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As filed with the Securities and Exchange Commission on November 22, 1996
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Isco, Inc.
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(Exact name of registrant as specified in its charter)
Nebraska 47-0461807
- ------------------------------ ------------------------------------
(State or other (I.R.S. Employer Identification No.)
jurisdiction of incorporation
or organization)
4700 Superior Street, Lincoln, NE. 68504
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(Address of Principal Executive Offices) (ZIP Code)
1996 Stock Option Plan(1)
1996 Outside Directors Stock Option Plan(2)
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(Full title of the plan or written contract)
Rochelle A. Mullen
Cline, Williams, Wright, Johnson & Oldfather
1125 South 103rd Street, Suite 720
Omaha, NE 68124
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(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(402) 397-1700
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(1) The Company has reserved 250,000 shares of Common Stock for issuance
pursuant to the 1996 Stock Option Plan.
(2) The Company has reserved 100,000 shares of Common Stock for issuance
pursuant to the 1996 Outside Directors Stock Option Plan.
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Approximate date of proposed commencement of sales pursuant to the plan: as
soon as practicable after the effective date of this registration statement.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price per offering registration
to be registered registered share price fee
- ------------------- ---------- --------- ---------- -------------
Common Stock, 250,000 shares $9.75(3) $2,437,500 $738.64
$0.01 par value
Common Stock, 100,000 shares $9.75(3) $ 975,000 $295.45
$0.01 par value
(3) Estimated pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act
of 1933, as amended (the "Securities Act") solely for the purpose of
calculating the registration fee. The price is based upon the average of
the high and low prices of Isco, Inc. Common Stock on November 18, 1996, as
reported on the NASDAQ National Market System.
- --------------------------------------------------------------------------------
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Isco, Inc. (the "Company") hereby incorporates by reference in this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Company's latest Annual Report on Form 10-K for the fiscal year
ended July 26, 1996, filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
containing audited financial statements for the Company's latest
fiscal year;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (a) above; and
(c) A description of the Company's Common Stock contained in the Company's
Registration Statement on Form S-1 (File No. 2-99303) filed under the
Securities Act of 1933, as amended, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which reregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be a part
thereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The provision regarding indemnification of directors and officers is found in
the Bylaws of the Company as amended through September 21, 1995 (incorporated by
reference to Exhibit (3)(ii) to the Company's 10-K filed for the year ended July
28, 1995).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
- ------- ---------------------------------------------------------------------
4.1 Articles of Incorporation, as amended and restated through July 26,
1985 (incorporated by reference to Exhibit 3.1 to the Registration
Statement of Form S-1 (File No. 2-99303)).
4.2 Bylaws of the Company, as amended through September 21, 1995
(incorporated by reference to Exhibit (3)(ii) to the Company's 10-K
filed for the year ended July 28, 1995).
5 Opinion of Counsel.
23.1 Independent Auditors Consent.
23.2 Consent of Counsel (included in Exhibit 5).
99.1 1996 Stock Option Plan.
99.2 1996 Outside Directors Stock Option Plan.
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering. The undersigned registrant hereby undertakes to:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental
change in the information set forth in the Registration
Statement; and
(iii) Include any additional or changed material
information on the plan of distribution;
PROVIDED, HOWEVER, that paragraph (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
in a post-effective amendment is incorporated by reference from periodic reports
filed by the small business issuer under the Exchange Act.
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(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new Registration Statement of the
securities offered, and the offering of the securities at that
time to be the initial bona fide offering thereof.
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(b) Filings incorporating subsequent Exchange Act documents by reference.
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) Incorporated annual and quarterly reports. The undersigned registrant
hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given,
the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and,
where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to
deliver or cause to be delivered to each person to whom the prospectus
is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim
financial information.
(d) Request for acceleration of effective date or filing of registration
statement on Form S-8. 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 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.
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SIGNATURES
The Registrant. 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 Lincoln, State of Nebraska on November 21, 1996.
Isco, Inc.
BY:/s/PHILIP M. WITTIG
--------------------------------------
Philip M. Wittig, Assistant Secretary,
Treasurer, Chief Financial Officer
BY:/s/VICKI L. BENNE
-------------------------------
Vicki L. Benne, Controller
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ROBERT W. ALLINGTON Chairman, Chief Executive 11/21/96
- ----------------------- Officer, Director
Robert W. Allington
/s/DOUGLAS M. GRANT President, Chief Operating 11/21/96
- ----------------------- Officer, Director
Douglas M. Grant
/s/DALE L. YOUNG Secretary, Director 11/21/96
- -----------------------
Dale L. Young
/s/HARRIS WAGENSEIL Director 11/21/96
- -----------------------
Harris Wagenseil
/s/ROBERT B. HARRIS Director 11/21/96
- -----------------------
Robert B. Harris
/s/JAMES L. LINDERHOLM Director 11/21/96
- -----------------------
James L. Linderholm
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Exhibit 5
November 15, 1996
Mr. Robert Allington
Chief Executive Officer
Isco, Inc.
4700 Superior Street
Lincoln, NE 68504
Re: Registration Statement on Form S-8
Dear Mr. Allington:
We have acted as legal counsel for Isco, Inc., a Nebraska corporation, (the
"Company") in connection with the Company's preparation of the above-referenced
Registration Statement on Form S-8 (the "Form S-8") being filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, (the "Act") and the Prospectus which is not filed, but is
included as a part of the Form S-8 (the "Prospectus"). The Form S-8 and the
Prospectus relate to the Company's two stock plans; specifically the 1996 Stock
Option Plan (250,000 shares) and the 1996 Outside Directors Stock Option Plan
(100,000 shares), all of the shares which are to be offered and sold by the
Company pursuant to the applicable plan and in the manner set forth in the
respective plan, Form S-8 and Prospectus.
