As filed with the Securities and Exchange Commission on July 14, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
SEROLOGICALS CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 58-2142225
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
780 Park North Blvd., Suite 110
Clarkston, Georgia 30021
(Address of principal executive offices) (Zip Code)
---------------------------------------------
SEROLOGICALS CORPORATION
SECOND AMENDED AND RESTATED 1994 OMNIBUS
INCENTIVE PLAN
(Full titles of the Plans)
---------------------------------------------
Harold J. Tenoso, Ph.D.
President and Chief Executive Officer
Serologicals Corporation
780 Park North Blvd., Suite 110
Clarkston, Georgia 30021
(404) 296-5595
(Name, address and telephone number,
(including area code, of agent for service)
Copies to:
David S. Rosenthal, Esq.
Shereff, Friedman, Hoffman
& Goodman, LLP
919 Third Avenue
New York, New York 10022
(212) 758-9500
CALCULATION OF REGISTRATION FEE
========================================================================
Title of | | Proposed | Proposed | Amount
Securities | Amount | Maximum | Maximum | of
to be | to be | Offering Price | Aggregate |Registration
Registered | Registered | Per Share (2) |Offering Price| Fee (2)
| (1) | | (2) |
========================================================================
Common Stock| | | |
Par value | 1,000,000 | $31.50 | $31,500,000 | $9,292.50
$0.01 per | shares | | |
share | | | |
========================================================================
(1) Pursuant to Rule 416, this Registration Statement also covers such
additional securities as may become issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 on the basis of the average of the high and low sale
prices of the Registrant's Common Stock as included on The NASDAQ National
Market on July 8, 1998.
(3) The Registration Fee has been calculated pursuant to Rule 457 as
follows: 1,000,000 multiplied by .000295 multiplied by $31.50, the average
of the high and low sale prices of the Registrant's Common Stock as
included on The NASDAQ National Market on July 8, 1998.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Explanatory Note
This Registration Statement on Form S-8, filed in connection with the
issuance of additional shares of Common Stock of Serologicals Corporation,
a Delaware corporation (the "Registrant"), under the Serologicals
Corporation Second Amended and Restated 1994 Omnibus Incentive Plan,
constitutes a new registration statement. The contents of the Registration
Statements on Form S-8, File No. 33-97640 (filed October 2, 1995) and File
No. 33-03771 (filed May 15, 1996) are incorporated herein by reference.
Item 8. Exhibits
The following exhibits are filed as part of this registration
statement:
4.1 Serologicals Corporation Second Amended and Restated 1994 Omnibus
Incentive Plan, as amended.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included in signature page to this
registration statement).
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Clarkston, State of Georgia, on
this 14th day of July, 1998.
SEROLOGICALS CORPORATION
By: Harold J. Tenoso, Ph.D.
Harold J. Tenoso, Ph.D.
President, Chief Executive Officer and
Director
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints Harold J. Tenoso, Ph.D.
and Russell H. Plumb, and each of them (with full power of each of them to
act alone), his true and lawful attorneys-in-fact, with full power of
substitution and resubstitution for him and on his behalf, and in his name,
place and stead, in any all capacities to execute and sign any and all
amendments or post-effective amendments to this registration statement, and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorneys-in-fact or any of them or
their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof and the Registrant hereby confers like authority on its
behalf.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ Harold J. Tenoso, Ph.D. President, Chief Executive July 13, 1998
Harold J. Tenoso, Ph.D. Officer and Director (Principal
Executive Officer)
/s/ Samuel A. Penninger, Jr. Chairman of the Board of July 13, 1998
Samuel A. Penninger, Jr. Directors
_______________________ Director July 13, 1998
James L. Currie
/s/ Wade Fetzer III Director July 13, 1998
Wade Fetzer III
/s/ Desmond H. O'Connell, Jr. Director July 13, 1998
Desmond H. O'Connell, Jr.
/s/ George M. Shaw, M.D., Ph.D. Director July 13, 1998
George M. Shaw, M.D., Ph.D.
/s/ Lawrence E. Tilton Director July 13, 1998
Lawrence E. Tilton
_______________________ Director July 13, 1998
Matthew C. Weisman
/s/ Russell H. Plumb Vice President, Finance and July 13, 1998
Russell H. Plumb Administration and Chief
Financial Officer (Principal
Financial and Accounting Officer)
SEROLOGICALS CORPORATION
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
Exhibit
4.1 Serologicals Corporation Second Amended and Restated 1994 Omnibus
Incentive Plan, as amended.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included
in Exhibit 5.1).
