As filed with the Securities and Exchange Commission on February 4, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BIO FLORESCENT TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
Nevada 87-0485320
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7373 N. Scottsdale Road, Suite D-222, Scottsdale, Arizona 85253
(Address of Principal Executive Offices) (Zip Code)
1996 Stock Incentive Plan
(Full title of the plan)
Jan J. Olivier
President
7373 N. Scottsdale Road, Suite D-222
Scottsdale, Arizona 85253
(Name and address of agent for service)
(602) 596-0269
(Telephone number, including area code, of agent for service)
With copy to:
Christopher D. Johnson, Esq.
Squire, Sanders & Dempsey
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
(602) 528-4046
Approximate Date of Commencement of Proposed Sale: As soon as practicable after
the Registration Statement becomes effective.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE * PRICE * FEE
---------- ---------- ----------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, 2,600,000 $.42 $1,092,000 $331
$.001 par value
- ----------
* Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act
of 1933, on the basis of the average of the bid and asked prices for shares
of Common Stock on January 27, 1997.
================================================================================
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Securities
Act Rule 428.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into
this Registration Statement: (a) the Registrant's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1995; (b) all reports filed with the
Securities and Exchange Commission pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 subsequent to December 31, 1995; and (c) the
description of the Registrant's capital stock contained in the Registrant's
Registration Statement on Form 8-A filed with the Securities and Exchange
Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior
to the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VIII of the Company's Bylaws eliminates the personal
liability of directors of the Company for violation of their fiduciary duty of
care. In addition, Article VIII of the Company's Bylaws also requires
indemnification of directors and officers of the Company to the full extent
permitted by Nevada law for claims against them in their official capacities.
Section 78.751 of the Nevada General Corporation Law, as amended,
applies to the Company and provides for the indemnification of officers and
directors in specified instances. It permits a corporation, pursuant to a bylaw
provision or in an indemnity contract, to pay an officer's or director's
litigation expenses in advance of a proceeding's final disposition, and provides
that rights arising under an indemnity agreement or bylaw provision may continue
as to a person who has ceased to be a director or officer.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
Exhibit Index located at Page 6.
Item 9. UNDERTAKINGS.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)
(3)of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof)which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange 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 of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, and the State of Arizona, on January 30,
1997.
BIO FLORESCENT TECHNOLOGIES, INC.
a Nevada corporation
By /s/ Jan J Olivier
-------------------------------
Jan J. Olivier
President
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints A. Richard Bullock and Jan J. Olivier, and each of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Form S-8 Registration Statement, and to file the same with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents, or each of them, may
lawfully 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 and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Jan J. Olivier President; Chief Executive January 30, 1997
- ------------------------ Officer; Director
Jan J. Olivier
/s/ A. Richard Bullock Secretary/Treasurer January 30, 1997
- ------------------------ (Principal Financial and
A. Richard Bullock Accounting Officer); Director
/s/ Ray A. Triphan Vice President; Assistant January 30, 1997
- ------------------------ Secretary; Director
Ray A. Triphan
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION METHOD OF FILING
- ------- ----------- ----------------
4 1996 Stock Incentive Plan *
5 Form of opinion rendered by Squire, Sanders & *
Dempsey, counsel for the Registrant (including
consent)
24.1 Consent of Accountants *
24.2 Consent of Counsel See Exhibit 5
25 Powers of Attorney See Signature Page
- -------
* Filed herewith
6
BIO FLORESCENT TECHNOLOGIES, INC.
1996 STOCK INCENTIVE PLAN
-------------------------------
1. PURPOSES OF THE PLAN.
The purposes of this Stock Incentive Plan are to (i) attract and retain
the best available personnel for positions of responsibility within Bio
Florescent Technologies, Inc. (the "Company"), (ii) provide additional
incentives to Employees of the Company, (iii) provide "Directors", "Consultants"
and "Advisors" of the Company with an opportunity to acquire a proprietary
interest in the Company to encourage their continued provision of services to
the Company, and to provide such persons with incentives and rewards for
superior performance more directly linked to the profitability of the Company's
business and increases in shareholder value, and (iv) generally, to promote the
success of the Company's business and the interests of the Company and all of
its stockholders, through the grant of options to purchase shares of the
Company's Common Stock and other incentives.
Incentive benefits granted hereunder may be either Incentive Stock
Options, Nonqualified Stock Options, Stock Appreciation Rights, stock awards,
restricted stock or cash awards, as such terms are hereinafter defined. The type
of options or other incentives granted shall be reflected in the terms of
written agreements.
2. DEFINITIONS.
As used herein, the following definitions shall apply:
2.1 "AUTOMATIC OPTION GRANT PROGRAM" means the Nonqualified Options to
be granted to nonemployee directors (including any nonemployee Chairman of the
Board) pursuant to Section 20 of this Plan.
2.2 "BASE PRICE" means the value determined by the Board or the
Committee to be used as the basis for determining the Spread upon the exercise
of a Free-Standing Stock Appreciation Right, and shall be expressed as the Fair
Market Value per share on the Date of Grant of the Stock Appreciation Right or a
percentage of such Fair Market Value per share.
2.3 "BOARD" shall mean the Board of Directors of Bio Florescent
Technologies, Inc.
2.4 "CHANGE OF CONTROL" means a change in ownership or control of the
Company effected through either of the following transactions:
(a) the direct or indirect acquisition by any person or related
group of persons (other than by the Company or a person that directly or
indirectly controls, is controlled by, or is
1
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under common control with, the Company) of beneficial ownership (within the
meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than
50% of the total combined voting power of the Company's outstanding securities
pursuant to a tender or exchange offer made directly to the Company's
shareholders, or other transaction, in each case which the Board does not
recommend such shareholders to accept; or
(b) a change in the composition of the Board over a period of
36 consecutive months or less such that a majority of the Board members (rounded
up to the next whole number) ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who either (i)
have been Board members continuously since the beginning of such period or (ii)
have been elected or nominated for election as Board members during such period
by at least a majority of the Board members described in clause (i) who were
still in office at the time such election or nomination was approved by the
Board.
2.5 "CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder.
2.6 "COMMITTEE" shall mean the Committee appointed by the Board in
accordance with Section 4.1 of the Plan, if one is appointed.
2.7 "COMMON STOCK" or "COMMON SHARES" shall mean (i) shares of the
Common Stock, $.001 par value, of the Company described in the Company's
Articles of Incorporation, as amended, and (ii) any security into which Common
Shares may be converted by reason of any transaction or event of the type
referred to in Section 13 of this Plan.
2.8 "COMPANY" shall mean Bio Florescent Technologies, Inc., a Nevada
corporation, and shall include any parent or subsidiary corporation of the
Company as defined in Sections 424(e) and (f), respectively, of the Code.
2.9 "CONSULTANTS" and "ADVISORS" shall include any third party retained
or engaged by the Company to provide services to the Company, including any
employee of such third party providing such services.
2.10 "CORPORATE TRANSACTION" means any of the following shareholder-
approved transactions to which the Company is a party:
(a) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the state in which the Company is incorporated;
(b) the sale, transfer or other disposition of all or
substantially all of the assets of the Company in complete
liquidation or dissolution of the Company; or
(c) any reverse merger in which the Company is the surviving
entity but in which securities possessing more than 50% of the total combined
voting power of the Company's
2
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outstanding securities are transferred to a person or persons different from the
persons holding those securities immediately prior to such merger.
2.11 "DATE OF GRANT" means the date specified by the Board or the
Committee on which a grant of Options, Stock Appreciation Rights, Performance
Shares or Performance Units or a grant or sale of Restricted Shares or Deferred
Shares shall become effective.
2.12 "DEFERRAL PERIOD" means the period of time during which Deferred
Shares are subject to deferral limitations under Section 10.3 of this Plan.
2.13 "DEFERRED SHARES" means an award pursuant to Section 10 of this
Plan of the right to receive Common Shares at the end of a specified Deferral
Period.
2.14 "DIRECTOR" shall mean a member of the Board.
2.15 "EFFECTIVE DATE" means the effective date of this Plan as provided
in Section 6.
2.16 "ELIGIBLE DIRECTOR" means a nonemployee director (including any
nonemployee Chairman of the Board) identified in Section 20(a).
2.17 "EMPLOYEE" shall mean any person, including officers and
directors, employed by the Company. The payment of a director's fee by the
Company shall not be sufficient to constitute "employment" by the Company.
2.18 "EXCHANGE ACT" shall mean the Securities and Exchange Act of 1934,
as amended.
