As filed with the Securities and Exchange Commission
on June 20, 1996
Registration No. 33-_________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
UNILAB CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-4415490
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization
18448 Oxnard Street, Tarzana, California 91356
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION AND PERFORMANCE INCENTIVE PLAN
UNILAB CORPORATION NON-EMPLOYEE DIRECTORS STOCK PLAN
UNILAB CORPORATION NON-QUALIFIED STOCK OPTIONS
UNILAB CORPORATION RESTRICTED COMMON STOCK
(Full Title of the Plans)
Mark L. Bibi, Esq.
Vice President, Secretary and General Counsel
Unilab Corporation
401 Hackensack Avenue
9th Floor
Hackensack, New Jersey 07601
(201) 525-1000
(Name, Address and Telephone Number, including area code,
of Agent for Service)
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of maximum maximum Amount of
securities to Amount to be offering price aggregate registration
be registered registered per share (1) offering price (1) fee
<S> <C> <C> <C> <C>
Common Stock, 5,350,000(2) $1.71875 $9,195,313 $3,171
par value
$.01 per share
</TABLE>
________________________
1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) and Rule 457(h)
promulgated under the Securities Act of 1933, as amended
(the "Securities Act"), based upon the average of the high and
low prices per share of the Common Stock (such average
being $1.71875) as reported on The Nasdaq Stock
Market/Nasdaq National Market on June 14, 1996.
2) Represents (i) 325,000 shares issuable upon the exercise of
certain nonqualified options granted to certain employees and
directors; (ii) 25,000 shares of restricted stock issued to an
employee; (iii) 4,000,000 shares issuable upon the exercise of
options granted under the Unilab Corporation 1996 Stock
Option and Performance Incentive Plan; and (iv) 1,000,000
shares issuable in connection with the Unilab Corporation
Non-Employee Directors Stock Plan. This Registration
Statement also relates to such indeterminate number of
additional shares of Common Stock as may be issuable as a
result of stock splits, stock dividends or similar transactions.
<PAGE>
EXPLANATORY NOTE
Pursuant to General Instruction C to Form S-8, this
Registration Statement contains a prospectus meeting the
requirements of Part I of Form S-3 relating to reofferings and
resales by certain persons of shares of common stock, par
value $.01 per share, of Unilab Corporation (i) to be acquired
pursuant to the exercise by certain employees or directors of,
or persons affiliated with, Unilab Corporation, each of whom
could be deemed to be an "affiliate" (as such term is defined
in Rule 405 promulgated under the Securities Act) of Unilab
Corporation, of certain nonqualified stock options granted to
such employees, directors or other persons and (ii) issued to
an employee of Unilab Corporation pursuant to a restricted
stock issuance agreement.
<PAGE>
<TABLE>
UNILAB CORPORATION
FORM S-8 CROSS REFERENCE SHEET SHOWING LOCATION OF INFORMATION
REQUIRED BY PART I OF FORM S-3
<CAPTION>
Form S-3 Item Number Location/Heading in Prospectus
<S> <C> <C>
1. Forepart of Registration Statement and Cover Page
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages Available Information;
of Prospectus Incorporation of Certain
Information by Reference
3. Summary Information, Risk Factors and Not Applicable
Ratio of Earnings to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Selling Stockholders
8. Plan of Distribution Plan of Distribution
9. Description of Securities to be Registered Not Applicable
10. Interests of Names Experts and Counsel Experts; Legal Matters
11. Material Changes Not Applicable
12. Incorporation of Certain Information by Incorporation of Certain
Reference Information by Reference
13. Disclosure of Commission Position on Indemnification of Officers
Indemnification for Securities Act and Directors
Liabilities
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By
Reference.
The following documents which have been,
or will in the future be, filed by Unilab
Corporation (the "Company") with the Securities
and Exchange Commission (the "Commission")
are incorporated in this Registration Statement by
reference:
1. The Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1995,
as amended by Amendment No. 1 thereto on Form
10-K/A.
2. The Company's Quarterly Report on Form
10-Q for the period ended March 31, 1996.
3. The Company's Current Report on Form 8-
K, dated March 19, 1996.
4. The description of the Company's common
stock, par value $.01 per share (the "Unilab
Common Stock"), contained in the Company's
Registration Statement on Form 8-A filed with the
Commission on June 19, 1996, including any
amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all
securities offered hereby have been sold or which
deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in
and to be a part of this Registration Statement
from the date of filing of 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.
Section 145 of the General Corporation
Law of the State of Delaware (the "DGCL")
provides that a Delaware corporation may
indemnify any person against expenses, judgments,
fines and amounts paid in settlements actually and
reasonably incurred by any such person in
connection with a threatened, pending or
completed action, suit or proceeding in which he is
involved by reason of the fact that he is or was a
director, officer, employee or agent of such
corporation, or is or was serving at the request of
the corporation, as a director, officer, employee or
agent of another corporation, partnership, joint
venture, trust or other enterprise, provided that (i)
he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the
best interests of the corporation and (ii) with
respect to any criminal action or proceeding, he
had no reasonable cause to believe his conduct was
unlawful. If the action or suit is by or in the name
of the corporation, the corporation may indemnify
any such person against expenses actually and
reasonably incurred by him in connection with the
defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best
interests of the corporation, except that no
indemnification may be made in respect of any
claim, issue or matter as to which such person
shall have been adjudged to be liable to the
corporation, unless and only to the extent that the
Delaware Court of Chancery or the court in which
the action or suit is brought determines upon
application that, despite the adjudication of
liability but in light of the circumstances of the
case, such person is fairly and reasonably entitled
to indemnity for such expenses as the court deems
proper.
The Amended and Restated Certificate of
Incorporation, as amended, of the Registrant
provides for indemnification, to the fullest extent
permitted by the provisions of the DGCL, of all
persons whom it may indemnify pursuant thereto.
The Amended and Restated Certificate of
Incorporation, as amended, of the Registrant also
provides that the indemnification provided by such
section shall not limit or exclude any rights,
indemnities or limitations of liability to which any
person may be entitled whether as a matter of law,
under the Amended and Restated By-laws of the
Registrant, by agreement, vote of the stockholders
or disinterested directors of the Registrant or
otherwise.
In accordance with Section 102(b)(7) of the
DGCL, the Amended and Restated Certificate of
Incorporation, as amended, of the Registrant limits
the personal liability of the directors of the
Registrant to the fullest extent permitted by such
Section 102(b)(7).
The Registrant also maintains standard
forms of officers' and directors' liability insurance
policies.
Item 7. Exemption from Registration Claimed.
Exemption from registration is claimed
under Section 4(2) of the Securities Act for 25,000
shares of the Unilab Common Stock covered by
the Reoffer Prospectus. Such shares were issued
to an employee of the registrant as part of his
individually negotiated employment arrangements
with the registrant. Such employee made
representations contemplated by Rule 502(d) of
Regulation D promulgated under the Securities Act
in connection with his acquisition of such shares.
Item 8. Exhibits.
The following is a complete list of exhibits
filed as a part of this registration statement:
<PAGE>
Exhibit No. Document
4.1 Unilab Corporation 1996 Stock Option and
Performance Incentive Plan with forms of
agreements used thereunder.
4.2 Non-Employee Directors Stock Option Plan
with forms of agreements used thereunder.
4.3 Form of Stock Option Agreement by and
between the Company and Messrs. Baker,
Cramer, Hoffman, Lewis, Michaelson,
Monterosa, Pyle and Thomas.
4.4 Form of Restricted Stock Agreement by and
between the Company and Craig Trask.
5.1 Opinion of Mark L. Bibi, Esq. as to the
legality of original issuance of shares of Unilab
Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Mark L. Bibi, Esq. (included in
Exhibit 5.1 hereto).
24 Powers of Attorney (see pages S-1 and S-2 of
this Registration Statement).
Item 9. Undertakings.
A. To Update Annually.
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 (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form
S-8 or form F-3, and the information required to be included
in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 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. Incorporation of Subsequent Exchange Act Documents by Reference.
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 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. Indemnification of Officers and Directors.
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 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.
<PAGE>
REOFFER
PROSPECTUS
UNILAB CORPORATION
18448 Oxnard Street
Tarzana, California 91356
Telephone No. (818) 996-7300
_________________________
Common Stock, par value $.01 per share
205,000 Shares
_________________________
This Reoffer Prospectus relates to the subsequent
resale or offer for sale on The Nasdaq Stock Market/Nasdaq
National Market ("Nasdaq/NNM"), or otherwise, of
(i) 180,000 shares of voting common stock, par value $.01
per share ("Unilab Common Stock"), of Unilab Corporation,
a Delaware corporation ("Unilab" or the "Company"), that
may be acquired by certain employees or directors of, or
persons affiliated with, the Company, each of whom could be
deemed to be "affiliates" (as defined in Rule 405 promulgated
under the Securities Act of 1933, as amended (the "Securities
Act")) of Unilab, pursuant to the exercise of certain
nonqualified options granted to such employees, directors or
other persons (the "Option Shares") and (ii) 25,000 shares of
restricted Unilab Common Stock (the "Restricted Shares")
that have been granted by the Company to an employee of the
Company as partial compensation for services rendered by
such employee (such persons referred to in clauses (i) and (ii)
being the "Selling Stockholders"). In connection with such
resales or offers for sale, such persons and the brokers
through whom such shares may be sold may be deemed to be
"underwriters" as that term is defined in Section 2(11) of the
Securities Act. The Company will not receive any proceeds
from the offering of the Option Shares or the Restricted
Shares. All expenses of registration incurred in connection
with the registration under the Securities Act and the offering
of the securities hereby are being borne by Unilab, but all
selling and other expenses. incurred by an individual Selling
Stockholder will be borne by such Selling Stockholder.
___________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
___________________________
No person has been authorized to give any information
or to make any representations, other than as contained
herein, in connection with the offer contained in this Reoffer
Prospectus, and, if given or made, such information or
representations must not be relied upon. This Reoffer
Prospectus does not constitute an offer to sell or solicitation
of an offer to buy any of the securities offered hereby in any
state to any person to whom it is unlawful to make such offer
or solicitation.
___________________________
The date of this Reoffer Prospectus is June 20, 1996.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith
files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission")
which may be inspected and copied at the public reference
facilities maintained by the Commission located at Judiciary
Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, and at the public reference facilities located at
the regional offices of the Commission at Seven World Trade
Center, Suite 1300, New York, New York 10048, and at the
Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material can
be obtained from the Public Reference Section of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Common
Stock is quoted through The Nasdaq Stock Market/Nasdaq
National Market ("Nasdaq/NNM"). Reports, proxy
statements, informational statements and other information
concerning the Company can be inspected at the offices of the
National Association of Securities Dealers, Inc., 1735 K
Street, N.W., Washington, D.C. 20006. The Company has
applied for and been approved for listing on the American
Stock Exchange and expects to begin trading on the American
Stock Exchange on or about June 24, 1996.
