As filed with the Securities and Exchange Commission on December 22, 1997
Registration No.
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------------------------------
IVAX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 16-1003559
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
4400 BISCAYNE BLVD., MIAMI, FLORIDA 33137
(Address of Principal Executive Offices, Zip Code)
IVAX CORPORATION 1997 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
ARMANDO A. TABERNILLA
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
IVAX CORPORATION
4400 BISCAYNE BOULEVARD
MIAMI, FLORIDA 33137
(305) 575-6000
(Name, address, and telephone number,
including area code, of agent for service)
------------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED BE REGISTERED OFFERING PRICE PER UNIT (1)AGGREGATE OFFERING PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
COMMON STOCK, $. 10 PAR 4,000,000 (2) $6.96875 $27,875,000.00 $8,447.00
VALUE
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933, based upon
the average of the high and low prices of such Common Stock on December
16, 1997 on the American Stock Exchange.
(2) This Registration Statement also relates to such indeterminate number of
additional shares of Common Stock of the Registrant as may be issuable as
a result of stock splits, stock dividends, recapitalizations, mergers,
reorganizations, combinations or exchanges of shares or other similar
events.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") IN ACCORDANCE WITH SECTION
8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, AND RULES 456 AND 462
PROMULGATED THEREUNDER.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Commission.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed by IVAX Corporation (the
"Registrant") with the Commission are incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended December
31, 1996 (Commission File No. 1-09623).
2. The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1997 (Commission File No. 1-09623).
3. The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1997 (Commission File No. 1-09623).
4. The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1997 (Commission File No. 1-09623).
5. The Registrant's Proxy Statement dated August 12, 1997.
6. The Registrant's Current Report on Form 8-K filed on March 28, 1997
(Commission File No.1- 09623).
7. The Registrant's Current Report on Form 8-K filed on June 6, 1997
(Commission File No.1-09623).
8. The Registrant's Current Report on Form 8-K filed on July 9, 1997
(Commission File No.1-09623).
- 2 -
<PAGE>
9. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1996.
10. The description of the Registrant's Common Stock, par value $.10 per
share, to be offered pursuant to the Registrant's 1997 Employee Stock
Option Plan (the "1997 Plan"), which description is contained in the
Registration Statement on Form 8-B filed by the Registrant with the
Commission on July 28, 1993 (Commission File No. 1-09623), including
all amendments and reports filed after the date hereof for the purpose
of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
FLORIDA BUSINESS CORPORATION ACT. Section 607.0831 of the Florida
Business Corporation Act (the "Florida Act") provides that a director is not
personally liable for monetary damages to the corporation or any person for any
statement, vote, decision or failure to act regarding corporate management or
policy, by a director, unless: (a) the director breached or failed to perform
his duties as a director; and (b) the director's breach of, or failure to
perform, those duties constitutes: (i) a violation of criminal law unless the
director had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful; (ii) a transaction from
which the director derived an improper personal benefit, either directly or
indirectly; (iii) a circumstance under which the director is liable for an
improper distribution; (iv) in a proceeding by or in the right of the
corporation to procure a judgment in its favor or by or in the right of a
shareholder, conscious disregard for the best interests of the corporation, or
willful misconduct; or (v) in a proceeding by or in the right of someone other
than the corporation or a shareholder, recklessness or an act or
- 3 -
<PAGE>
omission which was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety or
property.
Section 607.0850 of the Florida Act provides that a corporation
shall have the power to indemnify any person who was or is a party to any
proceeding (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 or employee or agent of
the corporation against liability incurred in connection with such 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 corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Section 607.0850 also provides that a corporation shall have the
power to indemnify any person who was or is a party to any proceeding 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, against expenses and amounts paid in settlement not exceeding, in
the judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof.
