock with respect to which such
Retained Distributions shall have been made, paid or
declared shall have become vested and with respect to which
the Restriction Period shall have expired; and (D) a breach
by the Holder of any of the restrictions, terms or
conditions contained in this Plan or the Agreement or
otherwise established by the Committee with respect to any
Restricted Stock or Retained Distributions will cause a
forfeiture of such Restricted Stock and any Retained
Distributions with respect thereto.
(c) Vesting; Forfeiture. Upon the expiration
of the Restriction Period with respect to each award of
Restricted Stock and the satisfaction of any other
applicable restrictions, terms and conditions (A) such
Restricted Stock shall become vested in accordance with the
terms of the Agreement, and (B) any Retained Distributions
with respect to such Restricted Stock shall become vested to
the extent that the Restricted Stock related thereto shall
have become vested. Any such Restricted Stock and Retained
Distributions that do not vest shall be forfeited to the
Company and the Holder shall not thereafter have any rights
with respect to such Restricted Stock and Retained
Distributions that shall have been so forfeited.
8. Deferred Stock.
8.1 Grant. Shares of Deferred Stock may be awarded
either alone or in addition to other awards granted under
the Plan. The Committee shall determine the eligible
persons to whom, and the time or times at which, grants of
Deferred Stock shall be awarded, the number of shares of
Deferred Stock to be awarded, the duration of the period
(the "Deferral Period") during which, and the conditions
under which, receipt of the shares will be deferred, and all
the other terms and conditions of the awards. Unless
granted in substitution for an outstanding award or upon
exercise of an Option, Deferred Stock shall be issued for no
consideration other than services.
8.2 Terms and Conditions. Each Deferred Stock award
shall be subject to the following terms and conditions:
(a) Certificates. At the expiration of the
Deferral Period (or the additional Deferral Period referred
to in Section 8.2(d) hereof ("Additional Deferral Period",
where applicable)), share certificates shall be delivered to
the Holder, or his legal representative, representing the
number of the shares equal to the number covered by the
Deferred Stock award.
(b) Dividends. As determined by the Committee,
amounts equal to any dividends declared during the Deferral
Period (or the Additional Deferral Period, where applicable)
with respect to the number of shares covered by a Deferred
Stock award may be paid to the Holder currently or deferred
and deemed to be reinvested in additional Deferred Stock.
(c) Vesting; Forfeiture. Upon the expiration
of the Deferral Period (or the Additional Deferral Period,
where applicable) with respect to each award of Deferred
Stock and the satisfaction of any other applicable
limitations, terms or conditions, such Deferred Stock shall
become vested in accordance with the terms of the Agreement.
Any Deferred Stock that does not vest shall be forfeited to
the Company and the Holder shall not thereafter have any
rights with respect to such Deferred Stock that has been so
forfeited.
(d) Additional Deferral Period. A Holder may
request to, and the Committee may in its sole discretion at
any time, defer the receipt of an award (or an installment
of an award) for an additional specified period or until a
specified event (the "Additional Deferral Period"). Subject
to any exceptions adopted by the Committee, such request
must generally be made at least one year prior to expiration
of the Deferral Period for such Deferred Stock award (or
such installment).
9. Other Stock-Based Awards.
9.1 Grant and Exercise. Other Stock-Based Awards
may be awarded, subject to limitations under applicable law,
that are denominated or payable in, valued in whole or in
part by reference to, or otherwise based on, or related to,
shares of Common Stock, as deemed by the Committee to be
consistent with the purposes of the Plan, including, without
limitation, purchase rights, shares of Common Stock awarded
which are not subject to any restrictions or conditions,
convertible or exchangeable debentures, or other rights
convertible into shares of Common Stock and awards valued by
reference to the value of securities of or the performance
of specified Subsidiaries. Other Stock-Based Awards may be
awarded either alone or in addition to or in tandem with any
other awards under this Plan or any other plan of the
Company.
The Committee shall determine the eligible persons to
whom and the time or times at which grants of such awards
shall be made, the number of shares of Common Stock to be
awarded pursuant to such awards, and all other terms and
conditions of the awards. Notwithstanding the foregoing,
except to the extent that an Other Stock-Based Award is
granted in substitution for another outstanding award or is
delivered upon exercise of an Option, the amount of
consideration to be required to be received by the Company
shall be either no consideration (other than services) or,
in the case of an Other Stock-Based Award in the nature of a
purchase right, an amount equal to or greater than 50% of
the Fair Market Value of the shares to which the award
relates on the date of grant of such award.
9.2 Terms and Conditions. Each Other Stock-Based
Award shall be subject to the following terms and
conditions:
(a) Dividends. The Holder of an Other
Stock-Based Award shall be entitled to receive, currently or
on a deferred basis, dividends or dividend equivalents with
respect to the number of shares covered by the award, as
determined by the Committee. The Committee may provide that
such amounts (if any) shall be deemed to have been
reinvested in additional Common Stock.
(b) Vesting: Forfeiture. Any Other Stock-Based
Award and any Common Stock covered by an Other Stock-Based
Award shall vest or be forfeited to the extent so provided
in the Agreement.
10. Acceleration.
10.1 Acceleration Upon Change of Control. Unless the
award Agreement provides otherwise or unless the Holder
waives the application of this Section 10.1 prior to a
Change of Control (as hereinafter defined), in the event of
a Change of Control:
(a) Each outstanding Stock Option, Stock
Appreciation Right and Limited Stock Appreciation Right
granted under the Plan shall immediately become exercisable
in full notwithstanding the vesting or exercise provisions
contained in the Agreement; and
(b) All restrictions and deferral limitations
related to awards of Restricted Stock, Deferred Stock and
Other Stock-Based Awards, shall be deemed to have expired
and all such awards and any related Retained Distributions
shall become vested.
10.2 Change of Control Defined. A "Change of
Control" shall be deemed to have occurred upon any of the
following events:
(a) The consummation of any of the following
transactions: any merger, reverse stock split,
recapitalization or other business combination of the
Company, with or into another corporation, or an acquisition
of securities or assets by the Company, pursuant to which
the Company is not the continuing or surviving corporation
or pursuant to which shares of Common Stock would be
converted into cash, securities or other property, other
than a transaction in which the majority of the holders of
Common Stock immediately prior to such transaction will own
at least 50% of the total voting power of the
then-outstanding securities of the surviving corporation
immediately after such transaction, or any sale, lease,
exchange, or other transfer (in one transaction or a series
of related transactions) of all, or substantially all, of
the assets of the Company, or the liquidation or dissolution
of the Company; or
(b) A transaction in which any person (as such
term is defined in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act), corporation or other entity (other than the
Company, or any profit-sharing, employee ownership or other
employee benefit plan sponsored by the Company or any
Subsidiary, or any trustee of or fiduciary with respect to
any such plan when acting in such capacity, or any group
comprised solely of such entities): (i) shall purchase any
Common Stock (or securities convertible into Common Stock)
for cash, securities or any other consideration pursuant to
a tender offer or exchange offer, without the prior consent
of the Board, or (ii) shall become the "beneficial owner"
(as such term is defined in Rule 13d-3 under the Exchange
Act), directly or indirectly (in one transaction or a series
of transactions), of securities of the Company representing
50% or more of the total voting power of the
then-outstanding securities of the Company ordinarily (and
apart from the rights accruing under special circumstances)
having the right to vote in the election of directors
(calculated as provided in Rule 13d-3(d) in the case of
rights to acquire the Company's securities); or
(c) If, during any period of two consecutive
years, individuals who at the beginning of such period
constituted the entire Board and any new director whose
election by the Board, or nomination for election by the
Company's stockholders was approved by a vote of at least
two thirds of the directors then still in office who either
were directors at the beginning of the period or whose
election or nomination for election by the stockholders was
previously so approved, cease for any reason to constitute a
majority thereof.
10.3 General Waiver by Committee. The Committee may,
after grant of an award, accelerate the vesting of all or
any part of any Stock Option, Deferred Stock, Restricted
Stock or any Other Stock-Based Award and/or waive any
limitations or restrictions, if any, for all or any part of
an award.
10.4 Acceleration Upon Termination of Employment. In
the case of a Holder whose employment with the Company or a
Subsidiary is involuntarily terminated for any reason (other
than for cause), the Committee may accelerate the vesting of
all or any part of any award and/or waive in whole or in
part any or all of the remaining deferral limitations or
restrictions imposed hereunder or pursuant to the Agreement.
11. Amendments and Termination.
11.1 Amendments to Plan. The Board may at any time,
and from time to time, amend any of the provisions of the
Plan, and may at any time suspend or terminate the Plan;
provided, however, that no such amendment shall be effective
unless and until it has been duly approved by the
stockholders of the outstanding shares of Common Stock if
(a) it increases the aggregate number of shares of Common
Stock which are available pursuant to the Plan, (except as
provided in Section 3 hereof) or (b) the failure to obtain
such approval would adversely affect the compliance of the
Plan with the requirements of Rule 16b-3 under the Exchange
Act, or with the requirements of any other applicable law,
rule or regulation.
11.2 Amendments to Individual Awards. The Committee
may amend the terms of any award granted under the Plan;
provided, however, that subject to Section 3 hereof, no such
amendment may be made by the Committee which in any material
respect impairs the rights of the Holder without the
Holder's consent.
12. Term of Plan.
12.1 Effective Date. The Plan shall be effective as
of September 1, 1992 ("Effective Date").
12.2 Termination Date. No award shall be granted
pursuant to the Plan on or after the tenth anniversary of
the Effective Date, but awards granted prior to such tenth
anniversary may extend beyond that date. The Plan shall
terminate at such time as no further awards may be granted
and all awards granted under the Plan are no longer
outstanding.
13. General Provisions.
13.1 Investment Representations. The Committee may
require each person acquiring shares of Common Stock
pursuant to an award under the Plan to represent to and
agree with the Company in writing that the Holder is
acquiring the shares for investment without a view to
distribution thereof.
13.2 Additional Incentive Arrangements. Nothing
contained in the Plan shall prevent the Board from adopting
such other or additional incentive arrangements as it may
deem desirable, including, but not limited to, the granting
of stock options and the awarding of stock and cash
otherwise than under the Plan; and such arrangements may be
either generally applicable or applicable only in specific
cases.
13.3 No Right of Employment. Nothing contained in
the Plan or in any award hereunder shall be deemed to confer
upon any employee of the Company or any Subsidiary any right
to continued employment with the Company or any Subsidiary,
nor shall it interfere in any way with the right of the
Company or any Subsidiary to terminate the employment of any
of its employees at any time.
13.4 Withholding Taxes. Not later than the date as
of which an amount first becomes includible in the gross
income of the Holder for Federal income tax purposes with
respect to any award under the Plan, the Holder shall pay to
the Company, or make arrangements satisfactory to the
Company regarding the payment of, any Federal, state and
local taxes of any kind required by law to be withheld or
paid with respect to such amount. If permitted by the
Committee, tax withholding or payment obligations may be
settled with Common Stock, including Common Stock that is
part of the award that gives rise to the withholding
requirement. The obligations of the Company under the Plan
shall be conditional upon such payment or arrangements and
the Company or the Holder's employer (if not the Company)
shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise
due to the Holder from the Company or any Subsidiary.
13.5 Governing Law. The Plan and all awards made and
actions taken thereunder shall be governed by and construed
in accordance with the laws of the Commonwealth of Virginia
(without regard to choice of law provisions).
13.6 Other Benefit Plans. Any award granted under
the Plan shall not be deemed compensation for purposes of
computing benefits under any retirement plan of the Company
or any Subsidiary and shall not affect any benefits under
any other benefit plan now or subsequently in effect under
which the availability or amount of benefits is related to
the level of compensation (unless required by specific
reference in any such other plan to awards under this Plan).
13.7 Employee Status. A leave of absence, unless
otherwise determined by the Committee prior to the
commencement thereof, shall not be considered a termination
of employment. Any awards granted under the Plan shall not
be affected by any change of employment, so long as the
Holder continues to be an employee of the Company or any
Subsidiary.
13.8 Non-Transferability. Other than the transfer of
a Stock Option, Stock Appreciation Right or other award by
will or by the laws of descent and distribution, no award
under the Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbered or
charged, and any attempt to alienate, sell, assign,
hypothecate, pledge, exchange, transfer, encumber or charge
the same shall be void. No right or benefit hereunder shall
in any manner be liable for or subject to the debts,
contracts, liabilities or torts of the person entitled to
such benefit. Any Stock Option, Stock Appreciation Right or
other award granted under this Plan is only exercisable
during the lifetime of the Holder by the Holder or by his
guardian or legal representative.
13.9 Applicable Laws. The obligations of the Company
with respect to all awards under the Plan shall be subject
to (i) all applicable laws, rules and regulations and such
approvals by any governmental agencies as may be required,
including, without limitation, the effectiveness of a
registration statement under the Securities Act of 1933, as
amended, and (ii) the rules and regulations of any
securities exchange on which the Common Stock may be listed
or the NASDAQ National Market System if the Common Stock is
designated for quotation thereon.
13.10 Conflicts. If any of the terms or provisions
of the Plan conflict with the requirements of Rule 16b-3
under the Exchange Act and/or with the requirements of any
other applicable law, rule or regulation, then such terms or
provisions shall be deemed inoperative to the extent they so
conflict with the requirements of said Rule 16b-3, law, rule
or regulation.
13.11 Written Agreements. Each award granted under
the Plan shall be confirmed by, and shall be subject to the
terms of the Agreement executed by the Company and the
Holder. The Committee may terminate any award made under
the Plan if the Agreement relating thereto is not executed
and returned to the Company within 60 days after the
Agreement has been delivered to the Holder for his or her
execution.
13.12 Consideration For Common Stock. The Committee
may not grant any awards under the Plan pursuant to which
the Company will be required to issue any shares of Common
Stock unless the Company will receive consideration for the
shares of Common Stock sufficient under the laws of the
Commonwealth of Virginia so that such shares of Common Stock
will be fully paid and non-assessable when issued.
13.13 Common Stock Certificates. Notwithstanding
anything to the contrary contained herein, whenever
certificates representing shares of Common Stock subject to
an award are required to be delivered pursuant to the terms
of the Plan, the Company may in lieu of such delivery
requirement comply with the provisions of Section 13.1-648
of the Virginia Stock Corporation Act.
All certificates for shares of Common Stock delivered
under the Plan shall be subject to such stop-transfer orders
and other restrictions as the Committee may deem advisable
under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon
which the Common Stock is then listed, any applicable
Federal or state securities law, and any applicable
corporate law, and the Committee may cause a legend or
legends to be put on any such certificates to make
appropriate reference to such restrictions.
13.14 Unfunded Status of Plan. The Plan is intended
to constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payments not yet made to
a Holder by the Company, nothing contained herein shall give
any such Holder any rights that are greater than those of a
general creditor of the Company.
Exhibit 4.2
INNOTECH, INC.
PERFORMANCE EQUITY PLAN
(Amended as of October 4, 1996)
Section 1. Purpose; Definitions.
The purpose of the Innotech, Inc. Performance Equity Plan
(the "Plan") is to enable Innotech, Inc. (the "Company") to offer
to officers, other employees and independent agents, consultants
and advisors of the Company and its subsidiaries, long-term
performance-based stock and/or other equity interests in the
Company thereby enhancing its ability to attract, retain and reward
such individuals. The various types of long-term incentive awards
which may be provided under the Plan will enable the Company to
respond to changes in compensation practices, tax laws, accounting
regulations and the size and diversity of its businesses.
For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) "Agents" means those persons who are not employees
of the Company or any subsidiary, including independent agents,
consultants and advisors for the Company.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
(d) "Committee" means the Stock Option Committee of the
Board or any other committee of the Board which the Board may
designate.
(e) "Company" means Innotech, Inc., a corporation
organized under the laws of the State of Delaware.
(f) "Deferred Stock" means Stock to be received, under
an award made pursuant to Section 8 below, at the end of a
specified deferral period.
(g) "Disability" means disability as determined under
procedures established by the Committee for purposes of the Plan.
(h) "Early Retirement" means retirement, with the
approval of the Committee for purposes of one or more award(s)
hereunder, from active employment with the Company or any
Subsidiary prior to age 65.