24.1 Power of Attorney (included in signature page to this
registration statement).
II-1
108521-2
EXHIBIT 4.1
SEROLOGICALS CORPORATION
SECOND AMENDED AND RESTATED 1994 OMNIBUS INCENTIVE PLAN
Section 1. Purpose
The purposes of the Serologicals Corporation Second Amended and
Restated 1994 Omnibus Incentive Plan (the "Plan") are to encourage certain
directors and selected employees (or consultants) of Serologicals
Corporation (together with any successor thereto, the "Company") and its
Affiliates (as defined below) to acquire a proprietary interest in the
growth and performance of the Company, to generate an increased incentive
to contribute to the Company's future success and prosperity, thus
enhancing the value of the Company for the benefit of its stockholders, and
to enhance the ability of the Company and its Affiliates to attract and
retain qualified individuals upon whom, in large measure, the sustained
progress, growth, and profitability of the Company depend.
Section 2. Definitions
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) "Affiliate" shall mean any entity that, directly or through one
or more intermediaries, is controlled by, controls or is under common
control with, the Company; for purposes of this definition only, control
shall include, without limitation, the direct or indirect beneficial
ownership of 10% or more of an entity's equity securities or economic
interests.
(b) "Award" shall mean any Option, Stock Appreciation Right,
Restricted Stock, Restricted Stock Unit, Performance Award, Dividend
Equivalent, or other Stock Award or Stock-Based Award granted under the
Plan.
(c) "Award Agreement" shall mean a written agreement, contract, or
other instrument or document evidencing an Award granted under the Plan.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Cause" shall have the meaning provided in the Participant's
employment agreement; provided that if the Participant does not have an
employment agreement, Cause shall mean (i) the Participant's willful
misconduct, gross negligence or dishonesty in the performance of his duties
on behalf of the Company, (ii) the willful and repeated neglect, failure or
refusal of the Participant to carry out any reasonable request of the
Board, the Chief Executive Officer or any officer having supervisory
authority over the Participant, (iii) the material breach of any provision
of any employment, consulting, or other services agreement between the
Participant and the Company or (iv) the entering of a plea of guilty or
nolo contendere to, or the Participant's conviction of, a felony or other
crime involving moral turpitude, dishonesty, theft or unethical business
conduct.
(f) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time-to-time.
(g) "Committee" shall mean a committee of the Board designated by the
Board to administer the Plan and composed of not less than two (2)
directors, each of whom qualifies as a "disinterested person" within the
meaning of Rule 16b-3, and an "outside director" as defined for purposes of
Section 162(m) of the Code.
(h) "Dividend Equivalent" shall mean any right granted under Section
6(d) of the Plan.
(i) "Fair Market Value" shall mean, with respect to Shares (i) if the
Shares are listed on a registered securities exchange or quoted on the
National Market System, the closing price per share of the Shares on such
date (or, if there was no trading reported on such date, on the next
preceding day on which there was trading reported); (ii) if the Shares are
not listed on a registered securities exchange and not quoted on the
National Market System, but the bid and asked prices per share for the
Shares are provided by Nasdaq, the National Quotation Bureau Incorporated
or any similar organization, the average of the closing bid and asked
prices per share of the Shares on such date (or, if there was no trading in
the Shares on such date, on the next preceding day on which there was
trading) as provided by such organization; and (iii) if the Shares are not
traded on a registered securities exchange and not quoted on the National
Market System and the bid and asked prices per share of the Shares are not
provided by Nasdaq, the National Quotation Bureau Incorporated or any
similar organization, solely as determined by the Committee in good faith;
the "Fair Market Value" of any property (other than Shares), shall mean the
fair market value of such property determined by such methods or procedures
as shall be established from time-to-time by the Committee.
(j) "Incentive Stock Option" shall mean an option granted under
Section 6(a) of the Plan that meets the requirements of Section 422 of the
Code or any successor provision thereto.
(k) "Key Employee" shall mean any officer, director, consultant, or
other employee who is a regular full-time employee of the Company or its
present and future Affiliates.
(l) "Non-Qualified Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is not an Incentive Stock Option.