Section 607.0850 further provides that such indemnification may be authorized if
such person acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the corporation, except that no
indemnification shall be made under this provision in respect of any claim,
issue, or matter as to which such person shall have been adjudged to be liable
unless, and only to the extent that, the court in which such proceeding was
brought, or any other court of competent jurisdiction, shall determine upon
application that, despite the adjudication of liability, but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper. Section 607.0850
further provides that to the extent that a director, officer, employee or agent
has been successful on the merits or otherwise in defense of any of the
foregoing proceedings, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses actually and reasonably incurred by him in
connection therewith. Under Section 607.0850, any indemnification under the
foregoing provisions, unless pursuant to a determination by a court, shall be
made by the corporation only as authorized in the specific case upon a
determination that the indemnification of the director, officer, employee or
agent is proper under the circumstances because he has met the applicable
standard of conduct.
In addition to the foregoing, Section 607.0850 permits a corporation
further to indemnify such persons by other means unless a judgment or other
final adjudication establishes that such person's actions or omissions which
were material to the cause of action constitute (1) a crime (unless such person
had reasonable cause to believe his conduct was lawful or had no reasonable
cause to believe it unlawful), (2) a transaction from which he derived an
improper personal benefit, (3) a transaction in violation of Florida Statutes
607.0834 (unlawful distributions to shareholders), or (4) willful misconduct or
conscious disregard for the best interests of the corporation in a proceeding by
or in the right of the corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder. Notwithstanding the failure of a
corporation to provide indemnification, and despite any contrary determination
by the corporation in a specific case, a director, officer, employee or agent of
the corporation who is or was a party to a proceeding may apply for
indemnification to the appropriate court and such court may order
indemnification if it determines that such person is entitled to indemnification
under the applicable standard.
Section 607.0850 also provides that 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 against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status
- 4 -
<PAGE>
as such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of Section 607.0850.
BY-LAWS. The Registrant's bylaws provide that it shall indemnify
its officers and directors and former officers and directors to the full extent
permitted by law.
INDEMNIFICATION AGREEMENTS. The Registrant has entered into
indemnification agreements with each of its officers and directors. The
indemnification agreements generally provide that the Registrant will pay
certain amounts incurred by an officer or director in connection with any civil
or criminal action or proceeding and specifically including actions by or in the
name of the Registrant (derivative suits) where the individual's involvement is
by reason of the fact that he was or is an officer or director. Under the
indemnification agreements, an officer or director will not receive
indemnification if such person is found not to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Registrant. The agreements provide a number of procedures and presumptions
used to determine the officer's or director's right to indemnification and
include a requirement that in order to receive an advance of expenses, the
officer or director must submit an undertaking to repay any expenses advanced on
his behalf that are later determined he was not entitled to receive.
DIRECTOR AND OFFICER LIABILITY INSURANCE. The Registrant's directors
and officers are covered by insurance policies indemnifying them against certain
liabilities, including liabilities under the federal securities laws (other than
liability under Section 16(b) of the Exchange Act), which might be incurred by
them in such capacities.
INDEMNIFICATION UNDER THE 1997 PLAN. The 1997 Plan provides that, in
addition to such rights as they may have as directors of the Registrant, the
members of the committee of the board of directors of the Registrant which
administers the 1997 Plan shall be indemnified by the Registrant, to the fullest
extent permitted by law, with respect to any action or failure to act relating
to the 1997 Plan or any stock option granted thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
*4.1 Articles of Incorporation of the Registrant,
incorporated herein by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form 8-B
filed by the Registrant with the Commission on July
28, 1993 (Commission File No. 1-09623)
*4.2 Amended and Restated Bylaws of the Registrant,
incorporated herein by reference to Exhibit 3.2 to
the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1997 filed
by the Registrant with the Commission on November 14,
1997 (Commission File No. 1-09623).
- 5 -
<PAGE>
*4.3 Indenture dated November 26, 1991, between the
Registrant and First Trust National Association, as
Trustee, with respect to the Registrant's 6 1/2%
Convertible Subordinated Notes due November 15, 2001,
incorporated herein by reference to the Registrant's
Annual Report on Form 10-K for the year ended
December 31, 1991.
*4.4 Form of 6 1/2% Convertible Subordinated Notes due
November 15, 2001 in Global Form, incorporated herein
by reference to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1991.
5 Opinion of Steel Hector & Davis LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Steel Hector & Davis LLP is included in
Exhibit 5.
24 Power of Attorney (included on signature pages of
this Registration Statement).