The Company has filed with the Commission a
Registration Statement (herein, together with all amendments
and exhibits, referred to as the "Registration Statement")
under the Securities Act of 1933 (the "Act"), with respect to
the securities offered hereby. This Reoffer Prospectus, which
constitutes a part of the Registration Statement, does not
contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. For
further information, reference is hereby made to the
Registration Statement and exhibits filed as a part thereof and
otherwise incorporated therein and which may be inspected
and copied in the manner and at the sources described above.
Statements contained in this Reoffer Prospectus as to the
contents of any document referred to are not necessarily
complete, and in each instance reference is made to such
exhibit for a more complete description and each such
statement is qualified in its entirety by such reference.
THE COMPANY
General
Unilab primarily provides clinical laboratory
testing services to physicians, managed-care organizations,
hospitals and other health care providers. It provides clinical
laboratory testing services through three full-service central
testing laboratories located in Tarzana (Los Angeles), San
Jose and Sacramento, California, approximately 40 STAT
("short turnaround time") laboratories in California and
approximately 180 patient service centers primarily located in
California, with a handful in certain other states.
Unilab was incorporated under the name
MetCal Inc. on January 6, 1993 as a Delaware corporation
and successor to Unilab Corporation, a Colorado corporation
founded in 1988 (as successor to a corporation founded in
1986), which was reincorporated in 1990 as a Delaware
corporation. Unilab's executive offices are located at 18448
Oxnard Street, Tarzana, California 91356, telephone number
(818) 996-7300. Unilab Common Stock is listed on
Nasdaq/NNM under the symbol "ULAB."
USE OF PROCEEDS
The Company will receive the exercise price of
the options when exercised by the holders thereof. Such
proceeds will be used for working capital purposes. The
Company will not receive any proceeds from the offering of
the Restricted Shares or the Option Shares by the Selling
Stockholders.
PLAN OF DISTRIBUTION
The shares of Unilab Common Stock covered by this
Reoffer Prospectus are being registered by Unilab for account
of the Selling Stockholders. Unilab understands that none of
such shares will be offered through underwriters.
The shares of Unilab Common Stock reoffered and
resold hereby may be offered and sold from time to time by
certain stockholders of Unilab in the over-the-counter market
(without the payment of any underwriting commission or
discount other than normal brokers' commissions for
effecting such transactions), through negotiated transactions
or otherwise, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at prices
otherwise negotiated. In addition, such shares may be offered
from time to time by certain stockholders through
Nasdaq/NNM. The Selling Stockholders and any broker or
dealer through whom offers or sales of shares of Unilab
Common Stock covered by this Reoffer Prospectus are made
may be regarded as "underwriters" within the meaning of the
Act although the Selling Stockholders disclaim such status.
Compensation received by any such broker or dealer in
respect of the offer or sale of such shares may be regarded as
underwriters' compensation.
All expenses of registration incurred in connection
with this offering are being borne by Unilab, but all selling
and other expenses incurred by an individual Selling
Stockholder will be borne by such Selling Stockholder.
SELLING STOCKHOLDERS
This Reoffer Prospectus relates to (i) shares of Unilab
Common Stock which have been acquired by an employee of
the Company pursuant to the grant to him of Unilab Common
Stock under a Restricted Stock Agreement and (ii) shares of
Unilab Common Stock which may be acquired by certain
employees or directors of, or persons affiliated with, the
Company, each of whom could be deemed to be "affiliates"
of Unilab, pursuant to the exercise of options granted to such
employees, directors or other persons under Nonqualified
Stock Option Agreements.
The following table sets forth certain information
known to Unilab regarding the beneficial ownership of Unilab
Common Stock as of June 10, 1996 with respect to each of
the Selling Stockholders. For purposes of this table, a person
is deemed to have "beneficial ownership" of any shares as of
a given date which such person has the right to acquire within
60 days after such date. For purposes of computing the
percentage of outstanding shares held by each person named
below on a given date, any security which such person has
the right to acquire within 60 days after such date is deemed
to be outstanding, but is not deemed to be outstanding for the
purpose of computing the percentage ownership of any other
person. Except as noted below, each person has full voting
and investment power over the shares indicated.
<TABLE>
<CAPTION>
Number of
Number of Shares of
Shares of Common Stock
Common Stock Beneficially
Position or Material Beneficially Number of Owned After
Relationship with Owned Shares of Completion
Selling the Company During Prior to Common Stock of the
Stockholder Past Three Years Reoffering(1) Reoffered Reoffering (1)
Percentage
of Total
Shares
Number Outstanding
<S> <C> <C> <C> <C> <C>
Andrew H. Baker Chairman and Chief 1,352,621(2)(3) 60,000(4) 1,352,621 3.8%
Executive Officer
Kirby L. Cramer Director 90,000(2) 20,000(4) 80,000 *
Michael B. Hoffman Director 65,000(2) 10,000(4) 60,000 *
Walker Lewis Director 15,000(2) 10,000(4) 10,000 *
Richard A.Michaelson Senior Vice Pres., 388,750(2)(5) 35,000(4) 388,750 *
Treasurer, Chief
Financial Officer
Ralph Monterosa President and 96,750(2)(5) 15,000(4) 89,250 *
Chief Operating
Officer
Thomas O. Pyle Director 15,000(2) 10,000(4) 10,000 *
Gabriel B. Thomas Director 40,000(2) 20,000(4) 30,000 *
Craig Trask Regional Vice 30,000(2) 25,000(4)(6) 18,500 *
President
</TABLE>
* Less than 1%.
(1) Calculated pursuant to Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and based on
35,613,006 shares of Unilab Common Stock outstanding as of June 10,
1996. Since the shares being reoffered hereby have been registered
pursuant to Rule 415 under the Securities Act and not pursuant to an
underwritten public offering, the number of registered shares to be sold
pursuant hereto and the dates of such sale are not presently determinable.
(2) Includes the following number of shares of Unilab Common Stock that the
individuals named in the table have the right to acquire upon exercise of
nonqualified stock options within 60 days of June 10, 1996: Andrew H.
Baker, 345,000 shares; Kirby L. Cramer, 80,000 shares; Michael B.
Hoffman, 55,000 shares; Walker Lewis, 15,000 shares; Richard A.
Michaelson, 385,000 shares; Ralph Monterosa, 82,000 shares; Thomas
O. Pyle, 15,000 shares; Gabriel B. Thomas, 40,000 shares; and Craig
Trask, 17,500 shares.
(3) Includes 18,069 shares registered in the name of Mr. Baker's wife.
(4) The number of shares of Common Stock reoffered, includes shares
issuable upon exercise of options that had not vested as of, or would not
vest, within 60 days of, June 10, 1996.
(5) Includes the following number of restricted shares of Unilab Common
Stock issued to the following individuals: Richard Michaelson, 25,000
shares and Ralph Monterosa, 20,000 shares.
(6) Restricted shares of Unilab Common Stock.
Shares of Unilab Common Stock covered by this
Reoffer Prospectus may be offered and sold from time to
time by the Selling Stockholders through brokers through
Nasdaq/NNM or otherwise, at the prices prevailing at the
time of such sales. To the Company's knowledge, no
specific brokers or dealers have been designated by the
Selling Stockholders nor has any agreement been entered
into in respect of brokerage commissions or for the
exclusive or coordinated sale of any securities which may be
offered pursuant to this Reoffer Prospectus. The Company
will pay all expenses of preparing and reproducing this
Reoffer Prospectus, but will not receive any of the proceeds
from sales by any of the Selling Stockholders. On June 14,
1996, the closing sales price per share of the Unilab
Common Stock, as reported by the Nasdaq/NNM was $1-
11/16.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents are incorporated
herein by reference and made a part hereof:
1. The Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995.
2. The Company's Quarterly Report on Form
10-Q for the periods ended March 31, 1996.
3. The Company's Current Report on Form 8-K,
dated March 19, 1996.
4. The description of the Unilab Common Stock
contained in the Company's Registration Statement on Form
8-A filed with the Commission on June 18, 1996, including
any amendments or reports filed for the purpose of updating
such description.
All of such documents are on file with the
Commission. All documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities to be offered
hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be
incorporated by reference in and to be a part of this Reoffer
Prospectus from the date of the filing of such documents.
A copy of any document incorporated by reference in
the Registration Statement (not including exhibits to the
information that is incorporated by reference unless such
exhibits are specifically incorporated by reference into the
information that the Registration Statement incorporates) of
which this Reoffer Prospectus forms a part but which is not
delivered with this Reoffer Prospectus will be provided by
the Company without charge to any person to whom this
Reoffer Prospectus has been delivered, upon the oral or
written request of such person. Such requests should be
directed to Mark L. Bibi, Secretary, Unilab Corporation,
401 Hackensack Avenue, 9th Floor, Hackensack, New
Jersey 07601, telephone number (201) 525-1000.
EXPERTS
The audited Consolidated Financial Statements and
schedules of the Company, incorporated by reference in this
Reoffer Prospectus and elsewhere in this Registration
Statement have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports
with respect thereto, and are incorporated by reference
herein in reliance upon the authority of said firm as experts
in accounting and auditing in giving said reports.
LEGAL MATTERS
Certain legal matters with respect to the Common
Stock being offered hereby are being passed upon by Mark
L. Bibi, Esq., Vice President, Secretary and General
Counsel of the Company.
INDEMNIFICATION
Section 145 of the General Corporation Law of the
State of Delaware (the "DGCL") provides that a Delaware
corporation may indemnify any person against expenses,
judgments, fines and amounts paid in settlements actually
and reasonably incurred by any such person in connection
with a threatened, pending or completed action, suit or
proceeding in which he is involved by reason of the fact that
he is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of the
corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, provided that (i) he acted in good faith and
in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation and (ii) with respect
to any criminal action or proceeding, he had no reasonable
cause to believe his conduct was unlawful. If the action or
suit is by or in the name of the corporation, the corporation
may indemnify any such person against expenses actually
and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation,
except that no indemnification may be made in respect of
any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation, unless
and only to the extent that the Delaware Court of Chancery
or the court in which the action or suit is brought
determines upon application that, despite the adjudication of
liability but in light of the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper.
The Amended and Restated Certificate of
Incorporation, as amended, of the Registrant provides for
indemnification, to the fullest extent permitted by the
provisions of the DGCL, of all persons whom it may
indemnify pursuant thereto. The Amended and Restated
Certificate of Incorporation, as amended, of the Registrant
also provides that the indemnification provided by such
section shall not limit or exclude any rights, indemnities or
limitations of liability to which any person may be entitled
whether as a matter of law, under the Amended and
Restated By-laws of the Registrant, by agreement, vote of
the stockholders or disinterested directors of the Registrant
or otherwise.
In accordance with Section 102(b)(7) of the DGCL,
the Amended and Restated Certificate of Incorporation, as
amended, of the Registrant limits the personal liability of the
directors of the Registrant to the fullest extent permitted by
such Section 102(b)(7).
The Registrant also maintains standard forms of
officers' and directors' liability insurance policies.