(m) "Option" shall mean an Incentive Stock Option or a Non-Qualified
Stock Option.
(n) "Participant" shall mean a Key Employee who has been granted an
Award under the Plan.
(o) "Performance Award" shall mean any right granted under Section
6(f) of the Plan.
(p) "Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, or
government or political subdivision thereof.
(q) "Released Securities" shall mean securities that were Restricted
Securities with respect to which all applicable restrictions have expired,
lapsed, or been waived.
(r) "Restricted Securities" shall mean Restricted Stock or any other
Award under which issued and outstanding Shares are held subject to
restrictions imposed by the terms of the Award.
(s) "Restricted Stock" shall mean any Share granted under Section
6(c) of the Plan.
(t) "Restricted Stock Unit" shall mean any right granted under
Section 6(c) of the Plan that is denominated in Shares.
(u) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as
amended, or any successor rule or regulation thereto.
(v) "Shares" shall mean the common stock of the Company, $.01 par
value, and such other securities or property as may become the subject of
Awards pursuant to an adjustment made under Section 4(b) of the Plan.
(w) "Stock Appreciation Right" shall mean any right granted under
Section 6(b) of the Plan.
(x) "Stock Award" shall mean an Award of an Option, Restricted Stock,
or other right or security consisting of or convertible into Shares.
(y) "Stock-Based Award" shall mean an Award of a Stock Appreciation
Right, Dividend Equivalent, Restricted Stock Unit or other right, the value
of which is determined by reference to Shares.
(z) "Tandem Option" shall mean a Non-Qualified Option issued in
tandem with a Stock Appreciation Right.
Section 3. Administration
(a) Generally. The Plan shall be administered by the Committee.
Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with respect
to the Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time, and shall be final, binding and
conclusive upon all Persons, including the Company, any Affiliate, any
Participant, any holder or beneficiary of any Award, any Stockholder, and
any employee of the Company or of any Affiliate. Notwithstanding anything
to the contrary contained in this Section 3, no member of the Committee
shall participate in any action of the Committee directly affecting his
rights under the Plan.
(b) Powers. Subject to the terms of the Plan and applicable law, the
Committee shall have the full power and authority to: (i) designate
Participants; (ii) determine the type or types of Awards to be granted to
each Participant under the Plan; (iii) determine the number of shares to be
covered by (or with respect to which payments, rights or other matters are
to be calculated in connection with), Awards; (iv) determine the terms and
conditions of any Award; (v) determine whether, to what extent, and under
what circumstances Awards may be settled or exercised in cash, Shares,
other Awards, or other property, or canceled, forfeited, or suspended, and
the method or methods by which Awards may be settled, exercised, canceled,
forfeited, or suspended; (vi) determine whether, to what extent, and under
what circumstances cash, Shares, other Awards, other property, and other
amounts payable with respect to an Award under the Plan shall be deferred;
(vii) interpret and administer the Plan and any instruments or agreements
relating to, or Award made under, the Plan; (viii) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as it
shall deem appropriate for the proper administration of the Plan; and (ix)
make any other determination and take any other action that the Committee
deems necessary or desirable for the administration of the Plan.
(c) Reliance. Indemnification. The Committee may employ attorneys,
consultants, accountants or other persons and the Committee, the Company
and its officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. No member of the Committee
shall be personally liable for any action, determination or interpretation
taken or made in good faith with respect to the Plan, or Awards made
thereunder, and all members of the Committee shall be fully indemnified and
protected by the Company in respect of any such action, determination or
interpretation.
Section 4. Shares Available for Awards
(a) Shares Available. Subject to adjustment as provided in Section
4(b):
(i) Limitation on Number of Shares. Awards issuable under the
Plan are limited such that the maximum aggregate number of Shares with
respect to which Stock Awards and Stock-Based Awards may be granted to any
recipient are 100,000 in any fiscal year, to an aggregate maximum for all
recipients in all years of 3,250,000 any or all of which may be subject to
Incentive Stock Options or other Awards in the discretion of the Committee.
To the extent that an Award ceases to remain outstanding by reason of
termination of rights granted thereunder, forfeiture or otherwise, the
Shares subject to such Award shall again become available for Award under
the Plan; provided, however, that in the case of the cancellation or
termination of an Option in the same fiscal year that such Option was
granted (or for purposes of determining the maximum number of Options which
may be granted to any recipient under the Plan, the cancellation or
termination of the Option at any time) both the canceled Option and the
newly granted Option shall be counted in determining whether the recipient
has received the maximum number of Options permitted to be issued to any
one recipient under the Plan.