99 IVAX Corporation 1997 Employee Stock Option Plan.
* Incorporated by reference as indicated.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment is contained in periodic
reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
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<PAGE>
(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.
(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 Section 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 the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act 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 director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
- 7 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miami, State of Florida, on this 19th day of
December, 1997.
IVAX CORPORATION
By: /s/ PHILLIP FROST, M.D.
------------------------------------------
Phillip Frost, M.D., Chairman of the Board
and Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints
Phillip Frost, M.D. and David R. Bethune, and each of them severally, as his or
her true and lawful attorneys-in-fact and agents with full power of substitution
and resubstitution for him or her and in his or her name, place and stead, in
any and all capacities to execute in the name of each such person who is then an
officer or director of the Registrant any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents and each of them full power and authority to do and perform each and
every act and thing required or necessary to be done in and about the premises
as fully as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/S/ PHILLIP FROST, M.D. Chairman of the Board December 19, 1997
- ----------------------------- and Chief Executive Officer
Phillip Frost, M.D. (Principal Executive Officer)
/S/ DAVID R. BETHUNE President and Chief December 19, 1997
- ----------------------------- Operating Officer
David R. Bethune
/S/ THOMAS E. BEIER Chief Financial Officer December 19, 1997
- ----------------------------- (Principal Financial Officer)
Thomas E. Beier
/S/ MICHAEL METZKES Vice President-Accounting December 19, 1997
- ----------------------------- (Principal Accounting Officer)
Michael Metzkes
/S/ JACK FISHMAN, PH.D. Director December 19, 1997
- -----------------------------
Jack Fishman, Ph.D.
/S/ JANE HSIAO, PH.D. Director and Vice Chairman- December 19, 1997
- ----------------------------- Technical Affairs
Jane Hsiao, Ph.D.
- 9 -
<PAGE>
/S/ NEIL FLANZRAICH Director December 19, 1997
- -----------------------------
Neil Flanzraich
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NO.
- -------
5 Opinion of Steel Hector & Davis LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Steel Hector & Davis LLP is included in Exhibit 5.
24 Power of Attorney (included on signature pages of this Registration
Statement).
99 IVAX Corporation 1997 Employee Stock Option Plan.
EXHIBIT 5
December 19, 1997
IVAX Corporation
4400 Biscayne Boulevard
Miami, Florida 33137
Ladies and Gentlemen:
We have acted as special counsel to IVAX Corporation (the "Registrant")
in connection with the preparation and filing with the Securities and Exchange
Commission, on or about the date hereof, of a registration statement on Form S-8
(the "Registration Statement"). The Registration Statement registers 4,000,000
shares of Common Stock, par value $.10 per share, of the Registrant (the
"Shares"), pursuant to the terms of the Registrant's 1997 Employee Stock Option
Plan (the "Plan"). This opinion is given with respect to the Shares to the
extent they are newly-issued shares of Common Stock.
In connection therewith, we have examined the Registrant's Articles of
Incorporation and Bylaws, each as amended to the date hereof; resolutions
adopted by the Board of Directors of the Registrant providing for, among other
things, the issuance of the Shares and the filing of the Registration Statement;
and such other corporate documents and records, certificates of public officials
and questions of law as we deemed necessary or appropriate for the purposes of
this opinion. We have also reviewed the relevant provisions of the Florida
Business Corporation Act, and such other legal authority as we have deemed
relevant.
As to questions of fact material to the opinions expressed herein, we
have relied upon the accuracy of: (i) all representations and warranties as to
factual matters contained in any of the documents submitted to us for purposes
of rendering the opinion; and (ii) factual recitals made in the resolutions
adopted by the Board of Directors of the Company.
Based upon and subject to the foregoing and the other qualifications,
limitations and assumptions contained herein, we are of the opinion that the
Shares, when issued and delivered pursuant to the terms of the Plan, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Prospectus related thereto.
Very truly yours,
STEEL HECTOR & DAVIS LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated February 28, 1997, except with respect to the matters discussed in
Notes 4 and 14 therein, as to which the date is March 21, 1997, included in IVAX
Corporation's Annual Report on Form 10-K for the year ended December 31, 1996
and to all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Miami, Florida,
December 19, 1997.