<PAGE>
TABLE OF CONTENTS UNILAB CORPORATION
Page
Available Information A-3
205,000 Shares
The Company A-3
Use of Proceeds A-4
Plan of Distribution A-4 COMMON STOCK,
PAR VALUE
Selling Stockholders A-4 $.01 PER SHARE
Documents Incorporated
by Reference A-7
Experts A-8 ________________
Legal Matters A-8
Indemnification A-8
_______________
Unilab Corporation has filed with the
Securities and Exchange Commission, PROSPECTUS
Washington, D.C., a Registration
Statement under the Securities Act of
1933, as amended, with respect to this June 20, 1996
Offering. This Reoffer Prospectus omits
certain information contained in the
Registration Statement. The information
omitted may be obtained from the
Securities and Exchange Commission
upon payment of the regular charge
therefor.<PAGE>
<PAGE>
SIGNATURES
The Registrant
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8, and has
duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Hackensack
and State of New Jersey on this 18th day of June, 1996.
UNILAB CORPORATION
By: /s/
Name:Andrew H. Baker
Title:Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints
each of Andrew H. Baker, Richard A. Michaelson and Mark L. Bibi
as his attorney-in-fact, with full power of substitution, to execute in
his name, individually and in each capacity stated below, one or more
amendments (including post-effective amendments) to this Registration
Statement as the attorney-in-fact acting on the premise shall from time
to time deem appropriate and to file any such amendment to this
Registration Statement with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1993, this
Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
/s/ Chairman of the Board June 18, 1996
Andrew H. Baker President and Chief Executive
Officer (principal executive
officer)
/s/ Senior Vice President- June 18, 1996
Richard A. Michaelson Finance, Treasurer and Chief
Financial Officer (principal
financial and accounting officer)
/s/ Director June 18, 1996
Kirby L. Cramer
/s/ Director June 18, 1996
Michael B. Hoffman
/s/ Director June 18, 1996
Walker Lewis
/s/ Director June 18, 1996
Thomas O. Pyle
/s/ Director June 18, 1996
Gabriel B. Thomas
<PAGE>
EXHIBIT INDEX
Exhibit No. Document Page
4.1 Unilab Corporation 1996 Stock Option and
Performance Incentive Plan with forms of
agreements used thereunder.
4.2 Non-Employee Directors Stock Option Plan
with forms of agreements used thereunder.
4.3 Form of Stock Option Agreement by and
between the Company and Messrs. Baker,
Cramer, Hoffman, Lewis, Michaelson,
Monterosa, Pyle and Thomas.
4.4 Form of Restricted Stock Agreement by and
between the Company and Craig Trask.
5.1 Opinion of Mark L. Bibi, Esq. a
to the legality of original
issuance of shares of Unilab
Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Mark L. Bibi, Esq.
(included in Exhibit 5 hereto).
24 Powers of Attorney (see pages
S-1 and S-2 of this Registration
Statement).
Exhibit 4.1
UNILAB CORPORATION
1996 STOCK OPTION AND PERFORMANCE INCENTIVE PLAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE
1.1 Establishment and Effective Date. Unilab Corporation, a Delaware
corporation (the "Corporation"), hereby establishes a stock incentive plan to
be known as the "Unilab Corporation 1996 Stock Option and Performance
Incentive Plan" (the "Plan"). The Plan shall become effective as of January
1, 1996, subject to the approval of the Corporation's stockholders at the
1996 Annual Meeting of Stockholders. In the event that such stockholder
approval is not obtained, any awards made hereunder shall be cancelled and
all rights of employees with respect to such awards shall thereupon cease.
Upon approval of the Plan by the Board of Directors of the Corporation (the
"Board") and the Board's Compensation Committee (the "Committee"), awards may
be made as provided herein.
1.2 Purpose. The purpose of the Plan is to encourage and enable all employees
(subject to such requirements as may be prescribed by the Committee) of the
Corporation and its subsidiaries to acquire a proprietary interest in the
Corporation through the ownership of the Corporation's common stock, par
value $.01 per share ("Common Stock"), and other rights with respect to the
Common Stock. Such ownership will provide such employees with a more direct
stake in the future welfare of the Corporation and encourage them to remain
with the Corporation and its subsidiaries. It is also expected that the Plan
will encourage qualified persons to seek and accept employment with the
Corporation and its subsidiaries.
ARTICLE 2
AWARDS
2.1 Form of Awards. Awards under the Plan may be granted in any one or all of
the following forms: (i) incentive stock options ("Incentive Stock Options")
meeting the requirements of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"); (ii) non-qualified stock options ("Non-qualified
Stock Options") (unless otherwise indicated, references in the Plan to
"Options" shall include both Incentive Stock Options and Non- qualified Stock
Options); (iii) stock appreciation rights ("Stock Appreciation Rights"), as
described in Article 6 hereof, which may be awarded either in tandem with
Options ("Tandem Stock Appreciation Rights") or on a stand- alone basis
("Nontandem Stock Appreciation Rights"); (iv) shares of Common Stock which
are restricted as provided in Article 9 hereof ("Restricted Shares"); (v)
units representing shares of Common Stock, as described in Article 10 hereof
("Performance Shares"); (vi) units which do not represent shares of Common
Stock but which may be paid in the form of Common Stock, as described in
Article 11 hereof ("Performance Units"); (vii) shares of Common Stock that
are not subject to any conditions to vesting, as described in Article 12
hereof ("Unrestricted Shares"); and (viii) tax offset payments ("Tax Offset
Payments"), as described in Article 13 hereof.
2.2 Maximum Shares Available. The maximum aggregate number of shares of
Common Stock available for award under the Plan is 4,000,000, subject to
adjustment pursuant to Article 14 hereof. In addition, Tax Offset Payments
which may be awarded under the Plan will not exceed the number of shares
available for issuance under the Plan. Shares of Common Stock issued pursuant
to the Plan may be either authorized but unissued shares or issued shares
reacquired by the Corporation. In the event that prior to the end of the
period during which Options may be granted under the Plan, any Option or any
Nontandem Stock Appreciation Rights under the Plan expires unexercised or is
terminated, surrendered or cancelled (other than in connection with the
exercise of Stock Appreciation Rights) without being exercised in whole or in
part for any reason, or any Restricted Shares, Performance Shares or
Performance Units are forfeited, or if such awards are settled in cash in
lieu of shares of Common Stock, then such shares or units shall be available
for subsequent awards under the Plan, upon such terms as the Committee may
determine.
2.3 Return of Prior Awards. As a condition to any subsequent award, the
Committee shall have the right, at its discretion, to require employees to
return to the Corporation awards previously granted under the Plan. Subject
to the provisions of the Plan, such new award shall be upon such terms and
conditions as are specified by the Committee at the time the new award is
granted.
ARTICLE 3
ADMINISTRATION
3.1 Committee. Awards shall be determined, and the Plan shall be
administered, by the Committee as appointed from time to time by the Board,
which Committee shall consist of not less than two (2) members of the Board.
Except as permitted by Rule 16b-3 of the Securities Exchange Act of 1934, as
amended (the "Act"), and by Section 162(m) of the Code (or Regulations
promulgated thereunder), no member of the Board may serve on the Committee if
such member: (i) is or has been granted or awarded stock, stock options,
stock appreciation rights or any other equity security or derivative security
of the Corporation or any of its affiliates pursuant to the Plan or any other
plan of the Corporation or its affiliates either while serving on the
Committee or during the one year period prior to being appointed to the
Committee; (ii) is an employee or former employee of the Corporation; or
(iii) receives remuneration from the Corporation, either directly or
indirectly, in any capacity other than as a director.
Alternatively, awards may be determined, and the Plan may be administered by,
a subcommittee of the Board or a sub-committee of the Compensation Committee
which shall be appointed by the Board. The subcommittee shall consist of not
less than two (2) members of the Board or Compensation Committee who meet the
requirements of the preceding paragraph, so that they qualify as
"disinterested persons" for purposes of Rule 16b-3 under the Act and "outside
directors" for purposes of Section 162(m) of the Code. If such a subcommittee
is appointed, all references to the Committee in this Plan shall refer to
such subcommittee.
3.2 Powers of Committee. Subject to the express provisions of the Plan, the
Committee shall have the power and authority (i) to grant Options and to
determine the purchase price of the Common Stock covered by each Option, the
term of each Option, the number of shares of Common Stock to be covered by
each Option and any performance objectives or vesting standards applicable to
each Option; (ii) to designate Options as Incentive Stock Options or
Non-qualified Stock Options and to determine which Options, if any, shall be
accompanied by Tandem Stock Appreciation Rights, (iii) to grant Tandem Stock
Appreciation Rights and Nontandem Stock Appreciation Rights and to determine
the terms and conditions of such rights; (iv) to grant Restricted Shares and
to determine the term of the restricted period and other conditions and
restrictions applicable to such shares; (v) to grant Performance Shares and
Performance Units and to determine the performance objectives, performance
periods and other conditions applicable to such shares or units; (vi) to
grant Unrestricted Shares; (vii) to determine the amount of, and to make, Tax
Offset Payments; and (viii) to determine the employees to whom, and the time
or times at which, Options, Stock Appreciation Rights, Restricted Shares,
Performance Shares, Performance Units and Unrestricted Shares shall be
granted.
3.3 Delegation. The Committee may delegate to one or more of its members or
to any other person or persons such ministerial duties as it may deem
advisable; provided, however, that the Committee may not delegate any of its
responsibilities hereunder if such delegation would cause the Plan to fail to
comply with the "disinterested administration" rules under Section 16 of the
Act. The Committee may also employ attorneys, consultants, accountants or
other professional advisors and shall be entitled to rely upon the advice,
opinions or valuations of any such advisors.
3.4 Interpretations. The Committee shall have sole discretionary authority to
interpret the terms of the Plan, to adopt and revise rules, regulations and
policies to administer the Plan and to make any other factual determinations
which it believes to be necessary or advisable for the administration of the
Plan. All actions taken and interpretations and determinations made by the
Committee in good faith shall be final and binding upon the Corporation, all
employees who have received awards under the Plan and all other interested
persons.
3.5 Liability; Indemnification. No member of the Committee, nor any person to
whom ministerial duties have been delegated, shall be personally liable for
any action, interpretation or determination made with respect to the Plan or
awards made thereunder, and each member of the Committee shall be fully
indemnified and protected by the Corporation with respect to any liability he
or she may incur with respect to any such action, interpretation or
determination, to the extent permitted by applicable law and to the extent
provided in the Corporation's Certificate of Incorporation and Bylaws, as
amended from time to time, or under any agreement between any such
member and the Corporation.
ARTICLE 4
ELIGIBILITY
Awards may be made to all employees of the Corporation or any of its
subsidiaries (subject to such requirements as may be prescribed by the
Committee); provided, however, that no employee may receive awards of or
relating to more than 250,000 shares of Common Stock in the aggregate in any
fiscal year of the Corporation. Awards may be made to a director of the
Corporation who is not also a member of the Committee, provided that the
director is also an employee. In determining the employees to whom awards
shall be granted and the number of shares to be covered by each award, the
Committee shall take into account the nature of the services rendered by such
employees, their present and potential contributions to the success of the
Corporation and its subsidiaries and such other factors as the Committee in
its sole discretion shall deem relevant.