(ii) Accounting for Awards. For purposes of this Section 4, for
any Award which is denominated in, or with respect to, Shares, the number
of Shares covered by such Award, or to which such Award relates, shall be
counted on the date of grant of such Award against the aggregate number of
Shares available for granting Awards under the Plan; provided, however,
that Awards that operate in tandem with (whether granted simultaneously
with or at a different time from), or that are substituted for, other
Awards may be counted or not counted under procedures adopted by the
Committee in order to avoid double counting. Any Shares that are delivered
by the Company pursuant to any Award, and any Awards that are granted by or
become obligations of the Company through the assumption by the Company or
an Affiliate of, or in substitution for, outstanding awards previously
granted by an acquired company shall be counted against the Shares
available for granting Awards under the Plan.
(iii) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of
authorized and unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Committee shall determine that
any (i) subdivision or consolidation of Shares, (ii) stock dividend or
other distribution of property other than cash, (iii) recapitalization or
other capital adjustment of the Company or (iv) merger, consolidation or
other reorganization of the Company or other rights to purchase Shares or
other securities of the Company, or other similar corporate transaction or
event, affects the Shares such that an adjustment is determined by the
Committee to be appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under the
Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (x) the number and type of Shares (or other securities
or property) which thereafter may be made the subject of Awards, (y) the
number and type of Shares (or other securities or property) subject to
outstanding Awards, and (z) the grant, purchase, or exercise price with
respect to any Award or, if deemed appropriate, make provision for a cash
payment to the holder of an outstanding Award; provided, however, in each
case, that with respect to Awards of Incentive Stock Options no such
adjustment shall be authorized to the extent that such adjustment would
cause the Plan to violate Section 422 of the Code or for compensation
otherwise exempt from the application of Code Section 162(m) to fail to so
qualify for such exemption; and provided further, however, that the number
of Shares subject to any Award denominated in Shares shall always be a
whole number.
Section 5. Eligibility for Awards
(a) Eligibility for Awards. Awards may be granted only to Key
Employees and, solely as provided in Section 5(b) hereof, to directors who
are not otherwise Key Employees. In determining the employees to whom
Awards shall be granted and the number of shares or units to be covered by
each Award, the Committee shall take into account the nature of employees'
duties, their present and potential contributions to the success of the
Company and such other factors as it shall deem relevant in connection with
accomplishing the purposes of the Plan. A director of the Company or a
subsidiary who is not also a regular full-time employee will not be
eligible to receive an Award except as provided in Section 5(b). A Key
Employee who has been granted an Award or Awards under the Plan may be
granted an additional Award or Awards, subject to such limitations as may
be imposed by the Code on the grant of Incentive Stock Options.
(b) Awards to Directors. (i) The following provisions shall apply
to the Options to purchase an aggregate of 48,000 Shares (after giving
effect to the 6-for-5 stock split declared by the Board of Directors on
April 13, 1995) granted to the directors who are not Key Employees, which
Options were outstanding on November 15, 1994;
(1) Subject to clauses (2) through (4) below, such Options shall
vest as follows: 25% on April 26, 1994 and 25% on each of the first, second
and third anniversaries of such date;
(2) In the event such director ceases to serve as a director and
is otherwise no longer affiliated with the Company prior to the vesting in
full of the exercisability of such Options according to the schedule set
forth above in clause (1), vesting of previously unvested Options shall be
calculated on a quarterly basis for full calendar quarters served;
(3) Such Options shall immediately vest in full on the earlier
of (x) the Company's becoming subject to the reporting requirements under
the Securities Exchange Act of 1934, as amended, and (y) the merger or
other business combination of the Company in which the Company is not the
surviving corporation or survives only as a subsidiary of another
corporation, the sale of all or substantially all of the assets or
outstanding stock of the Company or other similar transaction that results
in the change in control of the Company; and
(4) In the event of a voluntary resignation or involuntary
removal of the holder of such Options and the occurrence of any of the
events specified in clauses (x) or (y) of Section 5(b)(3) within twelve
months of such resignation or removal, such options shall immediately vest
in full as of the date of the event specified in clause (x) or (y) of
Section 5(b)(3).