In connection herewith, we have examined: (i) the Form S-8 and the Prospectus;
(ii) the Articles of Incorporation, as amended, and the Bylaws, as amended, of
the Company; (iii) the corporate minutes and proceedings of the Company
applicable to the filing of the Form S-8; and (iv) such other proceedings,
documents and records as we deemed necessary or appropriate for the purposes of
making this opinion. In making such examinations, we have assumed the
genuineness of all signatures on all documents and conformed originals to all
copies submitted to us as conformed or photocopies. In addition to such
examination, we have ascertained or verified such additional facts as we deemed
necessary or appropriate for purposes of this opinion. However, as to various
questions of fact material to our opinion, we have relied upon representations,
statements or certificates of officers, directors, or representatives of the
Company or others.
Based upon the foregoing, we are of the opinion that: (i) the Company has been
legally incorporated and is validly existing under the laws of the state of
Nebraska; and (ii) the shares issued pursuant to each of the Plans, upon
issuance and payment therefor, as contemplated by the respective plan, Form S-8
and the Prospectus, will be validly issued, fully paid and non-assessable common
stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the Form S-8
and to any references to our firm in the Prospectus. In giving this consent, we
do not admit that we come within the category of persons whose consent is
required under Section 7 of the Act or the Rules and Regulations of the
Commission promulgated thereunder.
Very truly yours,
Cline, Williams, Wright, Johnson & Oldfather
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Isco, Inc. on Form S-8 of our report dated October 9, 1996 appearing in the
Annual Report on Form 10-K of Isco, Inc. for the year ended July 26, 1996, and
to the reference to us under the heading "Experts" in the Prospectuses, which
are part of such Registration Statement.
DELOITTE & TOUCHE LLP
Lincoln, Nebraska
November 20, 1996
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EXHIBIT 99.1
ISCO, INC.
1996
STOCK OPTION PLAN
1. NAME.
The name of this Plan is the Isco, Inc. 1996 Stock Option Plan.
2. DEFINITIONS.
For the purposes of the Plan, the following terms shall be defined as set
forth below:
a. "Affiliate" means any partnership, corporation, firm, joint venture,
association, trust, limited liability company, unincorporated
organization or other entity (other than a Subsidiary) that, directly
or indirectly through one or more intermediaries, is controlled by the
Company, where the term "controlled by" means the possession, direct
or indirect, of the power to cause the direction of the management and
policies of such entity, whether through the ownership of voting
interests or voting securities, as the case may be, by contract or
otherwise.
b. "Board" means the board of directors of the Company.
c. "Cause" as applied to any Officer or Employee means: (i) the
conviction of such individual for the commission of any felony; (ii)
the commission by such individual of any crime involving moral
turpitude (E.G., larceny, embezzlement) which results in harm to the
business, reputation, prospects or financial condition of the Company,
any Subsidiary or Affiliate; or (iii) a disciplinary discharge
pursuant to the terms of the Company's management handbooks as in
effect at the time.
d. "Chairman" means the individual appointed by the Board to serve as the
chairman of the Committee.
e. "Code" means the Internal Revenue Code of 1986, as amended from time
to time and the Treasury regulations promulgated thereunder.
f. "Committee" means the committee appointed by the Board to administer
the Plan as provided in Section 4(a).
g. "Common Stock" means the Common Stock, $0.10 par value per share, of
the Company or any security of the Company identified by the Committee
as having been issued in substitution or exchange therefor or in lieu
thereof.
h. "Company" means Isco, Inc., a Nebraska corporation.
i. "Employee" means an individual employed by the Company or a Subsidiary
whose wages are subject to the withholding of federal income tax under
Section 3401 of the Code.
j. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute.
k. "Fair Market Value" of a Share as of a specified date means the
average of the highest and lowest market prices of a Share on the
NASDAQ
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National Market System on such date as reported in the Midwestern
Edition of THE WALL STREET JOURNAL or, if no trading of Common Stock is
reported for that day, the next preceding day on which trading was
reported. In the event the Common Stock is not then traded on the
NASDAQ National Market System, the Fair Market Value of a Share shall
be determined by reference to the principal market or exchange on which
the Common Stock is then traded.
l. "Incentive Stock Option" (otherwise designated as an ISO) means any
stock option granted pursuant to the Plan that is intended to be and
is specifically designated as an "Incentive Stock Option" within the
meaning of Section 422 of the Code.
m. "Non-qualified Stock Option" (otherwise designated as a NQSO) means
any stock option granted pursuant to the provisions of the Plan that
is not an ISO.
n. "Officer" means an individual elected or appointed by the Board or by
the board of directors of a Subsidiary or chosen in such other manner
as may be prescribed by the Bylaws of the Company or a Subsidiary, as
the case may be, to serve as such.
o. "Option" means an ISO or a NQSO granted under the Plan.
p. "Participant" means an individual who is granted an Option under the
Plan.
q. "Plan" means this 1996 Stock Option Plan.
r. "Rule 16b-3" means Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor or
replacement rule adopted by the Securities and Exchange Commission.
s. "Share" means one share of Common Stock, adjusted in accordance with
Section 10(b) of the Plan, if applicable.
t. "Stock Option Agreement" means the written agreement between the
Company and the Participant that contains the terms and conditions
pertaining to an Option.
u. "Subsidiary" means any corporation of which the Company, directly or
indirectly, is the beneficial owner of fifty percent (50%) or more of
the total voting power of all classes of its stock having voting power
and which qualifies as a subsidiary corporation pursuant to Section
424(f) of the Code.
v. "Ten Percent Stockholder" means a Participant who prior to the grant
of an ISO owned, directly or indirectly within the meaning of Section
424(d) of the Code, ten percent (10%) or more of the total combined
voting power of all classes of stock of the Company, any Subsidiary or
any parent of the Company (as defined in Section 425(e) of the Code).
3. PURPOSE.
The purpose of the Plan is to enable the Company to provide incentives,
which are linked directly to increases in stockholder value, to certain key
personnel in order that they will be encouraged to promote the financial
success and progress of the Company.
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4. ADMINISTRATION.
a. COMPOSITION OF THE COMMITTEE.