(i) Fair Market Value: As said term is used in the Plan,
the "Fair Market Value" of a share of Stock on any day means: (i)
if the principal market for the Stock is The New York Stock
Exchange, any other national securities exchange or the Nasdaq
National Market, the closing sales price of the Stock on such day
as reported by such exchange or market, or on a consolidated tape
reflecting transactions on such exchange or market, or (ii) if the
principal market for the Stock is not a national securities
exchange and the Stock is quoted on the National Association of
Securities Dealers Automated Quotations System, the mean between
the closing bid and the closing asked prices for the Stock on such
day as quoted on such System, or (iii) if the principal market for
the Stock is not a national securities exchange and if the Stock is
not quoted on the National Association of Securities Dealers
Automated Quotations System, the mean between the highest bid and
lowest asked prices for the Stock on such day as reported by the
National Quotation Bureau, Inc.; provided that if clauses (i), (ii)
and (iii) of this paragraph are all inapplicable, or if no trades
have been made or no quotes are available for such day, the Fair
Market Value of the Stock shall be determined by the Company by any
method which it deems to be appropriate. The determination of the
Company shall be conclusive as to the Fair Market Value of the
Stock.
(j) "Incentive Stock Option" means any Stock Option
intended to be and designated as an "incentive stock option" within
the meaning of Section 422 of the Code.
(k) "Non-Qualified Stock Option" means any Stock Option
that is not an Incentive Stock Option.
(l) "Normal Retirement" means retirement from active
employment with the Company or any Subsidiary on or after age 65.
(m) "Other Stock-Based Award" means an award under
Section 9 below that is valued in whole or in part by reference to,
or is otherwise based upon, Stock.
(n) "Plan" means this Innotech, Inc. Performance Equity
Plan, as hereinafter amended from time to time.
(o) "Qualified Domestic Relations Order" shall have the
meaning assigned to such term under the Code and the regulations
promulgated thereunder.
(p) "Restricted Stock" means Stock, received under an
award made pursuant to Section 7 below, that is subject to
restrictions under said Section 7.
(q) "Retirement" means Normal Retirement or Early
Retirement.
(r) "SAR Value" means the value of the excess of the
Fair Market Value of one share of Stock over the Stock Option
exercise price per share specified in a related Stock Option
multiplied by the number of shares in respect of which the Stock
Appreciation Right shall be exercised, on the date of exercise.
(s) "Stock" means the Common Stock of the Company, par
value $.001 per share.
(t) "Stock Appreciation Right" means the right, pursuant
to an award granted under Section 6 below, to surrender to the
Company all (or a portion) of a Stock Option in exchange for an
amount equal to the SAR Value.
(u) "Stock Option" or "Option" means any option to
purchase shares of Stock which is granted pursuant to the Plan.
(v) "Subsidiary" means any present or future subsidiary
corporation or affiliated entity of the Company, as such term is
defined in Section 424(f) of the Code, or any successor thereto.
Section 2. Administration.
(a) The Plan shall be administered by the Committee, the
membership of which shall be at all times constituted so as to not
adversely affect the compliance of the Plan with the requirements
of Rule 16b-3 under the Securities Exchange Act of 1934, as amended
from time to time (the "Exchange Act"), and the requirements of
Section 162(m)(4)(C) of the Code and the regulations promulgated
thereunder, as in effect from time to time, or with the
requirements of any other applicable law, rule or regulation.
The Committee shall have full authority to grant,
pursuant to the terms of the Plan, to officers and other employees
of the Company and Agents under Section 4 below: (i) Stock Options,
(ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv)
Deferred Stock, and/or (v) Other Stock- Based Awards.
(b) For purposes of illustration and not of limitation,
the Committee shall have the authority (subject to the express
provisions of the Plan):
(i) to select the officers, other employees and Agents
of the Company or any Subsidiary to whom Stock Options, Stock
Appreciation Rights, Restricted Stock, Deferred Stock and/or Other
Stock-Based Awards may from time to time be granted hereunder;
(ii) to determine the Incentive Stock Options,
Non-Qualified Stock Options, Stock Appreciation Rights, Restricted
Stock, Deferred Stock and/or Other Stock-Based Awards, or any
combination thereof, if any, to be granted hereunder to one or more
officers, other employees and Agents;
(iii) to determine the number of shares to be covered
by each award granted hereunder;
(iv) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted
hereunder (including, but not limited to, share price, any
restrictions or limitations, and any vesting, acceleration or
forfeiture provisions, as the Committee shall determine);
(v) to determine the terms and conditions under which
awards granted hereunder are to operate on a tandem basis and/or in
conjunction with or apart from other awards made by the Company or
any Subsidiary outside of the Plan;
(vi) to determine the extent and circumstances under
which Stock and other amounts payable with respect to an award
hereunder shall be deferred, which may be either automatic or at
the election of the participant; and
(vii) to substitute (A) new Stock Options for
previously granted Stock Options, which previously granted Stock
Options have higher Option exercise prices and/or contain other
less favorable terms, and (B) new awards of any other type for
previously granted awards of the same type, which previously
granted awards are upon less favorable terms.
Subject to Section 11 hereof, the Committee shall have
the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall, from time
to time, deem advisable, to interpret the terms and provisions of
the Plan and any award issued under the Plan (and to determine the
form and substance of all agreements relating thereto), and to
otherwise supervise the administration of the Plan.
Subject to Section 11 hereof, all decisions made by the
Committee pursuant to the provisions of the Plan shall be made in
the Committee's sole discretion and shall be final and binding upon
all persons, including the Company, its Subsidiaries and Plan
participants.
Section 3. Stock Subject to Plan.
The total number of shares of Stock reserved and
available for distribution under the Plan shall be 200,000 shares.
Such shares may consist, in whole or in part, of authorized and
unissued shares or treasury shares. The maximum number of shares
of Stock as to which any individual may receive an award hereunder
during any calendar year shall be 100,000.
If any shares of Stock underlying an Option cease to be
subject to such Option, or if any shares of Stock that are subject
to any Stock Appreciation Right, Restricted Stock, Deferred Stock
award or Other Stock-Based Award granted hereunder are forfeited or
any such award otherwise terminates without a payment being made to
the participant in the form of cash and/or Stock, such shares
shall, for purposes of both of the limitations set forth in the
preceding paragraph, again be available for distribution in
connection with future grants and awards under the Plan.
In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than a dividend or
its equivalent which is credited to a Plan participant or a regular
cash dividend), Stock split or other change in corporate structure
affecting the Stock, such substitution or adjustment shall be made
in the aggregate number of shares of Stock reserved for issuance
under the Plan, in the number and Option exercise price of shares
subject to outstanding Options granted under the Plan and in the
number of shares subject to other outstanding awards (including but
not limited to awards of Restricted Stock, Deferred Stock and Other
Stock-Based Awards) granted under the Plan as may be determined to
be appropriate by the Committee in order to prevent dilution or
enlargement of rights, provided that the number of shares subject
to any award shall always be a whole number. Such adjusted Option
exercise price shall also be used to determine the amount payable
by the Company upon the exercise of any Stock Appreciation Right
associated with any Stock Option.
Each Option shall be subject to the requirement that if
at any time the Board shall determine, in its discretion, that the
listing, registration or qualification of the shares of Stock
subject to such Option upon any securities exchange, stock market
or quotation system or under any state, federal or local law, or
the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with,
the granting of such Option or the issuance or purchase of shares
of Stock thereunder, no such Option may be exercised in whole or in
part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any condition
not acceptable to the Board.
Section 4. Eligibility.
Officers and other employees of the Company or any
Subsidiary (but excluding members of the Committee and any person
who serves only as a director of the Company) who are at the time
of the grant of an award under this Plan regularly employed by the
Company or any Subsidiary on a full-time basis and who are
responsible for or contribute to the management, growth and/or
profitability of the business of the Company or any Subsidiary, as
well as Agents, are eligible to be granted Options and other awards
under the Plan. Eligibility under the Plan for such officers and
other employees of the Company, and Agents, shall be determined by
the Committee.
Section 5. Stock Options.
(a) Grant and Exercise. Stock Options granted under the
Plan may be of two types: (i) Incentive Stock Options and
(ii) Non-Qualified Stock Options. Any Stock Option granted under
the Plan shall contain such terms as the Committee may from time to
time approve. The Committee shall have the authority to grant to
any optionee Incentive Stock Options, Non-Qualified Stock Options,
or both types of Stock Options (in each case with or without Stock
Appreciation Rights), which may be granted alone or in addition to
other awards granted by the Company. To the extent that any Stock
Option does not qualify as an Incentive Stock Option, it shall
constitute a separate Non-Qualified Stock Option.
Anything in the Plan to the contrary notwithstanding, no
term of the Plan relating to Incentive Stock Options or any
agreement providing for Incentive Stock Options shall be
interpreted, amended or altered, nor shall any discretion or
authority granted under the Plan be so exercised, so as to
disqualify the Plan under Section 422 of the Code, or, without the
consent of the optionee(s) affected, to disqualify any Incentive
Stock Option under such Section 422.
(b) Terms and Conditions. Stock Options granted under
the Plan shall be subject to the following terms and conditions:
(i) Option Exercise Price. The Option exercise price
per share of Stock purchasable under a Stock Option shall be
determined by the Committee at the time of grant but shall be not
less than 100% of the Fair Market Value at the time of grant (110%,
in the case of an Incentive Stock Option granted to an optionee
who, at the time of grant, owns Stock representing more than 10% of
the total combined voting power of all classes of stock of the
Company or its parent (if any) or subsidiary corporations ("10%
Stockholder"), as those terms are defined in Sections 424(e) and
(f) of the Code).
(ii) Option Term. The term of each Stock Option shall be
fixed by the Committee, but no Incentive Stock Option shall be
exercisable more than ten years (five years, in the case of an
Incentive Stock Option granted to a 10% Stockholder) after the date
on which the Option is granted, and no Non-Qualified Stock Option
shall be exercisable more than ten years and one day after the date
on which the Option is granted.
(iii) Exercisability. To ensure that the Company or
any Subsidiary will achieve the purpose and receive the benefits
contemplated in the Plan, any option granted to any optionee
hereunder shall, unless the condition of this sentence is waived or
modified in the agreement evidencing the Option or by resolution
adopted by the Committee, be exercisable according to the following
schedule:
Portion of Total Option
Time Period Which is Exercisable
Date of Grant 33%
First Anniversary of Date of Grant 33%
Second Anniversary of Date of Grant 34%
Subject to the vesting schedule described above, each
option may be exercised in whole or in part; provided, however,
that no fewer than 100 shares (or the remaining shares then
purchasable under the Option if fewer than 100 shares) may be
purchased upon any exercise of Option hereunder and that only whole
shares will be issued pursuant to the exercise of any Option.
(iv) Method of Exercise. Subject to whatever
installment, exercise and waiting period provisions are applicable
in a particular case, Stock Options may be exercised in whole or in
part at any time during the Option term, by giving written notice
of exercise to the Company specifying the number of shares of Stock
to be purchased. Such notice shall be accompanied by payment in
full of the Option exercise price, which shall be in cash or,
unless otherwise provided in the Stock Option agreement referred to
in Section 5(b)(xii) below, in whole shares of Stock which are
already owned by the holder of the Option or, unless otherwise
provided in the Stock Option agreement referred to in Section
5(b)(xii) below, partly in cash and partly in such Stock. Cash
payments shall be made by wire transfer, certified or bank check or
personal check, in each case payable to the order of the Company;
provided, however, that the Company shall not be required to
deliver certificates for shares of Stock with respect to which an
Option is exercised until the Company has confirmed the receipt of
good and available funds in payment of the Option exercise price
therefor. Payments in the form of Stock (which shall be valued at
the Fair Market Value of a share of Stock on the date of exercise)
shall be made by delivery of stock certificates in negotiable form
which are effective to transfer good and valid title thereto to the
Company, free of any liens or encumbrances. An optionee shall have
none of the rights of a stockholder with respect to the shares of
Stock subject to the Option until such shares shall be transferred
to the optionee upon the exercise of the Option. At the discretion
of the Board or the Committee, as the case may be, an Option may be
exercised with respect to a specified number of shares of Stock by
written notice of exercise to the Company stating that (i) the
Option exercise price for the shares and any withholding tax due
thereon will be paid to the Company directly by a broker-dealer
designated by the optionee and irrevocable instructions to such
effect have been furnished by the optionee to such broker-dealer;
and (ii) an advice from the broker-dealer confirming payment to the
Company will be promptly delivered to the Company. The exercise of
any such Option shall be irrevocable at the time of notice to the
Company; provided, however, that the Company shall not be required
to deliver certificates for shares of Stock with respect to the
exercise of the Option until the Company has confirmed the receipt
of good and sufficient funds in payment of the exercise price
thereof.
(v) Transferability; Exercisability. No Stock Option
shall be transferable by the optionee otherwise than by will, by
the laws of descent and distribution or by a Qualified Domestic
Relations Order, and all Stock Options shall be exercisable, during
the optionee's lifetime, only by the optionee or by his spouse to
whom the Option has been transferred pursuant to the terms of a
Qualified Domestic Relations Order.
(vi) Termination by Reason of Death. Subject to Section
5(b)(x) below, in the event of the death of an optionee, any Stock
Option held by such optionee, unless otherwise determined by the
Committee, shall be exercisable by the legal representative of the
estate or by the legatee of the optionee under the will of the
optionee, for a period of one year (or such other period as the
Committee may specify, which period shall not be greater than three
months in the case of an Incentive Stock Option) from the date of
such death or until the expiration of the stated term of such Stock
Option, whichever period is the shorter, to the extent such Stock
Option was exercisable at the time of death.
(vii) Termination by Reason of Disability of Employee
Optionee. Subject to Section 5(b)(x) below, any Stock Options held
by an optionee who is an officer or employee and whose employment
by the Company or any Subsidiary terminates by reason of
Disability, unless otherwise determined by the Committee, shall be
exercisable by the optionee for a period of one year (or such other
period as the Committee may specify, which period shall not be
greater than three months in the case of an Incentive Stock Option)
from the date of such termination of employment or until the
expiration of the stated term of such Stock Option, whichever
period is the shorter, to the extent such Stock Option was
exercisable at the time of such Disability; provided, however, that
if the optionee dies within such one-year period (or such other
period as the Committee shall specify, which period shall not be
greater than three months in the case of an Incentive Stock
Option), any unexercised Stock Option held by such optionee shall
thereafter be exercisable to the extent to which it was exercisable
at the time of death for a period of one year from the date of such
death or until the expiration of the stated term of such Stock
Option, whichever period is the shorter.
(viii) Termination by Reason of Retirement of Employee
Optionee. Subject to Section 5(b)(x) below, any Stock Options held
by an optionee who is an officer or employee and whose employment
by the Company or a Subsidiary terminates by reason of Normal
Retirement, unless otherwise determined by the Committee, shall be
exercisable by the optionee for a period of one year (or such other
period as the Committee may specify, which period shall not be
greater than three months in the case of an Incentive Stock Option)
from the date of such termination of employment or the expiration
of the stated term of such Stock Option, whichever period is the
shorter, to the extent such Stock Option was exercisable at the
time of such Normal Retirement; provided, however, that if the
optionee dies within such one-year period, any unexercised Stock
Option held by such optionee shall thereafter be exercisable, to
the extent to which it was exercisable at the time of death, for a
period of one year from the date of such death or until the
expiration of the stated term of such Stock Option, whichever
period is the shorter. If an optionee's employment with the
Company or any Subsidiary terminates by reason of Early Retirement,
the Stock Option shall thereupon terminate, provided if the
Committee so approves at the time of Early Retirement, any Stock
Option held by the optionee shall become fully vested and may
thereafter be exercised by the optionee as provided above in
connection with termination of employment by reason of Normal
Retirement.
(ix) Other Termination of Employment of Employee
Optionee. Subject to the provisions of Section 13(g) below and
unless otherwise determined by the Committee, if an optionee who is
an officer or employee whose employment by the Company or any
Subsidiary terminates for any reason other than death, Disability
or Retirement, any Stock Options held by him shall thereupon
automatically terminate, except that if the optionee's employment
is involuntarily terminated by the Company or a Subsidiary, without
cause, such Stock Option may be exercised for the lesser of three
months after termination of employment or the balance of such Stock
Option's term.
(x) Additional Incentive Stock Option Limitation. In
the case of an Incentive Stock Option, the amount of Stock
(determined at the time of grant of the Option using the Fair
Market Value of the Stock as of such date) with respect to which
Incentive Stock Options are exercisable for the first time by an
optionee during any calendar year (under all such plans of
optionee's employer corporation and its parent and subsidiary
corporations, as defined in Sections 424(e) and (f) of the Code)
shall not exceed $100,000.
(xi) Buy-out and Settlement Provisions. The Committee
may at any time offer to buy out a Stock Option previously granted,
based upon such terms and conditions as the Committee shall
establish, and communicate to the optionee at the time that such
offer is made.
(xii) Stock Option Agreement. Each grant of a Stock
Option shall be confirmed by, and shall be subject to the terms of,
an agreement executed by the Company and the participant.
Section 6. Stock Appreciation Rights.