EXHIBIT 99
IVAX CORPORATION
1997 EMPLOYEE STOCK OPTION PLAN
1. PURPOSES. The purposes of this 1997 Employee Stock Option Plan (the "Plan")
are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to the Employees of
the Company or its Subsidiaries as well as other individuals who perform
services for the Company or its Subsidiaries, and to promote the success of the
Company's business. Options granted hereunder shall be Nonqualified Stock
Options.
2. DEFINITIONS. As used herein, the following definitions shall apply:
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" shall mean the common stock, $.10 par value per share,
of the Company.
"COMPANY" shall mean IVAX Corporation, a Florida corporation.
"COMMITTEE" shall mean the committee appointed by the Board of
Directors in accordance with Section 4(a) of the Plan.
"CONTINUOUS STATUS AS AN EMPLOYEE" shall mean the absence of any
interruption or termination of service as an Employee. Service as an Employee
shall not be considered interrupted for purposes of the Plan, in the case of
sick leave, military leave, or any other bona fide leave of absence approved by
the Committee.
"EMPLOYEE" shall mean any person, including officers and directors,
employed by the Company or any Subsidiary. The payment of a director's fee by
the Company shall not be sufficient to constitute "employment" by the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time. References to any provision of the Exchange Act shall
be deemed to include successor provisions thereto and regulations thereunder.
"NONQUALIFIED STOCK OPTION" shall mean a stock option not intended to
qualify as an "incentive stock option" within the meaning of Section 422 of the
Code.
"OPTION" shall mean a stock option granted pursuant to the Plan.
<PAGE>
"OPTIONED STOCK" shall mean the Common Stock subject to an Option.
"OPTIONEE" shall mean the recipient of an Option.
"RULE 16B-3" shall mean Rule 16b-3, as from time to time amended,
promulgated by the Securities and Exchange Commission under the Exchange Act or
any successor rule.
"SHARE" shall mean a share of Common Stock, as adjusted in accordance
with Section 13 of the Plan.
"SUBSIDIARY" shall mean any entity controlled by the Company.
3. STOCK. Subject to the provisions of Section 13 of the Plan, the maximum
aggregate number of Shares which may be issued under the Plan is 4,000,000. If
an Option should expire or become unexercisable for any reason without having
been exercised in full, the unpurchased Shares which were subject thereto shall,
unless the Plan shall have been terminated, become available for further grant
under the Plan.
4. ADMINISTRATION.
(a) COMMITTEE. The Plan at all times shall be administered by a
Committee appointed by the Company's Board of Directors consisting solely of two
or more directors.
(b) POWERS OF THE COMMITTEE. Subject to the provisions of the Plan, the
Committee shall have the authority, in its discretion: (i) to grant Nonqualified
Stock Options; (ii) to determine the fair market value of the Common Stock;
(iii) to determine the exercise price per Share of Options to be granted; (iv)
to determine the persons to whom, and the time or times at which, Options shall
be granted and the number of Shares to be represented by each Option; (v) to
determine the vesting schedule of Options to be granted; (vi) to prescribe,
amend and rescind rules and regulations relating to the Plan; (vii) to determine
the terms and provisions of each Option granted under the Plan (which need not
be identical); (viii) to accelerate the exercise date of any Option; (ix) to
authorize any person to execute on behalf of the Company any instrument required
to effectuate the grant of an Option previously granted by the Committee; (x)
subject to the provisions of the Plan and subject to such additional limitations
and restrictions as the Committee may impose, to delegate to specific members of
management or to a committee of management personnel the authority to determine:
(A) the persons to whom, and the time and times at which, Options shall be
granted and the number of Shares to be represented by each Option, (B) the
vesting schedule of Options; (C) the term of Options, and (D) other terms and
conditions of any Options; provided that the Committee shall not have the
authority to delegate such matters with respect to awards to be granted to any
person subject to Section 16 of the
2
<PAGE>
Exchange Act or any "covered employee" under Section 162(m) of the Code; and
(xi) to interpret the Plan and make all other determinations deemed necessary or
advisable for the administration of the Plan. The Committee may require the
voluntary surrender of all or any portion of any Option granted under the Plan
or of any other Company stock option granted to persons eligible to participate
in the Plan as a condition precedent to a grant of a new Option to such Optionee
or person. Subject to the provisions of the Plan, such new Option shall be
exercisable at the price, during the period and on such other terms and
conditions as are specified by the Committee at the time the new Option is
granted. Upon surrender, the Options or other options surrendered shall be
unexercisable and the Shares previously subject to such Options shall be
available for the grant of other Options.