The Plan shall be administered by a Committee appointed by the Board,
consisting of not less than two "Non-Employee Directors" (as such
term is defined in Rule 16b-3), to be a director who is not currently
an officer or otherwise employed by the issuer, or a parent or
subsidiary of the issuer; does not receive compensation directory or
indirectly from the issuer, its parent or subsidiary for services
rendered as a consultant or in any capacity other than as a director,
(except for an amount less than $60,000); does not possess an interest
in any other transaction for which disclosure would be required
pursuant to Item 404(a) of Regulation S-K; and is not engaged in a
business relationship for which disclosure would be required pursuant
to Item 404(b) of Regulation S-K. In the event the Company is, at any
time unable to qualify a Committee of two or more Non-Employee
Directors, the Plan shall be administered by the Board. Subject to
the provisions of the first sentence of this Section 4(a), the Board
may from time to time remove members from, or add members to, the
Committee. Vacancies on the Committee, however caused, shall be
filled by the Board. The Board shall appoint one of the members of
the Committee as Chairman.
b. ACTIONS BY THE COMMITTEE.
The Committee shall hold meetings at such times and places as it may
determine. Acts approved by a majority of the members of the
Committee present at a meeting at which a quorum is present, or acts
reduced to or approved in writing by a majority of the members of the
Committee, shall be the valid acts of the Committee.
c. POWERS OF THE COMMITTEE.
Subject to the express terms and conditions hereof, the Committee
shall have the authority to administer the Plan in its sole and
absolute discretion. To this end, the Committee is authorized to
construe and interpret the Plan and to make all other determinations
necessary or advisable for the administration of the Plan, including,
but not limited to, the authority to determine the eligible
individuals who shall be granted Options, the number of Options to be
granted, the vesting period, if any, for all Options granted
hereunder, the date on which any Option becomes first exercisable, the
number of Shares subject to each Option, the exercise price for the
Shares subject to each Option, and, whether the Option to be granted
is an ISO or a NQSO. Any determination, decision or action of the
Committee in connection with the construction, interpretation,
administration or application of the Plan shall be final, conclusive
and binding upon all Participants and any person validly claiming
under or through a Participant.
d. LIABILITY OF COMMITTEE MEMBERS.
No member of the Board or the Committee will be liable for any action
or determination made in good faith by the Board or the Committee with
respect to the Plan or any grant or exercise of an Option thereunder.
e. OPTION ACCOUNTS.
The Committee shall maintain a journal in which a separate account for
each Participant shall be established. Whenever an Option is granted
to or exercised by a Participant, the Participant's account shall be
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appropriately credited or debited. Appropriate adjustment shall also be
made in the journal with respect to each account in the event of an
adjustment pursuant to Section 10(b) of the Plan.
5. EFFECTIVE DATE AND TERM OF THE PLAN.
a. EFFECTIVE DATE OF THE PLAN.
The Plan was adopted by the Board and became effective on September
19, 1996, subject to approval by the stockholders of the Company at a
meeting duly called and held within twelve months following such date.
b. TERM OF PLAN.
No Option shall be granted pursuant to the Plan on or after September
19, 2006, but Options theretofore granted may extend beyond that date.
6. TYPE OF OPTIONS AND SHARES SUBJECT TO THE PLAN.
Options granted under the Plan may be either ISOs or NQSOs. Each Stock
Option Agreement shall specify whether the Option covered thereby is an ISO
or a NQSO.
The maximum aggregate number of Shares that may be issued under the Plan is
250,000 Shares. Up to and including all 250,000 Shares reserved for
issuance under the Plan may be designated as ISOs. The limitation on the
number of Shares which may be subject to Options under the Plan shall be
subject to adjustment as provided in Section 10(b) of the Plan.
If any Option granted under the Plan expires or is terminated for any
reason, any Shares as to which the Option has not been exercised shall
again be available for purchase under Options subsequently granted. At all
times during the term of the Plan, the Company shall reserve and keep
available for issuance such number of Shares as the Company is obligated to
issue upon the exercise of all then outstanding Options.
7. SOURCE OF SHARES ISSUED UNDER THE PLAN.
Common Stock issued under the Plan shall be authorized and unissued Shares
and/or Treasury Shares. No fractional Shares shall be issued under the
Plan.
8. ELIGIBILITY.
The individuals eligible for the grant of Options under the Plan shall be:
(i) all Officers and Employees; and (ii) such individuals determined by
the Committee to be rendering substantial services as a consultant or
independent contractor to the Company or any Subsidiary or Affiliate of the
Company, as the Committee shall determine from time to time in its sole and
absolute discretion; PROVIDED, HOWEVER, that only Employees of the Company
or any Subsidiary shall be eligible to receive ISOs. Any Participant shall
be eligible to be granted more than one Option hereunder.
9. OPTIONS.
a. GRANT OF OPTIONS.
Subject to any applicable requirements of the Code and any regulations
issued thereunder, the date of the grant of an Option shall be the
date on which the Committee determines to grant the Option.
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b. EXERCISE PRICE OF ISOs.
The exercise price of each Share subject to an ISO shall not be less
than the Fair Market Value of a Share on the date of grant of the ISO,
except that in the case of a grant of an ISO to a Participant who at
the time such ISO was granted was a Ten Percent Stockholder, the
exercise price shall not be less than 110% of the Fair Market Value of
a Share on the date of the grant of the ISO.
c. EXERCISE PRICE OF NQSOs.
The exercise price of each Share subject to a NQSO shall be determined
by the Committee at the time of grant but will not be less than
eighty-five percent (85%) of the Fair Market Value of a Share on the
date of grant.
d. EXERCISE PERIOD.
Each Option granted hereunder shall vest and become first exercisable
as determined by the Committee.
e. TERMS AND CONDITIONS.