(ii) No other directors who are not Key Employees shall be
entitled to Option grants hereunder.
Section 6. Awards
(a) Options. The Committee is hereby authorized to grant Options to
Participants with the following terms and conditions and with such
additional terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Committee shall determine:
(i) Exercise Price. The purchase price per Share purchasable
under a Non-Qualified Stock Option shall be determined by the Committee.
The purchase price per Share purchasable under an Incentive Stock Option
shall not be less than 100% (110% in the case of a 10% shareholder as
deemed for purposes of Section 422(c)(5) of the Code) of the Fair Market
Value of a Share on the date of grant of such Incentive Stock Option.
(ii) Option Term. The term of each Non-Qualified Stock Option
shall be faced by the Committee but generally shall not exceed ten (10)
years (five (5) years in the case of a 10% shareholder, as defined for
purposes of Section 422(c)(5) of the Code) from the date of grant. The term
of each Incentive Stock Option shall in no event be more than ten (10)
years from the date of grant.
(iii) Time and Method of Exercise. The Committee shall determine
the time or times at which an Option may be exercised in whole or in part,
and the method or methods by which, and the form or forms (including,
without limitation, cash, Shares, outstanding Awards or other
consideration, or any combination thereof, having a Fair Market Value on
the exercise date equal to the relevant option price) in which, payment of
the option prices with respect thereto may be made or deemed to have been
made.
(iv) Early Termination. The unexercised portion of any option
granted under the Plan will generally be terminated (a) three (3) months
after the date on which the Participant's employment is terminated for any
reason other than (i) cause, (ii) mental or physical disability, (iii)
death or (iv) retirement; (b) immediately upon the termination of the
Participant's employment for cause; (c) Six (6) months after the date on
which the Participant's employment is terminated by reason of mental or
physical disability, or (d) (i) twelve (12) months after the date on which
the Participant's employment is terminated by reason of retirement or the
death of the employee, or (ii) nine (9) months after the date on which the
Participant shall die if such death shall occur during the three (3) month
period following the termination of the Participant's employment by reason
of retirement or mental or physical disability.
(v) Incentive Stock Options. All terms of any Incentive Stock
Option granted under the Plan shall comply in all respects with the
provisions of Section 422 of the Code, or any successor provision thereto,
and any regulations promulgated thereunder. The Fair Market Value of
Shares subject to Incentive Stock Options (determined as of the date such
Incentive Stock Options are granted) exercisable for the first time by any
individual during any calendar year shall in no event exceed $100,000.
(b) Stock Appreciation Rights. The Committee is authorized to grant
Stock Appreciation Rights to Participants. Subject to the terms of the Plan
and any applicable Award Agreement, a Stock Appreciation Right granted
under the Plan shall confer upon the holder thereof a right to receive,
upon exercise thereof, an amount in cash equal of the excess of (i) the
Fair Market Value of one Share on the date of exercise over (ii) the Fair
Market Value of one Share on the date of grant of the Stock Appreciation
Right. Subject to the terms of the Plan and any applicable Award Agreement,
the grant price, term, methods of exercise, methods of settlement, and any
other terms and conditions of any Stock Appreciation Right shall be as
determined by the Committee. The Committee may impose such conditions or
restrictions on the exercise of any Stock Appreciation Right as it may deem
appropriate, including, but not limited to the following: a Participant may
not exercise a Stock Appreciation Right if the aggregate amount to be
received as a result of his or her exercise of Stock Appreciation Rights in
the preceding twelve (12) month period exceeds such Participant's current
base salary.
(c) Restricted Stock and Restricted Stock Units. The Committee is
hereby authorized to grant Awards of Restricted Stock and Restricted Stock
Units to Participants subject to such restrictions as the Committee may
impose (including, without limitation, any limitation on the right to vote
a Share of Restricted Stock or the right to receive any dividend or other
right or property), which restrictions may lapse separately or in
combination at such time or times, in such installments or otherwise, as
the Committee may deem appropriate but not inconsistent with the provisions
of the Plan:
(i) Registration. Any Restricted Stock granted under the Plan
may be evidenced in such manner as the Committee may deem appropriate,
including, without limitation, book-entry registration or issuance of a
stock certificate or certificates. In the event any stock certificate is
issued in respect of shares of Restricted Stock granted under the Plan,
such certificate shall be registered in the name of the Participant and
shall bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such Restricted Stock.
