Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
AMERICAN BIOGENETIC SCIENCES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2655906
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1375 Akron Street, Copiague, New York 11726
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION PLAN
(Full title of the plan)
Timothy J. Roach, Treasurer
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
(Name and address of agent for service)
(516) 789-2600
(Telephone number, including area code, of agent for service)
with a copy to:
Leonard W. Suroff, Esq.
1375 Akron Street
Copiague, New York 11726
Approximate date of commencement of proposed sale to public: From time to time
after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum Amount
each class Amount offering aggregate of
of securities to be price per offering registration
to be registered registered(1) share (2) price (2) fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common
Stock, par value
$.001 per share 1,000,000 shares $1.0625 1,062,500 $ 313.44
- -------------------------------------------------------------------------------------------------
</TABLE>
(a) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under
the 1996 Stock Option Plan.
(b) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(h), the average of the high and low
sales prices per share of the Registrant's Class A Common Stock on the
Nasdaq National Market on July 16, 1998.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION BY REFERENCE
--------------------------
The contents of the American Biogenetic Sciences, Inc. Registration
Statement on Form S-8, File No. 333- 09473 filed with the Commission on
August 2, 1996 are hereby incorporated by reference with the exception of
Exhibits 5.01, 23.01, 23.02 and 99.01, which are provided herewith.
II-1
<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 Town of Copiague, State of New York, on the 16th day of July,
1998.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Alfred J. Roach
------------------------------------------
Alfred J. Roach, Chairman of the Board
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Alfred J. Roach, Josef C. Schoell
and Timothy J. Roach and each of them with power of substitution, as his
attorney-in-fact, in all capacities, to sign any amendments to this registration
statement (including post-effective amendments) and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-facts or their substitutes may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 16th day of July, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Alfred J. Roach
- ------------------------------
Alfred J. Roach Chairman of the Board (Chief Executive Officer)
/s/ Josef C. Schoell Vice President, Finance (Principal Financial and Accounting
- ------------------------------
Josef C. Schoell Officer)
/s/ Gustav Victor Rudolph Born
- ------------------------------
Gustav Victor Rudolph Born Director
/s/ Ellena M. Byrne
- ------------------------------
Ellena M. Byrne Director
/s/ Joseph C. Hogan
- ------------------------------
Joseph C. Hogan Director
/s/ Stephen H. Ip
- ------------------------------
Stephen H. Ip Director
/s/ Timothy J. Roach
- ------------------------------
Timothy J. Roach Director
/s/ William G. Sharwell
- ------------------------------
William G. Sharwell Director
</TABLE>
II-2
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- -------
5.01 Opinion and consent of Leonard W. Suroff, Esq. as to the
legality of the Class A Common Stock being offered.
23.01 Consent of Arthur Andersen LLP
23.02 Consent of Leonard W. Suroff, Esq. (contained in Exhibit
5.01).
99.01 American Biogenetic Sciences, Inc. 1996 Stock Option Plan, as
amended.
II-3
EXHIBIT 5.01
AMERICAN BIOGENETIC SCIENCES, INC.
- --------------------------------------------------------------------------------
New York Office: 1375 Akron Street, Copiague, New York 11726 Tel: (516)789-2600
Fax: (516)789-1661
July 16, 1998
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
Gentlemen:
I have acted as counsel to American Biogenetic Sciences, Inc. (the
"Company") in connection with its Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission relating to 1,000,000 shares of Class A Common Stock, par value $.001
per share, of the Company (the "Shares"), subject to the Company's 1996 Stock
Option Plan, as amended (the "Plan").
In connection with the foregoing, I have examined, among other things,
the Registration Statement and originals or copies, satisfactory to me, of all
such corporate records and of all such agreements, certificates and other
documents as I have deemed relevant and necessary as a basis for the opinion
hereinafter expressed. In such examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals
and the conformity with the original documents of documents submitted to me as
copies. As to any facts material to such opinion, I have, to the extent that
relevant facts were not independently established by me, relied on certificates
of public officials and certificates, oaths and declarations of officers or
other representatives of the Company.
Based upon and subject to the foregoing, I am of the opinion that the
Shares, when issued pursuant to the provisions of the Plan, will be validly
issued, fully paid and non-assessable.
I hereby consent to the filing of a copy of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Leonard W. Suroff
------------------------
Leonard W. Suroff, Esq.