(a) Grant and Exercise. Stock Appreciation Rights may
be granted in conjunction with all or part of any Stock Option
granted by the Company. In the case of a Non-Qualified Stock
Option, such rights may be granted either at or after the time of
the grant of such Non-Qualified Stock Option. In the case of an
Incentive Stock Option, such rights may be granted only at the time
of the grant of such Incentive Stock Option.
A Stock Appreciation Right which is granted with respect
to a given Stock Option shall terminate and shall no longer be
exercisable upon the termination or exercise of the related Stock
Option, except that, unless otherwise determined by the Committee
at the time of grant, a Stock Appreciation Right granted with
respect to less than the full number of shares covered by a related
Stock Option shall not be reduced until after the number of shares
remaining under the related Stock Option equals the number of
shares covered by the Stock Appreciation Right.
A Stock Appreciation Right may be exercised by an
optionee, in accordance with Section 6(b) below, by surrendering
the applicable portion of the related Stock Option. Upon such
exercise and surrender, the optionee shall be entitled to receive
an amount (and in the form) determined in the manner prescribed in
Section 6(b) below. Stock Options which have been so surrendered,
in whole or in part, shall no longer be exercisable to the extent
the related Stock Appreciation Rights have been exercised.
(b) Terms and Conditions. Stock Appreciation Rights
shall be subject to the following terms and conditions:
(i) Stock Appreciation Rights shall be exercisable only
at such time or times and to the extent that the Stock Options to
which they relate shall be exercisable in accordance with the
provisions of Section 5 hereof and this Section 6; provided,
however, that any Stock Appreciation Right granted subsequent to
the grant of the related Stock Option shall not be exercisable
during the first six months of the term of such Stock Appreciation
Right, except that this special limitation shall not apply in the
event of Disability or Termination of an employee optionee or death
of an optionee prior to the expiration of the six-month period.
(ii) Upon the exercise of a Stock Appreciation Right, an
optionee shall be entitled to receive up to, but not more than, an
amount in cash and/or shares of Stock equal to the SAR Value. The
Committee shall have the right to determine the form of payment,
subject to Section 6(b)(v) below. For purposes of this paragraph,
the shares of Stock will be valued at their Fair Market Value on
the date of exercise of the Stock Appreciation Right.
(iii) Stock Appreciation Rights shall be transferable
and exercisable only when and to the extent that the underlying
Stock Option would be transferable and exercisable under Section
5(b)(v) hereof.
(iv) Upon the exercise of a Stock Appreciation Right, the
Stock Option or part thereof to which such Stock Appreciation Right
is related shall be deemed to have been exercised for the purpose
of the limitation set forth in Section 3 hereof on the number of
shares of Stock to be issued under the Plan, but only to the extent
of the number of shares issued under the Stock Appreciation Right
at the time of exercise based upon the SAR Value.
(v) The Committee may grant "Limited Stock Appreciation
Rights", i.e., Stock Appreciation Rights that become exercisable
only in the event of a Change in Control as defined in Section 10
hereof, subject to such terms and conditions as the Committee may
specify at the time of grant. Said Limited Stock Appreciation
Rights shall be settled solely in cash, in an amount equal to the
SAR Value.
Each grant of Stock Appreciation Rights shall be
confirmed by, and shall be subject to the terms of, an agreement,
executed by the Company and the participant.
Section 7. Restricted Stock.
(a) Grant and Exercise. Shares of Restricted Stock may
be issued either alone or in addition to other awards granted by
the Company. The Committee shall determine the eligible persons to
whom, and the time or times at which, grants of Restricted Stock
shall be made, the number of shares to be awarded, the price (if
any) to be paid by the recipient, the time or times within which
such awards may be subject to forfeiture (the "Restriction
Period"), the vesting schedule and rights to acceleration thereof,
and all other terms and conditions of the awards.
The Committee may condition the grant of Restricted Stock
upon the attainment of specified performance goals or such other
factors as the Committee may determine.
(b) Terms and Conditions. Each Restricted Stock award
shall be subject to the following terms and conditions:
(i) Restricted Stock, when issued, shall be represented
by a stock certificate or certificates registered in the name of
the holder to whom such Restricted Stock shall have been awarded.
During the Restriction Period, certificates representing the
Restricted Stock and any securities constituting Retained
Distributions (as defined below) shall bear a restrictive legend to
the effect that ownership of the Restricted Stock (and such
Retained Distributions), and the enjoyment of all rights
appurtenant thereto, are subject to the restrictions, terms and
conditions provided in the Plan and the applicable Restricted Stock
agreement. Such certificates shall be deposited by the holder with
the Company, together with stock powers or other instruments of
assignment, each endorsed in blank, which will permit transfer to
the Company of all or any portion of the Restricted Stock and any
securities constituting Retained Distributions that shall be
forfeited or that shall not become vested in accordance with the
Plan and the applicable Restricted Stock agreement.
(ii) Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate purposes. The
holder thereof shall have the right to vote such Restricted Stock,
to receive and retain all regular cash dividends and other cash
equivalent distributions as the Board may in its sole discretion
designate, pay or distribute on such Restricted Stock and to
exercise all other rights, powers and privileges of a holder of
Common Stock with respect to such Restricted Stock, with the
exceptions that (A) the holder will not be entitled to delivery of
the stock certificate or certificates representing such Restricted
Stock until the Restriction Period shall have expired and unless
all other vesting requirements with respect thereto shall have been
fulfilled; (B) the Company will retain custody of the stock
certificate or certificates representing the Restricted Stock
during the Restriction Period; (C) other than regular cash
dividends and other cash equivalent distributions as the Board may
in its sole discretion designate, pay or distribute, the Company
will retain custody of all distributions ("Retained Distributions")
made or declared with respect to the Restricted Stock (and such
Retained Distributions will be subject to the same restrictions,
terms and conditions as are applicable to the Restricted Stock)
until such time, if ever, as the Restricted Stock with respect to
which such Retained Distributions shall have been made, paid or
declared shall have become vested and with respect to which the
Restriction Period shall have expired; (D) the holder may not sell,
assign, transfer, pledge, exchange, encumber or dispose of the
Restricted Shares or any Retained Distributions during the
Restriction Period; and (E) a breach by the holder of any of the
restrictions, terms or conditions contained in this Plan or the
Restricted Stock agreement referred to in the following clause (iv)
or otherwise established by the Committee with respect to any
Restricted Stock or Retained Distributions will cause a forfeiture
of such Restricted Stock and any Retained Distributions with
respect thereto.
(iii) Upon the expiration of the Restriction Period
with respect to each award of Restricted Stock and the satisfaction
of any other applicable restrictions, terms and conditions (A) all
or part of such Restricted Stock shall become vested in accordance
with the terms of the Restricted Stock agreement referred to in the
following clause (iv), and (B) any Retained Distributions with
respect to such Restricted Stock shall become vested to the extent
that the Restricted Stock related thereto shall have become vested.
Any such Restricted Stock and Retained Distributions that do not
vest shall be forfeited to the Company and the holder shall not
thereafter have any rights with respect to such Restricted Stock
and Retained Distributions that shall have been so forfeited.
(iv) Each Restricted Stock award shall be confirmed by,
and shall be subject to the terms of, an agreement executed by the
Company and the participant.
Section 8. Deferred Stock.
(a) Grant and Exercise. Deferred Stock may be awarded
either alone or in addition to other awards granted by the Company.
The Committee shall determine the eligible persons to whom and the
time or times at which Deferred Stock shall be awarded, the number
of shares of Deferred Stock to be awarded to any person, the
duration of the period (the "Deferral Period") during which, and
the conditions under which, receipt of the Stock will be deferred,
and all the other terms and conditions of the awards.
The Committee may condition the grant of Deferred Stock
upon the attainment of specified performance goals or such other
factors or criteria as the Committee shall determine.
(b) Terms and Conditions. Each Deferred Stock award
shall be subject to the following terms and conditions:
(i) Subject to the provisions of this Plan and the award
agreement referred to in Section 8(b)(vii) below, Deferred Stock
awards may not be sold, assigned, transferred, pledged or otherwise
encumbered during the Deferral Period. At the expiration of the
Deferral Period (or the Additional Deferral Period referred to in
Section 8(b)(vi) below, where applicable), share certificates shall
be delivered to the participant, or his legal representative, in a
number equal to the number of shares covered by the Deferred Stock
award.
(ii) As determined by the Committee at the time of award,
amounts equal to any dividends declared during the Deferral Period
(or the Additional Deferral Period referred to in Section 8(b)(vi)
below, where applicable) with respect to the number of shares
covered by a Deferred Stock award may be paid to the participant
currently or deferred and deemed to be reinvested in additional
Deferred Stock.
(iii) Subject to the provisions of the award
agreement and this Section 8 and Section 13(g) below, upon
termination of a participant who is an officer or employee whose
employment with the Company or any Subsidiary is terminated for any
reason during the Deferral Period (or the Additional Deferral
Period referred to in Section 8(b)(vi) below, where applicable) for
a given award, the Deferred Stock in question will vest or be
forfeited in accordance with the terms and conditions established
by the Committee at the time of grant.
(iv) The Committee may, after grant, accelerate the
vesting of all or any part of any Deferred Stock award and/or waive
the deferral limitations for all or any part of a Deferred Stock
award.
(v) In the event of hardship or other special
circumstances of an Agent or a participant who is an officer or
employee whose employment with the Company or any Subsidiary is
involuntarily terminated (other than for cause), the Committee may
waive in whole or in part any or all of the remaining deferral
limitations imposed hereunder or pursuant to the award agreement
referred to in Section 8(b)(vii) below with respect to any or all
of the participant's Deferred Stock.
(vi) A participant may request to, and the Committee may
at any time, defer the receipt of an award (or an installment of an
award) for an additional specified period or until a specified
event (the "Additional Deferral Period"). Subject to any
exceptions adopted by the Committee, such request must generally be
made at least one year prior to expiration of the Deferral Period
for such Deferred Stock award (or such installment).
(vii) Each Deferred Stock award shall be confirmed
by, and shall be subject to the terms of, an agreement executed by
the Company and the participant.
Section 9. Other Stock-Based Awards.
(a) Grant and Exercise. Other Stock-Based Awards which
may include performance shares, and shares valued by reference to
the performance of the Company or any Subsidiary, may be granted
either alone or in addition to or in tandem with Stock Options,
Stock Appreciation Rights, Restricted Stock or Deferred Stock under
this or any other plan of the Company.
The Committee shall determine the eligible persons to
whom, and the time or times at which, such awards shall be made,
the number of shares of Stock to be awarded pursuant to such
awards, and all other terms and conditions of the awards. The
Committee may also provide for the grant of Stock under such awards
upon the completion of a specified performance period.
(b) Terms and Conditions. Each Other Stock-Based Award
shall be subject to the following terms and conditions:
(i) Shares of Stock subject to an Other Stock-Based
Award may not be sold, assigned, transferred, pledged or otherwise
encumbered prior to the date on which the shares are issued, or, if
later, the date on which any applicable restriction, performance or
deferral period lapses.
(ii) The recipient of an Other Stock-Based Award shall be
entitled to receive, currently or on a deferred basis, dividends or
dividend equivalents with respect to the number of shares covered
by the award, as determined by the Committee at the time of the
award. The Committee may provide that such amounts (if any) shall
be deemed to have been reinvested in additional Stock.
(iii) Any Other Stock-Based Award and any Stock
covered by any Other Stock-Based Award shall vest or be forfeited
to the extent so provided in the award agreement, as determined by
the Committee.
(iv) In the event of Retirement, Disability or death of
a participant who is an officer or employee of the Company or any
Subsidiary, or in cases of special circumstances of any
participant, the Committee may waive in whole or in part any or all
of the limitations imposed hereunder (if any) with respect to any
or all of an Other Stock-Based Award.
(v) Each Other Stock-Based Award shall be confirmed by,
and shall be subject to the terms of, an agreement executed by the
Company and by the participant.
Section 10. Change in Control Provisions.
(a) A "Change of Control" shall be deemed to have
occurred on the tenth day after:
(i) any individual, firm, corporation or other entity,
or any group (as defined in Section 13(d)(3) of the Exchange Act
becomes, directly or indirectly, the beneficial owner (as defined
in the General Rules and Regulations of the Securities and Exchange
Commission with respect to Sections 13(d) and 13(g) of the Act) of
more than 20% of the then outstanding shares of the Company's
capital stock entitled to vote generally in the election of
directors of the Company; or
(ii) the commencement of, or the first public
announcement of the intention of any individual, firm, corporation
or other entity or of any group (as defined in Section 13(d)(3) of
the Exchange Act) to commence, a tender or exchange offer subject
to Section 14(d)(1) of the Exchange Act for any class of the
Company's capital stock; or
(iii) the stockholders of the Company approve (1) a
definitive agreement for the merger or other business combination
of the Company with or into another corporation pursuant to which
the stockholders of the Company do not own, immediately after the
transaction, more than 50% of the voting power of the corporation
that survives and is a publicly owned corporation and not a
subsidiary of another corporation, or (2) a definitive agreement
for the sale, exchange or other disposition of all or substantially
all of the assets of the Company, or (3) any plan or proposal for
the liquidation or dissolution of the Company; provided, however,
that a "Change of Control" shall not be deemed to have taken place
if beneficial ownership is acquired by, or a tender or exchange
offer is commenced or announced by, the Company, any
profit-sharing, employee ownership or other employee benefit plan
of the Company, any trustee of or fiduciary with respect to any
such plan when acting in such capacity, or any group comprised
solely of such entities.
(b) In the event of a "Change of Control" as defined in
Section 10(a) above, awards granted under the Plan will be subject
to the following provisions, unless the provisions of this Section
10 are suspended or terminated by an affirmative vote of a majority
of the Board prior to the occurrence of such a "Change of Control":
(i) all outstanding Stock Options, and all Stock
Appreciation Rights (including Limited Stock Appreciation Rights)
shall become exercisable in full, whether or not otherwise
exercisable or fully vested at such time, and any such Stock Option
or Stock Appreciation Right shall remain exercisable in full
thereafter until it expires pursuant to its terms; and
(ii) all restrictions and deferral limitations contained
in Restricted Stock awards, Deferred Stock awards and Other
Stock-Based Awards granted under the Plan shall lapse.
Section 11. Amendments and Termination.
The Board may at any time, and from time to time, amend
any of the provisions of the Plan, and may at any time suspend or
terminate the Plan; provided, however, that no such amendment shall
be effective unless and until it has been also duly approved by the
holders of the outstanding shares of Stock if (a) it increases the
aggregate number of shares of Stock which are issued pursuant to
the Plan, (except as provided in Section 3 hereof) or (b) the
failure to obtain such approval would adversely affect the
compliance of the Plan with the requirements of Rule 16b-3 under
the Exchange Act or Section 162(m)(3)(C) of the Code and the
regulations promulgated thereunder, as in effect from time to time,
or with the requirements of any other applicable law, rule or
regulation. The Committee may amend the terms of any award
theretofore granted under the Plan; provided, however, that subject
to Section 3 hereof, no such amendment may be made by the Committee
which in any material respect impairs the rights of the participant
without the participant's consent.
Section 12. Unfunded Status of Plan.
The Plan is intended to constitute an "unfunded" plan for
incentive and deferred compensation. With respect to any payments
not yet made to a participant or optionee by the Company, nothing
contained herein shall give any such participant or optionee any
rights that are greater than those of a general creditor of the
Company.
Section 13. General Provisions.
(a) Investment Representations. The Committee may
require each person acquiring shares of Stock pursuant to a Stock
Option or other award under the Plan to represent to and agree with
the Company in writing that the optionee or participant is
acquiring the shares for investment without a view to distribution
thereof.
All certificates for shares of Stock delivered under the
Plan shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Stock is then listed,
any applicable Federal or state securities law, and any applicable
corporate law, and the Committee may cause a legend or legends to
be put on any such certificates to make appropriate reference to
such restrictions.
(b) Additional Incentive Arrangements. Nothing
contained in the Plan shall prevent the Board from adopting such
other or additional incentive arrangements as it may deem
desirable, including, but not limited to, the granting of stock
options and the awarding of stock and cash otherwise than under the
Plan; and such arrangements may be either generally applicable or
applicable only in specific cases.
(c) Continued Employment. Nothing contained in the Plan
or in any award hereunder shall be deemed to confer upon any
officer, employee or Agent of the Company or any Subsidiary any
right to continued employment with the Company or any Subsidiary,
nor shall it interfere in any way with the right of the Company or
any Subsidiary to terminate the employment of any of its officers
and employees or the relationship of Agents at any time.