As used herein, the term "subsidiary" shall mean any present or future
corporation, partnership or joint venture in which the Corporation owns,
directly or indirectly, 50% or more of the economic interests.
Notwithstanding the foregoing, only employees of the Corporation and any
present or future corporation which is or may be a "subsidiary corporation"
of the Corporation (as such term is defined in Section 424(f) of the Code)
shall be eligible to receive Incentive Stock Options.
ARTICLE 5
STOCK OPTIONS
5.1 Grant of Options. Options may be granted under the Plan for the purchase
of shares of Common Stock. Options shall be granted in such form and upon
such terms and conditions, including the satisfaction of corporate or
individual performance objectives and other vesting standards, as the
Committee shall from time to time determine.
5.2 Designation as Non-qualified Stock Option or Incentive Stock Option. In
connection with any grant of Options, the Committee shall designate in the
written agreement required pursuant to Article 16 hereof whether the Options
granted shall be Incentive Stock Options or Non- qualified Stock Options, or
in the case both are granted, the number of shares of each.
5.3 Option Price. The purchase price per share under each Incentive Stock
Option shall be the Market Price (as hereinafter defined) of the Common Stock
on the date the Incentive Stock Option is granted. The purchase price per
share under each Non-qualified Stock Option shall be specified by the
Committee. In no case, however, shall the purchase price per share of either
an Incentive Stock Option or Non-qualified Stock Option be less than the par
value of the Common Stock ($.01). Notwithstanding the foregoing, to the
extent required by the Code, the purchase price per share under each
Non-qualified Stock Option granted to an employee who is treated as a
"covered employee" (as defined in Section 162(m)(3) of the Code) on the date
such Non-Qualified Option is exercised shall not be less than 100% of the
Market Price of the Common Stock on the date of grant. In the case of an
Incentive Stock Option granted to an employee owning (actually or
constructively under Section 424(d) of the Code), more than 10% of the total
combined voting power of all classes of stock of the Corporation or of a
subsidiary (a "10% Stockholder"), the option price shall not be less than
110% of the Market Price of the Common Stock on the date of grant.
The "Market Price" of the Common Stock on any day shall be determined as
follows: (i) if the Common Stock is listed on a national securities exchange
or quoted through the Nasdaq Stock Market/ Nasdaq National Market ("NASDAQ"),
the Market Price on any day shall be the last reported Consolidated Trading
sales price, or if no such sale is made on such day, the average of the
closing bid and asked prices reported on the Consolidated Trading listing for
such day; (ii) if the Common Stock is quoted on the NASDAQ inter-dealer
quotation system, the Market Price on any day shall be the average of the
representative bid and asked prices at the close of business for such day; or
(iii) if the Common Stock is not listed on a national stock exchange or
quoted on NASDAQ, the Market Price on any day shall be the average of the
high bid and low asked prices reported by the National Quotation Bureau,
Inc. for such day. In no event shall the Market Price of a share of Common
Stock subject to an Incentive Stock Option be less than the fair market value
as determined for purposes of Section 422(b)(4) of the Code.
The Option price so determined shall also be applicable in connection with
the exercise of any Tandem Stock Appreciation Rights granted with respect to
such Option.
5.4 Limitation on Amount of Incentive Stock Options. In the case of Incentive
Stock Options, the aggregate Market Price (determined at the time the
Incentive Stock Option is granted) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by any optionee
during any calendar year (under all plans of the Corporation and any
subsidiary) shall not exceed $100,000.
5.5 Limitation on Time of Grant. No grant of an Incentive Stock Option shall
be made under the Plan more than ten (10) years after the date the Plan is
approved by stockholders of the Corporation.
5.6 Exercise and Payment. Options may be exercised in whole or in part.
Common Stock purchased upon the exercise of Options shall be paid for in full
at the time of purchase. Such payment shall be made in cash or, in the
discretion of the Committee, through delivery of shares of Common Stock or a
combination of cash and Common Stock, in accordance with procedures to be
established by the Committee. Any shares so delivered shall be valued at
their Market Price on the date of exercise and, unless otherwise determined
by the Committee, must have been owned by the person exercising the Option
for at least six months prior to the date of exercise. Upon receipt of notice
of exercise and payment in accordance with procedures to be established by
the Committee, the Corporation or its agent shall deliver to the person
exercising the Option (or his or her designee) a certificate for such shares.
No Option shall be exercisable until and unless the Plan is approved by the
Corporation's stockholders at the Corporation's 1996 Annual Meeting of
Stockholders, and, unless the Plan is so approved, all Options will terminate
and be of no further force or effect on the earlier to occur of (i) the day
after the Corporation's 1996 Annual Meeting of Stockholders and (ii) December
31, 1996.
5.7 Term. The term of each Option granted hereunder shall be determined by
the Committee; provided, however, that, notwithstanding any other provision
of the Plan, in no event shall an Incentive Stock Option be exercisable after
ten (10) years from the date it is granted, or in the case of an Incentive
Stock Option granted to a 10% Stockholder, five (5) years from the date it is
granted, and no other Option shall be exercisable after the expiration of the
term of the Option.
5.8 Rights as a Stockholder. A recipient of Options shall have no rights as a
stockholder with respect to any shares issuable or transferable upon exercise
thereof until the date a stock certificate is issued to such recipient
representing such shares. Except as otherwise expressly provided in the Plan,
no adjustment shall be made for cash dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
5.9 General Restrictions. Each Option granted under the Plan shall be subject
to the requirement that, if at any time the Board shall determine, in its
discretion, that the listing, registration or qualification of the shares
issuable or transferable upon exercise thereof upon any securities exchange
or under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or
in connection with, the granting of such Option or the issue, transfer, or
purchase of shares thereunder, such Option may not be exercised in whole or
in part unless such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board.
The Board or the Committee may, in connection with the granting of any
Option, require the individual to whom the Option is to be granted to enter
into an agreement with the Corporation stating that as a condition precedent
to each exercise of the Option, in whole or in part, such individual shall if
then required by the Corporation represent to the Corporation in writing that
such exercise is for investment only and not with a view to distribution, and
also setting forth such other terms and conditions as the Board or the
Committee may prescribe.
5.10 Cancellation of Stock Appreciation Rights. Upon exercise of all or a
portion of an Option, the related Tandem Stock Appreciation Rights shall be
cancelled with respect to an equal number of shares of Common Stock.
5.11 Reload Option Rights. The Committee may, in its discretion, award reload
option rights ("Reload Option Rights") in conjunction with the grant of
Options with the effect described in this Section 5.11. Reload Option Rights
may be awarded either at the time an Option is granted or, except in
the case of Incentive Stock Options, at any time thereafter during the term
of the Option. Reload Option Rights, if awarded with respect to an Option,
shall entitle the original grantee of the Option (and unless otherwise
determined by the Committee, in its discretion, only such original grantee),
upon exercise of the Option or any portion thereof through delivery of shares
of Common Stock, automatically to be granted on the date of such exercise an
additional Option (a "Reload Option") (i) for that number of shares of Common
Stock not greater than the number of shares delivered by the grantee in
payment of the option price of the original Option and any withholding taxes
related thereto, (ii) having an option price not less than 100% of the Market
Price of the Common Stock covered by the Reload Option on the date of grant
of such Reload Option, (iii) having an expiration date not later than the
expiration date of the original Option so exercised, and (iv) otherwise
having terms permissible for the grant of an Option under the Plan. Subject
to the preceding sentence and the other provisions of the Plan, Reload Option
Rights and Reload Options shall have such terms and be subject to such
restrictions and conditions, if any, as shall be determined, in its
discretion, by the Committee. In granting Reload Option Rights, the Committee
may, in its discretion, provide for successive Reload Option grants upon the
exercise of Reload Options granted hereunder. Unless otherwise determined by
the Committee, in its discretion, Reload Option Rights shall entitle the
grantee to be granted Reload Options only if the underlying Option to which
they relate is exercised by the grantee during employment with the
Corporation or any of its subsidiaries. Except as otherwise specifically
provided herein or required by the context, the term Option as used in this
Plan shall include Reload Options granted hereunder.
ARTICLE 6
STOCK APPRECIATION RIGHTS
6.1 Grants of Stock Appreciation Rights. Tandem Stock Appreciation Rights may
be awarded by the Committee in connection with any Option granted under the
Plan, either at the time the Option is granted or thereafter at any time
prior to the exercise, termination or expiration of the Option. Nontandem
Stock Appreciation Rights may also be granted by the Committee at any time.
At the time of grant of Nontandem Stock Appreciation Rights, the Committee
shall specify the number of shares of Common Stock covered by such right and
the base price of shares of Common Stock to be used in connection with the
calculation described in Section 6.4 below. Stock Appreciation Rights shall
be subject to such terms and conditions not inconsistent with the other
provisions of the Plan as the Committee shall determine.
6.2 Limitations on Exercise. Tandem Stock Appreciation Rights shall be
exercisable only to the extent that the related Option is exercisable and
shall be exercisable only for such period as the Committee may determine
(which period may expire prior to the expiration date of the related Option).
Upon the exercise of all or a portion of Tandem Stock Appreciation Rights,
the related Option shall be cancelled with respect to an equal number of
shares of Common Stock. Shares of Common Stock subject to Options, or
portions thereof, surrendered upon exercise of Tandem Stock Appreciation
Rights shall not be available for subsequent awards under the Plan. Nontandem
Stock Appreciation Rights shall be exercisable during such period as the
Committee shall determine.
6.3 Surrender or Exchange of Tandem Stock Appreciation Rights. Tandem Stock
Appreciation Rights shall entitle the recipient to surrender to the
Corporation unexercised the related Option, or any portion thereof, and to
receive from the Corporation in exchange therefor that number of shares of
Common Stock having an aggregate Market Price equal to (A) the excess of (i)
the Market Price of one (1) share of Common Stock as of the date the Tandem
Stock Appreciation Rights are exercised over (ii) the option price per share
specified in such Option, multiplied by (B) the number of shares of Common
Stock subject to the Option, or portion thereof, which is surrendered. Cash
shall be delivered in lieu of any fractional shares.
6.4 Exercise of Nontandem Stock Appreciation Rights. The exercise of
Nontandem Stock Appreciation Rights shall entitle the recipient to receive
from the Corporation that number of shares of Common Stock having an
aggregate Market Price equal to (A) the excess of (i) the Market Price of one
(1) share of Common Stock as of the date on which the Nontandem Stock
Appreciation Rights are exercised over (ii) the base price of the shares
covered by the Nontandem Stock Appreciation Rights, multiplied by (B) the
number of shares of Common Stock covered by the Nontandem Stock Appreciation
Rights, or the portion thereof being exercised. Cash shall be delivered in
lieu of any fractional shares.
