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Exhibit 10.1
1991 Non-Qualified Stock Option Plan
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1991 NON-QUALIFIED STOCK OPTION PLAN
1. NAME.
The name of this plan is the 1991 Non-Qualified 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, 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) the willful neglect, failure or refusal of such individual to carry out
his duties, which results in harm to the business, reputation, prospects or
financial condition of the Company, any Subsidiary or Affiliate, which neglect,
failure or refusal continues for a period of ten consecutive business days
following notice thereof, or ten cumulative business days following successive
notices thereof, to such individual from the Company; provided, however, that
such willful neglect, failure or refusal is not due to the death or disability
(i.e., as a result of an injury or sickness such individual is rendered
permanently unable to perform his duties as an Officer or an Employee, as the
case may be, on a full-time basis) of such individual or illness leading to the
death or disability of such individual.
(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.
(f) "Committee" means the committee appointed by the Board to
administer the Plan as provided in Section 4(a).
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(g) "Common Stock" means the $.001 par value common stock 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 Institute for Laboratory Medicine, Inc., a Florida
corporation.
(i) "Director" means an individual who is now, or hereafter becomes, a
member of the Board or of the board of directors of any Subsidiary or Affiliate.
(j) "Employee" means an individual employed by the Company, a
Subsidiary, or an Affiliate whose wages are subject to the withholding of
federal income tax under Section 3401 of the Code.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
(l) "Fair Market Value" of a Share as of a specified date means the
average of the highest bid and lowest asked prices of a Share on such date as
reported by the NASD 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 Shares
are not then quoted by the NASD, the Fair Market Value of a Share shall be
determined by the method established by the Committee in good faith.
(m) "NQSO" or "Option" means any stock option granted pursuant to the
provisions of the Plan.
(n) "Officer" means an individual elected or appointed by the Board or
by the board of directors of a Subsidiary or Affiliate or chosen in such other
manner as may be prescribed by the by-laws of the Company, a Subsidiary or
Affiliate, as the case may be, to serve as such, or, in the case of an Affiliate
which is not a corporation, any individual elected or appointed to fulfill a
similar function by a body or individual exercising similar authority.
(o) "Participant" means an individual who is granted an Option under
the Plan.
(p) "Plan" means this 1991 Non-Qualified Stock Option Plan.
(q) "Share" means one share of Common Stock, adjusted in accordance
with Section 10(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
an Option.
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(s) "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.
3. PURPOSE.
The purpose of the Plan is to enable the Company to provide incentives,
which are linked directly to increases in shareholder value, to certain key
personnel in order that they will be encouraged to promote the financial success
and progress of the Company.
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 members. Members of the Committee need not be
Directors, Officers or Employees. 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.
(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 selection of the eligible
individuals who shall be granted Options, the granting of Options, 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, and the
exercise price for the Shares subject to each Option. In addition, the Committee
shall have the power to impose on any Stock Option Agreement restrictions upon
the transferability of the Shares acquired upon the exercise of such Option. 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
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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 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).
5. EFFECTIVE DATE AND TERM OF THE PLAN.
(a) Effective Date of the Plan.
The Plan is effective as of December __, 1991, the date on which it was
approved by the Board.
(b) Term of Plan.
No Option shall be granted pursuant to the Plan on or after December __,
2001, but Options theretofore granted may extend beyond that date.
6. TYPE OF OPTIONS AND SHARES SUBJECT TO THE PLAN.
Options granted under the Plan shall be NQSOs.
The maximum aggregate number of Shares that may be issued under the Plan
is 400,000 Shares. The limitation on the number of Shares which may be granted
under the Plan shall be subject to adjustment as provided in Section 10(b).
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.
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7. SOURCE OF SHARES ISSUED UNDER THE PLAN.
Common Stock issued under the Plan may consist, in whole or in part, of
authorized or unissued Shares or treasury Shares, as determined in the sole and
absolute discretion of the Committee. 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 Directors, 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.
9. OPTIONS.
(a) Grant of Options.
The date of the grant of an Option shall be the date on which the
Committee determines to grant the Option.