(d) Withholding. Not later than the date as of which an
amount first becomes includable in the gross income of the
participant for Federal income tax purposes with respect to any
award under the Plan, the participant shall pay to the Company, or
make arrangements satisfactory to the Committee regarding the
payment of, any Federal, state and local taxes of any kind required
by law to be withheld or paid with respect to such amount. If
permitted by the Committee, tax withholding or payment obligations
may be settled with Stock, including Stock that is part of the
award that gives rise to the withholding requirement. The
obligations of the Company under the Plan shall be conditional upon
such payment or arrangements, and the Company or the participant's
employer (if not the Company) shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment of
any kind otherwise due to the participant from the Company or any
Subsidiary.
(e) Governing Law. The validity, construction and
effect of the Plan and all awards made and actions taken thereunder
shall be governed by and construed in accordance with the laws of
the State of Delaware (without regard to choice of law provisions).
(f) Other Benefit Plans. Any Stock Option granted or
other award made under the Plan shall not be deemed compensation
for purposes of computing benefits under any retirement plan of the
Company or any Subsidiary and shall not affect any benefits under
any other benefit plan now or subsequently in effect under which
the availability or amount of benefits is related to the level of
compensation (unless required by specific reference in any such
other plan to awards under the Plan).
(g) Employee Status. A leave of absence, unless
otherwise determined by the Committee prior to the commencement
thereof, shall not be considered a termination of employment. Any
Stock Option granted or awards made under the Plan to officers and
employees of the Company or any Subsidiary shall not be affected by
any change of employment, so long as the holder continues to be an
employee of the Company or any Subsidiary. If an optionee's
relationship with the Company or any Subsidiary changes (i.e., from
an employee to an Agent), such change shall constitute a
termination of an optionee's employment with the Company or a
Subsidiary, and the optionee's Option shall terminate in accordance
with Section 5(b)(viii) hereof as if the employment of the optionee
terminated by reason of Early Retirement.
(h) Non-Transferability. Except as otherwise expressly
provided in the Plan, no right or benefit under the Plan may be
alienated, sold, assigned, hypothecated, pledged, exchanged,
transferred, encumbered or charged, otherwise than by will, by the
laws of descent and distribution or by a Qualified Domestic
Relations Order, and any attempt otherwise to alienate, sell,
assign, hypothecate, pledge, exchange, transfer, encumber or charge
the same shall be void. No right or benefit hereunder shall in any
manner be liable for or subject to the debts, contracts,
liabilities or torts of the person entitled to such benefit.
(i) Applicable Laws. The obligations of the Company
with respect to all Stock Options and awards under the Plan shall
be subject to (A) all applicable laws, rules and regulations and
such approvals by any governmental agencies as may be required,
including, without limitation, the effectiveness of a registration
statement under the Securities Act of 1933, as amended and (B) the
rules and regulations of any securities exchange on which the Stock
may be listed.
(j) Conflicts. If any of the terms or provisions of the
Plan conflict with the requirements of Rule 16b-3 under the
Exchange Act, as in effect from time to time, or with the
requirements of any other applicable law, rule or regulation,
and/or with respect to Incentive Stock Options, Section 422 of the
Code, then such terms or provisions shall be deemed inoperative to
the extent they so conflict with the requirements of said Rule
16b-3, and/or with respect to Incentive Stock Options, Section 422
of the Code. With respect to Incentive Stock Options, if this Plan
does not contain any provision required to be included herein under
Section 422 of the Code, such provision shall be deemed to be
incorporated herein, with the same force and effect as if such
provision had been set out at length herein.
(k) Written Agreements. The Committee may terminate any
Stock Option or other award made under the Plan if a written
agreement relating thereto is not executed and returned to the
Company within 30 days after such agreement has been delivered to
the participant for his or her execution.
(l) Consideration for Stock. The Committee may not
grant any awards under the Plan pursuant to which the Company will
be required to issue any shares of Stock unless the Company will
receive consideration for the shares of Stock sufficient under the
laws of the State of Delaware so that such shares of Stock will be
fully paid and nonassessable when issued.
Section 14. Effective Date of Plan.
The Board approved the Plan on December 19, 1995, and the
stockholders approved the Plan on December 21, 1995. The Plan
became effective as of the date of the closing of an initial public
offering of the Stock (the "Effective Date"). As of October 4,
1996, the Plan shall be governed by the provisions of Rule 16b-3
under the Exchange Act, as amended by Release Number 34-37260, and
shall not be subject to the phase-in period for such amendment
after such date.
Section 15. Term of Plan.
No Stock Option, Stock Appreciation Rights, Restricted Stock
award, Deferred Stock award or Other Stock-Based Award shall be
granted pursuant to the Plan on or after ten years after the
Effective Date, but awards granted prior to such date may extend
beyond that date.
As of October 4, 1996
Exhibit 4.3
INNOTECH, INC.
1996 EQUITY INCENTIVE PLAN
Section 1. Purpose; Definitions.
The purpose of the Innotech, Inc. 1996 Equity Incentive
Plan (the "Plan") is to enable Innotech, Inc. (the "Company") to
offer to officers, other employees and independent agents,
consultants and advisors of the Company and its subsidiaries,
long-term performance-based stock and/or other equity interests in
the Company thereby enhancing its ability to attract, retain and
reward such individuals. The various types of long-term incentive
awards which may be provided under the Plan will enable the Company
to respond to changes in compensation practices, tax laws,
accounting regulations and the size and diversity of its
businesses.
For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) "Agents" means those persons who are not employees
of the Company or any subsidiary, including independent agents,
consultants and advisors for the Company.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
(d) "Committee" means the Stock Option Committee of the
Board or any other committee of the Board which the Board may
designate.
(e) "Company" means Innotech, Inc., a corporation
organized under the laws of the State of Delaware.
(f) "Deferred Stock" means Stock to be received, under
an award made pursuant to Section 8 below, at the end of a
specified deferral period.
(g) "Disability" means disability as determined under
procedures established by the Committee for purposes of the Plan.
(h) "Early Retirement" means retirement, with the
approval of the Committee for purposes of one or more award(s)
hereunder, from active employment with the Company or any
Subsidiary prior to age 65.
(i) Fair Market Value: As said term is used in the Plan,
the "Fair Market Value" of a share of Stock on any day means: (i)
if the principal market for the Stock is The New York Stock
Exchange, any other national securities exchange or the Nasdaq
National Market, the closing sales price of the Stock on such day
as reported by such exchange or market, or on a consolidated tape
reflecting transactions on such exchange or market, or (ii) if the
principal market for the Stock is not a national securities
exchange and the Stock is quoted on the National Association of
Securities Dealers Automated Quotations System, the mean between
the closing bid and the closing asked prices for the Stock on such
day as quoted on such System, or (iii) if the principal market for
the Stock is not a national securities exchange and if the Stock is
not quoted on the National Association of Securities Dealers
Automated Quotations System, the mean between the highest bid and
lowest asked prices for the Stock on such day as reported by the
National Quotation Bureau, Inc.; provided that if clauses (i), (ii)
and (iii) of this paragraph are all inapplicable, or if no trades
have been made or no quotes are available for such day, the Fair
Market Value of the Stock shall be determined by the Company by any
method which it deems to be appropriate. The determination of the
Company shall be conclusive as to the Fair Market Value of the
Stock.
(j) "Incentive Stock Option" means any Stock Option
intended to be and designated as an "incentive stock option" within
the meaning of Section 422 of the Code.
(k) "Non-Qualified Stock Option" means any Stock Option
that is not an Incentive Stock Option.
(l) "Normal Retirement" means retirement from active
employment with the Company or any Subsidiary on or after age 65.
(m) "Other Stock-Based Award" means an award under
Section 9 below that is valued in whole or in part by reference to,
or is otherwise based upon, Stock.
(n) "Plan" means this Innotech, Inc. 1996 Equity
Incentive Plan, as hereinafter amended from time to time.
(o) "Qualified Domestic Relations Order" shall have the
meaning assigned to such term under the Code and the regulations
promulgated thereunder.
(p) "Restricted Stock" means Stock, received under an
award made pursuant to Section 7 below, that is subject to
restrictions under said Section 7.
(q) "Retirement" means Normal Retirement or Early
Retirement.
(r) "SAR Value" means the value of the excess of the
Fair Market Value of one share of Stock over the Stock Option
exercise price per share specified in a related Stock Option
multiplied by the number of shares in respect of which the Stock
Appreciation Right shall be exercised, on the date of exercise.
(s) "Stock" means the Common Stock of the Company, par
value $.001 per share.
(t) "Stock Appreciation Right" means the right, pursuant
to an award granted under Section 6 below, to surrender to the
Company all (or a portion) of a Stock Option in exchange for an
amount equal to the SAR Value.
(u) "Stock Option" or "Option" means any option to
purchase shares of Stock which is granted pursuant to the Plan.
(v) "Subsidiary" means any present or future subsidiary
corporation or affiliated entity of the Company, as such term is
defined in Section 424(f) of the Code, or any successor thereto.
Section 2. Administration.
(a) The Plan shall be administered by the Committee, the
membership of which shall be at all times constituted so as to not
adversely affect the compliance of awards under the Plan with the
requirements of Rule 16b-3 under the Securities Exchange Act of
1934, as amended from time to time (the "Exchange Act"), and the
requirements of Section 162(m)(4)(C) of the Code and the
regulations promulgated thereunder, as in effect from time to time,
or with the requirements of any other applicable law, rule or
regulation.
The Committee shall have full authority to grant,
pursuant to the terms of the Plan, to officers and other employees
of the Company and Agents under Section 4 below: (i) Stock Options,
(ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv)
Deferred Stock, and/or (v) Other Stock- Based Awards.
(b) For purposes of illustration and not of limitation,
the Committee shall have the authority (subject to the express
provisions of the Plan):
(i) to select the officers, other employees and Agents
of the Company or any Subsidiary to whom Stock Options, Stock
Appreciation Rights, Restricted Stock, Deferred Stock and/or Other
Stock-Based Awards may from time to time be granted hereunder;
(ii) to determine the Incentive Stock Options,
Non-Qualified Stock Options, Stock Appreciation Rights, Restricted
Stock, Deferred Stock and/or Other Stock-Based Awards, or any
combination thereof, if any, to be granted hereunder to one or more
officers, other employees and Agents;
(iii) to determine the number of shares to be covered
by each award granted hereunder;
(iv) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted
hereunder (including, but not limited to, share price, any
restrictions or limitations, and any vesting, acceleration or
forfeiture provisions, as the Committee shall determine);
(v) to determine the terms and conditions under which
awards granted hereunder are to operate on a tandem basis and/or in
conjunction with or apart from other awards made by the Company or
any Subsidiary outside of the Plan;
(vi) to determine the extent and circumstances under
which Stock and other amounts payable with respect to an award
hereunder shall be deferred, which may be either automatic or at
the election of the participant; and
(vii) to substitute (A) new Stock Options for
previously granted Stock Options, which previously granted Stock
Options have higher Option exercise prices and/or contain other
less favorable terms, and (B) new awards of any other type for
previously granted awards of the same type, which previously
granted awards are upon less favorable terms.
Subject to Section 11 hereof, the Committee shall have
the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall, from time
to time, deem advisable, to interpret the terms and provisions of
the Plan and any award issued under the Plan (and to determine the
form and substance of all agreements relating thereto), and to
otherwise supervise the administration of the Plan.
Subject to Section 11 hereof, all decisions made by the
Committee pursuant to the provisions of the Plan shall be made in
the Committee's sole discretion and shall be final and binding upon
all persons, including the Company, its Subsidiaries and Plan
participants.
Section 3. Stock Subject to Plan.
The total number of shares of Stock reserved and
available for distribution under the Plan shall be 200,000 shares.
Such shares may consist, in whole or in part, of authorized and
unissued shares or treasury shares. The maximum number of shares
of Stock as to which any individual may receive an award hereunder
during any calendar year shall be 100,000.
If any shares of Stock underlying an Option cease to be
subject to such Option, or if any shares of Stock that are subject
to any Stock Appreciation Right, Restricted Stock, Deferred Stock
award or Other Stock-Based Award granted hereunder are forfeited or
any such award otherwise terminates without a payment being made to
the participant in the form of cash and/or Stock, such shares
shall, for purposes of both of the limitations set forth in the
preceding paragraph, again be available for distribution in
connection with future grants and awards under the Plan.
In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than a dividend or
its equivalent which is credited to a Plan participant or a regular
cash dividend), Stock split or other change in corporate structure
affecting the Stock, such substitution or adjustment shall be made
in the aggregate number of shares of Stock reserved for issuance
under the Plan, in the number and Option exercise price of shares
subject to outstanding Options granted under the Plan, in the
maximum number of shares as to which any individual may receive an
award hereunder in any calendar year and in the number of shares
subject to other outstanding awards (including but not limited to
awards of Restricted Stock, Deferred Stock and Other Stock-Based
Awards) granted under the Plan as may be determined to be
appropriate by the Committee in order to prevent dilution or
enlargement of rights, provided that the number of shares subject
to any award shall always be a whole number. Such adjusted Option
exercise price shall also be used to determine the amount payable
by the Company upon the exercise of any Stock Appreciation Right
associated with any Stock Option.
Each Option shall be subject to the requirement that if
at any time the Board shall determine, in its discretion, that the
listing, registration or qualification of the shares of Stock
subject to such Option upon any securities exchange, stock market
or quotation system or under any state, federal or local law, or
the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with,
the granting of such Option or the issuance or purchase of shares
of Stock thereunder, no such Option may be exercised in whole or in
part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any condition
not acceptable to the Board.
Section 4. Eligibility.
Officers and other employees of the Company or any
Subsidiary (but excluding members of the Committee and any person
who serves only as a director of the Company) who are at the time
of the grant of an award under this Plan regularly employed by the
Company or any Subsidiary on a full-time basis and who are
responsible for or contribute to the management, growth and/or
profitability of the business of the Company or any Subsidiary, as
well as Agents, are eligible to be granted Options and other awards
under the Plan. Eligibility under the Plan for such officers and
other employees of the Company, and Agents, shall be determined by
the Committee.
Section 5. Stock Options.
(a) Grant and Exercise. Stock Options granted under the
Plan may be of two types: (i) Incentive Stock Options and
(ii) Non-Qualified Stock Options. Any Stock Option granted under
the Plan shall contain such terms as the Committee may from time to
time approve. The Committee shall have the authority to grant to
any optionee Incentive Stock Options, Non-Qualified Stock Options,
or both types of Stock Options (in each case with or without Stock
Appreciation Rights), which may be granted alone or in addition to
other awards granted by the Company. To the extent that any Stock
Option does not qualify as an Incentive Stock Option, it shall
constitute a separate Non-Qualified Stock Option.
Anything in the Plan to the contrary notwithstanding, no
Incentive Stock Options shall be granted under the Plan unless the
Plan shall have been approved by the Company's stockholders in
accordance with the requirements of Section 422 of the Code, and no
term of the Plan relating to Incentive Stock Options or any
agreement providing for Incentive Stock Options shall be
interpreted, amended or altered, nor shall any discretion or
authority granted under the Plan be so exercised, so as to
disqualify the Plan under Section 422 of the Code, or, without the
consent of the optionee(s) affected, to disqualify any Incentive
Stock Option under such Section 422.
(b) Terms and Conditions. Stock Options granted under
the Plan shall be subject to the following terms and conditions:
(i) Option Exercise Price. The Option exercise price
per share of Stock purchasable under a Stock Option shall be
determined by the Committee at the time of grant but shall be not
less than 100% of the Fair Market Value at the time of grant (110%,
in the case of an Incentive Stock Option granted to an optionee
who, at the time of grant, owns Stock representing more than 10% of
the total combined voting power of all classes of stock of the
Company or its parent (if any) or subsidiary corporations ("10%
Stockholder"), as those terms are defined in Sections 424(e) and
(f) of the Code).
(ii) Option Term. The term of each Stock Option shall be
fixed by the Committee, but no Incentive Stock Option shall be
exercisable more than ten years (five years, in the case of an
Incentive Stock Option granted to a 10% Stockholder) after the date
on which the Option is granted, and no Non-Qualified Stock Option
shall be exercisable more than ten years and one day after the date
on which the Option is granted.
(iii) Exercisability. To ensure that the Company or
any Subsidiary will achieve the purpose and receive the benefits
contemplated in the Plan, any option granted to any optionee
hereunder shall, unless the condition of this sentence is waived or
modified in the agreement evidencing the Option or by resolution
adopted by the Committee, be exercisable according to the following
schedule:
Portion of Total Option
Time Period Which is Exercisable
Date of Grant 33%
First Anniversary of Date of Grant 33%
Second Anniversary of Date of Grant 34%
Subject to the vesting schedule described above, each
option may be exercised in whole or in part; provided, however,
that no fewer than 100 shares (or the remaining shares then
purchasable under the Option if fewer than 100 shares) may be
purchased upon any exercise of Option hereunder and that only whole
shares will be issued pursuant to the exercise of any Option.