2.19 "FAIR MARKET VALUE" shall mean, with respect to the date a given
Option is granted or exercised, the value of the Common Stock determined by the
Board in such manner as it may deem equitable for Plan purposes but, in the case
of an Incentive Stock Option, no less than is required by applicable laws or
regulations; provided, however, that where there is a public market for the
Common Stock, the Fair Market Value per share shall be the average of the bid
and asked prices of the Common Stock on the Date of Grant, as reported in the
Wall Street Journal (or, if not so reported, as otherwise reported by the
National Association of Securities Dealers Automated Quotation System) or, in
the event the Common Stock is listed on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market, the Fair Market Value per
share shall be the closing price on such exchange on the Date of Grant of the
Option, as reported in the Wall Street Journal.
2.20 "FREE-STANDING STOCK APPRECIATION RIGHT" means a Stock
Appreciation Right granted pursuant to Section 8.8 of this Plan that is not
granted in tandem with an Option or similar right.
2.21 "INCENTIVE AGREEMENT" shall mean the written agreement between the
Company and the Participant relating to Incentive Stock Options, Nonqualified
Stock Options, Stock Appreciation Rights, stock awards, restricted stock and
cash awards granted under the Plan, and shall include an
3
<PAGE>
Incentive Stock Option Agreement, Nonqualified Stock Option Agreement or other
form of Agreement which may be approved by the Board.
2.22 "INCENTIVE AWARD" shall mean the award of one or more Incentives.
2.23 "INCENTIVE STOCK OPTION" shall mean an Option which is intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code, or any successor provision thereto.
2.24 "INCENTIVES" shall mean those incentive benefits which may be
granted from time to time under the terms of the Plan which include Incentive
Stock Options, Nonqualified Stock Options, Stock Appreciation Rights, stock
awards, restricted stock and cash awards.
2.25 "MANAGEMENT OBJECTIVES" means the achievement of performance
objectives established pursuant to this Plan for Participants who have received
grants of Performance Shares or Performance Units or, when so determined by the
Board or the Committee, Restricted Shares.
2.26 "NONQUALIFIED STOCK OPTION" means an Option that is not intended
to qualify as a Tax-Qualified Option.
2.27 "OPTION PRICE" means the purchase price payable upon the exercise
of an Option.
2.28 "OPTION" means the right to purchase Common Shares from the
Company upon the exercise of a Nonqualified Stock Option or a Tax-Qualified
Option granted pursuant to Section 7 of this Plan.
2.29 "OPTIONED STOCK" shall mean the Common Stock subject to an Option.
2.30 "OPTIONEE" shall mean an Employee, Director, Consultant or Advisor
of the Company who has been granted one or more Options.
2.31 "PARENT" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
2.32 "PARTICIPANT" means a person who is selected by the Board or a
Committee to receive benefits under this Plan and (i) is at that time an
officer, including without limitation an officer who may also be a member of the
Board, a Director, or other key employee of or a Consultant or Advisor to the
Company, or (ii) has agreed to commence serving in any such capacity.
2.33 "PERFORMANCE PERIOD" means, in respect of a Performance Share or
Performance Unit, a period of time established pursuant to Section 11 of this
Plan within which the Management Objectives relating thereto are to be achieved.
2.34 "PERFORMANCE SHARE" means a bookkeeping entry that records the
equivalent of one Common Share awarded pursuant to Section 11 of this Plan.
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2.35 "PERFORMANCE UNIT" means a bookkeeping entry that records a unit
equivalent to $1.00 awarded pursuant to Section 11 of this Plan.
2.36 "PLAN" shall mean this 1996 Stock Incentive Plan, as amended from
time to time in accordance with the terms hereof.
2.37 "RELOAD OPTIONS" means additional Options automatically granted to
an Optionee upon the exercise of Options pursuant to Section 7.1(d) of this
Plan.
2.38 "RESTRICTED SHARES" means Common Shares granted or sold pursuant
to Section 9 of this Plan as to which neither the substantial risk of forfeiture
nor the restrictions on transfer referred to in Section 9.9 hereof has expired.
2.39 "RULE 16B-3" means Rule 16b-3, as promulgated and amended from
time to time by the Securities and Exchange Commission under the Exchange Act,
or any successor rule to the same effect.
2.40 "SHARE" shall mean a share of the Common Stock, as adjusted in
accordance with Section 13 of the Plan.
2.41 "SPREAD" means, in the case of a Free-Standing Stock Appreciation
Right, the amount by which the Fair Market Value per share on the date when the
Stock Appreciation Right is exercised exceeds the Base Price specified therein
or, in the case of a Tandem Stock Appreciation Right, the amount by which the
Fair Market Value per share on the date when the Stock Appreciation Right is
exercised exceeds the Option Price specified in the related Option.
2.42 "STOCK APPRECIATION RIGHT" or "SAR" shall mean a right granted by
the Board or the Committee pursuant to Section 8 of this Plan, including a
Free-Standing Stock Appreciation Right and a Tandem Stock Appreciation Right.
2.43 "SUBSIDIARY" shall mean a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
2.44 "TANDEM STOCK APPRECIATION RIGHT" means a Stock Appreciation Right
granted pursuant to Section 8.7 of this Plan that is granted in tandem with an
Option or any similar right granted under any other plan of the Company.
2.45 "TAX DATE" shall mean the date an Optionee is required to pay the
Company an amount with respect to tax withholding obligations in connection with
the exercise of an option.
2.46 "TAX-QUALIFIED OPTION" means an Option that is intended to qualify
under particular provisions of the Code, including without limitation an
Incentive Stock Option.
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3. COMMON STOCK SUBJECT TO THE PLAN.
Subject to the provisions of Section 13 of the Plan, the maximum
aggregate number of shares which may be optioned and sold or otherwise awarded
under the Plan is Two Million Six Hundred Thousand (2,600,000) Common Shares.
Any Common Shares available for grants and awards at the end of any calendar
year shall be carried over and shall be available for grants and awards in the
subsequent calendar year. Common Shares awarded under this Plan may be Common
Shares of original issuance or Common Shares held in treasury or a combination
thereof. For the purposes of this Section 3:
3.1 Upon payment in cash of the benefit provided by any award granted
under this Plan, or upon expiration or cancellation of any award granted under
this Plan, any Common Shares that were covered by such award shall again be
available for issuance or transfer hereunder.
3.2 Common Shares covered by any award granted under this Plan shall be
deemed to have been issued or transferred, and shall cease to be available for
future issuance or transfer in respect of any other award granted hereunder, at
the earlier of the time when they are actually issued or transferred or the time
when dividends or dividend equivalents are paid thereon; provided, however, that
Restricted Shares shall be deemed to have been issued or transferred at the
earlier of the time when they cease to be subject to a substantial risk of
forfeiture or the time when dividends are paid thereon.
3.3 Performance Units that are granted under this Plan and are paid in
Common Shares or are not earned by the Participant at the end of the Performance
Period shall be available for future grants of Performance Units hereunder.
4. ADMINISTRATION OF THE PLAN.
4.1 PROCEDURE.
(a) The Board shall administer the Plan; provided, however,
that the Board may appoint a Committee consisting solely of two (2) or more
"Non-Employee Directors" to administer the Plan on behalf of the Board, in
accordance with Rule 16b-3.
(b) Once appointed, the Committee shall continue to serve
until otherwise directed by the Board. From time to time the Board may increase
the size of the Committee and appoint additional members thereof, remove members
(with or without cause), appoint new members in substitution therefor, and fill
vacancies however caused; provided, however, that at no time may any person
serve on the Committee if that person's membership would cause the Committee not
to satisfy the requirements of Rule 16b-3.
(c) A majority of the Committee shall constitute a quorum, and
the acts of the members of the Committee who are present at any meeting thereof
at which a quorum is present, or acts unanimously approved by the members of the
Committee in writing, shall be the acts of the Committee.
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(d) Any reference herein to the Board shall, where
appropriate, encompass a Committee appointed to administer the Plan in
accordance with this Section 4.