6.5 Settlement of Stock Appreciation Rights. As soon as is reasonably
practicable after the exercise of any Stock Appreciation Rights, the
Corporation shall (i) issue, in the name of the recipient, stock certificates
representing the total number of full shares of Common Stock to which the
recipient is entitled pursuant to Section 6.3 or 6.4 hereof and cash in an
amount equal to the Market Price, as of the date of exercise, of any
resulting fractional shares, and (ii) if the Committee causes the Corporation
to elect to settle all or part of its obligations arising out of the exercise
of the Stock Appreciation Rights in cash pursuant to Section 6.6 hereof,
deliver to the recipient an amount in cash equal to the Market Price, as of
the date of exercise, of the shares of Common Stock it would otherwise be
obligated to deliver.
6.6 Cash Settlement. The Committee, in its discretion, may cause the
Corporation to settle all or any part of its obligation arising out of the
exercise of Stock Appreciation Rights by the payment of cash in lieu of all
or part of the shares of Common Stock it would otherwise be obligated to
deliver in an amount equal to the Market Price of such shares on the date of
exercise.
ARTICLE 7
NONTRANSFERABILITY OF OPTIONS AND STOCK APPRECIATION RIGHTS
No Option or Stock Appreciation Rights may be transferred, assigned, pledged
or hypothecated (whether by operation of law or otherwise), except as
provided by will or the applicable laws of descent and distribution, and no
Option or Stock Appreciation Rights shall be subject to execution, attachment
or similar process. Any attempted assignment, transfer, pledge, hypothecation
or other disposition of an Option or Stock Appreciation Rights not
specifically permitted herein shall be null and void and without effect. An
Option or Stock Appreciation Rights may be exercised by the recipient only
during his or her lifetime, or following his or her death pursuant to Section
8.3 hereof.
Notwithstanding anything to the contrary in the preceding paragraph, the
Committee may, in its sole discretion, cause the written agreement relating
to any Non-qualified Stock Options or Stock Appreciation Rights granted
hereunder to provide that the recipient of such Non-qualified Stock Options
or Stock Appreciation Rights may transfer any of such Non-qualified Stock
Options or Stock Appreciation Rights other than by will or the laws of
descent and distribution in any manner authorized under applicable law;
provided, however, that in no event may the Committee permit any transfers
which would cause this Plan to fail to satisfy the applicable requirements of
Rule 16b-3 under the Act, or would cause any recipient of awards hereunder to
fail to be entitled to the benefits of Rule 16b-3 or other exemptive rules
under Section 16 of the Act or be subject to liability thereunder.
ARTICLE 8
EFFECT OF TERMINATION OF EMPLOYMENT, DISABILITY,
RETIREMENT, DEATH OR SPECIAL EVENT
8.1 General Rule. Except as expressly determined by the Committee in its sole
discretion, no Option or Stock Appreciation Rights shall be exercisable after
twelve (12) months following the recipient's termination of employment with
the Corporation or a subsidiary, (i) unless such termination of employment
occurs by reason of a Special Event (as defined in Section 8.4), provided
that, in the case of a Special Event, the Committee shall have modified such
Option or Stock Appreciation Rights to remain exercisable as provided in
Section 8.4 and (ii) provided, however, that any Incentive Stock Option of
such recipient shall no longer be treated as an Incentive Stock Option
exercised within three (3) months of the date of termination of employment
(or within one(1) year in the case of an employee who is "disabled" within
the meaning of Section 22(e)(3) of the Code).
Options and Stock Appreciation Rights shall not be affected by any change of
employment so long as the recipient continues to be employed by either the
Corporation or a subsidiary. The Committee may, in its sole discretion, cause
any Option or Stock Appreciation Rights to be forfeited upon an employee's
termination of employment if the employee was terminated for one (or more) of
the following reasons: (i) the employee's conviction, or plea of guilty or
nolo contendere to the commission of a felony, (ii) the employee's commission
of any fraud, misappropriation or misconduct which causes demonstrable injury
to the Corporation or a subsidiary, (iii) an act of dishonesty by the employee
resulting or intended to result, directly or
indirectly, in gain or personal enrichment at the expense of the Corporation
or a subsidiary, (iv) any breach of the employee's fiduciary duties to the
Corporation as an employee or officer, or (v) a violation by the employee of
a Corporation policy. It shall be within the sole discretion of the Committee
to determine whether the employee's termination was for one of the foregoing
reasons, and the decision of the Committee shall be final and conclusive.
8.2 Disability or Retirement. Except as expressly provided otherwise in the
written agreement relating to any Option or Stock Appreciation Rights granted
under the Plan, in the event of the Disability or Retirement of a recipient
of Options or Stock Appreciation Rights, the Options or Stock Appreciation
Rights which are held by such recipient on the date of such Disability or
Retirement, whether or not otherwise exercisable on such date, shall be
exercisable at any time until twelve (12) months following the recipient's
Disability or Retirement; provided, however, that any Incentive Stock Option
of such recipient shall no longer be treated as an Incentive Stock Option
unless exercised within three (3) months of the date of such Disability or
Retirement (or within one (1) year in the case of an employee who is
"disabled" within the meaning of Section 22(e)(3) of the Code).
"Disability" shall mean any termination of employment with the Corporation or
a subsidiary because of a long- term or total disability, as determined by
the Committee in its sole discretion. "Retirement" shall mean a termination
of employment with the Corporation or a subsidiary either (i) on a voluntary
basis by a recipient who is at least 65 years of age or (ii) otherwise with
the written consent of the Committee in its sole discretion. The decision of
the Committee shall be final and conclusive.
8.3 Death. In the event of the death of a recipient of Options or Stock
Appreciation Rights while an employee of the Corporation or any subsidiary,
Options or Stock Appreciation Rights which are held by such employee at the
date of death, whether or not otherwise exercisable on the date of death,
shall be exercisable by the beneficiary designated by the employee for such
purpose (the "Designated Beneficiary") or if no Designated Beneficiary shall
be appointed or if the Designated Beneficiary shall predecease the employee,
by the employee's personal representatives, heirs or legatees at any time
within twelve (12) months from the date of death (subject to the limitation
in Section 5.7 hereof), at which time such Options or Stock Appreciation
Rights shall terminate; provided, however, that any Incentive Stock Option of
such recipient shall no longer be treated as an Incentive Stock Option unless
exercised within three (3) months of the date of the recipient's death.
In the event of the death of a recipient of Options or Stock Appreciation
Rights following a termination of employment due to Retirement, Disability or
a Special Event (as defined in Section 8.4 hereof), if such death occurs
before the Options or Stock Appreciation Rights are exercised, the Options or
Stock Appreciation Rights which are held by such recipient on the date of
termination of employment, whether or not otherwise exercisable on such date,
shall be exercisable by such recipient's Designated Beneficiary, or if no
Designated Beneficiary shall be appointed or if the Designated Beneficiary
shall predecease such recipient, by such recipient's personal
representatives, heirs or legatees to the same extent such Options or Stock
Appreciation Rights were exercisable by the recipient following such
termination of employment.
8.4 Special Event. In the case of a Special Event, the Committee in its sole
discretion may elect to modify all or any lesser number of any Options or
Stock Appreciation Rights held by an employee terminated as a result of a
Special Event which are or are not exercisable on the date of termination, to
provide that any of such Options or Stock Appreciation Rights may continue to
be exercisable for the term and in the manner specified therein or for such
other term and subject to such other provisions and conditions (including,
without limitation, acceleration of the time or times at which any such
Options or Stock Appreciation Rights may be exercised) as the Committee shall
specify. The Committee shall have the sole discretion to determine the
employees to whom and in the manner in which any such modification shall be
made. If the Committee does not elect to modify an Option or Stock
Appreciation Rights, then only Options and Stock Appreciation Rights
currently exercisable at the date of termination shall be exercisable as
provided in the first sentence of Section 8.1 hereof.
A "Special Event" shall mean (i) a "Change in Control" (as defined in Section
8.5) of the Corporation; (ii) the closing or discontinuation of a specific
operation of the Corporation or any subsidiary; or (iii) a limited program of
terminations in connection with a personnel reorganization or restructuring
of the Corporation or any subsidiary of the Corporation scheduled to be
completed on a date certain, provided,
however, that only those employees who meet the terms and conditions as
established by the Board or the Committee in its discretion shall be eligible
to receive accelerated vesting of Options and Stock Appreciation Rights.
8.5 Change in Control. Notwithstanding the provisions of Section 8.4, if
there should be a Change in Control of the Corporation, the Corporation shall
give each grantee of Options or Stock Appreciation Rights written notice of
such Change in Control as promptly as practicable prior to the effective date
thereof, and all of the Options and Stock Appreciation Rights not currently
exercisable shall become immediately exercisable as of the effective date of
such Change in Control.
A "Change in Control" shall mean that any of the following events have
occurred: (i) any person or entity as defined in Section 13(d) of the Act
becomes a beneficial owner of 40% or more of the outstanding Common Stock of
the Corporation; or (ii) as the consequence of any cash tender or exchange
offer, merger, or other business combination (a "Transaction"), the persons
who were directors of the Corporation before the Transaction cease to
constitute a majority of the Board following the Transaction.
8.6 Leave of Absence. In the case of an employee on an approved leave of
absence, the Options and Stock Appreciation Rights of such employee shall not
be affected unless such leave is longer than 13 weeks. The date of
exercisability of any Options or Stock Appreciation Rights of an employee
which are unexercisable at the beginning of an approved leave of absence
lasting longer than 13 weeks shall be postponed for a period equal to the
length of such leave of absence. Notwithstanding the foregoing, the Committee
may, in its sole discretion, waive in writing any such postponement of the
date of exercisability of any Options or Stock Appreciation Rights due to a
leave of absence.
ARTICLE 9
RESTRICTED SHARES
9.1 Grant of Restricted Shares. The Committee may from time to time cause the
Corporation to grant Restricted Shares under the Plan to employees, subject
to such restrictions, conditions and other terms as the Committee may
determine.
9.2 Restrictions. At the time a grant of Restricted Shares is made, the
Committee shall establish a period of time (the "Restricted Period")
applicable to such Restricted Shares. Each grant of Restricted Shares may be
subject to a different Restricted Period. The Committee may, in its sole
discretion, at the time a grant is made, prescribe restrictions in addition
to or other than the expiration of the Restricted Period, including the
satisfaction of corporate or individual performance objectives, which shall
be applicable to all or any portion of the Restricted Shares. The Committee
may also, in its sole discretion, shorten or terminate the Restricted Period
or waive any other restrictions applicable to all or a portion of such
Restricted Shares. None of the Restricted Shares may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of during the
Restricted Period or prior to the satisfaction of any other restrictions
prescribed by the Committee with respect to such Restricted Shares.
9.3 Restricted Stock Certificates. The Corporation shall issue, in the name
of each employee to whom Restricted Shares have been granted, stock
certificates representing the total number of Restricted Shares granted to
the employee, as soon as reasonably practicable after the grant. The
Corporation, at the direction of the Committee, shall hold such certificates,
properly endorsed for transfer, for the employee's benefit until such time as
the Restricted Shares are forfeited to the Corporation, or the restrictions
lapse.