(c) EFFECT OF THE COMMITTEE'S DECISION. All decisions, determinations
and interpretations of the Committee shall be final and binding on all
Optionees.
5. ELIGIBILITY. Options may be granted to Employees, independent contractors and
agents of the Company or any Subsidiary. Subject to the provisions of Section 13
of the Plan, the maximum number of Shares with respect to which Options may be
granted under the Plan to any Employee in any calendar year is 500,000. The Plan
shall not confer upon any Optionee any right with respect to continuation of
employment by the Company, nor shall it interfere in any way with his right or
the Company's right to terminate his employment at any time.
6. DATE OF GRANT. The date of grant of an Option shall be the date on which the
Committee makes the determination granting such Option or such later date as the
Committee may specify. Notice of the determination shall be given to each
Employee to whom an Option is so granted within a reasonable time after the date
of such grant.
7. TERM OF OPTION. The term of each Option shall be ten years from the date of
grant thereof or such shorter term as may be determined by the Committee.
8. OPTION AGREEMENTS. Options shall be evidenced by written option agreements in
such form as the Committee shall approve. Such agreements shall contain such
provisions, including, without limitation, restrictions upon the exercise of the
Option, as the Committee shall determine.
9. EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be such price as is determined by
the Committee, provided that the per Share exercise price shall be no less than
the fair market value per Share on the date of grant.
3
<PAGE>
(b) SUBSTITUTE OPTIONS. Notwithstanding Section 9(a) of the Plan, in
the event the Company substitutes an Option for a stock option issued by another
corporation in connection with a corporate transaction, such as a merger,
consolidation, acquisition of property or stock, separation (including a
spin-off or other distribution of stock or property), reorganization (whether or
not such reorganization comes within the definition of such term in Section 368
of the Code) or partial or complete liquidation involving the Company and such
other corporation, the exercise price of such substituted Option shall be as
determined by the Committee in its discretion to preserve, on a per share basis
immediately after such corporate transaction, the same ratio of fair market
value per option share to exercise price per share which existed immediately
prior to such corporate transaction under the option issued by such other
corporation.
(c) DETERMINATION OF FAIR MARKET VALUE. The fair market value per Share
shall be determined by the Committee in its discretion; provided, however, that
if the Common Stock is listed on a stock exchange, the fair market value per
Share shall be the closing price on such exchange on the date of grant of the
Option, as reported in the Wall Street Journal.
(d) PAYMENT OF EXERCISE PRICE. The Committee shall determine the
methods by which the exercise price of an Option may be paid or deemed to be
paid, the form of such payment, including, without limitation, cash, check,
Shares, Options, other options or awards issued under the Company plans, other
property (including notes or other contractual obligations of Optionees to make
payment on a deferred basis), or documents executed and delivered pursuant to
"cashless exercise" arrangements, the time at which such payment shall be deemed
to be received, and the methods by which Shares will be delivered or deemed to
be delivered to Optionees.
10. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE. Any Option granted hereunder shall be
exercisable at such times and under such conditions as determined by the
Committee, including performance criteria with respect to the Company and/or the
Optionee, and as shall be permissible under the terms of the Plan. An Option may
not be exercised for a fraction of a Share. An Option shall be deemed to be
exercised when written notice of such exercise has been given to the Company in
accordance with the terms of the Option by the person entitled to exercise the
Option and full payment for the Shares with respect to which the Option is
exercised has been received by the Company. Full payment may, as authorized by
the Committee, consist of any consideration and method of payment allowable
under Section 9(d) of the Plan.