4.2 POWERS OF THE BOARD OR THE COMMITTEE.
(a) Subject to the provisions of the Plan, the Board shall
have the authority, in its discretion: (i) to grant Options or Incentive Awards
to Participants; (ii) to determine, upon review of relevant information and in
accordance with Section 2.19 of the Plan, the Fair Market Value of the Common
Stock; (iii) to determine the exercise price per share of Options to be granted,
which exercise price shall be determined in accordance with Section 2.19 of the
Plan; (iv) to determine the number of Common Shares to be represented by each
Option or Incentive Award; (v) to determine the Participants to whom, and the
time or times at which, Options and Incentive Awards shall be granted; (vi) to
interpret the Plan; (vii) to prescribe, amend and rescind rules and regulations
relating to the Plan; (viii) to determine the terms and provisions of each
Option and Incentive Award granted (which need not be identical) and, with the
consent of the grantee thereof, modify or amend such Option or Incentive Award;
(ix) to accelerate or defer (with the consent of the grantee) the exercise date
of any Option or Incentive Award; (x) to authorize any person to execute on
behalf of the Company any instrument required to effectuate the grant of an
Option or Incentive Award previously granted by the Board; (xi) to accept or
reject the election made by a grantee pursuant to Section 7.5 of the Plan; and
(xii) to make all other determinations deemed necessary or advisable for the
administration of the Plan.
(b) The Board or a Committee may delegate to an officer of the
Company the authority to make decisions pursuant to this Plan, provided that no
such delegation may be made that would cause any award or other transaction
under the Plan to cease to be exempt from Section 16(b) of the Exchange Act. A
Committee may authorize any one or more of its members or any officer of the
Company to execute and deliver documents on behalf of the Committee.
4.3 EFFECT OF BOARD OR COMMITTEE DECISIONS. All decisions and
determinations and the interpretation and construction by the Board or a
Committee of any provision of this Plan, or any agreement, notification or
document evidencing the grant of Options, Stock Appreciation Rights, Restricted
Shares, Deferred Shares, Performance Shares or Performance Units, and any
determination by the Board or a Committee pursuant to any provision of this Plan
or any such agreement, notification or document, shall be final, binding and
conclusive with respect to all grantees and any other holders of any Option or
Incentive Award granted under the Plan. No member of the Board or a Committee
shall be liable for any such action taken or determination made in good faith.
5. ELIGIBILITY.
Consistent with the Plan's purposes, Options and Incentive Awards may
be granted only to Employees, Directors, Consultants and Advisors of the Company
as determined by the Board or a Committee. Subject to the terms of the Plan, an
Employee, Director, Consultant or Advisor who has been granted an Option or
Incentive Award may, if he is otherwise eligible, be granted an additional
Option or Incentive Award. Incentive Stock Options may be granted only to those
Employees who meet the requirements applicable under Section 422 of the Code.
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6. BOARD APPROVAL; EFFECTIVE DATE.
The Plan shall take effect on August 29, 1996, the date on which the
Board approved the Plan. No Option may be granted after August 29, 2006 (ten
(10) years from the effective date of the Plan); provided, however, that the
Plan and all outstanding Options shall remain in effect until such options have
expired or until such Options are canceled.
7. STOCK OPTIONS.
The Board or the Committee may from time to time authorize grants to
Participants of Options to purchase Common Shares upon such terms and conditions
as the Board or the Committee may determine in accordance with the following
provisions:
7.1 OPTIONS TO BE GRANTED; TERMS.
(a) Options granted pursuant to this Section 7 may be
Nonqualified Stock Options or Tax-Qualified Options or combinations thereof. The
Board or the Committee shall determine the specific terms of Options.
(b) Each grant shall specify the period or periods of
continuous employment, or continuous engagement of the consulting or advisory
services, of the Optionee by the Company or any Subsidiary that are necessary
before the Options or installments thereof shall become exercisable.
(c) Any grant of a Nonqualified Stock Option may provide for
the payment to the Optionee of dividend equivalents thereon in cash or Common
Shares on a current, deferred or contingent basis, or the Board or the Committee
may provide that any dividend equivalents shall be credited against the Option
Price.
(d) Any grant may provide for the automatic grant to the
Optionee of Reload Options upon the exercise of Options, including Reload
Options for Common Shares or any other noncash consideration authorized under
the Plan; provided, however, that the term of any Reload Option shall not extend
beyond the term of the Option originally exercised.
7.2 NUMBER OF SHARES SUBJECT TO OPTIONS. Each grant shall specify the
number of Common Shares to which it pertains. Successive grants may be made to
the same Optionee regardless of whether any Options previously granted to the
Optionee remain unexercised.
7.3 TERM OF OPTION. Unless otherwise provided in the Incentive
Agreement, the term of each Option shall be five (5) years from the Date of
Grant thereof. In no case shall the term of any Option exceed ten (10) years
from the Date of Grant thereof. Notwithstanding the above, in the case of an
Incentive Stock Option granted to a Participant who, at the time the Incentive
Stock Option is granted, owns ten percent (10%) or more of the Common Stock as
such amount is calculated under Section 422(b)(6) of the Code ("Ten Percent
Stockholder"), the term of the Incentive Stock Option shall be five (5) years
from the Date of Grant thereof or such shorter time as may be provided in the
Incentive Agreement.
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7.4 EXERCISE PRICE.
(a) Each grant shall specify an Option Price per Common Share
for the Common Shares to be issued pursuant to exercise of an Option, which
shall be determined by the Board or the Committee, but in the case of an
Incentive Stock Option shall be no less than one hundred percent (100%) of the
Fair Market Value per share on the Date of Grant, and in the case of a
Nonqualified Stock Option shall be no less than eighty-five percent (85%) of the
Fair Market Value per share on the Date of Grant. Notwithstanding the foregoing,
in the case of an Incentive Stock Option granted to a Participant who, at the
time of the grant of such Incentive Stock Option, is a Ten Percent Stockholder,
the per share exercise price shall be no less than one hundred ten percent
(110%) of the Fair Market Value per share on the Date of Grant.
(b) With respect to Incentive Stock Options, the aggregate
Fair Market Value (determined as of the respective Date or Dates of Grant) of
the Common Shares for which one or more options granted to any Optionee under
this Plan may for the first time become exercisable as Incentive Stock Options
under the federal tax laws during any one calendar year (under all employee
benefit plans of the Company) shall not exceed $100,000. To the extent that the
Optionee holds two or more such options which become exercisable for the first
time in the same calendar year, the foregoing limitation on the exercisability
of such options as Incentive Stock Options under the federal tax laws shall be
applied on the basis of the order in which such options are granted. Should the
number of Common Shares for which any Incentive Stock Option first becomes
exercisable in any calendar year exceed the applicable $100,000 limitation, then
that option may nevertheless be exercised in such calendar year for the excess
number of shares as a Nonqualified Stock Option under the federal tax laws.
7.5 PAYMENT FOR SHARES. The price of an exercised Option and any taxes
attributable to the delivery of Common Stock under the Plan, or portion thereof,
shall be paid as follows:
(a) Each grant shall specify the form of consideration to be
paid in satisfaction of the Option Price and the manner of payment of such
consideration, which may include (i) cash in the form of United States currency
or check or other cash equivalent acceptable to the Company, (ii)
nonforfeitable, unrestricted Common Shares, which are already owned by the
Optionee and have a value at the time of exercise that is equal to the Option
Price, (iii) any other legal consideration that the Board or the Committee may
deem appropriate, including without limitation any form of consideration
authorized pursuant to this Section 7 on such basis as the Board or the
Committee may determine in accordance with this Plan, and (iv) any combination
of the foregoing.
(b) Any grant of a Nonqualified Stock Option may provide that
payment of the Option Price may also be made in whole or in part in the form of
Restricted Shares or other Common Shares that are subject to risk of forfeiture
or restrictions on transfer. Unless otherwise determined by the Board or the
Committee on or after the Date of Grant, whenever any Option Price is paid in
whole or in part by means of any of the forms of consideration specified in this
Section 7.5, the Common Shares received by the Optionee upon the exercise of the
Nonqualified Stock Option shall be subject to the same risks of forfeiture or
restrictions on transfer as those that applied to the consideration surrendered
by the Optionee; provided, however, that such risks of forfeiture and
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restrictions on transfer shall apply only to the same number of Common Shares
received by the Optionee as applied to the forfeitable or restricted Common
Shares surrendered by the Optionee.
(c) Any grant may allow for deferred payment of the Option
Price through a sale and remittance procedure by which a Participant shall
provide concurrent irrevocable written instructions to (i) a Company-designated
brokerage firm to effect the immediate sale of the purchased Common Shares and
remit to the Company, out of the sale proceeds available on the settlement date,
sufficient funds to cover the aggregate Option Price payable for the purchased
Common Shares, and (ii) the Company to deliver the certificates for the
purchased Common Shares directly to such brokerage firm to complete the sale
transaction.
(d) The Board or Committee shall determine acceptable methods
for tendering Common Stock as payment upon exercise of an Option and may impose
such limitations and prohibitions on the use of Common Stock to exercise an
Option as it deems appropriate.