9.4 Rights of Holders of Restricted Shares. Unless otherwise determined by
the Committee, holders of Restricted Shares shall have the right to vote such
shares and the right to receive any cash dividends with respect to such
shares. All distributions, if any, received by an employee with respect to
Restricted Shares as a result of any stock split, stock distribution, a
combination of shares, or other similar transaction shall be subject to the
restrictions of this Article 9.
9.5 Forfeiture. Any Restricted Shares granted to an employee pursuant to the
Plan shall be forfeited if the employee terminates employment with the
Corporation or its subsidiaries prior to the expiration or termination of
the Restricted Period and the satisfaction of any other conditions applicable
to such Restricted Shares. Upon such forfeiture, the Restricted Shares that
are forfeited shall be retained in the treasury of the Corporation and be
available for subsequent awards under the Plan, unless the Committee directs
that such Restricted Shares be cancelled upon forfeiture. If the employee's
employment terminates as a result of his or her Disability, Retirement,
death, or a Special Event, Restricted Shares of such employee shall be
forfeited, unless the Committee, in its sole discretion, shall determine
otherwise.
9.6 Delivery of Restricted Shares. Upon the expiration or termination of the
Restricted Period and the satisfaction of any other conditions prescribed by
the Committee, the restrictions applicable to the Restricted Shares shall
lapse and a stock certificate for the number of Restricted Shares with
respect to which the restrictions have lapsed shall be delivered, free of all
such restrictions, to the employee or the employee's beneficiary or estate,
as the case may be.
ARTICLE 10
PERFORMANCE SHARES
10.1 Award of Performance Shares. For each Performance Period (as defined in
Section 10.2), Performance Shares may be granted under the Plan to such
employees of the Corporation and its subsidiaries as the Committee shall
determine in its sole discretion. Each Performance Share shall be deemed to
be equivalent to one (1) share of Common Stock. Performance Shares granted to
an employee shall be credited to an account (a "Performance Share Account")
established and maintained for such employee.
10.2 Performance Period. "Performance Period" shall mean such period of time
as shall be determined by the Committee in its sole discretion. Different
Performance Periods may be established for different employees receiving
Performance Shares. Performance Periods may run consecutively or
concurrently.
10.3 Right to Payment of Performance Shares. With respect to each award of
Performance Shares under the Plan, the Committee shall specify performance
objectives (the "Performance Objectives") which must be satisfied in order
for the employee to vest in the Performance Shares which have been awarded to
him or her for the Performance Period. If the Performance Objectives
established for an employee for the Performance Period are partially but not
fully met, the Committee may, nonetheless, in its sole discretion, determine
that all or a portion of the Performance Shares have vested. If the
Performance Objectives for a Performance Period are exceeded, the Committee
may, in its sole discretion, grant additional, fully vested Performance
Shares to the employee. The Committee may also determine, in its sole
discretion, that Performance Shares awarded to an employee shall become
partially or fully vested upon the employee's Disability, Retirement or
death, or upon a Special Event, or upon the termination of the employee's
employment prior to the end of the Performance Period.
10.4 Payment for Performance Shares. As soon as practicable following the end
of a Performance Period, the Committee shall determine whether the
Performance Objectives for the Performance Period have been achieved (or
partially achieved to the extent necessary to permit partial or full vesting
at the discretion of the Committee pursuant to Section 10.3). If the
Performance Objectives for the Performance Period have been exceeded, the
Committee shall determine whether additional Performance Shares shall be
granted to the employee pursuant to Section 10.3. As soon as reasonably
practicable after such determinations, or at such later date as the Committee
shall determine at the time of grant, the Corporation shall pay to the
employee an amount with respect to each vested Performance Share equal to the
Market Price of a share of Common Stock on such payment date or, if the
Committee shall so specify at the time of grant, an amount equal to (i) the
Market Price of a share of Common Stock on the payment date less (ii) the
Market Price of a share of Common Stock on the date of grant of the
Performance Share. Payment shall be made entirely in cash, entirely in Common
Stock (including Restricted Shares) or in such combination of cash and Common
Stock as the Committee shall determine in its sole discretion.
10.5 Voting and Dividend Rights. Except as provided in Article 14 hereof, no
employee shall be entitled to any voting rights, to receive any cash
dividends, or to have his or her Performance Share Account credited or
increased as a result of any cash dividends or other distribution with
respect to Common Stock. Notwithstanding the foregoing, within sixty (60)
days from the date of payment of a cash dividend by the Corporation on its
shares of Common Stock, the Committee, in its sole discretion, may credit an
employee's Performance Share Account with additional Performance Shares
having an aggregate Market Price equal to
the cash dividend per share paid on the Common Stock multiplied by the number
of Performance Shares credited to his or her account at the time the cash
dividend was declared.
ARTICLE 11
PERFORMANCE UNITS
11.1 Award of Performance Units. For each Performance Period (as defined in
Section 10.2), Performance Units may be granted under the Plan to such
employees of the Corporation and its subsidiaries as the Committee shall
determine in its sole discretion. The award agreement covering such
Performance Units shall specify a value for each Performance Unit or shall
set forth a formula for determining the value of each Performance Unit at the
time of payment (the "Ending Value"). If necessary to make the calculation of
the amount to be paid to the employee pursuant to Section 11.3, the Committee
shall also state in the award agreement the initial value of each Performance
Unit (the "Initial Value"). Performance Units granted to an employee shall be
credited to an account (a "Performance Unit Account") established and
maintained for such employee.
11.2 Right to Payment of Performance Units. With respect to each award of
Performance Units under the Plan, the Committee shall specify Performance
Objectives which must be satisfied in order for the employee to vest in the
Performance Units which have been awarded to him or her for the Performance
Period. If the Performance Objectives established for an employee for the
Performance Period are partially but not fully met, the Committee may,
nonetheless, in its sole discretion, determine that all or a portion of the
Performance Units have vested. If the Performance Objectives for a
Performance Period are exceeded, the Committee may, in its sole discretion,
grant additional, fully vested Performance Units to the employee. The
Committee may, in its sole discretion, adjust the Performance Objectives or
the Initial Value or Ending Value of any Performance Units to reflect
extraordinary events, such as stock splits, recapitalizations, mergers,
combinations, divestitures, spin-offs and the like. The Committee may also
determine, in its sole discretion, that Performance Units awarded to an
employee shall become partially fully vested upon the employee's termination
of employment due to Disability, Retirement, death or otherwise, or upon a
Special Event.
11.3 Payment for Performance Units. As soon as practicable following the end
of a Performance Period, the Committee shall determine whether the
Performance Objectives for the Performance Period have been achieved (or
partially achieved to the extent necessary to permit partial or full vesting
at the discretion of the Committee pursuant to Section 11.2). If the
Performance Objectives for the Performance Period have been exceeded, the
Committee shall determine whether additional Performance Units shall be
granted to the employee pursuant to Section 11.2. As soon as reasonably
practicable after such determinations, or at such later date as the Committee
shall determine at the time of grant, the Corporation shall pay to the
employee an amount with respect to each vested Performance Unit equal to the
Ending Value of the Performance Unit or, if the Committee shall so specify at
the time of grant, an amount equal to (i) the Ending Value of the Performance
Unit less (ii) the Initial Value of the Performance Unit. Payment shall be
made entirely in cash, entirely in Common Stock (including Restricted Shares)
or in such combination of cash and Common Stock as the Committee shall
determine in its sole discretion.
ARTICLE 12
UNRESTRICTED SHARES
12.1 Award of Unrestricted Shares. The Committee may cause the Corporation to
grant Unrestricted Shares to employees at such time or times, in such amounts
and for such reasons as the Committee, in its sole discretion, shall
determine. No payment shall be required for Unrestricted Shares.
12.2 Delivery of Unrestricted Shares. The Corporation shall issue, in the
name of each employee to whom Unrestricted Shares have been granted, stock
certificates representing the total number of Unrestricted Shares granted to
the employee, and shall deliver such certificates to the employee as soon as
reasonably practicable after the date of grant or on such later date as the
Committee shall determine at the time of grant.
ARTICLE 13
TAX OFFSET PAYMENTS
The Committee shall have the authority at the time of any award under the
Plan or anytime thereafter to make Tax Offset Payments to assist employees in
paying income taxes incurred as a result of their participation in the Plan.
The Tax Offset Payments shall be determined by multiplying a percentage
established by the Committee times all or a portion (as the Committee shall
determine) of the taxable income recognized by an employee upon (i) the
exercise of Non-qualified Stock Options or Stock Appreciation Rights, (ii)
the disposition of shares received upon exercise of Incentive Stock Options,
(iii) the lapse of restrictions on Restricted Shares, (iv) the award of
Unrestricted Shares, or (v) payments for Performance Shares or Performance
Units. The percentage shall be established, from time to time, by the
Committee at that rate which the Committee, in its sole discretion,
determines to be appropriate and in the best interests of the Corporation to
assist employees in paying income taxes incurred as a result of the events
described in the preceding sentence. Tax Offset Payments shall be subject to
the restrictions on transferability applicable to Options and Stock
Appreciation Rights under Article 7.
ARTICLE 14
ADJUSTMENT UPON CHANGES IN CAPITALIZATION
Notwithstanding any other provision of the Plan, the Committee may: (i) at
any time, make or provide for such adjustments to the Plan or to the number
and class of shares available thereunder or (ii) at the time of grant of any
Options, Stock Appreciation Rights, Restricted Shares or Performance Shares,
provide for such adjustments to such Options, Stock Appreciation Rights,
Restricted Shares or Performance Shares, in each case, as the Committee shall
deem appropriate to prevent dilution or enlargement of rights, including,
without limitation, adjustments in the event of stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations or exchanges
of shares, separations, spin- offs, reorganizations, liquidations and the
like.
ARTICLE 15
AMENDMENT AND TERMINATION
The Board may suspend, terminate, modify or amend the Plan, provided that any
amendment that would (i) materially increase the aggregate number of shares
which may be issued under the Plan, (ii) materially increase the benefits
accruing to employees under the Plan, or (iii) materially modify the
requirements as to eligibility for participation in the Plan, shall be
subject to the approval of the Corporation's stockholders, except that any
such increase or modification that may result from adjustments authorized by
Article 14 hereof shall not require such stockholder approval. If the Plan is
terminated, the terms of the Plan shall, notwithstanding such termination,
continue to apply to awards granted prior to such termination. No suspension,
termination, modification or amendment of the Plan may, without the consent
of the employee to whom an award shall theretofore have been granted,
adversely affect the rights of such employee under such award.
Notwithstanding the preceding paragraph, if the provisions of Rule 16b-3 (as
in effect on the date the Plan becomes effective) under the Act are amended
to permit the amendment of stock option plans without compliance with the
stockholders' approval requirements presently set forth in Rule 16b-3, then
the restrictions on the ability of the Board to amend the Plan set forth in
this Section shall terminate, and the Board shall thereafter be empowered to
amend the Plan in any respect without obtaining approval of the Corporation's
stockholders.