(iv) Method of Exercise. Subject to whatever
installment, exercise and waiting period provisions are applicable
in a particular case, Stock Options may be exercised in whole or in
part at any time during the Option term, by giving written notice
of exercise to the Company specifying the number of shares of Stock
to be purchased. Such notice shall be accompanied by payment in
full of the Option exercise price, which shall be in cash or,
unless otherwise provided in the Stock Option agreement referred to
in Section 5(b)(xii) below, in whole shares of Stock which are
already owned by the holder of the Option or, unless otherwise
provided in the Stock Option agreement referred to in Section
5(b)(xii) below, partly in cash and partly in such Stock. Cash
payments shall be made by wire transfer, certified or bank check or
personal check, in each case payable to the order of the Company;
provided, however, that the Company shall not be required to
deliver certificates for shares of Stock with respect to which an
Option is exercised until the Company has confirmed the receipt of
good and available funds in payment of the Option exercise price
therefor. Payments in the form of Stock (which shall be valued at
the Fair Market Value of a share of Stock on the date of exercise)
shall be made by delivery of stock certificates in negotiable form
which are effective to transfer good and valid title thereto to the
Company, free of any liens or encumbrances. An optionee shall have
none of the rights of a stockholder with respect to the shares of
Stock subject to the Option until such shares shall be transferred
to the optionee upon the exercise of the Option. At the discretion
of the Board or the Committee, as the case may be, an Option may be
exercised with respect to a specified number of shares of Stock by
written notice of exercise to the Company stating that (i) the
Option exercise price for the shares and any withholding tax due
thereon will be paid to the Company directly by a broker-dealer
designated by the optionee and irrevocable instructions to such
effect have been furnished by the optionee to such broker-dealer;
and (ii) an advice from the broker-dealer confirming payment to the
Company will be promptly delivered to the Company. The exercise of
any such Option shall be irrevocable at the time of notice to the
Company; provided, however, that the Company shall not be required
to deliver certificates for shares of Stock with respect to the
exercise of the Option until the Company has confirmed the receipt
of good and sufficient funds in payment of the exercise price
thereof.
(v) Transferability; Exercisability. Unless otherwise
specifically provided in the Stock Option agreement referred to in
Section 5(b)(xii) below, no Stock Option shall be transferable by
the optionee otherwise than by will, by the laws of descent and
distribution or by a Qualified Domestic Relations Order, and all
Stock Options shall be exercisable, during the optionee's lifetime,
only by the optionee or by his spouse to whom the Option has been
transferred pursuant to the terms of a Qualified Domestic Relations
Order.
(vi) Termination by Reason of Death. Subject to Section
5(b)(x) below, in the event of the death of an optionee, any Stock
Option held by such optionee, unless otherwise determined by the
Committee, shall be exercisable by the legal representative of the
estate or by the legatee of the optionee under the will of the
optionee, for a period of one year (or such other period as the
Committee may specify, which period shall not be greater than three
months in the case of an Incentive Stock Option) from the date of
such death or until the expiration of the stated term of such Stock
Option, whichever period is the shorter, to the extent such Stock
Option was exercisable at the time of death.
(vii) Termination by Reason of Disability of Employee
Optionee. Subject to Section 5(b)(x) below, any Stock Options held
by an optionee who is an officer or employee and whose employment
by the Company or any Subsidiary terminates by reason of
Disability, unless otherwise determined by the Committee, shall be
exercisable by the optionee for a period of one year (or such other
period as the Committee may specify, which period shall not be
greater than three months in the case of an Incentive Stock Option)
from the date of such termination of employment or until the
expiration of the stated term of such Stock Option, whichever
period is the shorter, to the extent such Stock Option was
exercisable at the time of such Disability; provided, however, that
if the optionee dies within such one-year period (or such other
period as the Committee shall specify, which period shall not be
greater than three months in the case of an Incentive Stock
Option), any unexercised Stock Option (other than an Incentive
Stock Option) held by such optionee shall thereafter be exercisable
to the extent to which it was exercisable at the time of death for
a period of one year from the date of such death or until the
expiration of the stated term of such Stock Option, whichever
period is the shorter.
(viii) Termination by Reason of Retirement of Employee
Optionee. Subject to Section 5(b)(x) below, any Stock Options held
by an optionee who is an officer or employee and whose employment
by the Company or a Subsidiary terminates by reason of Normal
Retirement, unless otherwise determined by the Committee, shall be
exercisable by the optionee for a period of one year (or such other
period as the Committee may specify, which period shall not be
greater than three months in the case of an Incentive Stock Option)
from the date of such termination of employment or the expiration
of the stated term of such Stock Option, whichever period is the
shorter, to the extent such Stock Option was exercisable at the
time of such Normal Retirement; provided, however, that if the
optionee dies within such one-year period, any unexercised Stock
Option (other than an Incentive Stock Option) held by such optionee
shall thereafter be exercisable, to the extent to which it was
exercisable at the time of death, for a period of one year from the
date of such death or until the expiration of the stated term of
such Stock Option, whichever period is the shorter. If an
optionee's employment with the Company or any Subsidiary terminates
by reason of Early Retirement, the Stock Option shall thereupon
terminate, provided if the Committee so approves at the time of
Early Retirement, any Stock Option held by the optionee shall
become fully vested and may thereafter be exercised by the optionee
as provided above in connection with termination of employment by
reason of Normal Retirement.
(ix) Other Termination of Employment of Employee
Optionee. Subject to the provisions of Section 13(g) below and
unless otherwise determined by the Committee, if an optionee who is
an officer or employee whose employment by the Company or any
Subsidiary terminates for any reason other than death, Disability
or Retirement, any Stock Options held by him shall thereupon
automatically terminate, except that if the optionee's employment
is involuntarily terminated by the Company or a Subsidiary, without
cause, such Stock Option may be exercised for the lesser of three
months after termination of employment or the balance of such Stock
Option's term.
(x) Intentionally Omitted.
(xi) Buy-out and Settlement Provisions. The Committee
may at any time offer to buy out a Stock Option previously granted,
based upon such terms and conditions as the Committee shall
establish, and communicate to the optionee at the time that such
offer is made.
(xii) Stock Option Agreement. Each grant of a Stock
Option shall be confirmed by, and shall be subject to the terms of,
an agreement executed by the Company and the participant.
Section 6. Stock Appreciation Rights.
(a) Grant and Exercise. Stock Appreciation Rights may
be granted in conjunction with all or part of any Stock Option
granted by the Company. In the case of a Non-Qualified Stock
Option, such rights may be granted either at or after the time of
the grant of such Non-Qualified Stock Option. In the case of an
Incentive Stock Option, such rights may be granted only at the time
of the grant of such Incentive Stock Option.
A Stock Appreciation Right which is granted with respect
to a given Stock Option shall terminate and shall no longer be
exercisable upon the termination or exercise of the related Stock
Option, except that, unless otherwise determined by the Committee
at the time of grant, a Stock Appreciation Right granted with
respect to less than the full number of shares covered by a related
Stock Option shall not be reduced until after the number of shares
remaining under the related Stock Option equals the number of
shares covered by the Stock Appreciation Right.
A Stock Appreciation Right may be exercised by an
optionee, in accordance with Section 6(b) below, by surrendering
the applicable portion of the related Stock Option. Upon such
exercise and surrender, the optionee shall be entitled to receive
an amount (and in the form) determined in the manner prescribed in
Section 6(b) below. Stock Options which have been so surrendered,
in whole or in part, shall no longer be exercisable to the extent
the related Stock Appreciation Rights have been exercised.
(b) Terms and Conditions. Stock Appreciation Rights
shall be subject to the following terms and conditions:
(i) Stock Appreciation Rights shall be exercisable only
at such time or times and to the extent that the Stock Options to
which they relate shall be exercisable in accordance with the
provisions of Section 5 hereof and this Section 6; provided,
however, that any Stock Appreciation Right granted subsequent to
the grant of the related Stock Option shall not be exercisable
during the first six months of the term of such Stock Appreciation
Right, except that this special limitation shall not apply in the
event of Disability or Termination of an employee optionee or death
of an optionee prior to the expiration of the six-month period.
(ii) Upon the exercise of a Stock Appreciation Right, an
optionee shall be entitled to receive up to, but not more than, an
amount in cash and/or shares of Stock equal to the SAR Value. The
Committee shall have the right to determine the form of payment,
subject to Section 6(b)(v) below. For purposes of this paragraph,
the shares of Stock will be valued at their Fair Market Value on
the date of exercise of the Stock Appreciation Right.
(iii) Stock Appreciation Rights shall be transferable
and exercisable only when and to the extent that the underlying
Stock Option would be transferable and exercisable under Section
5(b)(v) hereof.
(iv) Upon the exercise of a Stock Appreciation Right, the
Stock Option or part thereof to which such Stock Appreciation Right
is related shall be deemed to have been exercised for the purpose
of the limitations set forth in Section 3 hereof on the number of
shares of Stock to be issued under the Plan and on the maximum
number of shares of Stock with respect to which any individual may
receive an award, but only to the extent of the number of shares
issued under the Stock Appreciation Right at the time of exercise
based upon the SAR Value.
(v) The Committee may grant "Limited Stock Appreciation
Rights", i.e., Stock Appreciation Rights that become exercisable
only in the event of a Change in Control as defined in Section 10
hereof, subject to such terms and conditions as the Committee may
specify at the time of grant. Said Limited Stock Appreciation
Rights shall be settled solely in cash, in an amount equal to the
SAR Value.
Each grant of Stock Appreciation Rights shall be
confirmed by, and shall be subject to the terms of, an agreement,
executed by the Company and the participant.
Section 7. Restricted Stock.
(a) Grant and Exercise. Shares of Restricted Stock may
be issued either alone or in addition to other awards granted by
the Company. The Committee shall determine the eligible persons to
whom, and the time or times at which, grants of Restricted Stock
shall be made, the number of shares to be awarded, the price (if
any) to be paid by the recipient, the time or times within which
such awards may be subject to forfeiture (the "Restriction
Period"), the vesting schedule and rights to acceleration thereof,
and all other terms and conditions of the awards.
The Committee may condition the grant of Restricted Stock
upon the attainment of specified performance goals or such other
factors as the Committee may determine.
(b) Terms and Conditions. Each Restricted Stock award
shall be subject to the following terms and conditions:
(i) Restricted Stock, when issued, shall be represented
by a stock certificate or certificates registered in the name of
the holder to whom such Restricted Stock shall have been awarded.
During the Restriction Period, certificates representing the
Restricted Stock and any securities constituting Retained
Distributions (as defined below) shall bear a restrictive legend to
the effect that ownership of the Restricted Stock (and such
Retained Distributions), and the enjoyment of all rights
appurtenant thereto, are subject to the restrictions, terms and
conditions provided in the Plan and the applicable Restricted Stock
agreement. Such certificates shall be deposited by the holder with
the Company, together with stock powers or other instruments of
assignment, each endorsed in blank, which will permit transfer to
the Company of all or any portion of the Restricted Stock and any
securities constituting Retained Distributions that shall be
forfeited or that shall not become vested in accordance with the
Plan and the applicable Restricted Stock agreement.
(ii) Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate purposes. The
holder thereof shall have the right to vote such Restricted Stock,
to receive and retain all regular cash dividends and other cash
equivalent distributions as the Board may in its sole discretion
designate, pay or distribute on such Restricted Stock and to
exercise all other rights, powers and privileges of a holder of
Common Stock with respect to such Restricted Stock, with the
exceptions that (A) the holder will not be entitled to delivery of
the stock certificate or certificates representing such Restricted
Stock until the Restriction Period shall have expired and unless
all other vesting requirements with respect thereto shall have been
fulfilled; (B) the Company will retain custody of the stock
certificate or certificates representing the Restricted Stock
during the Restriction Period; (C) other than regular cash
dividends and other cash equivalent distributions as the Board may
in its sole discretion designate, pay or distribute, the Company
will retain custody of all distributions ("Retained Distributions")
made or declared with respect to the Restricted Stock (and such
Retained Distributions will be subject to the same restrictions,
terms and conditions as are applicable to the Restricted Stock)
until such time, if ever, as the Restricted Stock with respect to
which such Retained Distributions shall have been made, paid or
declared shall have become vested and with respect to which the
Restriction Period shall have expired; (D) the holder may not sell,
assign, transfer, pledge, exchange, encumber or dispose of the
Restricted Shares or any Retained Distributions during the
Restriction Period; and (E) a breach by the holder of any of the
restrictions, terms or conditions contained in this Plan or the
Restricted Stock agreement referred to in the following clause (iv)
or otherwise established by the Committee with respect to any
Restricted Stock or Retained Distributions will cause a forfeiture
of such Restricted Stock and any Retained Distributions with
respect thereto.
(iii) Upon the expiration of the Restriction Period
with respect to each award of Restricted Stock and the satisfaction
of any other applicable restrictions, terms and conditions (A) all
or part of such Restricted Stock shall become vested in accordance
with the terms of the Restricted Stock agreement referred to in the
following clause (iv), and (B) any Retained Distributions with
respect to such Restricted Stock shall become vested to the extent
that the Restricted Stock related thereto shall have become vested.
Any such Restricted Stock and Retained Distributions that do not
vest shall be forfeited to the Company and the holder shall not
thereafter have any rights with respect to such Restricted Stock
and Retained Distributions that shall have been so forfeited.
(iv) Each Restricted Stock award shall be confirmed by,
and shall be subject to the terms of, an agreement executed by the
Company and the participant.
Section 8. Deferred Stock.
(a) Grant and Exercise. Deferred Stock may be awarded
either alone or in addition to other awards granted by the Company.
The Committee shall determine the eligible persons to whom and the
time or times at which Deferred Stock shall be awarded, the number
of shares of Deferred Stock to be awarded to any person, the
duration of the period (the "Deferral Period") during which, and
the conditions under which, receipt of the Stock will be deferred,
and all the other terms and conditions of the awards.
The Committee may condition the grant of Deferred Stock
upon the attainment of specified performance goals or such other
factors or criteria as the Committee shall determine.
(b) Terms and Conditions. Each Deferred Stock award
shall be subject to the following terms and conditions:
(i) Subject to the provisions of this Plan and the award
agreement referred to in Section 8(b)(vii) below, Deferred Stock
awards may not be sold, assigned, transferred, pledged or otherwise
encumbered during the Deferral Period. At the expiration of the
Deferral Period (or the Additional Deferral Period referred to in
Section 8(b)(vi) below, where applicable), share certificates shall
be delivered to the participant, or his legal representative, in a
number equal to the number of shares covered by the Deferred Stock
award.
(ii) As determined by the Committee at the time of award,
amounts equal to any dividends declared during the Deferral Period
(or the Additional Deferral Period referred to in Section 8(b)(vi)
below, where applicable) with respect to the number of shares
covered by a Deferred Stock award may be paid to the participant
currently or deferred and deemed to be reinvested in additional
Deferred Stock.
(iii) Subject to the provisions of the award
agreement and this Section 8 and Section 13(g) below, upon
termination of a participant who is an officer or employee whose
employment with the Company or any Subsidiary is terminated for any
reason during the Deferral Period (or the Additional Deferral
Period referred to in Section 8(b)(vi) below, where applicable) for
a given award, the Deferred Stock in question will vest or be
forfeited in accordance with the terms and conditions established
by the Committee at the time of grant.
(iv) The Committee may, after grant, accelerate the
vesting of all or any part of any Deferred Stock award and/or waive
the deferral limitations for all or any part of a Deferred Stock
award.
(v) In the event of hardship or other special
circumstances of an Agent or a participant who is an officer or
employee whose employment with the Company or any Subsidiary is
involuntarily terminated (other than for cause), the Committee may
waive in whole or in part any or all of the remaining deferral
limitations imposed hereunder or pursuant to the award agreement
referred to in Section 8(b)(vii) below with respect to any or all
of the participant's Deferred Stock.
(vi) A participant may request to, and the Committee may
at any time, defer the receipt of an award (or an installment of an
award) for an additional specified period or until a specified
event (the "Additional Deferral Period"). Subject to any
exceptions adopted by the Committee, such request must generally be
made at least one year prior to expiration of the Deferral Period
for such Deferred Stock award (or such installment).
(vii) Each Deferred Stock award shall be confirmed
by, and shall be subject to the terms of, an agreement executed by
the Company and the participant.
Section 9. Other Stock-Based Awards.
(a) Grant and Exercise. Other Stock-Based Awards which
may include performance shares, and shares valued by reference to
the performance of the Company or any Subsidiary, may be granted
either alone or in addition to or in tandem with Stock Options,
Stock Appreciation Rights, Restricted Stock or Deferred Stock under
this or any other plan of the Company.