7.6 RIGHTS AS A STOCKHOLDER. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Common Shares, no
right to vote or receive dividends or any other rights as a stockholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. No adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued, except as
provided in Section 14 of the Plan.
7.7 LOANS OR INSTALLMENT PAYMENTS; BONUSES.
(a) The Board or the Committee may, in its discretion, assist
any Participant in the exercise of one or more awards under the Plan, including
the satisfaction of any federal, state, local and foreign income and employment
tax obligations arising therefrom, by (i) authorizing the extension of a loan
from the Company to such Participant; or (ii) permitting the Participant to pay
the exercise price or purchase price for the purchased shares in installments;
(iii) a guaranty by the Company of a loan obtained by the Optionee from a third
party, or (iv) granting a cash bonus to the Participant to enable the
Participant to pay federal, state, local and foreign income and employment tax
obligations arising from an award.
(b) Any loan or installment method of payment (including the
interest rate and terms of repayment) shall be upon such terms as the Board or
the Committee specifies in the applicable Incentive Agreement or otherwise deems
appropriate under the circumstances. Loans or installment payments may be
authorized with or without security or collateral. However, the maximum credit
available to the Participant may not exceed the exercise or purchase price of
the acquired shares (less the par value of such shares) plus any federal, state
and local income and employment tax liability incurred by the Participant in
connection with the acquisition of such shares. The amount of any bonus shall be
determined by the Board or the Committee in its sole discretion under the
circumstances.
(c) The Board or the Committee may, in its absolute
discretion, determine that one or more loans extended under this financial
assistance program shall be subject to forgiveness by the
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Company in whole or in part upon such terms and conditions as the Board or the
Committee may deem appropriate; provided, however, that the Board or the
Committee shall not forgive that portion of any loan owed to cover the par value
of the Common Shares.
7.8 EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE.
(i) Any Option granted hereunder shall be exercisable
at such times and under such conditions as determined by the Board, including
performance criteria with respect to the Company and/or the Optionee, and as
shall be permissible under the terms of the Plan. Unless otherwise determined
by the Board at the time of grant, an Option may be exercised in whole or in
part. An Option may not be exercised for a fraction of a share.
(ii) An Option shall be deemed to be exercised when
written notice of such exercise has been given to the Company in accordance
with the terms of the Option by the person entitled to exercise the Option and
full payment for the Common Shares with respect to which the Option is exercised
has been received by the Company. Full payment may, as authorized by the Board,
consist of any consideration and method of payment allowable under Section 7.5
of the Plan.
(iii) Exercise of an Option in any manner shall result
in a decrease in the number of Shares which thereafter may be available, both
for purposes of the Plan and for sale under the Option, by the number of Common
Shares as to which the Option is exercised.
(b) TERMINATION OF STATUS AS AN EMPLOYEE. Unless otherwise
provided in an Incentive Agreement, if an Employee's employment by the Company
is terminated, except if such termination is voluntary or occurs due to
retirement with the consent of the Board or due to death or disability, then the
Option, to the extent not exercised, shall cease on the date on which the
Employee's employment by the Company is terminated. If an Employee's termination
is voluntary or occurs due to retirement with the consent of the Board, then the
Employee may after the date such Employee ceases to be an Employee of the
Company, exercise his Option at any time within three (3) months after the date
he ceases to be an Employee of the Company, but only to the extent that he was
entitled to exercise it on the date of such termination. To the extent that he
was not entitled to exercise the Option at the date of such termination, or if
he does not exercise such Option (which he was entitled to exercise) within the
time specified herein, the Option shall terminate. In no event may the period of
exercise in the case of Incentive Stock Options extend more than three (3)
months beyond termination of employment.
(c) DISABILITY. Unless otherwise provided in the Incentive
Agreement, notwithstanding the provisions of Section 7.8(b) above, in the event
an Employee is unable to continue his employment with the Company as a result of
his permanent and total disability (as defined in Section 22(e) (3) of the
Code), he may exercise his Option at any time within twelve (12) months from the
date of termination, but only to the extent he was entitled to exercise it at
the date of such termination. To the extent that he was not entitled to exercise
the Option at the date of termination, or if he does not exercise such Option
(which he was entitled to exercise) within the time
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specified herein, the Option shall terminate. In no event may the period of
exercise in the case of an Incentive Stock Options extend more than twelve (12)
months beyond the date the Employee is unable to continue employment due to such
disability.
(d) DEATH. Unless otherwise provided in the Incentive
Agreement, if an Optionee dies during the term of the Option and is at the time
of his death an Employee who shall have been in continuous status as an Employee
since the Date of Grant of the Option, the Option may be exercised at any time
within twelve (12) months following the date of death by the Optionee's estate
or by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent that an Optionee was entitled to exercise
the Option on the date of death. To the extent that decedent was not entitled to
exercise the Option on the date of death, or if the Optionee's estate, or person
who acquired the right to exercise the Option by bequest or inheritance, does
not exercise such Option (which he was entitled to exercise) within the time
specified herein, the Option shall terminate. In no event may the period of
exercise in the case of an Incentive Stock Option extend more than twelve (12)
months beyond the date of the Employee's death.
7.9 OPTION REISSUANCES. The Board or the Committee shall have the
authority to effect, at any time and from time to time, with the consent of the
affected Participant, the cancellation of any or all outstanding Options under
this Section 7 and grant in substitution new Options under the Plan covering the
same or a different numbers of Common Shares but with an exercise price not less
than (i) 85% of the Fair Market Value per share on the new Date of Grant or (ii)
100% of the Fair Market Value per share in the case of Incentive Stock Options.
7.10 INCENTIVE STOCK OPTIONS - DISPOSITION OF SHARES. In the case of an
Incentive Stock Option, a Participant who disposes of Common Shares acquired
upon exercise of such Incentive Stock Option by sale or exchange (i) within two
(2) years after the Date of Grant of the Option, or (ii) within one (1) year
after the exercise of the Option, shall notify the Company of such disposition
and the amount realized upon such disposition.
7.11 OPTION AGREEMENT. Each grant shall be evidenced by an agreement,
which shall be executed on behalf of the Company by any officer thereof and
delivered to and accepted by the Optionee and shall contain such terms and
provisions as the Board or the Committee may determine consistent with this
Plan.
8. STOCK APPRECIATION RIGHTS.
A stock appreciation right ("SAR") is a right to receive from the
Company, without payment to the Company, a number of shares of Common Stock,
cash, or any combination thereof, being a unit value equal to the Spread, at the
time of the exercise of a Stock Appreciation Right, the amount of which is
determined pursuant to the formula set forth by the Board. An SAR may be granted
(a) with respect to any Option granted under the Plan, either concurrently with
the grant of such Option (Tandem Stock Appreciation Right) or at such later time
as determined by the Board (limited to 50% of the shares of Common Stock subject
to the Option), or (b) alone, without reference to any related Option
(Free-Standing Stock Appreciation Right). Each SAR granted by the Board under
this Plan shall be subject to the following terms and conditions:
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8.1 NUMBER. Each SAR granted to a Participant shall relate to such
number of shares of Common Stock as shall be determined by the Board, subject to
adjustment as provided in Section 13. In the case of an SAR granted with respect
to an Option, the number of shares of Common Stock to which the SAR pertains
shall be reduced in the same proportion that the holder of the Option exercises
the related Option, subject to a limitation of 50% of the shares of Common Stock
subject to the Option.
8.2 TERM OF SAR. Unless otherwise provided in the Incentive Agreement,
the term of each SAR shall be five (5) years from the Date of Grant thereof. In
no case shall the term of any SAR exceed ten (10) years from the Date of Grant
thereof. In the event the grantee of an SAR ceases to be an Employee of the
Company for any reason, including death, the SAR may be exercised or shall
expire at such times as may be determined by the Board.
8.3 PAYMENT. Any grant may specify that the amount payable upon the
exercise of a Stock Appreciation Right may be paid by the Company in cash,
Common Shares or any combination thereof and may (i) either grant to the
Participant or reserve to the Board or the Committee the right to elect among
those alternatives or (ii) preclude the right of the Participant to receive and
the Company to issue Common Shares or other equity securities in lieu of cash;
provided, however, that no form of consideration or manner of payment that would
cause Rule 16b-3 of the Exchange Act to cease to apply to this Plan shall be
permitted. Subject to the right of the Board or the Committee to deliver cash in
lieu of shares of Common Stock (which, as it pertains to officers and directors
of the Company, shall comply with all requirements of the Exchange Act and
regulations adopted thereunder), the number of shares of Common Stock which
shall be issuable upon the exercise of an SAR shall be determined by dividing:
(a) the number of shares of Common Stock as to which the SAR
is exercised, multiplied by the amount of the appreciation in such shares (for
this purpose, the "appreciation" shall be the amount by which the Fair Market
Value of the shares of Common Stock subject to the SAR on the exercise date
exceeds (1) in the case of an SAR related to an Option, or (2) in the case of an
SAR granted alone, without reference to a related Option, an amount which shall
be determined by the Board at the time of grant, subject to adjustment under
Section 13), by
(b) the Fair Market Value of a share of Common stock on the
exercise date.