(b) 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. Such price, however, may not be lower than
the lesser of: (i) the book value per Share as of the end of the fiscal year of
the Company immediately preceding the date of grant; or (ii) fifty percent (50%)
of the Fair Market Value of a Share on the date of grant (subject to adjustment
pursuant to Section 10(b)).
(c) Exercise Period.
Unless otherwise determined by the Committee, each Option granted
hereunder shall vest and become first exercisable at the rate of thirty-three
and one-third percent (33-1/3%) on each anniversary of the date of grant of such
Option.
(d) 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:
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(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(h) or
10(c), the term of any Option granted under the Plan shall
be 10 years from the date of grant;
(iii) Options shall not be transferable by the holder otherwise
than by will or by the laws of descent and distribution,
and shall be exercisable during the lifetime of the holder
only by him or by his guardian or legal representative;
(iv) no Option or interest therein may be transferred, assigned,
pledged or hypothecated by the holder during his lifetime
whether by operation of law or otherwise, or be made
subject to execution, attachment or similar process; and
(v) payment for the Shares to be received upon exercise of an
Option shall, subject to Section 10(f) hereof, be made in
cash.
(e) Additional Means of Payment.
Any Stock Option Agreement may, in the sole and absolute discretion of
the Committee, permit payment by any other form of legal consideration
consistent with applicable law and any rules and regulations relating thereto,
including, but not limited to, the execution and delivery of a full recourse
promissory note by the Participant to the Company.
(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. 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 Participant 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 the 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
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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,
but not the obligation, 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 a Participant who is a Director is removed
from the Board or the board of directors of a Subsidiary or
an Affiliate, as the case may be, for cause (as
contemplated by the charter, by-laws or other
organizational or governing documents), all unexercised
Options held by such Participant on the date of such
removal (whether or not vested) will expire immediately;
(ii) 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
(iii) in the event a Participant is no longer a Director, Officer
or Employee other than for the reasons set forth in
Sections 9(h)(i) or 9(h)(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.
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
shareholders of the Company, in their sole and absolute discretion, to make,
authorize or consummate any adjustment,
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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 10(c) below and subject to any
required action by the shareholders 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 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 (iii) such other matters as shall be appropriate in light of the
circumstances.
(c) Adjustments Involving Transactions Where Company Does Not Survive.
In connection with the dissolution or liquidation of the Company or upon
a reorganization, merger, or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon the sale of all or substantially all the property of the Company or upon
any other similar extraordinary transaction, the Committee may determine that
all Options then outstanding under the Plan will become fully vested and
exercisable. Unless otherwise determined by the Committee in its sole and
absolute discretion, all Options not exercised on or prior to the effective time
of any such transaction shall immediately terminate and be of no further force
or effect, unless provisions are made in connection with such transaction for
the continuance of the Plan and the assumption or the substitution for such
Options of new incentive awards covering the stock of a successor employer
corporation, or a parent or subsidiary thereof, with appropriate adjustments as
to the number and kind of shares and prices; provided, however, that no such
provision shall be required to be made.
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 listing
requirement of 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
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register the Shares with the Securities and Exchange Commission or to effect
compliance with the registration or qualification requirements of any state
securities law or stock exchange.
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 Options, suspend or terminate
the Plan or revise or amend the Plan in any respect whatsoever.
(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.
13. MISCELLANEOUS.
(a) Shareholders' Rights.
No Participant and no beneficiary or other person claiming under or
through such Participant shall acquire any rights as a shareholder 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, 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 shareholder 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.
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(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 a Director,
Officer or Employee; or affect the right of the Company, a Subsidiary, an
Affiliate, the Board, the board of directors of a Subsidiary or an Affiliate,
the shareholders of the Company or a Subsidiary, or the holders of interests of
an Affiliate, as applicable, to terminate the directorship, 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, a Subsidiary or Affiliate, 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.
(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 Florida 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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(j) Headings.
The headings contained in this agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this agreement.
14. EXECUTION
To record the adoption of the Plan to read as set forth herein, the
Company has caused its authorized officer to execute the same as of this ____
day of __________________, 1991.
INSTITUTE FOR LABORATORY
MEDICINE, INC.
By:
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ATTEST:
By:
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