All Options granted pursuant to the Plan shall be evidenced by a Stock
Option Agreement (which need not be the same for each Participant or
Option), approved by the Committee which shall be subject to the
following express terms and conditions and the other terms and
conditions as are set forth in this Section 9, and to such other terms
and conditions as shall be determined by the Committee in its sole and
absolute discretion which are not inconsistent with the terms of the
Plan:
i. the failure of an Option to vest for any reason whatsoever shall
cause the Option to expire and be of no further force or effect;
ii. unless terminated earlier pursuant to Sections 9(i) or 11, the
term of any Option granted under the Plan shall be ten years from
the date of grant; PROVIDED, HOWEVER, that no ISO granted to a
Ten Percent Stockholder shall have a term of more than five years
from the date of grant;
iii. in the case of an ISO, the aggregate Fair Market Value
(determined as of the time the ISO is granted) of Shares
exercisable for the first time by a Participant during any
calendar year (under the Plan and any other incentive stock
option plans of the Company, any Subsidiary or any parent of the
Company (as defined in Section 424(e) of the Code) shall not
exceed $100,000;
iv. Options shall not be transferable by the Participant otherwise
than by will or by the laws of descent and distribution, and
shall be exercisable during the lifetime of the Participant only
by him or by his guardian or legal representative;
v. no Option or interest therein may be transferred, assigned,
pledged or hypothecated by the Participant during his lifetime
whether by operation of law or otherwise, or be made subject to
execution, attachment or similar process; and
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vi. payment for the Shares to be received upon exercise of an Option
may be made in cash, in Shares (determined with reference to
their Fair Market Value on the date of exercise) or any
combination thereof.
f. EXERCISE.
The holder of an Option may exercise the same by filing with the
Corporate Secretary of the Company and the Chairman a written
election, in such form as the Committee may determine, specifying the
number of Shares with respect to which such Option is being exercised,
and accompanied by payment in full of the exercise price for such
Shares. Notwithstanding the foregoing, the Committee may specify a
reasonable minimum number of Shares that may be purchased on any
exercise of an Option, provided that such minimum number will not
prevent the holder from exercising the Option with respect to the full
number of Shares as to which the Option is then exercisable.
g. WITHHOLDING TAXES.
Prior to issuance of the Shares upon exercise of an Option, the
Participant shall pay or make adequate provision for the payment of
any Federal, state, local or foreign withholding obligations of the
Company or any Subsidiary or Affiliate of the Company, if applicable.
In the event a Participant shall fail to make adequate provision for
the payment of such obligations, the Company shall have the right to
issue a stock certificate for an amount of Shares equal to the
difference obtained by subtracting: (i) the number of Shares, rounded
up for any fraction to the next whole number, that have a Fair Market
Value (as of the date of exercise) equal to such amount as is
sufficient to satisfy applicable federal, state or local withholding
obligations; from (ii) the number of Shares attributable to that
portion of the Option so exercised. The Company shall promptly remit,
or cause to be remitted, to the appropriate taxing authorities the
amount so withheld. In such cases, although the stock certificate
delivered to the Participant will be for a net number of Shares, such
Participant shall be considered, for tax purposes, to have received
the number of Shares equal to the full number of Shares to which the
Option had been exercised.
h. TERMINATION OF OPTIONS.
Options granted under the Plan shall be subject to the following
events of termination:
i. in the event the employment of a Participant who is an Officer or
Employee is terminated for Cause, all unexercised Options held by
such Participant on the date of such termination of employment
(whether or not vested) will expire immediately; and
ii. in the event a Participant is no longer an Officer or Employee
other than for the reasons set forth in Sections 9(i)(i) or
9(i)(ii), all Options which remain unvested at the time the
Participant is no longer a Director, Officer or Employee, as the
case may be, shall expire immediately, and all Options which have
vested prior to such time shall expire twelve months thereafter
unless by their terms they expire sooner.
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10. RECAPITALIZATION.
a. CORPORATE FLEXIBILITY.
The existence of the Plan and the Options granted hereunder shall not
affect or restrict in any way the right or power of the Board or the
stockholders of the Company, in their sole and absolute discretion, to
make, authorize or consummate any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or
its business, any merger or consolidation of the Company, any issue of
bonds, debentures, Common Stock, preferred or prior preference stock
ahead of or affecting the Company's capital stock or the rights
thereof, the dissolution or liquidation of the Company or any sale or
transfer of all or any part of its assets or business, or any other
grant of rights, issuance of securities, transaction, corporate act or
proceeding and notwithstanding the fact that any such activity,
proceeding, action, transaction or other event may have, or be
expected to have, an impact (whether positive or negative) on the
value of any Option.
b. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
Except as otherwise provided in Section 11 and subject to any required
action by the stockholders of the Company, in the event of any change
in capitalization affecting the Common Stock of the Company, such as a
stock dividend, stock split or recapitalization, the Committee, in its
sole and absolute discretion, may make proportionate adjustments with
respect to: (i) the aggregate number of Shares available for issuance
under the Plan; (ii) the number of Shares available for any individual
award; (iii) the number and exercise price of Shares subject to
outstanding Options; PROVIDED, HOWEVER, that the number of Shares
subject to any Option shall always be a whole number; and (iv) such
other matters as shall be appropriate in light of the circumstances.
11. CHANGE OF CONTROL.
In the event of a Change of Control (as defined below), unless otherwise
determined by the Committee at the time of grant or by amendment (with the
holder's consent) of such grant, all Options not vested on or prior to the
effective time of any such Change of Control shall immediately vest as of
such effective time. The Committee in its discretion may make provisions
for the assumption of outstanding Options, or the substitution for
outstanding Options of new incentive awards covering the stock of a
successor corporation or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices so as to prevent
dilution or enlargement of rights.
A "Change of Control" will be deemed to occur on the date any of the
following events occur:
a. any person or persons acting together which would constitute a "group"
for purpose of Section 13(d) of the Exchange Act (other than the
Company, any Subsidiary and any entity beneficially owned by any of
the foregoing) beneficially own (as defined in Rule 13d-3 under the
Exchange Act) without Board approval, directly or indirectly, at least
50% of the total voting power of the Company entitled to vote
generally in the election of the Board;
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b. the stockholders of the Company approve (i) a plan of complete
liquidation of the Company, or (ii) an agreement providing for the
merger or consolidation of the Company (A) in which the Company is not
the continuing or surviving corporation (other than consolidation or
merger with a wholly-owned subsidiary of the Company in which all
Shares outstanding immediately prior to the effectiveness thereof are
changed into or exchanged for the same consideration) or (B) pursuant
to which the Shares are converted into cash, securities or other
property, except a consolidation or merger of the Company in which the
holders of the Shares immediately prior to the consolidation or merger
have, directly or indirectly, at least a majority of the common stock
of the continuing or surviving corporation immediately after such
consolidation or merger or in which the Board immediately prior to the
merger or consolidation would, immediately after the merger or
consolidation, constitute a majority of the board of directors of the
continuing or surviving corporation; or
c. the stockholders of the Company approve an agreement (or agreements)
providing for the sale or other disposition (in one transaction or a
series of transactions) of all or substantially all of the assets of
the Company.