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment (as determined under criteria
established by the Committee) for any reason during the applicable
restriction period, all shares of Restricted Stock and all Restricted Stock
Units still, in either case, subject to restriction shall be forfeited to
and reacquired by the Company; provided, however, that the Committee may,
when it finds that a waiver would be in the best interest of the Company,
waive in whole, or in part, any or all remaining restrictions with respect
to shares of Restricted Stock or Restricted Stock Units.
(iii) Lapse of Restrictions. Unrestricted Shares, evidenced in
such manner as the Committee shall deem appropriate, shall be delivered to
the holder of Restricted Stock promptly after such Restricted Stock shall
become Released Securities.
(d) Dividend Equivalents. The Committee is hereby authorized to grant
Awards to Participants under which the holders thereof shall be entitled to
receive payments equivalent to dividends with respect to a number of Shares
and payable on such date or dates as determined by the Committee, and the
Committee may provide that such amounts (if any) shall be deemed to have
been reinvested in additional Shares or otherwise reinvested. Subject to
the terms of the Plan any applicable Award Agreement, such Awards may have
such terms and conditions as the Committee shall determine.
(e) Other Awards. The Committee is hereby authorized, to the extent
permitted under Rule 16b-3 and applicable law, to grant to Participants
such other Awards that are denominated or payable in, valued in whole or in
part by reference to, or otherwise based on or related to, Shares
(including, without limitation, securities, convertible into Shares), as
are deemed by the Committee to be consistent with the purposes of the Plan.
Subject to the terms of the Plan and any applicable Award Agreement, the
Committee shall determine the terms and conditions of such Awards. Shares
or other securities delivered to a Participant pursuant to a purchase right
granted under this Section 6(e) shall be purchased for such consideration,
which may be paid by such method or methods and in such form or forms,
including, without limitation, cash, Shares, outstanding Awards, or other
consideration, or any combination thereof, as the Committee shall
determine.
(f) Performance Awards. The Committee is hereby authorized to grant
Performance Awards to Participants. Subject to the terms of the Plan and
any applicable Award Agreement, a Performance Award granted under the Plan
(i) may be denominated as a Stock Award or a Stock Based Award and payable
in cash, Shares, other securities or other property and (ii) shall confer
on the holder thereof rights valued as determined by the Committee and
payable to, or exercisable by, the holder of the Performance Award, in
whole or in part, upon the achievement of such performance goals and during
such performance periods as the Committee shall establish. Subject to the
terms of the Plan and applicable Award Agreement, the performance goals to
be achieved during any performance period, the length of any performance
period, and the amount of any payment or transfer to be made pursuant to
any Performance Award shall be determined by the Committee.
(g) General.
(i) No Cash Consideration for Awards. Awards shall be granted
for no cash consideration or such minimal cash consideration as may be
required by applicable law.
(ii) Awards may be Granted Separately or Together. Awards may,
at the discretion of the Committee, be granted either alone or in addition
to, in tandem with, or in substitution for any other Award or any award
granted under any other plan of the Company or any Affiliate. Awards
granted in addition to or in tandem with other Awards, in addition to or in
tandem with awards granted under any other plan of the Company or any
Affiliate, may be granted either at the same time as or at a different time
from the grant of such other Awards or awards; provided, that any Tandem
Option shall be subject to the following provisions: upon exercise of an
Option issued as part of a Tandem Option, the participant shall be entitled
to a credit toward the option exercise price equal to the value of the
Stock Appreciation Rights issued in tandem with the Option exercised, but
not in an amount that would exceed the amount of the federal income tax
deduction allowed to the Company in respect of such Stock Appreciation
Rights. Upon such exercise of a Tandem Option, the related Stock
Appreciation Right shall terminate and the value of such Stock Appreciation
Right shall be limited to such credit. Upon the exercise of a Stock
Appreciation Right issued as part of a Tandem Option, the Option to which
such Stock Appreciation Right relates shall cease to be exercisable to the
extent of the number of Shares with respect to which the Stock Appreciation
Right was exercised.