(b) RIGHTS AS A SHAREHOLDER. Until the issuance, which in no event
(except as provided in Section 18 of the Plan) will be delayed more than thirty
days from the date of the exercise of the Option, of the stock certificate
evidencing the Shares as to which the Option is exercised (as evidenced by the
appropriate entry on
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the books of the Company or of a duly authorized transfer agent of the Company),
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. No adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued, except as
provided in the Plan. Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as
to which the Option is exercised.
11. TERMINATION OF EMPLOYMENT.
(a) TERMINATION OF STATUS AS AN EMPLOYEE. If any Employee ceases to be
in Continuous Status as an Employee, other than (i) by reason of retirement or
(ii) as a result of a termination by the Company for deliberate, willful or
gross misconduct, any Option held by such Employee shall be exercisable within
twelve months after the date he ceases to be in Continuous Status as an Employee
(or such longer period as the Committee shall determine) to the extent the
Employee was entitled to exercise such Option as of the date of his termination
of employment.
(b) RETIREMENT OF OPTIONEE. If any Employee ceases to be in Continuous
Status as an Employee by reason of such Employee's retirement, any Option held
by such Employee shall be exercisable within thirty-six months after the date he
ceases to be in Continuous Status as an Employee to the extent that he was
entitled to exercise such Option as of the date of his retirement. For purposes
of the Plan, "retirement" means termination of services as an Employee at or
after age 65 other than as a result of deliberate, willful or gross misconduct.
(c) TERMINATION FOR MISCONDUCT. If any Employee ceases to be in
Continuous Status as an Employee as a result of a termination by the Company for
deliberate, willful or gross misconduct, any Option held by such Employee shall
terminate immediately and automatically on the date of his termination as an
Employee unless otherwise determined by the Committee.
(d) DEATH OF OPTIONEE. Subject to the provisions of the Plan, any
Option held by an Optionee at the time of his death may be subsequently
exercised by the legal representative of the Optionee's estate or by the person
or persons who acquired the right to exercise the Option by bequest or
inheritance but only to the extent the Optionee was entitled to exercise such
Option as of the date of his death. In the event of the death of an Optionee
during the final three months of the time period specified in Section 11(a) or
11(b), as applicable, the Option may be exercised, at any time within three (3)
months following the date of his death, by the Optionee's estate or by a person
or persons who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent the Optionee was entitled to exercise such
Option as of the date of his death.
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(e) EXPIRATION OF OPTIONS. None of the events described above in this
Section 11 shall extend the period of exercisability of the Option beyond the
expiration date thereof. To the extent that an Optionee was not entitled to
exercise an Option on the date he ceased to be in Continuous Status as an
Employee or the date of the Optionee's death, or if he does not exercise such
Option (which he was entitled to exercise) within the time period specified in
this Section 11, the Option shall terminate and become null and void.
Notwithstanding the provisions of Section 11(a), 11(b) or 11(d) of the Plan, no
Options shall be exercisable after an Optionee ceases to be in Continuous Status
as an Employee in the event the Optionee shall have during the time period in
which his Options are exercisable, engaged in deliberate action which, as
determined by the Committee, causes substantial harm to the interests of the
Company or constitutes a breach of any obligation of the Optionee to the
Company. In such event, the Optionee shall forfeit all rights to any unexercised
Option as of the date of such deliberate action.
12. NON-TRANSFERABILITY OF OPTIONS. An Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined in the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules thereunder,
and, except with respect to a qualified domestic relations order as aforesaid,
may be exercised, during the lifetime of the Optionee, only by the Optionee.
13. ADJUSTMENT PROVISIONS. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, Shares or other
property), recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share exchange, 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 rights of Optionees under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number and kind of Shares which may thereafter be issued in connection
with Options, (ii) the number and kind of Shares issued or issuable in respect
of outstanding Options, (iii) the maximum number of Shares with respect to which
Options may be granted to any Employee, and (iv) the vesting, exercisability,
exercise price, grant price, or purchase price relating to any Option or, if
deemed appropriate, make provision for a cash payment with respect to any
outstanding Option. Such adjustment shall be made by the Committee, whose
determination in that respect shall be final, binding and conclusive.