12. SECURITIES LAW REQUIREMENTS.
No Shares shall be issued under the Plan unless and until: (i) the Company
and the Participant have taken all actions required to register the Shares
under the Securities Act of 1933, as amended, or perfect an exemption from
the registration requirements thereof; (ii) any applicable requirement of
Nasdaq or any stock exchange on which the Common Stock is listed has been
satisfied; and (iii) any other applicable provision of state or Federal law
has been satisfied. The Company shall be under no obligation to register
the Shares under the Securities Act of 1933, as amended, or to effect
compliance with the registration or qualification requirements of any state
securities laws.
13. AMENDMENT AND TERMINATION.
a. MODIFICATIONS TO THE PLAN.
The Board may, insofar as permitted by law, from time to time, with
respect to any Shares at the time not subject to Options, suspend or
terminate the Plan or revise or amend the Plan in any respect
whatsoever. However, unless the Board specifically otherwise
provides, any revision or amendment that would cause the Plan to fail
to comply with Rule 16b-3, Section 422 or 162(m) of the Code or any
other requirement of applicable law or regulation if such amendment
were not approved by the stockholders of the Company shall not be
effective unless and until such approval is obtained.
b. RIGHTS OF PARTICIPANT.
No amendment, suspension or termination of the Plan that would
adversely affect the right of any Participant with respect to an
Option previously granted under the Plan will be effective without the
written consent of the affected Participant.
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14. MISCELLANEOUS.
a. STOCKHOLDERS' RIGHTS.
No Participant and no beneficiary or other person claiming under or
through such Participant shall acquire any rights as a stockholder of
the Company by virtue of such Participant having been granted an
Option under the Plan. No Participant and no beneficiary or other
person claiming under or through such Participant will have any right,
title or interest in or to any Shares, allocated or reserved under the
Plan or subject to any Option except as to Shares, if any, that have
been issued or transferred to such Participant. No adjustment shall
be made for dividends or distributions or other rights for which the
record date is prior to the date of exercise of an Option, except as
may be provided in the Stock Option Agreement.
b. OTHER COMPENSATION ARRANGEMENTS.
Nothing contained in the Plan shall prevent the Board from adopting
other compensation arrangements, subject to stockholder approval if
such approval is required. Such other arrangements may be either
generally applicable or applicable only in specific cases.
c. TREATMENT OF PROCEEDS.
Proceeds realized from the exercise of Options under the Plan shall
constitute general funds of the Company.
d. COSTS OF THE PLAN.
The costs and expenses of administering the Plan shall be borne by the
Company.
e. NO RIGHT TO CONTINUE EMPLOYMENT OR SERVICES.
Nothing contained in the Plan or in any instrument executed pursuant
to the Plan will confer upon any Participant any right to continue to
render services to the Company, a Subsidiary or Affiliate; to continue
as an Officer or Employee; or affect the right of the Company, a
Subsidiary, the Board, the board of directors of a Subsidiary, the
stockholders of the Company or a Subsidiary, as applicable, to
terminate the office or employment, as the case may be, of any
Participant at any time with or without Cause or with or without any
other cause, reason or justification. The term "Cause" as defined
herein is included solely for the purposes of the Plan and is not, and
shall not be deemed to be: (i) a restriction on the right of the
Company or a Subsidiary, as the case may be, to terminate any Officer
or Employee for any reason whatsoever; or (ii) a part of the
employment relationship (whether oral or written, express or implied)
of any such individual.
f. SEVERABILITY.
The provisions of the Plan shall be deemed severable and the validity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
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g. BINDING EFFECT OF PLAN.
The Plan shall inure to the benefit of the Company, its successors and
assigns.
h. NO WAIVER OF BREACH.
No waiver by any party hereto at any time of any breach by another
party hereto of, or compliance with, any condition or provision of the
Plan to be performed by such other party shall be deemed a waiver of
the same, any similar or any dissimilar provisions of conditions at
the same or at any prior or subsequent time.
i. GOVERNING LAW.
The Plan and all actions taken thereunder shall be enforced, governed
and construed by and interpreted under the laws of the State of
Nebraska applicable to contracts made and to be performed wholly
within such State without giving effect to the principles of conflict
of laws thereof.
j. HEADINGS.
The headings contained in the Plan are for reference purposes only and
shall not affect in any way the meaning or interpretation of the Plan.
EXECUTION.
To record the adoption of the Plan to read as set forth herein, the Company has
caused the Plan to be signed by its President and attested by its Secretary on
September 19, 1996.
ISCO, INC.,
By:/s/Douglas M. Grant
-------------------------------------
Douglas M. Grant, President
ATTEST:
By:/s/Philip M. Wittig
----------------------------------------
Philip M. Wittig, Assistant Secretary
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<PAGE>
EXHIBIT 99.2
ISCO, INC.
1996 OUTSIDE DIRECTORS
STOCK OPTION PLAN
1. NAME.
The name of this Plan is the Isco, Inc. 1996 Outside Directors Stock Option
Plan.