(iii) Forms of Payment Under Awards. Subject to the terms of the
Plan and of any applicable Award Agreement, payment or transfers to be made
by the Company or an Affiliate upon the grant or exercise of an Award may
be made in such form or forms as the Committee shall determine, including,
without limitation, cash, Shares, other securities, other Awards, or other
property, or any combination thereof, and may be made in a single payment
or transfer, in installments, or on a deferred basis, in each case in
accordance with rules and procedures established by the Committee. Such
rules and procedures may include, without limitation, provisions for the
payment or crediting of reasonable interest on installment or deferred
payments or the grant of crediting of Dividend Equivalents in respect of
installment or deferred payments denominated in Shares on other securities.
(iv) Limits on Transfer of Awards. No Award (other than Released
Securities), and no right under any such Award, shall be assignable,
alienable, salable, or transferable by a Participant otherwise than by will
or by the laws of descent and distribution (or, in the case of an Award of
Restricted Securities, to the Company); provided, however, that, if so
determined by the Committee, a Participant may, in the manner established
by the Committee, designate a beneficiary or beneficiaries to exercise the
rights of the Participant, and to receive any property distributable, with
respect to any Award upon the death of the Participant. Each Award, and
each right under any Award, shall be exercisable, during the Participant's
lifetime, only by the Participant or, if permissible under applicable law
with respect to any Award that is not an Incentive Stock Option, by the
Participant's guardian or legal representative. No Award (other than
Released Securities), and no right under any such Award, may be pledged,
alienated, attached, or otherwise encumbered, and any purported pledge,
alienation, attachment, or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
(v) Term of Awards. Except as set forth in Section 6(a)(ii), the
term of each Award shall be for such period as may be determined by the
Committee.
(vi) Share Certificates. All certificates for Shares or other
securities of the Company or any Affiliate delivered under the Plan
pursuant to any Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may deem advisable
under the Plan or the rules, regulations, and other restrictions of the
Securities and Exchange Commission, any stock exchange upon which such
Shares or other securities are then listed, and any applicable Federal or
state securities laws, and the Committee may cause a legend or legends to
be put on any such certificates to make appropriate reference to such
restrictions.
Section 7. Amendment and Termination
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan, except that any amendment, alteration,
suspension, discontinuation, or termination that would impair the rights of
any Participant, or any other holder or beneficiary of any Award
theretofore granted, shall require the consent of such Participant, other
holder or beneficiary of an Award. Notwithstanding the foregoing, the
Board may condition any amendment on the approval of the stockholders of
the Company if such approval is necessary or advisable with respect to tax
(including Code Sections 162(m) and 422), securities or other applicable
laws and rules and regulations to which the Company, this Plan,
Participants or other applicable Persons are subject.
(b) Correction of Defects, Omissions, and Inconsistencies. The
Committee may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it
shall deem desirable to carry the Plan into effect.
Section 8. General Provisions.
(a) No Rights to Awards. No Key Employee or Participant shall have
any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Key Employees, Participants, or
holders or beneficiaries of Awards under the Plan. The terms and conditions
of Awards need not be the same with respect to each recipient.
(b) Withholding. The Company or any Affiliate shall be authorized to
withhold from any Award granted or any payment due or transfer made under
any Award or under the Plan the amount (in cash, Shares, other securities,
or other property) of withholding taxes due in respect of an Award, its
exercise, or any payment or transfer under such Awards or under the Plan
and to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such taxes. In case
of Awards paid in Shares, the Participant or other person receiving such
Shares may be required to pay the Company or Affiliate, as appropriate, the
amount of any such withholding taxes which is required to be withheld with
respect to such Shares.
(c) No Limit on Other Plans. Nothing contained in the Plan shall
prevent the Company or any Affiliate from adopting or continuing in effect
other or additional compensation arrangements and such arrangements may be
either generally applicable or applicable only in specific cases.
(d) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of
the Company or any Affiliate. the Company or an Affiliate may at any time
dismiss a Participant from employment, free from any liability, or any
claim under the Plan, unless otherwise expressly provided in the Plan or in
any Award Agreement.
(e) 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 and applicable federal
law.
(f) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction, or would disqualify the Plan or any Award under any law
deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to applicable laws, or if it cannot be construed
or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan, such provision shall be deemed
void, stricken and the remainder of the Plan and any such Award shall
remain in full force and effect.
(g) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a
Participant or any other Person. To the extent that any Person acquires a
right to receive payments from the Company or any Affiliate pursuant to an
Award, such right shall be no greater than the right of any unsecured
general creditor of the Company or any Affiliate.