The Committee shall determine the eligible persons to
whom, and the time or times at which, such awards shall be made,
the number of shares of Stock to be awarded pursuant to such
awards, and all other terms and conditions of the awards. The
Committee may also provide for the grant of Stock under such awards
upon the completion of a specified performance period.
(b) Terms and Conditions. Each Other Stock-Based Award
shall be subject to the following terms and conditions:
(i) Shares of Stock subject to an Other Stock-Based
Award may not be sold, assigned, transferred, pledged or otherwise
encumbered prior to the date on which the shares are issued, or, if
later, the date on which any applicable restriction, performance or
deferral period lapses.
(ii) The recipient of an Other Stock-Based Award shall be
entitled to receive, currently or on a deferred basis, dividends or
dividend equivalents with respect to the number of shares covered
by the award, as determined by the Committee at the time of the
award. The Committee may provide that such amounts (if any) shall
be deemed to have been reinvested in additional Stock.
(iii) Any Other Stock-Based Award and any Stock
covered by any Other Stock-Based Award shall vest or be forfeited
to the extent so provided in the award agreement, as determined by
the Committee.
(iv) In the event of Retirement, Disability or death of
a participant who is an officer or employee of the Company or any
Subsidiary, or in cases of special circumstances of any
participant, the Committee may waive in whole or in part any or all
of the limitations imposed hereunder (if any) with respect to any
or all of an Other Stock-Based Award.
(v) Each Other Stock-Based Award shall be confirmed by,
and shall be subject to the terms of, an agreement executed by the
Company and by the participant.
Section 10. Change in Control Provisions.
(a) A "Change of Control" shall be deemed to have
occurred on the tenth day after:
(i) any individual, firm, corporation or other entity,
or any group (as defined in Section 13(d)(3) of the Exchange Act
becomes, directly or indirectly, the beneficial owner (as defined
in the General Rules and Regulations of the Securities and Exchange
Commission with respect to Sections 13(d) and 13(g) of the Act) of
more than 20% of the then outstanding shares of the Company's
capital stock entitled to vote generally in the election of
directors of the Company; or
(ii) the commencement of, or the first public
announcement of the intention of any individual, firm, corporation
or other entity or of any group (as defined in Section 13(d)(3) of
the Exchange Act) to commence, a tender or exchange offer subject
to Section 14(d)(1) of the Exchange Act for any class of the
Company's capital stock; or
(iii) the stockholders of the Company approve (1) a
definitive agreement for the merger or other business combination
of the Company with or into another corporation pursuant to which
the stockholders of the Company do not own, immediately after the
transaction, more than 50% of the voting power of the corporation
that survives and is a publicly owned corporation and not a
subsidiary of another corporation, or (2) a definitive agreement
for the sale, exchange or other disposition of all or substantially
all of the assets of the Company, or (3) any plan or proposal for
the liquidation or dissolution of the Company; provided, however,
that a "Change of Control" shall not be deemed to have taken place
if beneficial ownership is acquired by, or a tender or exchange
offer is commenced or announced by, the Company, any
profit-sharing, employee ownership or other employee benefit plan
of the Company, any trustee of or fiduciary with respect to any
such plan when acting in such capacity, or any group comprised
solely of such entities.
(b) In the event of a "Change of Control" as defined in
Section 10(a) above, awards granted under the Plan will be subject
to the following provisions, unless the provisions of this Section
10 are suspended or terminated by an affirmative vote of a majority
of the Board prior to the occurrence of such a "Change of Control":
(i) all outstanding Stock Options, and all Stock
Appreciation Rights (including Limited Stock Appreciation Rights)
shall become exercisable in full, whether or not otherwise
exercisable or fully vested at such time, and any such Stock Option
or Stock Appreciation Right shall remain exercisable in full
thereafter until it expires pursuant to its terms; and
(ii) all restrictions and deferral limitations contained
in Restricted Stock awards, Deferred Stock awards and Other
Stock-Based Awards granted under the Plan shall lapse.
Section 11. Amendments and Termination.
The Board may at any time, and from time to time, amend
any of the provisions of the Plan, and may at any time suspend or
terminate the Plan. The Committee may amend the terms of any award
theretofore granted under the Plan; provided, however, that subject
to Section 3 hereof, no such amendment may be made by the Committee
which in any material respect impairs the rights of the participant
without the participant's consent.
Section 12. Unfunded Status of Plan.
The Plan is intended to constitute an "unfunded" plan for
incentive and deferred compensation. With respect to any payments
not yet made to a participant or optionee by the Company, nothing
contained herein shall give any such participant or optionee any
rights that are greater than those of a general creditor of the
Company.
Section 13. General Provisions.
(a) Investment Representations. The Committee may
require each person acquiring shares of Stock pursuant to a Stock
Option or other award under the Plan to represent to and agree with
the Company in writing that the optionee or participant is
acquiring the shares for investment without a view to distribution
thereof.
All certificates for shares of Stock delivered under the
Plan shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Stock is then listed,
any applicable Federal or state securities law, and any applicable
corporate law, and the Committee may cause a legend or legends to
be put on any such certificates to make appropriate reference to
such restrictions.
(b) Additional Incentive Arrangements. Nothing
contained in the Plan shall prevent the Board from adopting such
other or additional incentive arrangements as it may deem
desirable, including, but not limited to, the granting of stock
options and the awarding of stock and cash otherwise than under the
Plan; and such arrangements may be either generally applicable or
applicable only in specific cases.
(c) Continued Employment. Nothing contained in the Plan
or in any award hereunder shall be deemed to confer upon any
officer, employee or Agent of the Company or any Subsidiary any
right to continued employment with the Company or any Subsidiary,
nor shall it interfere in any way with the right of the Company or
any Subsidiary to terminate the employment of any of its officers
and employees or the relationship of Agents at any time.
(d) Withholding. Not later than the date as of which an
amount first becomes includable in the gross income of the
participant for Federal income tax purposes with respect to any
award under the Plan, the participant shall pay to the Company, or
make arrangements satisfactory to the Committee regarding the
payment of, any Federal, state and local taxes of any kind required
by law to be withheld or paid with respect to such amount. If
permitted by the Committee, tax withholding or payment obligations
may be settled with Stock, including Stock that is part of the
award that gives rise to the withholding requirement. The
obligations of the Company under the Plan shall be conditional upon
such payment or arrangements, and the Company or the participant's
employer (if not the Company) shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment of
any kind otherwise due to the participant from the Company or any
Subsidiary.
(e) Governing Law. The validity, construction and
effect of the Plan and all awards made and actions taken thereunder
shall be governed by and construed in accordance with the laws of
the State of Delaware (without regard to choice of law provisions).
(f) Other Benefit Plans. Any Stock Option granted or
other award made under the Plan shall not be deemed compensation
for purposes of computing benefits under any retirement plan of the
Company or any Subsidiary and shall not affect any benefits under
any other benefit plan now or subsequently in effect under which
the availability or amount of benefits is related to the level of
compensation (unless required by specific reference in any such
other plan to awards under the Plan).
(g) Employee Status. A leave of absence, unless
otherwise determined by the Committee prior to the commencement
thereof, shall not be considered a termination of employment. Any
Stock Option granted or awards made under the Plan to officers and
employees of the Company or any Subsidiary shall not be affected by
any change of employment, so long as the holder continues to be an
employee of the Company or any Subsidiary. If an optionee's
relationship with the Company or any Subsidiary changes (i.e., from
an employee to an Agent), such change shall constitute a
termination of an optionee's employment with the Company or a
Subsidiary, and the optionee's Option shall terminate in accordance
with Section 5(b)(viii) hereof as if the employment of the optionee
terminated by reason of Early Retirement.
(h) Non-Transferability. Except as otherwise expressly
provided in the Plan or in any Stock Option or other applicable
agreement, no right or benefit under the Plan may be alienated,
sold, assigned, hypothecated, pledged, exchanged, transferred,
encumbered or charged, otherwise than by will, by the laws of
descent and distribution or by a Qualified Domestic Relations
Order, and any attempt otherwise to alienate, sell, assign,
hypothecate, pledge, exchange, transfer, encumber or charge the
same shall be void. No right or benefit hereunder shall in any
manner be liable for or subject to the debts, contracts,
liabilities or torts of the person entitled to such benefit.
(i) Applicable Laws. The obligations of the Company
with respect to all Stock Options and awards under the Plan shall
be subject to (A) all applicable laws, rules and regulations and
such approvals by any governmental agencies as may be required,
including, without limitation, the effectiveness of a registration
statement under the Securities Act of 1933, as amended and (B) the
rules and regulations of any securities exchange on which the Stock
may be listed.
(j) Conflicts. If any of the terms or provisions of the
Plan conflict with the requirements of Rule 16b-3 under the
Exchange Act, as in effect from time to time, or with the
requirements of any other applicable law, rule or regulation,
and/or with respect to Incentive Stock Options, Section 422 of the
Code, then such terms or provisions shall be deemed inoperative to
the extent they so conflict with the requirements of said Rule
16b-3, and/or with respect to Incentive Stock Options, Section 422
of the Code. With respect to Incentive Stock Options, if this Plan
does not contain any provision required to be included herein under
Section 422 of the Code, such provision shall be deemed to be
incorporated herein, with the same force and effect as if such
provision had been set out at length herein.
(k) Written Agreements. The Committee may terminate any
Stock Option or other award made under the Plan if a written
agreement relating thereto is not executed and returned to the
Company within 30 days after such agreement has been delivered to
the participant for his or her execution.
(l) Consideration for Stock. The Committee may not
grant any awards under the Plan pursuant to which the Company will
be required to issue any shares of Stock unless the Company will
receive consideration for the shares of Stock sufficient under the
laws of the State of Delaware so that such shares of Stock will be
fully paid and nonassessable when issued.
Section 14. Effective Date of Plan.
The Board approved the Plan on October 4, 1996, and the
Plan became effective on such date (the "Effective Date"). The
Plan shall be governed by the provisions of Rule 16b-3 under
Section 16 of the Exchange Act, as amended by Release Number 34-
37260, and shall not be subject to the phase-in period for such
amendment.
Section 15. Term of Plan.
No Stock Option, Stock Appreciation Rights, Restricted Stock
award, Deferred Stock award or Other Stock-Based Award shall be
granted pursuant to the Plan on or after ten years after the
Effective Date, but awards granted prior to such date may extend
beyond that date.
As of October 4, 1996
Exhibit 4.4
INNOTECH, INC.
DIRECTORS' STOCK OPTION PLAN
(Amended as of October 4, 1996)
Section 1. Definitions
As used herein, the following terms shall be defined as
set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended from time to time and any successor thereto.
(c) "Company" means Innotech, Inc., a corporation
organized under the laws of the State of Delaware.
(d) "Date of Grant" means each date an Eligible Director
receives an Option hereunder.
(e) Fair Market Value: As said term is used in the Plan,
the "Fair Market Value" of a share of Stock on any day means: (i)
if the principal market for the Stock is The New York Stock
Exchange, any other national securities exchange or the Nasdaq
National Market, the closing sales price of the Stock on such day
as reported by such exchange or market, or on a consolidated tape
reflecting transactions on such exchange or market, or (ii) if the
principal market for the Stock is not a national securities
exchange and the Stock is quoted on the National Association of
Securities Dealers Automated Quotations System, the mean between
the closing bid and the closing asked prices for the Stock on such
day as quoted on such System, or (iii) if the principal market for
the Stock is not a national securities exchange and if the Stock is
not quoted on the National Association of Securities Dealers
Automated Quotations System, the mean between the highest bid and
lowest asked prices for the Stock on such day as reported by the
National Quotation Bureau, Inc.; provided that if clauses (i), (ii)
and (iii) of this paragraph are all inapplicable, or if no trades
have been made or no quotes are available for such day, the Fair
Market Value of the Stock shall be determined by the Company by any
method which it deems to be appropriate. The determination of the
Company shall be conclusive as to the Fair Market Value of the
Stock.
(f) "Eligible Director" means any Director of the
Company who is not an employee of the Company or its affiliates,
who has not within one year immediately preceding the determination
of such director's eligibility received any award under any other
plan of the Company or its affiliates (other than any other plan
under which participants' entitlements are governed by the
provisions meeting the requirements of Rule 16b-3(c)(2)(ii)
promulgated under the Securities Exchange Act of 1934, as amended)
and who is an "outside director" as defined in Regulation Section
1.162-27(e)(3) promulgated under the Code.
(g) "Option" means an Eligible Director's stock option
to purchase Stock granted pursuant to the provisions of Section 5
hereof.
(h) "Optionee" means an Eligible Director to whom an
Option has been granted hereunder.
(i) "Option Price" means the price at which an Optionee
may purchase a share of Stock as provided in Section 5.2 hereof.
(j) "Plan" means the Innotech, Inc. Directors' Stock
Option Plan, the terms of which are set forth herein.
(k) "Qualified Domestic Relations Order" shall have the
meaning assigned to such term under the Code and the regulations
promulgated thereunder.
(l) "Stock" means the common stock, par value $.001 per
share, of the Company.
(m) "Stock Option Agreement" means an agreement between
the Company and the Optionee under which the Optionee may purchase
Stock in accordance with the Plan.
(n) "Stockholders" means the holders of outstanding
shares of Stock of the Company.
Section 2. The Plan
2.1. Name. This Plan shall be known as the "Innotech,
Inc. 1995 Directors' Stock Option Plan".
2.2. Purpose. The purpose of the Plan is to advance the
interests of the Company and its Stockholders by affording Eligible
Directors of the Company an opportunity to acquire or increase
their proprietary interests in the Company, and thereby to
encourage their continued service as directors and to provide them
with additional incentives to achieve the growth objectives of the
Company.
2.3. Effective Date. This Plan was adopted and approved
by the Stockholders of the Company on December 21, 1995. The Plan
was adopted by the Board of Directors of the Company on December
19, 1995, and the Plan became effective on the date of a closing of
an initial public offering of shares of Stock (the "Effective
Date").
2.4. Termination Date. The Plan shall terminate and no
further Options shall be granted hereunder on or after the tenth
anniversary of the Effective Date of the Plan.
2.5. Administration of the Plan. The Plan shall be
administered by the Board. Subject to the provisions of the Plan,
the Board shall be authorized to interpret the Plan, to establish,
amend and rescind any rules and regulations relating to the Plan
and to make all other determinations necessary or advisable for the
administration of the Plan; provided, however, that the Board shall
have no discretion with respect to the selection of directors to
receive Options, the number of shares of Stock subject to any
Option, the purchase price thereunder or the timing of grants of
Options under the Plan. The determination of the Board in the
administration of the Plan, as described herein, shall be final and
conclusive. The Secretary of the Company shall be authorized to
implement the Plan in accordance with its terms and to take such
actions of a ministerial nature as shall be necessary to effectuate
the intent and purposes thereof.
Section 3. Participants
Each Eligible Director shall participate in the Plan,
provided that he or she is elected to a regular term as a member of
the Board of Directors of the Company at an Annual Meeting of
Stockholders, or any adjournment thereof.
Section 4. Shares of Stock Subject to Plan
4.1. Limitations. Subject to any antidilution adjustment
pursuant to the provisions of Section 4.2 hereof, the maximum
number of shares of Stock which may be issued and sold hereunder
shall not exceed 100,000 shares of Stock. Shares of Stock subject
to an Option may be either authorized and unissued shares or shares
issued and later acquired by the Company; provided, however, the
shares of Stock with respect to which an Option has been exercised
shall not again be available for the grant of an Option hereunder.
If any shares of Stock underlying an Option cease to be subject to
such Option, or if any Option is forfeited or otherwise terminates
without the shares of Stock underlying such Option being issued,
such shares shall again be available for distribution in connection
with future grants under the Plan.
4.2. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than a dividend or
its equivalent which is credited to a Plan participant or a regular
cash dividend), Stock split or other change in corporate structure
affecting the Stock, such substitution or adjustment shall be made
in the aggregate number of shares of Stock reserved for issuance
under the Plan, in the number and Option exercise price of shares
subject to outstanding Options granted under the Plan as may be
determined to be appropriate in order to prevent dilution or
enlargement of rights, provided that the number of shares subject
to any award shall always be a whole number.
The foregoing adjustments and the manner of application
thereof shall be determined solely by the Board, and any such
adjustment may provide for the elimination of fractional share
interests. The adjustments required under this Section 4 shall
apply to any successor or successors of the Company and shall be
made regardless of the number or type of successive events
requiring adjustments hereunder.
Section 5. Options
5.1. Option Grant, Number of Shares and Agreement. Each
Eligible Director shall automatically be granted an Option to
purchase 5,000 shares of Stock on the date (i) an Eligible Director
is initially elected to the Board (after the Effective Date) and
(ii) for each respective fiscal year of the Company thereafter
during which an Eligible Director continues to be an Eligible
Director, the earlier of: (A) each June 30, or (B) the date on
which the Stockholders of the Company shall elect directors at an
Annual Meeting of such Stockholders or any adjournment thereof.