2. DEFINITIONS.
For the purposes of the Plan, the following terms shall be defined as set
forth below:
a. "Affiliate" means any partnership, corporation, firm, joint venture,
association, trust, limited liability company, unincorporated
organization or other entity (other than a Subsidiary) that, directly
or indirectly through one or more intermediaries, is controlled by the
Company, where the term "controlled by" means the possession, direct
or indirect, of the power to cause the direction of the management and
policies of such entity, whether through the ownership of voting
interests or voting securities, as the case may be, by contract or
otherwise.
b. "Board" means the board of directors of the Company.
c. "Chairman" means the individual appointed by the Board to serve as the
chairman of the Committee.
d. "Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the Treasury regulations promulgated thereunder.
e. "Committee" means the committee appointed by the Board to administer
the Plan as provided in Section 4(a).
f. "Common Stock" means the common stock, $.10 par value per share, of
the Company or any security of the Company identified by the Committee
as having been issued in substitution or exchange therefor or in lieu
thereof.
g. "Company" means Isco, Inc., a Nebraska corporation.
h. "Employee" means an individual whose wages are subject to the
withholding of federal income tax under Section 3401 of the Code.
i. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute.
j. "Fair Market Value" of a Share as of a specified date means the
average of the highest and lowest market prices of a Share on the
NASDAQ National Market System on such date as reported in the
Midwestern Edition of THE WALL STREET JOURNAL or, if no trading of
Common Stock is reported for that day, the next preceding day on which
trading was reported. In the event the Common Stock is not then
traded on the NASDAQ National Market Service, the Fair Market Value of
a Share shall be determined by reference to the principal market or
exchange on which the Shares are then traded.
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<PAGE>
k. "Non-Employee Director" means an individual who: (i) is now, or
hereafter becomes, a member of the Board; (ii) is not an Employee of
the Company or of any Subsidiary or Affiliate on the date of the grant
of the NQSO; and (iii) has not elected to decline to participate in
the Plan pursuant to the immediately succeeding sentence. A director
otherwise eligible to participate in the Plan may make an irrevocable,
one-time election, by written notice to the Corporate Secretary of the
Company and the Chairman within thirty days after his initial election
or appointment to the Board to decline to participate in the Plan.
l. "Non-qualified stock option" (otherwise designated as a NQSO) means an
option that is not qualified under Section 422 of the Code.
m. "Officer" means an individual elected or appointed by the Board or by
the board of directors of a Subsidiary, or chosen in such other manner
as may be prescribed by the by-laws of the Company or a Subsidiary, as
the case may be, to serve as such.
n. "Participant" means a Non-Employee Director who is granted a NQSO
under the Plan.
o. "Plan" means this 1996 Outside Directors Stock Option Plan.
p. "Rule 16b-3" means Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor or
replacement rule adopted by the Securities and Exchange Commission.
q. "Share" means one share of Common Stock, adjusted in accordance with
Section 9(b), if applicable.
r. "Stock Option Agreement" means the written agreement between the
Company and the Participant that contains the terms and conditions
pertaining to the NQSO.
s. "Subsidiary" means any corporation or entity of which the Company,
directly or indirectly, is the beneficial owner of fifty percent (50%)
or more of the total voting power of all classes of its stock having
voting power, unless the Committee shall determine that any such
corporation or entity shall be excluded hereunder from the definition
of the term Subsidiary.
3. PURPOSE.
The purpose of the Plan is to enable the Company to provide incentives,
which are linked directly to increases in stockholder value, to
Non-Employee Directors in order that they will be encouraged to serve on
the Board and exert their best efforts on behalf of the Company.
4. ADMINISTRATION.
a. COMPOSITION OF THE COMMITTEE.
The Plan shall be administered by a Committee appointed by the Board
consisting of no less than two individuals. Members of the Committee
need not be members of the Board, Officers or Employees of the
Company. Members of the Committee shall not be entitled to
participate in the Plan. The Board may from time to time remove
members from, or add members to, the Committee. Vacancies on the
Committee, however caused, shall be filled by the Board. The Board
shall appoint one of the members of the Committee as Chairman.
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<PAGE>
b. ACTIONS BY THE COMMITTEE.
The Committee shall hold meetings at such times and places as it may
determine. Acts approved by a majority of the members of the
Committee present at a meeting at which a quorum is present, or acts
reduced to or approved in writing by a majority of the members of the
Committee, shall be the valid acts of the Committee.
c. POWERS OF THE COMMITTEE.
The Committee shall have the authority to administer the Plan in its
sole and absolute discretion; PROVIDED, HOWEVER, that the Committee
shall have no authority to grant NQSOs, to determine the number of
Shares subject to NQSOs or the price at which each Share covered by a
NQSO may be purchased pursuant to the Plan, all of which shall be
automatic as described in Section 8. To this end, the Committee is
authorized to construe and interpret the Plan and to make all other
determinations necessary or advisable for the administration of the
Plan. Subject to the foregoing, any determination, decision or action
of the Committee in connection with the construction, interpretation,
administration or application of the Plan shall be final, conclusive
and binding upon all Participants and any person validly claiming
under or through a Participant.
d. LIABILITY OF COMMITTEE MEMBERS.
No member of the Board or the Committee will be liable for any action
or determination made in good faith by the Board or the Committee with
respect to the Plan or any grant or exercise of a NQSO thereunder.
e. NQSO ACCOUNTS.
The Committee shall maintain a journal in which a separate account for
each Participant shall be established. Whenever NQSOs are granted to
or exercised by a Participant, the Participant's account shall be
appropriately credited or debited. Appropriate adjustment shall also
be made in the journal with respect to each account in the event of an
adjustment pursuant to Section 9(b).
5. EFFECTIVE DATE AND TERM OF THE PLAN.
a. EFFECTIVE DATE OF THE PLAN.
The Plan was adopted by the Board and became effective on September
19, 1996, subject to approval by the stockholders of the Company at a
meeting duly called and held within twelve months following such date.
b. TERM OF PLAN.
No NQSO shall be granted pursuant to the Plan on or after September
19, 2006, but NQSOs theretofore granted may extend beyond that date.
6. SHARES SUBJECT TO THE PLAN.
The maximum aggregate number of Shares which may be subject to NQSOs
granted to Non-Employee Directors under the Plan shall be 100,000. The
limitation on the number of Shares which may be subject to NQSOs under the
Plan shall be subject to adjustment as provided in Section 9(b).
If any NQSO granted under the Plan expires or is terminated for any reason
without having been exercised in full, the Shares allocable to the
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<PAGE>
unexercised portion of such NQSO shall again become available for grant
pursuant to the Plan. At all times during the term of the Plan, the
Company shall reserve and keep available for issuance such number of Shares
as the Company is obligated to issue upon the exercise of all then
outstanding NQSOs.