In lieu of issuing shares of Common Stock upon the exercise of an SAR, the Board
may elect to pay the holder of the SAR cash equal to the Fair Market Value on
the exercise date of any or all of the Shares which would otherwise be issuable.
No fractional Shares of Common Stock shall be issued upon the exercise of an
SAR; instead, the holder of the SAR shall be entitled to receive a cash
adjustment equal to the same fraction of the Fair Market Value of a share of
Common Stock on the exercise date, or to purchase the portion necessary to make
a whole Share at its Fair Market Value on the date of exercise. Any grant may
specify that the amount payable upon the exercise of a Stock Appreciation Right
shall not exceed a maximum specified by the Board or the Committee on the Date
of Grant.
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8.4 EXERCISE OF SARS.
(a) Any grant may specify (i) a waiting period or periods
before Stock Appreciation Rights shall become exercisable and (ii) permissible
dates or periods on or during which Stock Appreciation Rights shall be
exercisable.
(b) Any grant may specify that a Stock Appreciation Right may
be exercised only in the event of a Change of Control of the Company, Corporate
Transaction or other similar transaction or event.
8.5 DIVIDEND EQUIVALENTS. Any grant may provide for the payment to the
Participant of dividend equivalents thereon in cash or Common Shares on a
current, deferred or contingent basis.
8.6 SAR AGREEMENT. Each grant shall be evidenced by an agreement, which
shall be executed on behalf of the Company by any officer thereof and delivered
to and accepted by the Participant and shall describe the subject Stock
Appreciation Rights, identify any related Options, state that the Stock
Appreciation Rights are subject to all of the terms and conditions of this Plan
and contain such other terms and provisions as the Board or the Committee may
determine consistent with this Plan.
8.7 TANDEM STOCK APPRECIATION RIGHTS. Each grant shall provide that a
Tandem Stock Appreciation Right may be exercised only (i) at a time when the
related Option (or any similar right granted under any other plan of the
Company) is also exercisable and the Spread is positive and (ii) by surrender of
the related Option (or such other right) for cancellation.
8.8 FREE-STANDING STOCK APPRECIATION RIGHTS.
(a) Each grant shall specify in respect of each Free-Standing
Stock Appreciation Right a Base Price per Common Share, which shall be equal to
or greater than the Fair Market Value per share on the Date of Grant;
(b) Successive grants may be made to the same Participant
regardless of whether any Free-Standing Stock Appreciation Rights previously
granted to the Participant remain unexercised;
(c) Each grant shall specify the period or periods of
continuous employment, or continuous engagement of the consulting services, of
the Participant by the Company or any Subsidiary that are necessary before the
Free-Standing Stock Appreciation Rights or installments thereof shall become
exercisable; and
(d) No Free-Standing Stock Appreciation Right granted under
this Plan may be exercised more than 10 years from the Date of Grant.
9. RESTRICTED SHARES.
Restricted Shares are shares of Common Stock which are sold or
transferred by the Company to a Participant at a price which may be below their
Fair Market Value, or for no payment, but subject
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to restrictions on their sale or other transfer by the Participant. The transfer
of Restricted Shares and the transfer and sale of Restricted Shares shall be
subject to the following terms and conditions:
9.1 NUMBER OF SHARES. The number of Restricted Shares to be transferred
or sold by the Company to a Participant shall be determined by the Board.
9.2 SALE PRICE. The Board shall determine the prices, if any, at which
Restricted Shares shall be sold to a Participant, which may vary from time to
time and among Participants, and which may be below the Fair Market Value of
such shares of Common Stock on the date of sale.
9.3 RESTRICTIONS. All Restricted Shares transferred or sold hereunder
shall be subject to such restrictions as the Board may determine, including,
without limitation, any or all of the following:
(a) a prohibition against the sale, transfer, pledge or other
encumbrance of the Restricted Shares, such prohibition to lapse at such time or
times as the Board or the Committee shall determine (whether in annual or more
frequent installments, at the time of the death, disability or retirement of the
holder of such Restricted Shares, or otherwise);
(b) a requirement that the holder of Restricted Shares forfeit
or resell back to the Company, at his cost, all or a part of such Restricted
Shares in the event of termination of his employment during any period in which
such Restricted Shares are subject to restrictions; and
(c) a prohibition against employment of the holder of such
Restricted Shares by any competitor of the Company or a subsidiary of the
Company, or against such holder's dissemination of any secret or confidential
information belonging to the Company or a subsidiary of the Company.
9.4 ESCROW. In order to enforce the restrictions imposed by the Board
pursuant to Section 9.3 above, the Participant receiving Restricted Shares shall
enter into an agreement with the Company setting forth the conditions of the
grant. Restricted Shares shall be registered in the name of the Participant and
deposited, together with a stock power endorsed in blank, with the Company.
9.5 END OF RESTRICTIONS. Subject to Section 9.3, at the end of any time
period during which the Restricted Shares are subject to forfeiture and
restrictions on transfer, such Restricted Shares will be delivered, free of all
restrictions, to the Participant or to the Participant's legal representative,
beneficiary or heir.
9.6 STOCKHOLDER. Subject to the terms and conditions of the Plan, each
Participant receiving Restricted Shares shall have all the rights of a
stockholder with respect to such shares of stock during any period in which such
shares are subject to forfeiture and restrictions on transfer, including,
without limitation, the right to vote such shares. Dividends paid in cash or
property other than Common Stock with respect to the Restricted Shares shall be
paid to the Participant currently.
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9.7 OWNERSHIP OF RESTRICTED SHARES. Each grant or sale shall constitute
an immediate transfer of the ownership of the Restricted Shares to the
Participant in consideration of the performance of services, entitling such
Participant to dividend, voting and other ownership rights, subject to the
"substantial risk of forfeiture" and restrictions on transfer referred to
hereinafter.
9.8 ADDITIONAL CONSIDERATION. Each grant or sale may be made without
additional consideration from the Participant or in consideration of a payment
by the Participant that is less than the Fair Market Value per share on the Date
of Grant.
9.9 SUBSTANTIAL RISK OF FORFEITURE.
(a) Each grant or sale shall provide that the Restricted
Shares covered thereby shall be subject to a "substantial risk of forfeiture"
within the meaning of Section 83 of the Code for a period to be determined by
the Board or the Committee on the Date of Grant.
(b) Each grant or sale shall provide that, during the period
for which substantial risk of forfeiture is to continue the transferability of
the Restricted Shares shall be prohibited or restricted in the manner and to the
extent prescribed by the Board or the Committee on the Date of Grant. Such
restrictions may include without limitation rights of repurchase or first
refusal in the Company or provisions subjecting the Restricted Shares to a
continuing substantial risk of forfeiture in the hands of any transferee.
9.10 DIVIDENDS. Any grant or sale may require that any or all dividends
or other distributions paid on the Restricted Shares during the period of such
restrictions be automatically sequestered and reinvested on an immediate or
deferred basis in additional Common Shares, which may be subject to the same
restrictions as the underlying award or such other restrictions as the Board or
the Committee may determine.
9.11 ADDITIONAL GRANTS. Successive grants or sales may be made to the
same Participant regardless of whether any Restricted Shares previously granted
or sold to a Participant remain restricted.
10. DEFERRED SHARES.
The Board or the Committee may authorize grants or sales of Deferred
Shares to Participants upon such terms and conditions as the Board or the
Committee may determine in accordance with the following provisions:
10.1 PERFORMANCE CONDITIONS. Each grant or sale shall constitute the
agreement by the Company to issue or transfer Common Shares to the Participant
in the future in consideration of the performance of services, subject to the
fulfillment during the Deferral Period of such conditions as the Board or the
Committee may specify.
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10.2 ADDITIONAL CONSIDERATION. Each grant or sale may be made without
additional consideration from the Participant or in consideration of a payment
by the Participant that is less than the Fair Market Value per share on the Date
of Grant.