An Eligible Director who shall have been elected to the Board prior
to the Effective Date of the Plan shall first be granted an Option
hereunder on the first date after the Effective Date on which the
Stockholders of the Company shall elect directors at an Annual
Meeting of such Stockholders or any adjournment thereof. Each
Option granted hereunder shall be evidenced by a written Stock
Option Agreement, dated as of the Date of Grant and executed by the
Company and the Optionee, stating the Option's duration and time of
exercise and the Option Price. The terms and conditions of the
Stock Option Agreement shall be consistent with the Plan. The
Options granted hereunder are not intended to qualify under Section
422 of the Code.
5.2. Option Price. The Option Price of the Stock subject
to each Option shall be the Fair Market Value of the Stock on its
Date of Grant.
5.3. Exercise Period. The period for the exercise of
each Option shall expire on the tenth anniversary of the Date of
Grant.
5.4. Option Exercise.
(a) Any Option granted under the Plan shall become
exercisable in full on the first anniversary of the Date of Grant
with respect to such Option, provided that the Eligible Director
has not voluntarily resigned, or been removed "for cause," as a
member of the Board of Directors on or prior to the first
anniversary of the Date of Grant. An Option shall remain
exercisable after the first anniversary of the Date of Grant at all
times during the Exercise Period, regardless of whether the
Optionee thereafter continues to serve as a member of the Board.
(b) An Option may be exercised at any time or from time
to time during the Exercise Period as to any or all full shares
which have become exercisable in accordance with this Section 5.4,
but not as to less than 100 shares of Stock unless the remaining
shares of Stock that are so exercisable are less than 100 shares of
Stock. The Option Price is to be paid in full in cash upon the
exercise of the Option. The Optionee shall not have any of the
rights of a Stockholder with respect to the shares of Stock subject
to the Option until such shares of Stock have been issued or
transferred to the Optionee upon the exercise of his or her Option.
(c) An Option shall be exercised by written notice of
exercise of the Option, with respect to a specified number of
shares of Stock, delivered to the Company at its principal office,
and by cash payment to the Company at said office of the full
amount of the Option Price for such number of shares. In addition
to, and prior to the issuance of a certificate for shares pursuant
to any Option exercise, the Optionee shall pay to the Company in
cash the full amount of any federal, state and local withholding or
other employment taxes applicable to the taxable income of such
Optionee resulting from such exercise.
(d) At the discretion of the Board, the Stock Option
Agreement may provide that an Option granted under the Plan may be
exercised with respect to a specified number of shares of Stock by
written notice of exercise to the Company stating that (i) the
Option Price for the shares and any withholding tax due thereon
will be paid to the Company directly by a broker-dealer designated
by the Optionee and irrevocable instructions to such effect have
been furnished by the Optionee to such broker-dealer; and (ii) an
advice from the broker-dealer confirming payment to the Company
will be promptly delivered to the Company. The exercise of any
such Option shall be irrevocable at the time of notice to the
Company; provided, however, that the Company shall not be required
to deliver certificates for shares of Stock with respect to the
exercise of the Option until the Company has confirmed the receipt
of good and sufficient funds in payment of the Option Price
therefor.
5.5. Non-transferability of Option. Options may not be
transferred by an Optionee otherwise than by will, the laws of
descent and distribution, or by a Qualified Domestic Relations
Order. During the lifetime of an Optionee, an Option may be
exercised only by the Optionee (or by his or her guardian or legal
representative, should one be appointed) or by his or her spouse to
whom the Option has been transferred pursuant to the terms of a
Qualified Domestic Relations Order. In the event of the death of
an Optionee, any Option held by an Optionee may be exercised by the
legatee(s) or other distributee(s) or by the personal
representative of the Optionee.
5.6. Listing and Registration. Each Option shall be
subject to the requirement that if at any time the Board shall
determine, in its discretion, that the listing, registration or
qualification of the shares of Stock subject to such Option upon
any securities exchange, stock market or quotation system or under
any state, federal or local law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the granting of such Option or
the issuance or purchase of shares of Stock thereunder, no such
Option may be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any condition not acceptable to the
Board.
Section 6. Stock Certificates
The Company shall not be required to issue or deliver any
certificate for shares of Stock purchased upon the exercise of any
Option granted hereunder or any portion thereof unless, in the
opinion of counsel to the Company, there has been compliance with
all applicable legal and contractual requirements. An Option
granted under the Plan may provide that the Company's obligation to
deliver shares of Stock upon the exercise thereof may be
conditioned upon the receipt by the Company of a representation as
to the investment intention of the Optionee in such form as the
Company shall determine to be necessary or advisable solely to
comply with the provisions of the Securities Act of 1933, as
amended, or any other federal, state or local securities laws.
Section 7. Termination and Amendment of the Plan
7.1. Termination. The Board may, at any time, terminate
the Plan.
7.2. Amendment. The Plan may be amended by the Board, as
it shall deem advisable or to conform to any change in law or
regulation applicable thereto; provided, that the Board may not,
without the authorization and approval of the Stockholders: (a)
increase the number of shares of Stock which may be purchased
pursuant to Options hereunder, either individually or in the
aggregate, except as permitted by Section 4.2 hereof; (b) change
the requirement of Section 5.2 hereof that Options be priced at
Fair Market Value, except as permitted by Section 4.2 hereof; (c)
modify in any respect the class of individuals who constitute
Eligible Directors or (d) materially increase the benefits accruing
to Optionees hereunder. The provisions of Sections 5.1 and 5.2
hereof may not be amended more often than once every six months
other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, as amended, or the rules
under either such statute.
Section 8. Relationship to Other Compensation Plans
The adoption of the Plan shall neither affect any other
stock option, incentive or other compensation plans in effect for
the Company or any of its subsidiaries, nor shall the adoption of
the Plan preclude the Company from establishing any other forms of
incentive or other compensation plans for directors of the Company.
Section 9. Miscellaneous
9.1. Plan Binding on Successors. The Plan shall be
binding upon the successors and assigns of the Company.
9.2. Singular, Plural; Gender. Whenever used herein,
nouns in the singular shall include the plural, and the masculine
pronoun shall include the feminine gender.
9.3. Headings etc., No Part of Plan. Headings of
articles and paragraphs hereof are inserted for convenience and
reference, and do not constitute a part of the Plan.
9.4. Governing Law. The validity, construction and
effect of the Plan and any rules and regulations relating to the
Plan shall be determined in accordance with the laws of the State
of Delaware (without regard to choice of law provisions).
9.5. Compliance with Section 16 of the Securities
Exchange Act of 1934. As of October 4, 1996, the Plan shall be
governed by the provisions of Rule 16b-3 under Section 16 of the
Securities Exchange Act of 1934, as amended by Release Number 34-
37260, and shall not be subject to the phase-in period for such
amendment after such date.
As of October 4, 1996
Exhibit 4.5
EMPLOYEE BASE STOCK OPTION AGREEMENT
AGREEMENT dated as of October 2, 1995, by and
between InnoTech, Inc., a Delaware corporation, with
principal offices located at 5568 Airport Road, Roanoke,
Virginia 24012 (the "Company"), and _____________________
_____________________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, on August 15, 1995, the Board of
Directors of the Company authorized the grant to the
Optionee of an option to purchase _______________ shares of
common stock of the Company, $.001 par value (the "Common
Stock"), conditioned upon the Optionee's acceptance thereof
upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Optionee desires to acquire said
option on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises
and the mutual agreements hereinafter set forth, and for
other good and valuable consideration, the parties hereto
hereby agree as follows:
1. The Company hereby grants to the Optionee an
option to purchase up to ___________ shares of Common Stock
at a purchase price of $0.01 per share, subject to
adjustment in the manner set forth in Section 11 hereof and
to the other terms and conditions set forth herein.
2. (i) Subject to clause (ii) of this Section
and to Section 11(ii) hereof, options to purchase ______
shares of Common Stock shall be exercisable commencing on
August 23, 1995, options to purchase ______ shares of Common
Stock shall be exercisable commencing on October 2, 1995,
and options to purchase ____ shares of Common Stock shall be
exercisable commencing on each of October 2, 1996, October
2, 1997, October 2, 1998, October 2, 1999 and October 2,
2000. Subject to clause (ii) of this Section, Section 9 and
Section 11(ii) hereof, all options granted hereunder shall
terminate on August 23, 2005.
(ii) Notwithstanding the provisions of clause
(i), this option shall become immediately exercisable upon
the first to occur of the Change in Control Date, or the
date the Optionee's employment with the Company or a direct
or indirect majority-owned subsidiary corporation of the
Company (a "Subsidiary") shall terminate for any reason
other than a termination due to Optionees committing a fraud
against the Company or a Subsidiary. For purposes hereof,
the Change in Control Date shall mean the date of the first
to occur of a Liquidation or a Sale. A "Liquidation" shall
occur upon the voluntary or involuntary liquidation,
dissolution or winding-up of the Company. A "Sale" shall
occur, in any single transaction or series of related
transactions, upon (A) a sale, abandonment, transfer, lease
or disposition of all or substantially all of the properties
and assets of the Company (other than to any wholly-owned
subsidiary of the Company) followed by a liquidation
distribution, (B) a sale, transfer or other disposition by
the Company's shareholders of Company securities
representing in excess of 50% of the Common Stock equivalent
voting rights of the Company (on a fully-diluted basis) or
(C) a merger or consolidation of the Company with or into
any other entity or entities (other than a merger of the
Company with and into a wholly-owned subsidiary of the
Company with no change in the beneficial ownership of the
Company).
3. Except as provided in Section 9 hereof, this
option may not be exercised unless the Optionee is in the
employ of the Company or a Subsidiary at the time of such
exercise and shall have been such an employee continuously
since the date of grant of this option.
4. This option shall not be deemed an "Incentive
Stock Option" under the Internal Revenue Code of 1986, as
amended (the "Code"). Accordingly, the Optionee
acknowledges that, under existing laws and regulations,
exercise of the option may be a taxable event under the
Code. In such event, the Optionee will be subject to a
withholding tax on the difference between the purchase price
of the shares received from the Company and their fair
market value on the date of exercise. Any such tax shall be
paid to the Company by the Optionee within two days of
receipt of a notice from the Company containing the amount
thereof.
5. Subject to the terms and conditions set forth
herein, the Optionee may exercise this option at any time as
to all or any of the shares of Common Stock then purchasable
in accordance with Sections 2 and 3 hereof by delivering to
the Company written notice specifying:
(i) The number of whole shares of Common
Stock to be purchased together with payment in full of
the aggregate exercise price of such shares, provided
that this option may not be exercised for fewer than
one hundred (100) shares of Common Stock or the number
of shares of Common Stock remaining subject to this
option, whichever is smaller;
(ii) The address to which dividends,
notices, reports, etc. are to be sent; and
(iii) The Optionee's social security
number.
Only one stock certificate will be issued unless the
Optionee otherwise requests in writing.
6. The exercise price of the shares of Common
Stock as to which the option is exercised shall be paid in
full in U.S. dollars, in cash, or by certified or bank
cashier's check payable to the order of the Company, free
from all collection charges. The exercise price for the
shares of Common Stock covered by this option may also be
paid in shares of Common Stock owned by the Optionee having
a market value on the date of exercise equal to the
aggregate exercise price, or in a combination of cash and
Common Stock. In addition to the foregoing methods of
payment in respect of the exercise of the option, the
exercise price of this option may also be paid by delivery
to the Company or its designated agent of an executed
irrevocable option exercise form together with irrevocable
instructions to a broker-dealer to sell a sufficient portion
of the shares of Common Stock underlying the option and
deliver the sale proceeds directly to the Company in payment
of the exercise price. For purposes of this option, the
market value per share of Common Stock shall be the last
sale price regular way on the date of reference, or, in case
no sale takes place on such date, the average of the closing
bid and asked prices regular way, in either case on the
principal national securities exchange on which the Common
Stock is listed or admitted to trading, or if the Common
Stock is not listed or admitted to trading on any national
securities exchange, the last sale price reported on the
NASDAQ Stock Market on such date, or the average of the
closing bid and asked prices of the Common Stock as reported
thereon on the date in reference, whichever is applicable,
or if there are no such prices reported on the NASDAQ Stock
Market on such date, as furnished to the Company by any New
York Stock Exchange member selected from time to time by the
Company for such purpose. If there is no bid or asked price
reported on any such date, the market value shall be
determined by the Company in good faith. The Optionee shall
not be entitled to any rights as a stockholder of the
Company in respect of any shares of Common Stock covered by
this option until such shares of Common Stock shall have
been paid in full and issued to the Optionee.
7. As soon as practicable after the Company
receives and collects payment for shares of Common Stock
covered by this option, it shall deliver a certificate or
certificates representing the shares of Common Stock so
purchased to the Optionee.
8. This option is personal to the Optionee and
during the Optionee's lifetime may be exercised only by the
Optionee. This option and the rights and privileges
conferred hereby may not be transferred, assigned, pledged
or hypothecated in any way and shall not be subject to
execution, attachment or similar process. Upon any attempt
to transfer, assign, pledge, hypothecate or otherwise
dispose of this option or any right or privilege conferred
hereby contrary to the provisions hereof, or upon the levy
of any attachment or similar process on the rights and
privileges conferred hereby, this option and the rights and
privileges conferred hereby shall immediately become null
and void.
9. In the event that the Optionee's employment
as an employee of the Company and, if applicable, each
Subsidiary (hereinafter the "Optionee's employment") is
terminated prior to the time that this option has been fully
exercised, this option shall be exercisable, as to any
remaining shares of Common Stock subject hereto, as follows:
(i) If the Optionee's employment is
terminated because the Optionee committed a fraud
against the Company or a Subsidiary, this option and
any unexercised portion thereof shall terminate and
shall cease to be exercisable.
(ii) If the Optionee's employment is
terminated for any reason other than because the
Optionee committed a fraud against the Company or a
Subsidiary (including, without limitation, by reason of
Optionee's voluntary resignation), this option and any
unexercised portion thereof shall terminate except to
the extent such option is exercised by the Optionee,
his legal representative or the executor or
administrator of his estate, as the case may be, within
twelve (12) months after the date of such termination
of his employment.
Notwithstanding any other provisions of this Section 9 to
the contrary, this option shall in no event be exercisable
after the date of termination of such option specified in
Section 2 hereof.
10. This option does not confer on the Optionee
any right to continue in the employ of the Company or any
Subsidiary or interfere in any way with the right of the
Company or any Subsidiary to determine the terms of the
Optionee's employment.
11. (i) In the event of a reorganization,
recapitalization, stock split, reverse stock split, stock
dividend, combination of shares or any other similar change
in the corporate structure or shares of the Company, the
number of shares covered by any unexercised portion of this
option and the related purchase price per share shall be
adjusted proportionately.
(ii) Notwithstanding anything in Sections 6
and 7 to the contrary, in the event of a Sale, the Optionee
shall, upon the consummation thereof, automatically receive
a payment equal to the excess, if any, of the Sale
consideration receivable by the holder of a share of Common
Stock in such a Sale (the "Sale Consideration") over the
exercise price hereof, for each share of Common Stock the
Optionee shall then be entitled to acquire hereunder. The
value of the Sale Consideration receivable by the holder of
a share of Common Stock, if it shall be other than cash,
shall be determined, in good faith, by the Board of
Directors of the Company. Upon payment to the Optionee of
the Sale Consideration, the Optionee shall have no further
rights in connection with the option granted hereunder, and
this Agreement shall be terminated.
12. Anything in this Agreement to the contrary
notwithstanding, the Optionee hereby agrees that he shall
not sell, transfer by any means or otherwise dispose of the
shares of Common Stock acquired by him without registration
under the Securities Act of 1933, as amended (the "Act"),
and any applicable state securities laws unless (a)
exemptions from the Act and any such state securities laws
are available thereunder, and (b) the Optionee has furnished
the Company with notice of such proposed transfer and the
Company's legal counsel, in its reasonable opinion, shall
deem such proposed transfer to be so exempt.
13. Any notice, demand, request or consent to be
given or served in connection herewith shall be in writing
and shall be deemed to have been given and received by the
respective parties designated therein on the day on which
delivered by messenger to the receiving party at the address
set forth herein (or at such other address as such party
shall specify to the other parties in writing pursuant to
this Section) or, if sent by certified or registered mail,
postage prepaid, return receipt requested, on the second day
after the day on which mailed to such party at such address.
14. (i) This Agreement shall be construed in
accordance with, and governed by, the laws of the State of
Delaware applicable to agreements made and to be entirely
performed within such State.