(h) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash, other securities, or other property shall be paid
or transferred in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated, or otherwise
eliminated.
(i) Headings. Headings are given to the Sections and subsections of
the Plan solely as a convenience to facilitate reference. Such headings
shall not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision hereof.
Section 9. Effective Date of the Plan
The Plan is effective as of November 14, 1994. The amendments to the
Plan are effective upon stockholder approval thereof.
Section 10. Term of the Plan
The Plan shall continue until the earlier of (i) the date on which all
Stock Awards and Stock Based Awards issuable hereunder have been issued, or
(ii) the termination of the Plan by the Board. However, unless otherwise
expressly provided in the Plan or in an applicable Award Agreement, any
Award theretofore granted may extend beyond such date and the authority of
the Committee to amend, alter, adjust, suspend, discontinue, or terminate
any such Award or to waive any conditions or rights under any such Award,
and the authority of the Board to amend the Plan, shall extend beyond such
date. Notwithstanding anything to the contrary in this Section 10, no
Incentive Stock Options may be granted under the Plan more than ten (10)
years after the date of adoption of the Plan.
EXHIBIT 5.1
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
919 Third Avenue 20th Floor
New York, NY 10022
July 13, 1998
Serologicals Corporation
780 Park North Blvd., Suite 110
Clarkston, Georgia 30021
Ladies and Gentlemen:
On the date hereof, Serologicals Corporation, a Delaware
corporation (the "Company"), intends to transmit for filing with the
Securities and Exchange Commission, a Registration Statement on Form S-8
(the "Registration Statement"), relating to 1,000,000 shares (the "Shares")
of common stock, par value $.01 per share (the "Common Stock"), of the
Company which may be offered from time to time pursuant to the Company's
Second Amended and Restated 1994 Omnibus Incentive Plan, as amended (the
"Plan"). This opinion is an exhibit to the Registration Statement.
We have at times acted as counsel to the Company with respect to
certain corporate and securities matters, and in such capacity we are
familiar with the various corporate and other proceedings taken by or on
behalf of the Company in connection with the proposed offer and sale of the
Shares as contemplated by the Registration Statement. We have examined
copies (in each case signed, certified or otherwise proven to our
satisfaction to be genuine) of the Company's Certificate of Incorporation
as presently in effect, its By-Laws as presently in effect, minutes and
other instruments evidencing actions taken by its directors and
stockholders, the Plan and such other documents and instruments relating to
the Company and the proposed offering as we have deemed necessary under the
circumstances. Insofar as this opinion relates to securities to be issued
in the future, we have assumed that all applicable laws, rules and
regulations in effect at the time of such issuance are the same as such
laws, rules and regulations in effect as of the date hereof.
We note that we are members of the Bar of the State of New York
and that we are not admitted to the Bar in the State of Delaware. To the
extent that the opinions expressed herein involve the law of the State of
Delaware, such opinions are based solely upon our reading of the Delaware
General Corporation Law as reported by Prentice-Hall Legal and Financial
Services.
Based on the foregoing, and subject to and in reliance on the
accuracy and completeness of the information relevant thereto provided to
us, it is our opinion that the Shares to be issued pursuant to the Plan
(including upon the proper exercise of options granted pursuant to the
Plan) have been duly authorized and, subject to the effectiveness of the
Registration Statement and compliance with applicable state securities
laws, when issued in accordance with the terms set forth in the Plan and
options issued under the Plan, will be legally and validly issued, fully
paid and nonassessable.
It should be understood that nothing in this opinion is intended
to apply to any disposition of the Shares which any participant in the Plan
might propose to make.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and as an exhibit to any filing made by the
Company under the securities or "Blue Sky" laws of any state.
This opinion is furnished to you in connection with the filing of
the Registration Statement, and is not to be used, circulated, quoted or
otherwise relied upon for any other purpose, except as expressly provided
in the preceding paragraph, without our express written consent, and no
party other than you is entitled to rely on it. This opinion is rendered
to you as of the date hereof and we undertake no obligation to advise you
of any change, whether legal or factual, after the date hereof.
Very truly yours,
/s/ SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SFH&G, LLP:DSR:GA:DIG
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 2, 1998
included in Serologicals Corporation's Annual Report on Form 10-K for the
fiscal year ended December 28, 1997 and to all references to our Firm
included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
July 10, 1998