7. SOURCE OF SHARES ISSUED UNDER THE PLAN.
Common Stock issued under the Plan shall be authorized and unissued Shares
and/or Treasury Shares. No fractional Shares shall be issued under the
Plan.
8. NON-QUALIFIED STOCK OPTIONS.
a. GRANT OF NQSOs.
On the next succeeding business day following election of the Board at
the 1996 Annual Meeting of Stockholders and each Annual Meeting of
Stockholders thereafter, all Non-Employee Directors who will serve as
a Director in the succeeding year shall automatically be granted NQSOs
to purchase 1,000 Shares. With respect to any Non-Employee Director
who is elected other than at the Annual Meeting of Stockholders, said
Non-Employee Director shall automatically be granted a NQSO to
purchase a pro-rata portion of the 1,000 Shares for his/her partial
year of service on the Board. NQSOs shall be granted in the aforesaid
manner until the date on which the Shares available for grant shall no
longer be sufficient to permit grants of NQSOs covering 1,000 Shares
to be made to each Non-Employee Director entitled to a grant as of
such date, in which event the Shares then available for grant shall be
allocated on a PRO RATA basis among the Non-Employee Directors
entitled to a grant of NQSOs as of such date. The provisions of this
Section shall not be amended more than once every six months, other
than to comport with changes in the Code, the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or the rules
thereunder.
b. EXERCISE PRICE.
Each Share covered by a NQSO granted may be purchased at a purchase
price equal to the Fair Market Value of a Share on the date of the
NQSO grant. The provisions of this Section shall not be amended more
than once every six months, other than to comport with changes in the
Code, ERISA, or the rules thereunder.
c. TERMS AND CONDITIONS.
All NQSOs granted pursuant to the Plan shall be evidenced by a Stock
Option Agreement (which need not be the same for each Participant or
NQSO), approved by the Committee which shall be subject to the
following express terms and conditions and to the other terms and
conditions specified in this Section 8, and to such other terms and
conditions as shall be determined by the Committee in its sole and
absolute discretion which are not inconsistent with the terms of the
Plan:
(i) all NQSOs granted to a Participant shall vest and become first
exercisable immediately upon grant.
(ii) the failure of a NQSO to vest for any reason whatsoever shall
cause the NQSO to expire and be of no further force or effect;
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<PAGE>
(iii) unless terminated earlier pursuant to Section 8(e), the term
of each NQSO shall be ten years from the date of grant;
(iv) NQSOs shall not be transferable by the Participant otherwise
than by will or by the laws of descent and distribution, and
shall be exercisable during the lifetime of the Participant
only by him or by his guardian or legal representative;
(v) no NQSO or interest therein may be transferred, assigned,
pledged or hypothecated by the Participant during his
lifetime whether by operation of law or otherwise, or be
made subject to execution, attachment or similar process;
and
(vi) payment for the Shares to be received upon exercise of a
NQSO may be made in cash, in Shares (determined with
reference to their Fair Market Value on the date of
exercise) or any combination thereof.
d. EXERCISE.
The holder of a NQSO may exercise the same by filing with the
Corporate Secretary of the Company and the Chairman a written
election, in such form as the Committee may determine, specifying the
number of Shares with respect to which such NQSO is being exercised.
Such notice shall be accompanied by payment in full of the exercise
price for such Shares. Notwithstanding the foregoing, the Committee
may specify a reasonable minimum number of Shares that may be
purchased on any exercise of an Option, provided that such minimum
number will not prevent the holder from exercising the Option with
respect to the full number of Shares as to which the Option is then
exercisable.
e. TERMINATION OF NQSOs.
NQSOs granted under the Plan shall be subject to the following events
of termination:
(i) in the event a Participant is removed from the Board for
cause (as contemplated by the Company's by-laws), all
unexercised NQSOs held by such Participant on the date of
such removal (whether or not vested) will expire
immediately;
(ii) in the event a Participant is no longer a member of the
Board, other than by reason of removal for cause, all NQSOs
which have vested prior to such time shall expire twelve
months thereafter unless by their terms they expire sooner;
and
(iii) in the event a Participant becomes an Officer or Employee of
the Company or a Subsidiary (whether or not such Participant
remains a member of the Board) all NQSOs which have vested
prior to such time shall expire twelve months thereafter
unless by their terms they expire sooner.
9. RECAPITALIZATION.
a. CORPORATE FLEXIBILITY.
The existence of the Plan and the NQSOs granted hereunder
shall not affect or restrict in any way the right or power
of the Board or the stockholders of the Company, in their
sole and absolute discretion, to make, authorize or
consummate any adjustment, recapitalization,
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reorganization or other change in the Company's capital structure or
its business, any merger or consolidation of the Company, any issue of
bonds, debentures, common stock, preferred or prior preference stocks
ahead of or affecting the Company's capital stock or the rights
thereof, the dissolution or liquidation of the Company or any sale or
transfer of all or any part of its assets or business, or any other
grant of rights, issuance of securities, transaction, corporate act or
proceeding and notwithstanding the fact that any such activity,
proceeding, action, transaction or other event may have, or be
expected to have, an impact (whether positive or negative) on the
value of any NQSO.
b. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
Except as otherwise provided in Section 10 below and subject to any
required action by the stockholders of the Company, in the event of
any change in capitalization affecting the Common Stock of the
Company, such as a stock dividend, stock split or recapitalization,
the Committee shall make proportionate adjustments with respect to:
(i) the aggregate number of Shares available for issuance under the
Plan; (ii) the number of Shares subject to each grant under the Plan;
(iii) the number and exercise price of Shares subject to outstanding
NQSOs; and (iv) such other matters as shall be appropriate in light of
the circumstances; PROVIDED, HOWEVER, that the number of Shares
subject to any NQSO shall always be a whole number and that no such
adjustment shall be made if the adjustment would cause the Plan to
fail to comply with the "formula award" exception, as set forth in
Rule 16b-3(c)(2)(ii) of the Exchange Act, for grants of NQSOs to
non-employee directors.