(ii) Subject to the provisions of Section 8
hereof, this Agreement shall be binding upon and inure to
the benefit of each party hereto and to the extent not
prohibited herein, their respective heirs, successors,
assigns and representatives.
(iii) This Agreement may be executed in two
or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and
the same instrument.
(iv) This Agreement may not be amended,
except pursuant to a written instrument signed by each of
the parties hereto. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate
or be construed as a waiver of any other or subsequent
breach.
15. The Company and the Optionee hereby
acknowledge and agree that the issuance of the option
pursuant to this Agreement (including the shares of Common
Stock underlying the option) constitute an exempt offer and
sale pursuant to Rule 701 promulgated under the Act, and
that for purposes of said Rule this Agreement constitutes a
written contract relating to the compensation of the
Optionee (as defined in Rule 701(b)(1)(ii)). In connection
with the foregoing, the Company agrees to make any filings
and/or to take any other actions which are required in order
to comply with the exemption provided by Rule 701.
IN WITNESS WHEREOF, this Base Stock Option
Agreement has been executed by the parties hereto as of the
date first set forth above.
INNOTECH, INC.
By:_______________________
Name:
Title:
OPTIONEE:
_____________________________
Exhibit 4.6
EMPLOYEE SUCCESS STOCK OPTION AGREEMENT
AGREEMENT dated as of October 2, 1995, by and
between InnoTech, Inc., a Delaware corporation, with principal
offices located at 5568 Airport Road, Roanoke, Virginia 24012
(the "Company"), and __________________________________ (the
"Optionee").
W I T N E S S E T H:
WHEREAS, on August 15, 1995, the Board of Directors
of the Company authorized the grant to the Optionee of an
option to purchase _______________ shares of common stock of
the Company, $.001 par value (the "Common Stock"), conditioned
upon the Optionee's acceptance thereof upon the terms and
conditions set forth in this Agreement; and
WHEREAS, the Optionee desires to acquire said option
on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements hereinafter set forth, and for other
good and valuable consideration, the parties hereto hereby
agree as follows:
1. The Company hereby grants to the Optionee an
option to purchase up to __________ shares of Common Stock at
an initial exercise price (as adjusted, the "Base Exercise
Price") of $1.10 per share (which price the Company's Board of
Directors has determined to be at least the fair market value
of the Common Stock as of the date this grant was authorized).
The exercise price for each share of Common Stock which may be
purchased hereunder shall be increased by 7.5% of the then
existing Base Exercise Price (and rounded off to the nearest
whole cent) on September 1, 1996, and on each December 1,
March 1, June 1 and September 1 thereafter until this option
shall have either been exercised in full or shall have
terminated in accordance with the terms hereof. The Base
Exercise Price shall be adjusted on September 1, 1997, and on
each September 1 thereafter to equal the exercise price
determined under the preceding sentence as of such date.
Notwithstanding the foregoing, the Base Exercise Price per
share of Common Stock under this Agreement shall be fixed at
$1.96 during the term of this option upon the consummation of
a "Designated Offering", as such term is defined in the
Company's Amended and Restated Certificate of Incorporation,
as amended from time to time. In addition, the exercise price
shall be subject to adjustment in the manner set forth in
Section 11 hereof and to the other terms and conditions set
forth herein.
2. Subject to the provisions of Section 11(ii)
hereof, this option shall be exercisable during the period
commencing on October 2, 1995, and terminating on August 23,
2000.
3. Except as provided in Section 9 hereof, this
option may not be exercised unless the Optionee is in the
employ of the Company or a direct or indirect majority-owned
subsidiary corporation of the Company (a "Subsidiary") at the
time of such exercise and shall have been such an employee
continuously since the date of grant of this option.
4. This option shall not be deemed an "Incentive
Stock Option" under the Internal Revenue Code of 1986, as
amended (the "Code"). Accordingly, the Optionee acknowledges
that, under existing laws and regulations, exercise of the
option may be a taxable event under the Code. In such event,
the Optionee will be subject to a withholding tax on the
difference between the purchase price of the shares received
from the Company and their fair market value on the date of
exercise. Any such tax shall be paid to the Company by the
Optionee within two days of receipt of a notice from the
Company containing the amount thereof.
5. Subject to the terms and conditions set forth
herein, the Optionee may exercise this option at any time as
to all or any of the shares of Common Stock then purchasable
in accordance with Sections 2 and 3 hereof by delivering to
the Company written notice specifying:
(i) The number of whole shares of Common
Stock to be purchased together with payment in full of
the aggregate exercise price of such shares, provided
that this option may not be exercised for fewer than one
thousand (1,000) shares of Common Stock or the number of
shares of Common Stock remaining subject to this option,
whichever is smaller;
(ii) The address to which dividends, notices,
reports, etc. are to be sent; and
(iii) The Optionee's social security number.
Only one stock certificate will be issued unless the Optionee
otherwise requests in writing.
6. The exercise price of the shares of Common
Stock as to which the option is exercised shall be paid in
full in U.S. dollars, in cash, or by certified or bank
cashier's check payable to the order of the Company, free from
all collection charges. The exercise price for the shares of
Common Stock covered by this option may also be paid in shares
of Common Stock owned by the Optionee having a market value on
the date of exercise equal to the aggregate exercise price, or
in a combination of cash and Common Stock. In addition to the
foregoing methods of payment in respect of the exercise of the
option, the exercise price of this option may also be paid by
delivery to the Company or its designated agent of an executed
irrevocable option exercise form together with irrevocable
instructions to a broker-dealer to sell a sufficient portion
of the shares of Common Stock underlying the option and
deliver the sale proceeds directly to the Company in payment
of the exercise price. For purposes of this option, the
market value per share of Common Stock shall be the last sale
price regular way on the date of reference, or, in case no
sale takes place on such date, the average of the closing bid
and asked prices regular way, in either case on the principal
national securities exchange on which the Common Stock is
listed or admitted to trading, or if the Common Stock is not
listed or admitted to trading on any national securities
exchange, the last sale price reported on the NASDAQ Stock
Market on such date, or the average of the closing bid and
asked prices of the Common Stock as reported thereon on the
date in reference, whichever is applicable, or if there are no
such prices reported on the NASDAQ Stock Market on such date,
as furnished to the Company by any New York Stock Exchange
member selected from time to time by the Company for such
purpose. If there is no bid or asked price reported on any
such date, the market value shall be determined by the Company
in good faith. The Optionee shall not be entitled to any
rights as a stockholder of the Company in respect of any
shares of Common Stock covered by this option until such
shares of Common Stock shall have been paid in full and issued
to the Optionee.
7. As soon as practicable after the Company
receives and collects payment for shares of Common Stock
covered by this option, it shall deliver a certificate or
certificates representing the shares of Common Stock so
purchased to the Optionee.
8. This option is personal to the Optionee and
during the Optionee's lifetime may be exercised only by the
Optionee. This option and the rights and privileges conferred
hereby may not be transferred, assigned, pledged or
hypothecated in any way and shall not be subject to execution,
attachment or similar process. Upon any attempt to transfer,
assign, pledge, hypothecate or otherwise dispose of this
option or any right or privilege conferred hereby contrary to
the provisions hereof, or upon the levy of any attachment or
similar process on the rights and privileges conferred hereby,
this option and the rights and privileges conferred hereby
shall immediately become null and void.
9. In the event that the Optionee's employment as
an employee of the Company and, if applicable, each Subsidiary
(hereinafter the "Optionee's employment") is terminated prior
to the time that this option has been fully exercised, this
option shall be exercisable, as to any remaining shares of
Common Stock subject hereto, as follows:
(i) If the Optionee's employment is terminated
for cause, based on objective factors determined in good
faith by the Company, this option and any unexercised
portion thereof shall terminate and shall cease to be
exercisable.
(ii) If the Optionee's employment is terminated
other than for cause (including, without limitation, by
reason of his voluntary resignation), this option and any
unexercised portion thereof shall terminate except to the
extent such option is exercised by the Optionee, his
legal representative or the executor or administrator of
his estate, as the case may be, within twelve (12) months
after the date of such termination of his employment.
Notwithstanding any other provisions of this Section 9 to the
contrary, this option shall in no event be exercisable after
the date of termination of such option specified in Section 2
hereof.
10. This option does not confer on the Optionee any
right to continue in the employ of the Company or any
Subsidiary or interfere in any way with the right of the
Company or any Subsidiary to determine the terms of the
Optionee's employment.
11. (i) In the event of a reorganization,
recapitalization, stock split, reverse stock split, stock
dividend, combination of shares or any other similar change in
the corporate structure or shares of the Company, the number
of shares covered by any unexercised portion of this option
and the related purchase price per share shall be adjusted
proportionately.
(ii) Notwithstanding anything in Sections 6 and
7 to the contrary, in the case of a sale, transfer or other
disposition by the Company's shareholders of Company
securities representing in excess of 50% of the Common Stock
equivalent voting rights of the Company (on a fully diluted
basis), or a merger or consolidation of the Company with or
into any other entity or entities (other than a merger of the
Company with and into a wholly-owned subsidiary of the Company
with no change in the beneficial ownership of the Company), or
a sale, abandonment, transfer, lease, or disposition of all or
substantially all of the properties and assets of the Company
(other than to a wholly-owned subsidiary of the Company)
followed by a liquidation distribution, in any single
transaction or series of related transactions (collectively,
a "Sale"), the Optionee shall, automatically receive a payment
equal to the excess, if any, of the Sale consideration
receivable by the holder of a share of Common Stock in such a
Sale (the "Sale Consideration") over the exercise price
hereof, for each share of Common Stock the Optionee shall then
be entitled to acquire hereunder. The value of the Sale
Consideration receivable by the holder of a share of Common
Stock, if it shall be other than cash, shall be determined, in
good faith, by the Board of Directors of the Company. Upon
payment to the Optionee of the Sale Consideration, the
Optionee shall have no further rights in connection with the
option granted hereunder, and this Agreement shall be
terminated.
12. Anything in this Agreement to the contrary
notwithstanding, the Optionee hereby agrees that he shall not
sell, transfer by any means or otherwise dispose of the shares
of Common Stock acquired by him without registration under the
Securities Act of 1933, as amended (the "Act"), and any
applicable state securities laws unless (a) exemptions from
the Act and any such state securities laws are available
thereunder, and (b) the Optionee has furnished the Company
with notice of such proposed transfer and the Company's legal
counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
13. Any notice, demand, request or consent to be
given or served in connection herewith shall be in writing and
shall be deemed to have been given and received by the
respective parties designated therein on the day on which
delivered by messenger to the receiving party at the address
set forth herein (or at such other address as such party shall
specify to the other parties in writing pursuant to this
Section) or, if sent by certified or registered mail, postage
prepaid, return receipt requested, on the second day after the
day on which mailed to such party at such address.
14. (i) This Agreement shall be construed in
accordance with, and governed by, the laws of the State of
Delaware applicable to agreements made and to be entirely
performed within such State.
(ii) Subject to the provisions of Section 8
hereof, this Agreement shall be binding upon and inure to the
benefit of each party hereto and to the extent not prohibited
herein, their respective heirs, successors, assigns and
representatives.
(iii) This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument.
(iv) This Agreement may not be amended, except
pursuant to a written instrument signed by each of the parties
hereto. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed
as a waiver of any other or subsequent breach.
15. The Company and the Optionee hereby acknowledge
and agree that the issuance of the option pursuant to this
Agreement (including the shares of Common Stock underlying the
option) constitutes an exempt offer and sale pursuant to Rule
701 promulgated under the Act, and that for purposes of said
Rule this Agreement constitutes a written contract relating to
the compensation of the Optionee (as defined in Rule
701(b)(1)(ii)). In connection with the foregoing, the Company
agrees to make any filings and/or to take any other actions
which are required in order to comply with the exemption
provided by Rule 701.
IN WITNESS WHEREOF, this Employee Success Stock
Option Agreement has been executed by the parties hereto as of
the date first set forth above.
INNOTECH, INC.
By:____________________________
Name:
Title:
OPTIONEE:
_____________________________
Exhibit 5.1
HERTZOG, CALAMARI & GLEASON
100 Park Avenue
New York, NY 10017-5582
(212) 481-9500
Telefax: (212) 213-1199
November 27, 1996
Innotech, Inc.
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Innotech,
Inc., a Delaware corporation (the "Company"), in connection
with the Registration Statement on Form S-8 (the
"Registration Statement") filed by the Company with the
Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"). The Registration Statement is being
filed with respect to 41,400 shares of the common stock, par
value $.001 per share ("Common Stock"), of the Company (the
"1992 Shares") issuable pursuant to the Company's 1992
Performance Equity Plan (the "1992 Plan"), 200,000 shares of
Common Stock (the "PEP Shares") issuable by the Company
pursuant to the Company's Performance Equity Plan (the "PEP
Plan"), 200,000 shares of Common Stock (the "1996 Shares")
issuable by the Company pursuant to the Company's 1996
Equity Incentive Plan (the "1996 Plan"), 100,000 shares of
Common Stock (the "Directors' Shares") issuable by the
Company pursuant to the Company's Directors' Stock Option
Plan (the "Directors' Plan"), 356,800 shares of Common Stock
(the "Base Shares") issuable by the Company pursuant to the
Company's Employee Base Stock Option Agreements (the "Base
Agreements") and 824,000 shares of Common Stock (the
"Success Shares") issuable by the Company pursuant to the
Company's Employee Success Stock Option Agreements (the
"Success Agreements"). The 1992 Shares, the PEP Shares, the
1996 Shares, the Directors' Shares, the Base Shares and the
Success Shares are collectively referred to herein as the
"Shares." The 1992 Plan, the PEP Plan, the 1996 Plan and
the Directors' Plan are collectively referred to herein as
the "Plans." The Base Agreements and the Success Agreements
are collectively referred to herein as the "Agreements."
You have requested us to express certain opinions
in connection with the Registration Statement. We have
examined the Registration Statement, the Plans, the
Agreements, the Company's Certificate of Incorporation and
By-laws, each as amended, and Board of Directors'
resolutions authorizing the transactions contemplated in
connection with the Registration Statement. We have also
examined originals or copies, certified or otherwise
identified to our satisfaction, of such other corporate
documents and records of the Company and certificates of
public officials and officers of the Company, and have made
such other investigations, as we have deemed necessary or
appropriate in connection with expressing the opinions
below. As to questions of facts material to our opinions,
we have relied upon certificates of public officials and
information supplied to us by officers of the Company.
For purposes of this opinion, we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
authentic originals of all documents submitted to us as
certified, conformed or photostatic copies.
Based upon the foregoing, we are of the opinion
that:
1. The Company is a corporation duly
incorporated and validly existing under the laws of the
State of Delaware.
2. All requisite corporate action has been taken
to authorize the issuance of the Shares pursuant to the
respective Plans and the Agreements.
3. When the Shares shall be issued and sold in
accordance with the provisions of each of the respective
Plans and Agreements, including receipt by the Company of
all consideration provided for in the respective Plans and
Agreements (but not less than the par value of the Common
Stock), the Shares will be duly and validly issued, fully
paid and non-assessable.
We are attorneys admitted to practice in the State
of New York and we have made such examination of the laws of
the State of New York, the General Corporation Law of the
State of Delaware and the federal law of the United States
of America as we have deemed relevant and necessary for the
purposes of this opinion. We do not purport to render any
opinion with regard to the laws of any other jurisdiction.
This will also advise you that Joel D. Zychick,
the Assistant Secretary of the Company and beneficial owner
of 9,381 shares of Common Stock, including 1,267 Shares
covered by the Registration Statement, is of counsel to this
firm.
We hereby consent to the filing of this opinion
with the Commission as an exhibit to the Registration
Statement, to the use of our name as special counsel with
respect to the Registration Statement and to all references
made to us therein.
Very truly yours,
/s/ Hertzog, Calamari & Gleason
Hertzog, Calamari & Gleason
Innotech, Inc.
5568 Airport Road
Roanoke, Virginia 24012
Attn: Ronald D. Blum, O.D.
Exhibit 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Innotech, Inc.
We consent to the incorporation by reference herein of
our reports dated February 9, 1996 and February 9, 1996,
except as to note 14, which is as of March 20, 1996,
relating to the balance sheets of Innotech, Inc. as of
December 31, 1994 and 1995, and the related statements of
loss, stockholders' equity (deficit), and cash flows for
each of the years in the three-year period ended December
31, 1995, and to the reference to our firm under the heading
"Experts" in the prospectus. Our report dated February 9,
1996 contains an explanatory paragraph that states that the
Company's losses since inception and accumulated deficit
raise substantial doubt about its ability to continue as a
going concern. Our report dated February 9, 1996, except as
to note 14, which is as of March 20, 1996, does not contain
such explanatory paragraph.
KPMG Peat Marwick LLP
Roanoke, Virginia
November 26, 1996