EXHIBIT 23.01
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 18, 1998,
included in American Biogenetic Sciences, Inc.'s Form 10-K for the year ended
December 31, 1997, and to all references to our firm included in this
Registration Statement.
Arthur Andersen LLP
Melville, New York
July 16, 1998
EXHIBIT 99.01
1996 STOCK OPTION PLAN
of
AMERICAN BIOGENETIC SCIENCES, INC.
(as amended effective March 31, 1998)
1. PURPOSES OF THE PLAN. This stock option plan (the "Plan")
is designed to provide an incentive to employees (including directors and
officers who are employees) and to consultants who are not employees of American
Biogenetic Sciences, Inc., a Delaware corporation (the "Company"), and its
present and future subsidiary corporations, as defined in Paragraph 19
("Subsidiaries"), and to offer an additional inducement in obtaining the
services of such employees and consultants. The Plan provides for the grant of
"incentive stock options" ("ISOs") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and nonqualified stock
options which do not qualify as ISOs ("NQSOs"), but the Company makes no
representation or warranty, express or implied, as to the qualification of any
option as an "incentive stock option" under the Code.
2. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Paragraph 12, the aggregate number of shares of Class A Common Stock, $.001 par
value per share, of the Company ("Common Stock") for which options may be
granted under the Plan shall not exceed 2,000,000. Such shares of Common Stock
may, in the discretion of the Board of Directors of the Company (the "Board of
Directors"), consist either in whole or in part of authorized but unissued
shares of Common Stock or shares of Common Stock held in the treasury of the
Company. Subject to the provisions of Paragraph 13, any shares of Common Stock
subject to an option which for any reason expires, is canceled or is terminated
unexercised or which ceases for any reason to be exercisable shall again become
available for the granting of options under the Plan. The Company shall at all
times during the term of the Plan reserve and keep available such number of
shares of Common Stock as will be sufficient to satisfy the requirements of the
Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered
by the Board of Directors or, to the extent the Board of Directors may
determine, a committee of the Board of Directors (the "Committee") consisting of
not less than two directors, each of whom shall be a "non-employee director"
within the meaning of Rule 16b-3 (or any successor rule or regulation)
promulgated under the Securities Exchange Act of 1934, as amended (as the same
may be in effect and interpreted from time to time, "Rule 16b-3"). A majority of
the members of the Committee shall constitute a quorum, and the acts of a
majority of the members present at any meeting at which a quorum is present, and
any acts approved in writing by all members without a meeting, shall be the acts
of the Committee. All references in the Plan to determinations or actions of the
Committee shall be deemed to include determinations and actions by the Committee
or the Board of Directors.
Subject to the express provisions of the Plan, the Committee
shall have the authority, in its sole discretion, to determine the employees and
the consultants who shall be granted options; the times when options shall be
granted; whether an option granted to an employee shall be an ISO or a NQSO; the
number of shares of Common Stock to be subject to each option; the term of each
option; the date each option shall become exercisable; whether an option shall
be exercisable in whole, in part or in installments and, if in installments, the
number of shares of Common Stock to be subject to each installment, whether the
installments shall be cumulative, the date each installment shall become
exercisable and the term of each installment; whether to accelerate the date of
exercise of any option or installment; whether shares of Common Stock may be
issued upon the exercise of an option as partly paid and, if so, the dates when
future installments of the exercise price shall become due and the amounts of
such installments; the exercise price of each option; the form of payment of the
exercise price; the fair market value of a share of Common Stock; whether to
restrict the sale or other disposition of the shares of Common Stock acquired
upon the exercise of an option and, if so, whether to waive any such
restriction; whether to subject the exercise of all or any portion of an option
to the fulfillment of contingencies as specified in the contract referred to in
Paragraph
<PAGE>
11 (the "Contract"), including without limitation, contingencies relating to
entering into a covenant not to compete with the Company, any of its
Subsidiaries or a Parent (as defined in Paragraph 19), to financial objectives
for the Company, any of its Subsidiaries or a Parent, a division of any of the
foregoing, a product line or other category, and/or the period of continued
employment of the optionee with the Company, any of its Subsidiaries or a
Parent, and to determine whether such contingencies have been met; the amount,
if any, necessary to satisfy the Company's obligation to withhold taxes or other
amounts; whether an optionee is Disabled (as defined in Paragraph 19); to
construe the respective Contracts and the Plan; with the consent of the
optionee, to cancel or modify an option, provided such modified provision would
be permitted to be included in an option on the date of modification, and
further, provided, that, in the case of a modification (within the meaning of
Section 424(h) of the Code) of an ISO, such option as modified would be
permitted to be granted on the date of such modification under the terms of the
Plan; to prescribe, amend and rescind rules and regulations relating to the
Plan; and to make all other determinations necessary or advisable for
administering the Plan. Any controversy or claim arising out of or relating to
the Plan, any option granted under the Plan or any Contract shall be determined
unilaterally by the Committee in its sole discretion. The determinations of the
Committee on the matters referred to in this Paragraph 3 shall be conclusive and
binding on the parties. No member or former member of the Committee shall be
liable for any action, failure to act or determination made in good faith with
respect to the Plan or any option hereunder.