10.3 DEFERRAL PERIOD. Each grant or sale shall provide that the
Deferred Shares covered thereby shall be subject to a Deferral Period, which
shall be fixed by the Board or the Committee on the Date of Grant.
10.4 OWNERSHIP OF SHARES. During the Deferral Period, the Participant
shall not have any right to transfer any rights under the subject award, shall
not have any rights of ownership in the Deferred Shares and shall not have any
right to vote the Deferred Shares, but the Board or the Committee may on or
after the Date of Grant authorize the payment of dividend equivalents on the
Deferred Shares in cash or additional Common Shares on a current, deferred or
contingent basis.
10.5 ADDITIONAL GRANTS. Successive grants or sales may be made to the
same Participant regardless of whether any Deferred Shares previously granted or
sold to a Participant have vested.
10.6 AGREEMENT. Each grant or sale shall be evidenced by an agreement,
which shall be executed on behalf of the Company by any officer thereof and
delivered to and accepted by the Participant and shall contain such terms and
provisions as the Board or the Committee may determine consistent with this
Plan.
11. PERFORMANCE SHARES AND PERFORMANCE UNITS.
The Board or the Committee may authorize grants of Performance Shares
and Performance Units, which shall become payable to the Participant upon the
achievement of specified Management Objectives, upon such terms and conditions
as the Board or the Committee may determine in accordance with the following
provisions:
11.1 NUMBER. Each grant shall specify the number of Performance Shares
or Performance Units to which it pertains, which may be subject to adjustment to
reflect changes in compensation or other factors.
11.2 PERFORMANCE PERIOD. The Performance Period with respect to each
Performance Share or Performance Unit shall be determined by the Board or the
Committee on the Date of Grant.
11.3 MANAGEMENT OBJECTIVES.
(a) Each grant shall specify the Management Objectives that
are to be achieved by the Participant, which may be described in terms of
Company-wide objectives or objectives that are related to the performance of the
individual Participant or the Subsidiary, division, department or function
within the Company or Subsidiary in which the Participant is employed or with
respect to which the Participant provides consulting services.
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(b) Each grant shall specify in respect of the specified
Management Objectives a minimum acceptable level of achievement below which no
payment will be made and shall set forth a formula for determining the amount of
any payment to be made if performance is at or above the minimum acceptable
level but falls short of full achievement of the specified Management
Objectives.
(c) The Board or the Committee may adjust Management
Objectives and the related minimum acceptable level of achievement if, in the
sole judgment of the Board or the Committee, events or transactions have
occurred after the Date of Grant that are unrelated to the performance of the
Participant and result in distortion of the Management Objectives or the related
minimum acceptable level of achievement.
11.4 PAYMENT.
(a) Each grant shall specify the time and manner of payment of
Performance Shares or Performance Units that shall have been earned, and any
grant may specify that any such amount may be paid by the Company in cash,
Common Shares or any combination thereof and may either grant to the Participant
or reserve to the Board or the Committee the right to elect among those
alternatives; provided, however, that no form of consideration or manner of
payment that would cause Rule 16b-3 to cease to apply to this Plan shall be
permitted.
(b) Any grant of Performance Shares may specify that the
amount payable with respect thereto may not exceed a maximum specified by the
Board or the Committee on the Date of Grant. Any grant of Performance Units may
specify that the amount payable, or the number of Common Shares issued, with
respect thereto may not exceed maximums specified by the Board or the Committee
on the Date of Grant.
11.5 DIVIDENDS. On or after the Date of Grant of Performance Shares,
the Board or the Committee may provide for the payment to the Participant of
dividend equivalents thereon in cash or additional Common Shares on a current,
deferred or contingent basis.
11.6 ADDITIONAL GRANTS. Successive grants may be made to the same
Participant regardless of whether any Performance Shares or Performance Units
granted to any Participant have vested.
11.7 AGREEMENT. Each grant shall be evidenced by an agreement, which
shall be executed on behalf of the Company by any officer thereof and delivered
to and accepted by the Participant and shall contain such terms and provisions
as the Board or the Committee may determine consistent with this Plan.
12. CASH AWARDS.
A cash award consists of a monetary payment made by the Company to a
Participant as additional compensation for his services to the Company. Payment
of a cash award will normally depend on achievement of performance objectives by
the Company or by the Participant. The amount of any monetary payment
constituting a cash award shall be determined by the Board or the
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Committee in its sole discretion. Cash awards may be subject to other terms and
conditions, which may vary from time to time and among Participants, as the
Board determines to be appropriate.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
Subject to any required action by the stockholders of the Company, the
number of shares of Common Stock covered by each outstanding Option or Incentive
Award, and the number of shares of Common Stock which have been authorized for
issuance under the Plan but as to which no Options nor Incentive Awards have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option or Incentive Award, as well as the price per share of
Common Stock covered by each such outstanding Option or Incentive Award, shall
be proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall be
made by the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof, shall be made
with respect to the number or price of shares of Common Stock subject to an
Option or Incentive Award.
In the event of the proposed dissolution or liquidation of the Company,
all Options and Incentive Awards will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the Board.
The Board may, in the exercise of its sole discretion in such instances, declare
that any Option or Incentive Award shall terminate as of a date fixed by the
Board and give each holder the right to exercise his Option or Incentive Award
as to all or any part thereof, including Shares as to which the Option or
Incentive Award would not otherwise be exercisable. In the event of a proposed
sale of all or substantially all of the assets of the Company, or the merger of
the Company with or into another corporation, the Option or Incentive Award
shall be assumed or an equivalent Option or Incentive Award shall be substituted
by such successor corporation or a parent or subsidiary of such successor
corporation, unless the Board determines, in the exercise of its sole discretion
and in lieu of such assumption or substitution, that the holder shall have the
right to exercise the Option or Incentive Award as to all of the Shares,
including Shares as to which the Incentive would not otherwise be exercisable.
If the Board makes an Incentive exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
the holder that the Option or Incentive Award shall be fully exercisable for a
period of sixty (60) days from the date of such notice (but not later than the
expiration of the term of the Option or Incentive Award), and the Option or
Incentive Award will terminate upon the expiration of such period.
14. IMMEDIATE ACCELERATION OF INCENTIVES.
14.1 Notwithstanding any provision in the Plan or in any Incentive
Agreement to the contrary, (1) the restrictions on all shares of restricted
stock awarded shall lapse immediately, (2) all outstanding Options and SARs will
become exercisable immediately, and (3) all performance
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objectives shall be deemed to be met and payment made immediately if any of the
following events occur:
(a) any person or group of persons becomes after the date
hereof the beneficial owner of 20% or more of any equity security of the Company
entitled to vote for the election of directors unless the acquisition of such
securities by such person or group of persons was approved in advance of the
acquisition by a majority of the Continuing Directors (as defined below);
(b) a majority of the members of the Board is replaced within
any period of less than two years by directors not nominated and approved by
the Board; or
(c) the stockholders of the Company approve an agreement to
merge or consolidate with or into another corporation or an agreement to sell or
otherwise dispose of all or substantially all of the Company's assets (including
a plan of liquidation).
14.2 For purposes of this Section 14, beneficial ownership by a person
or group of persons shall be determined in accordance with Regulation 13D (or
any similar successor regulation) promulgated by the Securities and Exchange
Commission pursuant to the Exchange Act. Beneficial ownership of more than 20%
of an equity security may be established by any reasonable method, but shall be
presumed conclusively as to any person who files a Schedule 13D report with the
Securities and Exchange Commission reporting such ownership. If the restrictions
and forfeitability periods are eliminated by reason of provision (1), the
limitations of the Plans shall not become applicable again should the person or
group cease to own 20% or more of any equity security of the Company.
14.3 For purposes of this Section 14, "Continuing Directors" are (i)
directors who were in office prior to the time any of provisions (a), (b) or (c)
occurred or any person publicly announced an intention to acquire 20% or more of
any equity security of the Company, (ii) directors in office for a period of
more than two years, and (iii) directors nominated and approved by the
Continuing Directors.
15. TRANSFERABILITY.
Except to the extent otherwise expressly provided in the Plan, the
right to acquire Common Shares or other assets under the Plan may not be
assigned, encumbered or otherwise transferred by a Participant and any attempt
by a Participant to do so will be null and void. No Option or Incentive Award
granted under this Plan may be transferred by a Participant except by will or
the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee Retirement
Income Security Act, as amended, or the rules thereunder. Options and other
awards granted under this Plan may not be exercised during a Participant's
lifetime except by the Participant or, in the event of the Participant's legal
incapacity, by his guardian or legal representative acting in a fiduciary
capacity on behalf of the Participant under state law and court supervision.