14. CHANGE IN CONTROL. If: (1) any person (as defined for purposes of Section
13(d) and 14(d) of the Exchange Act, but excluding the Company and any of its
wholly-owned subsidiaries) acquires direct or indirect ownership of 50% or more
of the combined voting power of the then outstanding securities of the Company
as a result of a tender or exchange offer, open market purchases, privately
negotiated
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purchases or otherwise; or (2) the shareholders of the Company approve (A) any
consolidation or merger of the Company in which the Company is not the surviving
corporation (other than a merger of the Company in which the holders of Common
Stock immediately prior to the merger have the same proportionate ownership of
the surviving corporation immediately after the merger), or (B) 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 to an
entity which is not a wholly-owned subsidiary of the Company, then the
exercisability of each Option outstanding under the Plan shall be automatically
accelerated so that each such Option shall, immediately prior to the specified
effective date of any of the foregoing transactions, become fully exercisable
with respect to the total number of Shares subject to such Option and may be
exercisable for all or any portion of such Shares. Upon the consummation of any
such transaction, all outstanding Options under the Plan shall, to the extent
not previously exercised, either be assumed by the successor corporation or
parent thereof or be replaced with a comparable option to purchase shares of the
capital stock of the successor corporation or parent thereof.
15. LIQUIDATION AND DISSOLUTION. In the event of the proposed dissolution or
liquidation of the Company, all outstanding Options will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Committee.
16. TERM OF PLAN. The Plan shall become effective upon its adoption by the Board
of Directors of the Company. The Plan shall continue in effect until December
18, 2007, unless sooner terminated in accordance with Section 17 of the Plan.
17. AMENDMENT AND TERMINATION OF THE PLAN. The Committee may terminate the Plan
at any time, or amend the Plan from time to time in such respects as the
Committee may deem advisable. No amendment or termination or modification of the
Plan shall in any manner affect any Option theretofore granted without the
consent of the Optionee, except that the Committee may amend or modify the Plan
in a manner that does affect Options theretofore granted upon a finding by the
Committee that such amendment or modification is in the best interest of
shareholders or Optionees.
18. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the Shares may then be listed,
and shall be further subject to the advice of counsel for the Company with
respect to such compliance. As a condition to the exercise of an Option, the
Company may require the person exercising such Option to represent and warrant
at the time of any such exercise that the Shares are being purchased only for
investment and without any present intention to
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sell or distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required by law.
19. INDEMNIFICATION OF COMMITTEE MEMBERS. In addition to such other rights of
indemnification as they may have as Directors, the members of the Committee
shall be indemnified by the Company to the fullest extent permitted by law with
respect to any action or failure to act relating to the Plan or any Option
granted hereunder.
20. OTHER COMPENSATION PLANS. The adoption of the Plan shall not affect any
other stock option or incentive or other compensation plans in effect for the
Company or any Subsidiary, nor shall the Plan preclude the Company from
establishing any other forms of incentive or other compensation for employees
and directors of the Company or any Subsidiary.
21. WITHHOLDING. The Company and any Subsidiary may, to the extent permitted by
law, deduct from any payments or transfers of any kind due to an Optionee the
amount of any federal, state, local or foreign taxes required by any
governmental regulatory authority to be withheld or otherwise deducted with
respect to the Options or the Optioned Stock. This shall include the authority
to withhold or receive Shares or other property and to make cash payments in
respect thereof in satisfaction of Optionee's tax obligations.
22. GOVERNING LAW. The Plan, the Options granted hereunder and all related
matters shall be governed by, and construed and enforced in accordance with, the
laws of the State of Florida.
23. COMPLIANCE WITH RULE 16B-3. It is the intent of the Company that any Option
granted to an Optionee pursuant to this Plan comply in all respects with Rule
16b-3 (or any successor rule) to ensure that an exemption is available for such
grant from Section 16(b) of the Exchange Act. Unless an Optionee could otherwise
transfer an Option or Shares issued upon exercise of an Option granted under the
Plan without incurring liability under Section 16(b) of the Exchange Act, at
least six months shall elapse from the date of acquisition of the Option to the
date of disposition of the Option (other than upon exercise or conversion) or
its underlying Shares.
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