4. ELIGIBILITY. The Committee may from time to time, in its
sole discretion, consistent with the purposes of the Plan, grant options to
employees (including officers and directors who are employees) of, and to
consultants to, the Company or any of its Subsidiaries. Such options granted
shall cover such number of shares of Common Stock as the Committee may determine
in its sole discretion; provided, however, that the maximum number of shares
subject to options that may be granted to any employee during any calendar year
under the Plan (the "162(m) Maximum") shall not exceed 150,000 shares; and
further, provided, that the aggregate market value (determined at the time the
option is granted in accordance with Paragraph 5) of the shares of Common Stock
for which any eligible employee may be granted ISOs under the Plan or any other
plan of the Company, or of a Parent or a Subsidiary of the Company, which are
exercisable for the first time by such optionee during any calendar year shall
not exceed $150,000. Such limitation shall be applied by taking ISOs into
account in the order in which they were granted. Any option (or the portion
thereof) granted in excess of such amount shall be treated as an NQSO.
5. EXERCISE PRICE. The exercise price of the shares of Common
Stock under each option shall be determined by the Committee in its sole
discretion; provided, however, the exercise price of an ISO shall not be less
than the fair market value of the Common Stock subject to such option on the
date of grant; and further, provided, that if, at the time an ISO is granted,
the optionee owns (or is deemed to own under Section 424(d) of the Code) stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company, of any of its Subsidiaries or of a Parent, the exercise
price of such ISO shall not be less than 110% of the fair market value of the
Common Stock subject to such ISO on the date of grant.
The fair market value of a share of Common Stock on any day
shall be (a) if the principal market for the Common Stock is a national
securities exchange, the average of the highest and lowest sales prices per
share of Common Stock on such day as reported by such exchange or on a composite
tape reflecting transactions on such exchange, (b) if the principal market for
the Common Stock is not a national securities exchange and the Common Stock is
quoted on The Nasdaq Stock Market ("Nasdaq"), (i) if closing bid and asked price
information is available with respect to the Common Stock, the average of the
closing bid and asked prices per share of Common Stock on such day on Nasdaq, or
(ii) if such information is not available, the average of the highest bid and
lowest asked prices per share of Common Stock on such day on Nasdaq, or (c) if
the principal market for the Common Stock is not a national securities exchange
and the Common Stock is not quoted on Nasdaq, the average of the highest bid and
lowest asked prices per share of Common Stock on such day as reported on the OTC
Bulletin Board Service or by National Quotation Bureau, Incorporated or a
comparable service; provided, however, that if clauses (a), (b) and (c) of this
Paragraph are all inapplicable, or if no trades have been made or no quotes are
available for such day, the fair
<PAGE>
market value of the Common Stock shall be determined by the Board by any method
consistent with applicable regulations adopted by the Treasury Department
relating to stock options.
6. TERM. The term of each option granted pursuant to the Plan
shall be such term as is established by the Committee, in its sole discretion;
provided, however, that the term of each ISO granted pursuant to the Plan shall
be for a period not exceeding 10 years from the date of grant thereof; and
further, provided, that if, at the time an ISO is granted, the optionee owns (or
is deemed to own under Section 424(d) of the Code) stock possessing more than
10% of the total combined voting power of all classes of stock of the Company,
of any of its Subsidiaries or of a Parent, the term of the ISO shall be for a
period not exceeding five years from the date of grant.
Options shall be subject to earlier termination as hereinafter provided.