10. CHANGE OF CONTROL.
In the event of a Change of Control (as defined below), the Committee in
its discretion may make provisions for the assumption of outstanding
Options, or the substitution for outstanding Options of new incentive
awards covering the stock of a successor corporation or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind
of shares and prices so as to prevent dilution or enlargement of rights;
provided, however, that no such adjustment shall be made if the adjustment
would cause the Plan to fail to comply with the "formula award" exception,
as set forth in Rule 16b-3(c)(2)(ii) of the Exchange Act, for grants of
NQSOs to non-employee directors.
A "Change of Control" will be deemed to occur on the date any of the
following events occur:
a. any person or persons acting together which would constitute a "group"
for purpose of Section 13(d) of the Exchange Act (other than the
Company, any Subsidiary and any entity beneficially owned by any of
the foregoing), beneficially own (as defined in Rule 13d-3 under the
Exchange Act) without Board approval, directly or indirectly, at least
50% of the total voting power of the Company entitled to vote
generally in the election of the Board;
b. the stockholders of the Company approve (i) a plan of complete
liquidation of the Company, or (ii) an agreement providing for the
merger or consolidation of the Company (A) in which the Company is not
the continuing or surviving corporation (other than consolidation or
merger with a wholly owned subsidiary of the Company in which all
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Shares outstanding immediately prior to the effectiveness thereof are
changed into or exchanged for the same consideration) or (B) pursuant
to which the Shares are converted into cash, securities or other
property, except a consolidation or merger of the Company in which the
holders of the Shares immediately prior to the consolidation or merger
have, directly or indirectly, at least a majority of the common stock
of the continuing or surviving corporation immediately after such
consolidation or merger or in which the Board immediately prior to the
merger or consolidation would, immediately after the merger or
consolidation, constitute a majority of the board of directors of the
continuing or surviving corporation; or
c. the stockholders of the Company approve an agreement (or agreements)
providing for the sale or other disposition (in one transaction or a
series of transactions) of all or substantially all of the assets of
the Company.
11. SECURITIES LAW REQUIREMENTS.
No Shares shall be issued under the Plan unless and until: (i) the Company
and the Participant have taken all actions required to register the Shares
under the Securities Act of 1933, as amended, or perfect an exemption from
the registration requirements thereof; (ii) any applicable requirement of
Nasdaq or any stock exchange on which the Common Stock is listed has been
satisfied; and (iii) any other applicable provision of state or federal law
has been satisfied. The Company shall be under no obligation to register
the Shares under the Securities Act of 1933, as amended, or to effect
compliance with the registration or qualification requirements of any state
securities laws.
12. AMENDMENT AND TERMINATION.
a. MODIFICATIONS TO THE PLAN.
The Board may, insofar as permitted by law, from time to time, with
respect to any Shares at the time not subject to NQSOs, suspend or
terminate the Plan or, subject to Sections 8(a) and 8(b), revise or
amend the Plan in any respect whatsoever. However, unless the Board
specifically otherwise provides, any revision or amendment that would
cause the Plan to fail to comply with Rule 16b-3 or any other
requirement of applicable law or regulation if such amendment were not
approved by the stockholders of the Company shall not be effective
unless and until such approval is obtained.
b. RIGHTS OF PARTICIPANT.
No amendment, suspension or termination of the Plan that would
adversely affect the right of any Participant with respect to a NQSO
previously granted under the Plan will be effective without the
written consent of the affected Participant.
13. MISCELLANEOUS.
a. STOCKHOLDERS' RIGHTS.
No Participant and no beneficiary or other person claiming under or
through such Participant shall acquire any rights as a stockholder of
the Company by virtue of such Participant having been granted a NQSO
under the Plan. No Participant and no beneficiary or other person
claiming under or through such Participant will have any right, title
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or interest in or to any Shares, allocated or reserved under the Plan
or subject to any NQSO except as to Shares, if any, that have been
issued or transferred to such Participant. No adjustment shall be
made for dividends or distributions or other rights for which the
record date is prior to the date of exercise.
b. OTHER COMPENSATION ARRANGEMENTS.
Nothing contained in the Plan shall prevent the Board from adopting
other compensation arrangements, subject to stockholder approval if
such approval is required. Such other arrangements may be either
generally applicable or applicable only in specific cases.
c. TREATMENT OF PROCEEDS.
Proceeds realized from the exercise of NQSOs under the Plan shall
constitute general funds of the Company.
d. COSTS OF THE PLAN.
The costs and expenses of administering the Plan shall be borne by the
Company.
e. NO RIGHT TO CONTINUE AS DIRECTOR.
Nothing contained in the Plan or in any instrument executed pursuant
to the Plan will confer upon any Participant any right to continue as
a member of the Board or affect the right of the Company, the Board or
the stockholders of the Company to terminate the directorship of any
Participant at any time with or without cause.
f. SEVERABILITY.
The provisions of the Plan shall be deemed severable and the validity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
g. BINDING EFFECT OF PLAN.
The Plan shall inure to the benefit of the Company, its successors and
assigns.
h. NO WAIVER OF BREACH.
No waiver by any party hereto at any time of any breach by another
party hereto of, or compliance with, any condition or provision of the
Plan to be performed by such other party shall be deemed a waiver of
the same, any similar or any dissimilar provisions of conditions at
the same or at any prior or subsequent time.
i. GOVERNING LAW.
The Plan and all actions taken thereunder shall be enforced, governed
and construed by and interpreted under the laws of the State of
Nebraska applicable to contracts made and to be performed wholly
within such State without giving effect to the principles of conflict
of laws thereof.
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<PAGE>
j. HEADINGS.
The headings contained in the Plan are for reference purposes only and
shall not affect in any way the meaning or interpretation of the Plan.
14. EXECUTION.
To record the adoption of the Plan to read as set forth herein, the Company
has caused the Plan to be signed by its President and attested by its
Secretary on September 19, 1996.
ISCO, INC.
By: /s/ Douglas M. Grant
-------------------------------------
Douglas M. Grant, President
ATTEST:
By: /s/ Philip M. Wittig
-----------------------------------------
Philip M. Wittig, Assistant Secretary
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