ARTICLE 16
WRITTEN AGREEMENT
Each award of Options, Stock Appreciation Rights, Restricted Shares,
Performance Shares, Performance Units, Unrestricted Shares and Tax Offset
Payments shall be evidenced by a written agreement containing such
restrictions, terms and conditions, if any, as the Committee may require. In
the event of any conflict between a written agreement and the Plan, the terms
of the Plan shall govern.
ARTICLE 17
MISCELLANEOUS PROVISIONS
17.1 Tax Withholding. The Corporation shall have the right to require
employees or their beneficiaries or legal representatives to remit to the
Corporation an amount sufficient to satisfy Federal, state and local
withholding tax requirements, or to deduct from all payments under the Plan,
including Tax Offset Payments, amounts sufficient to satisfy all withholding
tax requirements. Whenever payments under the Plan are to be made to an
employee in cash, such payments shall be net of any amounts sufficient to
satisfy all Federal, state and local withholding tax requirements. The
Committee may, in its sole discretion, permit an employee to satisfy his or
her tax withholding obligation either by (i) surrendering shares owned by the
employee or (ii) having the Corporation withhold from shares otherwise
deliverable to the employee. Shares surrendered or withheld shall be valued
at their Market Price as of the date on which income is required to be
recognized for income tax purposes.
17.2 Compliance With Section 16(b). In the case of employees who are or may
be subject to Section 16 of the Act, it is the intent of the Corporation that
the Plan and any award granted hereunder satisfy and be interpreted in a
manner that satisfies the applicable requirements of Rule 16b-3, so that such
persons will be entitled to the benefits of Rule 16b-3 or other exemptive
rules under Section 16 of the Act and will not be subjected to liability
thereunder. If any provision of the Plan or any award would otherwise
conflict with the intent expressed herein, that provision, to the extent
possible, shall be interpreted and deemed amended so as to avoid such
conflict. To the extent of any remaining irreconcilable conflict with such
intent, such provision shall be deemed void as applicable to employees who
are or may be subject to Section 16 of the Act.
17.3 Successors. The obligations of the Corporation under the Plan shall be
binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Corporation, or upon any
successor corporation or organization succeeding to all or substantially all
of the assets and business of the Corporation. In the event of any of the
foregoing, the Committee may, at its discretion prior to the consummation of
the transaction and subject to Article 15 hereof, cancel, offer to purchase,
exchange, adjust or modify any outstanding awards, at such time and in such
manner as the Committee deems appropriate and in accordance with applicable
law.
17.4 General Creditor Status. Employees shall have no right, title, or
interest whatsoever in or to any investments which the Corporation may make
to aid it in meeting its obligations under the Plan. Nothing contained in the
Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship between
the Corporation and any employee or beneficiary or legal representative of
such employee. To the extent that any person acquires a right to receive
payments from the Corporation under the Plan, such right shall be no greater
than the right of an unsecured general creditor of the Corporation. All
payments to be made hereunder shall be paid from the general funds of the
Corporation, and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of such amounts, except
as expressly set forth in the Plan.
17.5 No Right to Employment. Nothing in the Plan or in any written agreement
entered into pursuant to Article 16 hereof, nor the grant of any award, shall
confer upon any employee any right to continue in the employ of the
Corporation or a subsidiary or to be entitled to any remuneration or benefits
not set forth in the Plan or such written agreement or interfere with or
limit the right of the Corporation or a subsidiary to modify the terms of or
terminate such employee's employment at any time.
17.6 Notices. Notices required or permitted to be made under the Plan shall
be sufficiently made if personally delivered to the employee or sent by
regular mail addressed (a) to the employee at the employee's address as set
forth in the books and records of the Corporation or its subsidiaries, or (b)
to the Corporation or the Committee at the principal office of the
Corporation clearly marked "Attention: Compensation Committee."
17.7 Severability. In the event that any provision of the Plan shall be held
illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
17.8 Governing Law. To the extent not preempted by Federal law, the Plan, and
all agreements hereunder, shall be construed in accordance with and governed
by the laws of the State of Delaware.
Exhibit 4.1
FORM OF
NON-QUALIFIED STOCK OPTION
AGREEMENT
Pursuant to the Unilab Corporation 1996 Stock Option
and Performance Incentive Plan (the "Plan"), this
Stock Option Agreement (the "Agreement") is made as
of ______________________, 199__, between Unilab
Corporation, a Delaware corporation (hereinafter
called the "Corporation"), and
_____________________________, a key employee
of the Corporation (hereinafter called the "Option
Holder").
Capitalized terms used but not defined herein
have the meaning set forth in the Plan.
1. Grant of Option. In accordance with
the terms of the Plan, the Corporation hereby grants to
the Option Holder the right and option, hereinafter
called the "Option", to purchase an aggregate of
___________________ (_____________) shares (the
"Shares") of the Corporation's $0.01 par value
common stock ("Common Stock") (such number being
subject to adjustment as provided in Section 7 hereof),
on the terms and conditions set forth in this
Agreement and in the Plan. Such Option shall vest as
follows: Twenty-Five Percent (25%) of the Option
herein granted (for up to ____________ shares) shall
vest and may be exercised on or after
________________________; Twenty-Five Percent
(25%) of the Option herein granted (for up to
____________ shares) shall vest and may be exercised
on or after ________________________; Twenty-Five
Percent (25%) of the Option herein granted (for up to
_____________ shares) shall vest and may be
exercised on or after ________________________;
Twenty-Five Percent (25%) of the Option herein
granted (for up to _____________ shares) shall vest
and may be exercised on or after
________________________ (unless terminated
earlier pursuant to Section 6 hereof). The Option
granted herein is intended to be a "non-qualified stock
option," and this Agreement and the Plan shall be
construed and interpreted in accordance with that
intention.
2. Purchase Price. The purchase price of
the Shares covered by the Option shall be
________________________ dollars ($__________)
per Share.
3. Term of Option. Subject to Section 8
hereof, the Option granted hereby shall be exercisable
as to a portion of the total Shares in accordance with
Section 1. The Option Holder's right to exercise the
aforementioned Option shall expire ten (10) years
from the date hereof. Unless terminated earlier
pursuant to Section 6 hereof, any Option not exercised
within such time specified from the date hereof shall
terminate.
4. Nontransferability. The Option shall
not be transferable otherwise than (i) by will or the
laws of descent and distribution and (ii) with the
written consent of the Committee to parents, siblings,
spouses or children of the Option Holder or to any
trust or similar device intended for any of such
persons' respective benefit (a "Permitted Transferee");
provided, however, that in no event shall a transfer be
allowed if such transfer would cause the Plan to fail to
satisfy the applicable requirements of Rule 16b-3
under the Securities Exchange Act of 1934, as
amended (the "Act"), or would cause the Option
Holder to fail to be entitled to the benefits of Rule
16b-3 or other exemptive rules under Section 16 of the
Act or be subject to liability thereunder. The Option
may be exercised, during the lifetime of the Option
Holder, only by the Option Holder or a Permitted
Transferee. More particularly (but without limiting
the generality of the foregoing), the Option may not
be assigned, transferred (except as provided herein),
pledged, or hypothecated in any way, shall not be
assignable by operation of law, and shall not be
subject to execution, attachment, or similar process.
Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any
execution, attachment, or similar process upon the
Option shall be null and void and without effect.
5. Disclosure and Risk. The Option
Holder represents and warrants to the Corporation as
follows:
(a) The Shares will be acquired by the
Option Holder for the Option Holder's own
account, for investment and not with a view to,
or for resale in connection with, any
distribution or public offering thereof within
the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
(b) As of the date of the grant and of
exercise, because of his or her position with
the Corporation, and as a result of inquiries
made by him or her and information furnished
to him or her by the Corporation, Option
Holder has and will have all information
necessary for him or her to make an informed
investment decision.
Each certificate representing the Shares shall,
if applicable, be endorsed with the following or a
substantially similar legend:
"THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE
SECURITIES ACT'), AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH
SECURITIES, OR THE CORPORATION
RECEIVES AN OPINION OF COUNSEL
FOR THE HOLDER OF THESE
SECURITIES, REASONABLY
SATISFACTORY TO THE CORPORATION,
STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION
MAY BE MADE PURSUANT TO RULE
144, PROMULGATED UNDER THE
SECURITIES ACT, OR IS OTHERWISE
EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS."
The Corporation need not allow a transfer of
any of the Shares unless one of the conditions
specified in the foregoing legend is satisfied. The
Corporation may also instruct its transfer agent not to
allow the transfer of any of the Shares unless one of
the conditions specified in the foregoing legend is
satisfied.
Any legend endorsed on a certificate pursuant
to the foregoing language and the stop transfer
instructions with respect to such Shares shall be
removed and the Corporation shall promptly issue a
certificate without such legend to the holder thereof if
the Shares are registered under the Securities Act and
a prospectus meeting the requirements of Section 10 of
the Securities Act is available or if the holder provides
the Corporation with an opinion of counsel for such
holder of the Shares reasonably satisfactory to the
Corporation, to the affect that a public sale, transfer
or assignment of such Shares may be made without
registration.
6. Termination of Employment.
(a) General Rule. Except as
provided in the Plan and this Section 6, in the event
that the Option Holder shall cease to be an employee
of the Corporation or any subsidiary for any reason
whatsoever, the Option may be exercised by the
person holding the Option (to the extent of the Option
held and the extent that such Option was vested as of
the date of the Option Holder's termination of
employment with the Corporation or a subsidiary) at
any time within twelve (12) months following the
Option Holder's termination of employment with the
Corporation or a subsidiary (subject to the limitation
in Section 3 hereof), at which time the Option shall
terminate, unless such termination of employment
occurs by reason of a Special Event, provided that, in
the case of a Special Event, the Committee shall have
modified the Option to remain exercisable.
The Option shall not be affected by any change
of employment so long as the Option Holder continues
to be employed by either the Corporation or a
subsidiary. The Committee may, in its sole
discretion, cause the Option to be forfeited upon an
Option Holder's termination of employment if the
Option Holder was terminated for one (or more) of the
following reasons: (i) the Option Holder's conviction,
or plea of guilty or nolo contendere to the commission
of a felony, (ii) the Option Holder's commission of
any fraud, misappropriation or misconduct which
causes demonstrable injury to the Corporation or a
subsidiary, (iii) an act of dishonesty by the Option
Holder resulting or intended to result, directly or
indirectly, in gain or personal enrichment at the
expense of the Corporation or a subsidiary, (iv) any
breach of the Option Holder's fiduciary duties to the
Corporation as an employee or officer, or (v) a
violation by the Option Holder of a Corporation
policy. It shall be within the sole discretion of the
Committee to determine whether the Option Holder's
termination was for one of the foregoing reasons, and
the decision of the Committee shall be final and
conclusive.
(b) Disability or Retirement. In the
event of the Disability or Retirement of the Option
Holder, the Option, whether or not otherwise
exercisable on such date, shall become fully vested on
the date of such Disability or Retirement and shall be
exercisable by the person holding the Option (to the
extent of the Option held) at any time within twelve
(12) months following the Option Holder's Disability
or Retirement (subject to the limitation in Section 3
hereof), at which time the Option shall terminate.