7. EXERCISE. An option (or any part or installment thereof),
to the extent then exercisable, shall be exercised by giving written notice to
the Company at its principal office stating which option is being exercised,
specifying the number of shares of Common Stock as to which such option is being
exercised and accompanied by payment in full of the aggregate exercise price
therefor (or the amount due on exercise if the Contract permits installment
payments) (a) in cash or by certified check or (b) if the applicable Contract
permits, with previously acquired shares of Common Stock having an aggregate
fair market value on the date of exercise (determined in accordance with
Paragraph 5) equal to the aggregate exercise price of all options being
exercised, or with any combination of cash, certified check or shares of Common
Stock
The Committee may, in its sole discretion, permit payment of
the exercise price of an option by delivery by the optionee of a properly
executed notice, together with a copy of the optionee's irrevocable instructions
to a broker acceptable to the Committee to deliver promptly to the Company the
amount of sale or loan proceeds sufficient to pay such exercise price. In
connection therewith, the Company may enter into agreements for coordinated
procedures with one or more brokerage firms.
A person entitled to receive Common Stock upon the exercise of
an option shall not have the rights of a stockholder with respect to such shares
of Common Stock until the date of issuance of a stock certificate to him for
such shares; provided, however, that until such stock certificate is issued, any
optionee using previously acquired shares of Common Stock in payment of an
option exercise price shall continue to have the rights of a stockholder with
respect to such previously acquired shares.
In no case may a fraction of a share of Common Stock be
purchased or issued under the Plan.
8. TERMINATION OF RELATIONSHIP. Except as may otherwise be
expressly provided in the applicable Contract, any optionee whose relationship
with the Company, its Subsidiaries and Parent as an employee or consultant has
terminated for any reason (other than his death or Disability) may exercise such
option, to the extent exercisable on the date of such termination, at any time
within three months after the date of termination, but not thereafter and in no
event after the date the option would otherwise have expired; provided, however,
that if such relationship is terminated either (a) for cause, or (b) without the
consent of the Company, such option shall terminate immediately.
For the purposes of the Plan, an employment relationship shall
be deemed to exist between an individual and a corporation if, at the time of
the determination, the individual was an employee of such corporation for
purposes of Section 422(a) of the Code. As a result, an individual on military,
sick leave or other bona fide leave of absence shall continue to be considered
an employee for purposes of the Plan during such leave if the period of the
leave does not exceed 90 days, or, if longer, so long as the individual's right
to reemployment with the Company (or a related corporation) is guaranteed either
by statute or by contract. If the period of leave exceeds 90 days and the
individual's right to reemployment is not guaranteed by statute or by contract,
the employment relationship shall be deemed to have terminated on the 31st day
of such leave.
<PAGE>
Notwithstanding the foregoing, except as may otherwise be
expressly provided in the applicable Contract, options granted under the Plan
shall not be affected by any change in the status of the optionee so long as the
optionee continues to be an employee of, or a consultant to, the Company, any of
its Subsidiaries or a Parent (regardless of having changed from one to the other
or having been transferred from one corporation to another).
Nothing in the Plan or in any option granted under the Plan
shall confer on any optionee any right to continue in the employ of, or as a
consultant to, the Company, its Parent or any of its Subsidiaries, or interfere
in any way with any right of the Company, its Parent or any of its Subsidiaries
to terminate the optionee's relationship at any time for any reason whatsoever
without liability to the Company, its Parent or any of its Subsidiaries.
9. DEATH OR DISABILITY OF AN OPTIONEE. Except as may otherwise
be expressly provided in the applicable Contract, if an individual optionee dies
(a) while he is an employee of, or a consultant to, the Company, any of its
Subsidiaries or a Parent, (b) within three months after the termination of such
relationship (unless such termination was for cause or without the consent of
the Company) or (c) within one year following the termination of such
relationship by reason of Disability, his option may be exercised, to the extent
exercisable on the date of his death, by his Legal Representative (as defined in
Paragraph 19) at any time within one year after death, but not thereafter and in
no event after the date the option would otherwise have expired.
Except as may otherwise be expressly provided in the
applicable Contract, any optionee whose relationship as an employee of, or a
consultant to, the Company, its Parent or any Subsidiary has terminated by
reason of Disability may exercise his option, to the extent exercisable upon the
effective date of such termination, at any time within one year after such date,
but not thereafter and in no event after the date the option would otherwise
have expired.