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16. TIME OF GRANTING INCENTIVES.
The Date of Grant of an Option or Incentive Award shall, for all
purposes, be the date on which the Board or Committee makes the determination
granting such Option or Incentive Award. Notice of the determination shall be
given to each Participant to whom an Option or Incentive Award is so granted
within a reasonable time after the date of such grant.
17. AMENDMENT AND TERMINATION OF THE PLAN.
17.1 The Board may amend or terminate the Plan from time to time in
such respects as the Board may deem advisable; provided, however, that the
following revisions or amendments shall require approval of the holders of a
majority of the outstanding Shares of the Company entitled to vote thereon, to
the extent required by law, rule or regulation:
(a) Any increase in the number of Shares subject to the Plan,
other than in connection with an adjustment under Section 13 of the Plan;
(b) Any change in the designation of the persons eligible (or
any change in the class of Employees eligible, in the case of Incentive Stock
Options) to be granted Options or Incentive Awards involving Shares; or
(c) If the Company has a class of equity security registered
under Section 12 of the Exchange Act at the time of such revision or amendment,
any material increase in the benefits accruing to participants under the Plan.
17.2 Notwithstanding the foregoing, stockholder approval under this
Section 17 shall only be required at such time as (A) any rules of the National
Association of Securities Dealers' Automated Quotation System-National Market
System shall require stockholder approval of a plan or arrangement pursuant to
which Common Stock may be acquired by officers or directors of the Company, (B)
and/or Rule 16b-3, as promulgated by the Securities and Exchange Commission
under the Exchange Act, and as such Rule may be amended from time to time, shall
require the approval of stockholders of a company of any material amendment to
any employee benefit plan of such company, or (C) Section 422 of the Code shall
require shareholder approval of an amendment to the Plan.
17.3 Any such amendment or termination of the Plan shall not affect
Options already granted and such Options shall remain in full force and effect
as if this Plan had not been amended or terminated, unless mutually agreed
otherwise between the Optionee and the Board, which agreement must be in writing
and signed by the Optionee and the Company.
17.4 Notwithstanding the foregoing, this Plan shall terminate upon the
earlier of (i) August 29, 2006 or such earlier date as the Board shall
determine, or (ii) the date on which all awards available for issuance in the
last year of the Plan shall have been issued or canceled. Upon termination of
the Plan, no further awards may be granted, but all grants outstanding on such
date shall thereafter continue to have force and effect in accordance with the
provisions of the agreements evidencing such grants.
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18. WITHHOLDING TAXES.
18.1 The Company is authorized to withhold income taxes as required
under applicable laws or regulations. To the extent that the Company is required
to withhold federal, state, local or foreign taxes in connection with any
payment made or benefit realized by a Participant or other person under this
Plan, and the amounts available to the Company for the withholding are
insufficient, it shall be a condition to the receipt of any such payment or the
realization of any such benefit that the Participant or such other person make
arrangements satisfactory to the Company for payment of the balance of any taxes
required to be withheld. At the discretion of the Board or the Committee, any
such arrangements may without limitation include relinquishment of a portion of
any such payment or benefit or the surrender of outstanding Common Shares. The
Company and any Participant or such other person may also make similar
arrangements with respect to the payment of any taxes with respect to which
withholding is not required.
18.2 An Optionee who is also an officer or a director of the Company
must make the above described election: (a) at least six months after the Date
of Grant of the Option (except in the event of death or disability); and (b)
either: (i) six months prior to the Tax Date, or (ii) prior to the Tax Date and
during the period beginning on the third business day following the date the
Company releases its quarterly or annual statement of sales and earnings and
ending on the twelfth business day following such date.
19. CORPORATE TRANSACTION OR CHANGE OF CONTROL.
The Board or the Committee shall have the right in its sole discretion
to include with respect to any award granted to a Participant hereunder
provisions accelerating the benefits of the award in the event of a Corporate
Transaction or Change of Control, which acceleration rights may be granted in
connection with an award pursuant to the agreement evidencing the same or at any
time after an award has been granted to a Participant.
20. NON-EMPLOYEE DIRECTORS AUTOMATIC STOCK OPTION GRANTS.
20.1 ELIGIBILITY. The individuals eligible to receive automatic option
grants pursuant to the provisions of this Section 20 (the "Automatic Option
Grant Program") shall be limited to (i) those individuals who are serving as
non-employee members of the Board on the Effective Date, and (ii) those
individuals who are first elected or appointed as non-employee Board members
after the Effective Date of this Plan. Whether through appointment by the Board
or election by the Corporation's shareholders ("Non-Employee Director"). A
Non-Employee Director shall not be eligible to receive an automatic option grant
under clause (i) or clause (ii) above if such individual has previously been in
the employ of the Corporation or any Subsidiary. Any Non-Employee Director
eligible to participate in the Automatic Option Grant Program pursuant to the
foregoing criteria shall be designated an "Eligible Director" for purposes of
this Section 20.
20.2 OPTION GRANTS. Option grants shall be made under this Section 20
on the dates specified below:
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(a) Each individual who first becomes an Eligible Director
after the Effective Date of this Plan, whether through election by the
shareholders or appointment by the Board, shall automatically be granted, at the
time of such initial election or appointment, a Nonqualified Option to purchase
1,000 Common Shares upon the terms and conditions of this Section 20.
(b) On the date of each annual shareholders' meeting,
beginning with the 1997 annual shareholders' meeting, each individual who is at
that time serving as an Eligible Director, whether or not such individual is
standing for re-election as a Board member at that particular meeting, shall
automatically be granted a Nonqualified Option to purchase an additional 1,000
Common Shares upon the terms and conditions of this Section 20, provided such
individual has served as a Board member for at least six (6) months.
(c) There shall be no limit on the number of automatic option
grants any Eligible Director may receive over his or her period of Board
service. The number of shares for which the automatic option grants are to be
made to each newly elected or continuing Eligible Director shall be subject to
periodic adjustment pursuant to the applicable provisions of Section 13.
20.3 EXERCISE OF OPTIONS.
(a) The exercise price per Common Share subject to each
automatic option grant made under this Section 19 shall be equal to 100% of the
Fair Market Value per share on the applicable automatic grant date.
(b) The exercise price shall be payable in one of the
alternative forms set forth in Sections 7.5 and 7.7 hereof.
(c) Each automatic grant under this Section 20 shall have a
maximum term of ten (10) years measured from the automatic grant date.
(d) Each automatic grant shall vest in a series of three equal
and successive annual installments over the Eligible Director's period of
continued service as a Board member, with the first such installment to vest
upon the completion by the Eligible Director of one year of Board service
measured from the automatic grant date.
(e) During the lifetime of the Eligible Director, each
automatic option grant shall be exercisable only by the Eligible Director and
shall not be assignable or transferable by the Eligible Director other than by a
transfer effected by will or by the laws of descent and distribution following
the Eligible Director's death.
20.4 TERMINATION OF STATUS AS A DIRECTOR. Should the Eligible Director
cease to serve as a Board member for any reason (other than death or permanent
disability) while holding one or more automatic option grants under this Section
20, then such individual shall have a six-month period following the date of
such cessation of Board service in which to exercise each such option for any or
all of the option shares in which the Eligible Director is vested at the time of
such cessation of Board service. Each such option shall immediately terminate
and cease to remain outstanding, at
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the time of such cessation of Board service, with respect to any option shares
in which the Eligible Director is not otherwise at that time vested.
20.5 DEATH OR DISABILITY.
(a) Should the Eligible Director die within six months after
cessation of Board service, then any automatic option grant held by the Eligible
Director at the time of death may subsequently be exercised, for any or all of
the option shares in which the Eligible Director is vested at the time of his or
her cessation of Board service (less any option shares subsequently purchased by
the Eligible Director prior to death), by the personal representative of the
Eligible Director's estate or by the person or persons to whom the option is
transferred pursuant to the Eligible Director's will or in accordance with the
laws of descent and distribution. The right to exercise each such option shall
lapse upon the expiration of the 12-month period measured from the date of the
Eligible Director's death.
(b) Should the Eligible Director die or become permanently
disabled while serving as a Board member, then the Common Shares at the time
subject to each automatic option grant held by such Eligible Director under this
Section 20 shall immediately vest in full, and the Eligible Director (or the
representative of the Eligible Director's estate or the person or persons to
whom the option is transferred upon the Eligible Director's death) shall have a
12-month period following the date of the Eligible Director's cessation of Board
service in which to exercise such option for any or all of those vested Common
Shares.