10. COMPLIANCE WITH SECURITIES LAWS. It is a condition to the
exercise of any option that either (a) a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
shares of Common Stock to be issued upon such exercise shall be effective and
current at the time of exercise, or (b) there be an exemption from registration
under the Securities Act for the issuance of the shares of Common Stock upon
such exercise. Nothing herein shall be construed as requiring the Company to
register shares subject to any option under the Securities Act or to keep any
Registration Statement effective or current.
The Committee may require, in its sole discretion, as a
condition to the exercise of any option that the optionee execute and deliver to
the Company his representations and warranties, in form, substance and scope
satisfactory to the Committee, which the Committee determines are necessary or
convenient to facilitate the perfection of an exemption from the registration
requirements of the Securities Act or other legal requirement, including without
limitation that (a) the shares of Common Stock to be issued upon the exercise of
the option are being acquired by the optionee for his own account, for
investment only and not with a view to the resale or distribution thereof, and
(b) any subsequent resale or distribution of shares of Common Stock by such
optionee will be made only pursuant to (i) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (ii) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the optionee
shall prior to any offer of sale or sale of such shares of Common Stock provide
the Company with a favorable written opinion of counsel satisfactory to the
Company, in form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution.
In addition, if at any time the Committee shall determine, in
its sole discretion, that the listing or qualification of the shares of Common
Stock subject to such option on any securities exchange, Nasdaq or under any
applicable law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition to, or in connection with, the granting
of an option or the issue of shares of Common Stock thereunder,
<PAGE>
such option may not be exercised in whole or in part unless such listing,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Committee.
11. STOCK OPTION CONTRACTS. Each option shall be evidenced by
an appropriate Contract which shall be duly executed by the Company and the
optionee, and shall contain such terms, provisions and conditions not
inconsistent herewith as may be determined by the Committee.
12. ADJUSTMENTS UPON CHANGES IN COMMON STOCK. Notwithstanding
any other provision of the Plan, in the event of a stock dividend, split-up,
combination, reclassification, recapitalization, spin-off, merger in which the
Company is the surviving corporation, or exchange of shares or the like which
results in a change in the number or kind of those shares of Common Stock which
are outstanding immediately prior to such event, the aggregate number and kind
of shares subject to the Plan, the aggregate number and kind of shares subject
to each outstanding option and the exercise price thereof, and the 162(m)
Maximum shall be appropriately adjusted by the Board of Directors, whose
determination shall be conclusive and binding on all parties. Such adjustment
may provide for the elimination of fractional shares which might otherwise be
subject to options without payment thereto.
In the event of (a) the liquidation or dissolution of the
Company, or (b) a merger in which the Company is not the surviving corporation
or a consolidation, any outstanding options shall terminate upon the earliest of
any such event, unless other provision is made therefor in the transaction.
13. AMENDMENTS AND TERMINATION OF THE PLAN. The Plan was
adopted by the Board of Directors on March 29, 1996. No option may be granted
under the Plan after March 28, 2006 The Board of Directors, without further
approval of the Company's stockholders, may at any time suspend or terminate the
Plan, in whole or in part, or amend it from time to time in such respects as it
may deem advisable, including, without limitation, in order that ISOs granted
hereunder meet the requirements for "incentive stock options" under the Code, to
comply with, conform to or adopt the provisions of Rule 16b-3, Section 162(m) of
the Code or any change in applicable law, regulations, rulings or
interpretations of administrative agencies; provided, however, that no amendment
shall be effective without the requisite prior or subsequent stockholder
approval which would (a) except as contemplated in Paragraph 12, increase the
maximum number of shares of Common Stock for which options may be granted under
the Plan or the 162(m) Maximum, (b) materially increase the benefits accruing to
participants under the Plan or (c) change the eligibility requirements to
receive options hereunder. No termination, suspension or amendment of the Plan
shall, without the consent of the holder of an existing and outstanding option
affected thereby, adversely affect his rights under such option. The power of
the Committee to construe and administer any options granted under the Plan
prior to the termination or suspension of the Plan nevertheless shall continue
after such termination or during such suspension.
14. NON-TRANSFERABILITY OF OPTIONS. No option granted under
the Plan shall be transferable otherwise than by will or the laws of descent and
distribution, and options may be exercised, during the lifetime of the optionee,
only by the optionee or his Legal Representatives. Except to the extent provided
above, options may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process, and any such attempted
assignment, transfer, pledge, hypothecation or disposition shall be null and
void ab initio and of no force or effect.
15. WITHHOLDING TAXES. The Company shall withhold cash in an
amount equal to the amount determined necessary to satisfy the Company's
obligation to withhold Federal, state and local income taxes or other amounts
incurred by reason of the grant or exercise of an option or the disposition of
the underlying shares of Common Stock except to the extent that, with the
specific authorization of the Committee, in the Contract or otherwise, the
optionee is permitted to pay such amounts by (a) the delivery or withholding of
shares of Common Stock having an aggregate fair market value on the exercise
date (determined in accordance with Paragraph 5) or (b) any combination of cash
and such shares. Alternatively, the Company may require the holder to pay to the
<PAGE>
Company such amount, in cash, promptly upon demand. The Company shall not be
required to issue any shares of Common Stock pursuant to any such option until
all required payments have been made.
16. LEGENDS; PAYMENT OF EXPENSES. The Company may endorse such
legend or legends upon the certificates for shares of Common Stock issued upon
exercise of an option under the Plan and may issue such "stop transfer"
instructions to its transfer agent in respect of such shares as it determines,
in its discretion, to be necessary or appropriate to (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws, (b) implement the provisions of
the Plan or any agreement between the Company and the optionee with respect to
such shares of Common Stock, or (c) permit the Company to determine the
occurrence of a "disqualifying disposition," as described in Section 421(b) of
the Code, of the shares of Common Stock issued or transferred upon the exercise
of an ISO granted under the Plan.
The Company shall pay all issuance taxes with respect to the
issuance of shares of Common Stock upon the exercise of an option granted under
the Plan, as well as all fees and expenses incurred by the Company in connection
with such issuance.
17. USE OF PROCEEDS. The cash proceeds from the sale of shares
of Common Stock pursuant to the exercise of options under the Plan shall be
added to the general funds of the Company and used for such corporate purposes
as the Board of Directors may determine.
18. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS OF CERTAIN
CONSTITUENT CORPORATIONS. Anything in this Plan to the contrary notwithstanding,
the Board of Directors may, without further approval by the stockholders,
substitute new options for prior options of a Constituent Corporation (as
defined in Paragraph 19) or assume the prior options of such Constituent
Corporation.
19. DEFINITIONS. For purposes of the Plan, the following
terms shall be defined as set forth below:
(a) Constituent Corporation. The term "Constituent
Corporation" shall mean any corporation which engages with the Company, any of
its Subsidiaries or a Parent in a transaction to which Section 424(a) of the
Code applies (or would apply if the option assumed or substituted were an ISO),
or any Parent or any Subsidiary of such corporation.
(b) Disability. The term "Disability" shall mean a
permanent and total disability within the meaning of Section 22(e)(3) of the
Code.
(c) Legal Representative. The term "Legal
Representative" shall mean the executor, administrator or other person who at
the time is entitled by law to exercise the rights of a deceased or
incapacitated optionee with respect to an option granted under the Plan.
(d) Parent. The term "Parent" shall have the same
definition as "parent corporation" in Section 424(e) of the Code.
(e) Subsidiary. The term "Subsidiary" shall have the
same definition as "subsidiary corporation" in Section 424(f) of the Code.
20. GOVERNING LAW; CONSTRUCTION. The Plan, such options as may
be granted hereunder and all related matters shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without regard to
conflict of law provisions.
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Neither the Plan nor any Contract shall be construed or
interpreted with any presumption against the Company by reason of the Company
causing the Plan or Contract to be drafted. Whenever from the context it appears
appropriate, any term stated in either the singular or plural shall include the
singular and plural, and any term stated in the masculine, feminine or neuter
gender shall include the masculine, feminine and neuter.
21. PARTIAL INVALIDITY. The invalidity, illegality or
unenforceability of any provision in the Plan or any Contract shall not affect
the validity, legality or enforceability of any other provision, all of which
shall be valid, legal and enforceable to the fullest extent permitted by
applicable law.
22. STOCKHOLDER APPROVAL. The Plan shall be subject to
approval by a majority of the votes present in person or by proxy at the next
duly held meeting of the Company's stockholders at which a quorum is present. No
options granted hereunder may be exercised prior to such approval; provided,
however, that the date of grant of any option shall be determined as if the Plan
had not been subject to such approval. Notwithstanding the foregoing, if the
Plan is not approved by a vote of the stockholders of the Company on or before
March 28, 1997, the Plan and any options granted hereunder shall terminate.