20.6 EXPIRATION OF OPTIONS. In no event shall any automatic grant under
this Section 20 remain exercisable after the expiration date of the 10-year
option term. Upon the expiration of the applicable post-service exercise period
under subparagraphs 20.4, 20.5(a) or 20.5(b) above or (if earlier) upon the
expiration of the 10-year option term, the automatic grant shall terminate and
cease to be outstanding for any option shares in which the Eligible Director was
vested at the time of his or her cessation of Board service but for which such
option was not otherwise exercised.
20.7 CORPORATE TRANSACTION OR CHANGE OF CONTROL. In the event of any
Corporate Transaction or Change of Control of the Corporation, the Common Shares
at the time subject to each outstanding option under this Section 20 but not
otherwise vested shall automatically vest in full, so that each such option
shall, immediately prior to the effective date of such Corporate Transaction or
Change of Control, become fully exercisable for all of the Common Shares at the
time subject to that option and may be exercised for all or any portion of those
shares as fully vested Common Shares. Each such option shall remain so
exercisable for all the option shares following the Corporate Transaction or
Change of Control until the expiration or sooner termination of the option term.
Immediately following the consummation of the Corporate Transaction or Change of
Control, all automatic option grants under this Section 20 shall terminate.
Nothing in this Section 20.8 shall in any way affect the right of the
Corporation to adjust, reclassify, reorganize or to otherwise change its capital
or business structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or a part of its business or assets.
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20.8 RIGHTS AS A SHAREHOLDER. The holder of an automatic option grant
under this Section 20 shall have none of the rights of a shareholder with
respect to any shares subject to such option until such individual shall have
exercised the option and paid the exercise price for the purchased shares.
20.9 AMENDMENTS. The provisions of this Automatic Option Grant Program,
together with the automatic option grants outstanding under this Section 20, may
not be amended at intervals more frequently than once every six months, other
than to the extent necessary to comply with applicable federal income tax laws
and regulations.
21. MISCELLANEOUS PROVISIONS.
21.1 PLAN EXPENSE. Any expenses of administering this Plan shall be
borne by the Company.
21.2 CONSTRUCTION OF PLAN. The place of administration of the Plan
shall be in the State of Arizona, and the validity, construction,
interpretation, administration and effect of the Plan and of its rules and
regulations, and rights relating to the Plan, shall be determined in accordance
with the laws of the State of Arizona without regard to conflict of law
principles and, where applicable, in accordance with the Code.
21.3 OTHER COMPENSATION. The Board or the Committee may condition the
grant of any award or combination of awards authorized under this Plan on the
surrender or deferral by the Participant of his or her right to receive a cash
bonus or other compensation otherwise payable by the Company or a Subsidiary to
the Participant.
21.4 CONTINUATION OF EMPLOYMENT OR SERVICES. This Plan shall not confer
upon any Participant any right with respect to continuance of employment or
other service with the Company or any Subsidiary and shall not interfere in any
way with any right that the Company or any Subsidiary would otherwise have to
terminate any Participant's employment or other service at any time. Nothing
contained in the Plan shall prevent the Company or any Subsidiary from adopting
other or additional compensation arrangements for its employees.
21.5 TAX-QUALIFIED OPTIONS. To the extent that any provision of this
Plan would prevent any Option that was intended to qualify as a Tax-Qualified
Option from so qualifying, any such provision shall be null and void with
respect to any such Option; provided, however, that any such provision shall
remain in effect with respect to other Options, and there shall be no further
effect on any provision of this Plan.
21.6 CERTAIN TERMINATIONS OF EMPLOYMENT OR CONSULTING SERVICES,
HARDSHIP AND APPROVED LEAVES OF ABSENCE. Notwithstanding any other provision of
this Plan to the contrary, in the event of termination of employment or
consulting services by reason of death, disability, normal retirement, early
retirement with the consent of the Company, termination of employment or
consulting services to enter public or military service with the consent of the
Company or leave of absence approved by the Company, or in the event of hardship
or other special circumstances, of a
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Participant who holds an Option or Stock Appreciation Right that is not
immediately and fully exercisable, any Restricted Shares as to which the
substantial risk of forfeiture or the prohibition or restriction on transfer has
not lapsed, any Deferred Shares as to which the Deferral Period is not complete,
any Performance Shares or Performance Units that have not been fully earned, or
any Common Shares that are subject to any transfer restriction pursuant to
Section 15 of this Plan, the Board or the Committee may take any action that it
deems to be equitable under the circumstances or in the best interests of the
Company, including without limitation waiving or modifying any limitation or
requirement with respect to any award under this Plan.
21.7 BINDING EFFECT. The provisions of the Plan shall inure to the
benefit of, and be binding upon, the Company and its successors or assigns, and
the Participants, their legal representatives, their heirs or legatees and their
permitted assignees.
21.8 EXCHANGE ACT COMPLIANCE. With respect to persons subject to
Section 16 of the Exchange Act, transactions under this Plan are intended to
comply with all applicable conditions of Rule 16b-3 or its successors under the
Exchange Act. To the extent any provisions of the Plan or action by the Board or
the Committee fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Board or the Committee.
21.9 CONDITIONS UPON ISSUANCE OF SHARES.
(a) Shares shall not be issued pursuant to the exercise of an
Option or Incentive Award unless the exercise of such Option or Incentive Award
and the issuance and delivery of such Shares pursuant thereto shall comply with
all relevant provisions of law, including, without limitation, the Securities
Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
(b) As a condition to the exercise of an Option or Incentive
Award, the Company may require the person exercising such Option or Incentive
Award to represent and warrant at the time of any such exercise that the Shares
are being purchased or otherwise acquired only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
(c) Inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
21.10 FRACTIONAL SHARES. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Board or the Committee may
provide for the elimination of fractions or for the settlement thereof in cash.
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21.11 RESERVATION OF SHARES. The Company will at all times reserve and
keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
21.12 INDEMNIFICATION. In addition to such other rights of
indemnification as they may have as members of the Board, the members of the
Board and of the Committee shall be indemnified by the Company against all costs
and expenses reasonably incurred by them in connection with any action, suit or
proceeding to which they or any of them may be party by reason of any action
taken or failure to act under or in connection with the Plan or any Option or
Incentive Award, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except a judgment based upon a finding of bad faith;
provided that upon the institution of any such action, suit or proceeding a
Board member or Committee member shall, in writing, give the Company notice
thereof and an opportunity, at its own expense, to handle and defend the same
before such Board member or Committee member undertakes to handle and defend it
on his own behalf.
21.13 GENDER. For purposes of this Plan, words used in the masculine
gender shall include the feminine and neuter, and the singular shall include the
plural and vice versa, as appropriate.
21.14 USE OF PROCEEDS. Any cash proceeds received by the Company from
the sale of Common Shares under the Plan shall be used for general corporate
purposes.
21.15 REGULATORY APPROVALS.
(a) The implementation of the Plan, the granting of any awards
under the Plan and the issuance of any Common Shares shall be subject to the
Company's procurement of all approvals and permits required by regulatory
authorities having jurisdiction over the Plan, the awards granted under it and
the Common Shares issued pursuant to it.
(b) No Common Shares or other assets shall be issued or
delivered under this Plan unless and until there shall have been compliance with
all applicable requirements of federal and state securities laws, including the
filing and effectiveness of the Form S-8 registration statement for the Common
Shares issuable under the Plan, and all applicable listing requirements of any
securities exchange on which the Common Shares are then listed for trading.
27
Squire, Sanders & Dempsey, L.L.P.
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
January 30, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Bio Florescent Technologies, Inc. - 1996 Stock
Incentive Plan
Ladies and Gentlemen:
We have acted as counsel to Bio Florescent Technologies, Inc., a Nevada
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933
relating to the registration of 2,600,000 shares of its Common Stock, $.001 par
value (the "Shares"), issuable pursuant to the Company's 1996 Stock Incentive
Plan (the "Plan").
In that connection, we have examined such documents, corporate records
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Articles of Incorporation and the Bylaws of the
Company.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly organized and is validly
existing as a corporation under the laws of the State of Nevada.
2. The Shares, when issued and sold in accordance with the
terms of the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
SQUIRE, SANDERS & DEMPSEY, L.L.P.
EXHIBIT "5"
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
As independent public accountants, we hereby consent to the incorpoation by
reference in this registration statement of our report dated May 21, 1996,
included in Bio Florescent Technologies, Inc.'s Form 10-KSB for the year ended
December 31, 1995, and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Phoenix, Arizona
January 22, 1997