(c) Death. In the event of the death of
the Option Holder while an employee of the
Corporation or any subsidiary, the Option, whether or
not otherwise exercisable on the date of death, shall
become fully vested on the date of death and shall be
exercisable by the Option Holder's Designated
Beneficiary (or if no Designated Beneficiary shall be
appointed or if the Designated Beneficiary shall
predecease the Option Holder, by the Option Holder's
personal representatives, heirs or legatees) or by a
Permitted Transferee as the case may be (to the extent
of the Option held) at any time within twelve (12)
months from the date of Option Holder's death
(subject to the limitation in Section 3 hereof), at which
time the Option shall terminate.
In the event of the death of the Option Holder
following a termination of employment, if such death
occurs before the Option is exercised, the Option held
by the Option Holder or a Permitted Transferee as the
case may be on the date of termination of
employment, shall be exercisable by the Option
Holder's Designated Beneficiary (or if no Designated
Beneficiary shall be appointed or if the Designated
Beneficiary shall predecease the Option Holder, by the
Option Holder's personal representatives, heirs or
legatees) or by a Permitted Transferee as the case may
be (to the extent of the Option held) to the same extent
such Option was exercisable by the Option Holder or
Permitted Transferee following such termination of
employment.
(d) Special Event. In the case of a
Special Event, the Committee in its sole discretion
may elect to modify all or part of the Option which is
or is not exercisable if the Option Holder is terminated
as a result of a Special Event to provide that all or part
of the Option may continue to be exercisable for the
term and in the manner specified herein or for such
other term and subject to such other provisions and
conditions (including, without limitation, acceleration
of the time or times at which the Option may be
exercised) as the Committee shall specify. If the
Committee does not elect to modify the Option, then
only the portion of the Option currently exercisable at
the date of termination shall be exercisable.
(e) Change in Control.
Notwithstanding Section 6(d) of this Agreement, if
there should be a Change in Control of the
Corporation while the Option Holder is an employee
of the Corporation or a subsidiary, the Corporation
shall give the Option Holder or Permitted Transferee
written notice of such Change in Control as promptly
as practicable prior to the effective date thereof, and
all of the Option not currently exercisable shall
become immediately exercisable as of the effective
date of such Change in Control.
(f) Leave of Absence. If the Option
Holder is on an approved leave of absence, the Option
shall not be affected unless such leave is longer than
13 weeks. The date of exercisability of the portion of
the Option which is unexercisable at the beginning of
an approved leave of absence lasting longer than 13
weeks shall be postponed for a period equal to the
length of such leave of absence. Notwithstanding the
foregoing, the Committee may, in its sole discretion,
waive in writing any such postponement of the date of
exercisability of the Option due to a leave of absence.
7. Changes in Capital Structure. If all or
any portion of the Option shall be exercised
subsequent to any stock dividend, stock split,
recapitalization, merger, consolidation, combination
or exchange of shares, separation, spin-off,
reorganization, liquidation, reclassification or the like
occurring after the date hereof, as a result of which
shares of any class shall be issued in respect of
outstanding Shares or Shares shall be changed into the
same or a different number of shares of the same or
another class or classes, the person or persons
exercising the Option shall receive, for the aggregate
price paid upon such exercise, the aggregate number
and class of shares which, if the Shares (as authorized
at the date hereof) had been purchased at the date
hereof for the same aggregate price (on the basis of
the price per share set forth in Section 2 hereof) and
had not been disposed of, such person or persons
would be holding at the time of such exercise as a
result of such purchase and all such stock dividends,
stock splits, recapitalizations, mergers, consolidations,
combinations or exchanges of shares, separations,
spin-offs, reorganizations, liquidations,
reclassifications and the like; provided, however, that
no fractional shares shall be issued upon any such
exercise, and the aggregate price paid shall be
appropriately reduced on account of any fractional
share not issued. In no event shall any adjustments be
made to the Option as a result of the issuance or
redemption of securities of the Corporation for cash or
other consideration, or upon the exercise of any
conversion rights of any securities of the Corporation.
8. Method of Exercising Option. Subject
to the terms and conditions of the Plan and this
Agreement, the Option may be exercised by written
notice to the Secretary of the Corporation, at its
principal office or such other location as may be
designated by the Secretary of the Corporation. Such
notice shall state the election to exercise the Option
and the number of Shares in respect of which it is
being exercised, and shall be signed by the person or
persons so exercising the Option. The notice of
election shall be accompanied by a copy of this
Agreement and payment of the full purchase price for
the Shares being purchased. Such payment shall be
made in cash or, in the discretion of the Committee,
through delivery of shares of Common Stock or a
combination of cash and Common Stock, in
accordance with procedures to be established by the
Committee. Any shares so delivered shall be valued
at their Market Price on the date of exercise and,
unless otherwise determined by the Committee, must
have been owned by the person exercising the Option
for at least six months prior to the date of exercise.
The Corporation or its agent shall deliver a
certificate or certificates representing Shares as soon
as practicable after the notice of election and full
payment has been received. In the event the Option
shall be exercised by any person or persons other than
the Option Holder, the notice of election shall be
accompanied by appropriate proof of the right of such
person or persons to exercise the Option. All Shares
that shall be purchased upon the exercise of the Option
as provided herein shall be fully paid and
nonassessable.
9. Compliance With Section 16(b) of the
Act. It is the intent of the Corporation that the Plan,
this Agreement and the Option granted hereunder
satisfy and be interpreted in a manner that satisfies the
applicable requirements of Section 16(b) of the Act
and Rule 16b-3 thereunder, so that Option Holders
and any Permitted Transferees will be entitled to the
benefits of Rule 16b-3 or other exemptive rules under
Section 16 of the Act and will not be subjected to
liability thereunder. If any provision of the Plan, this
Agreement or the Option would otherwise conflict
with the intent expressed herein, that provision, to the
extent possible, shall be interpreted and deemed
amended so as to avoid such conflict. To the extent of
any remaining irreconcilable conflict with such intent,
such provision shall be deemed void as applicable to
persons who are or may be subject to Section 16 of
the Act.
10. Optionee Not a Shareholder. The
Option Holder or a Permitted Transferee under this
Option, as such, shall not be entitled by any reason of
this Option to any rights whatsoever as a shareholder
of the Corporation. In addition, the Option Holder or
a Permitted Transferee shall have no rights as a
stockholder with respect to any shares issuable or
transferable upon exercise of the Option until the date
a stock certificate is issued to the Option Holder or a
Permitted Transferee representing such Shares.
Except as otherwise expressly provided in the Plan, no
adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date
such stock certificate is issued.
11. Tax Withholding. The Corporation
shall have the right to require the person exercising
the Option to remit to the Corporation an amount
sufficient to satisfy Federal, state and local
withholding tax requirements, or to deduct from all
payments under the Plan or this Agreement amounts
sufficient to satisfy all withholding tax requirements.
The Committee may, in its sole discretion, permit the
person exercising the Option to satisfy his or her tax
withholding obligation either by (i) surrendering
Shares owned by such person or (ii) having the
Corporation withhold from Shares otherwise
deliverable to such person. Shares surrendered or
withheld shall be valued at their Market Price as of the
date on which income is required to be recognized for
income tax purposes.
12. General Provisions.
(a) The Corporation shall at all times
during the term of the Option reserve and keep
available such number of Shares as will be
sufficient to satisfy the requirements of this
Agreement, shall pay all fees and expenses
necessarily incurred by the Corporation in
connection therewith, and shall use its best
efforts to comply with all laws and regulations
which, in the reasonable opinion of counsel for
the Corporation, are applicable thereto.
(b) To the extent not preempted by Federal
law, the Plan and this Agreement shall be
construed in accordance with and governed by
the laws of the State of Delaware.
(c) Notices required or permitted to be
made under this Agreement shall be
sufficiently made if personally delivered to the
Option Holder or a Permitted Transferee as the
case may be or sent by regular mail addressed
(a) to the Option Holder or a Permitted
Transferee as the case may be at the Option
Holder's or Permitted Transferee's address as
set forth in the books and records of the
Corporation or its subsidiaries, or (b) to the
Corporation or the Committee at the principal
office of the Corporation clearly marked
"Attention: Compensation Committee."
(d) The Plan and this Agreement set forth
the entire agreement of the parties concerning
the subject matter hereto, and no other
representations or warranties, express or
implied, other than those contained herein, and
no amendments or modifications hereto, shall
be binding unless made in writing and signed
by the parties hereto.
(e) The waiver by either party of a breach
of any term or provision of the Plan or this
Agreement shall not operate or be construed as
a waiver of a subsequent breach of the same
provision or of the breach of any other term or
provision of the Plan or this Agreement.
(f) The headings in this Agreement are
solely for convenience of reference and shall
be given no effect in the construction or
interpretation of this Agreement.
(g) In the event that any provision of the
Plan or this Agreement shall be held illegal or
invalid for any reason, such illegality or
invalidity shall not affect the remaining parts of
the Plan or this Agreement, and the Plan or
this Agreement as the case may be shall be
construed and enforced as if the illegal or
invalid provision had not been included.
(h) Nothing in the Plan or this Agreement,
nor the grant of this Option, shall confer upon
the Option Holder any right to continue in the
employ of the Corporation or a subsidiary or to
be entitled to any remuneration or benefits not
set forth in the Plan or this Agreement or
interfere with or limit the right of the
Corporation or a subsidiary to modify the
terms of or terminate the Option Holder's
employment at any time.
13. Plan Incorporation. This Option and
this Agreement are subject to, and the Company and
the Option Holder agree to be bound by, the terms and
conditions of this Agreement and all of the terms and
conditions of the Plan, as the same may have been
amended from time to time in accordance with its
terms. The Plan is hereby incorporated into and made
a part of this Agreement as though set forth in full
herein.
14. Acknowledgment. The Option Holder
hereby acknowledges receipt of a copy of the Plan.
IN WITNESS WHEREOF, the Corporation
has caused this Agreement to be duly executed by its
officer thereunto duly authorized, and the Option
Holder has executed this Agreement, all as of the day
and year first above written.
OPTION HOLDER
Name:
Address:
UNILAB CORPORATION
By:
Name:
Title:
Exhibit 4.1
FORM OF
INCENTIVE STOCK OPTION AGREEMENT
Pursuant to the Unilab Corporation 1996 Stock
Option and Performance Incentive Plan (the "Plan"), this
Incentive Stock Option Agreement (the "Agreement") is
made as of ______________________, 199__, between
Unilab Corporation, a Delaware corporation (hereinafter
called the "Corporation"), and
___________________________, a key employee of the
Corporation (hereinafter called the "Option Holder").
Capitalized terms used but not defined herein
have the meaning set forth in the Plan.
1. Grant of Option. In accordance with the
terms of the Plan, the Corporation hereby grants to the
Option Holder the right and option, hereinafter called
the "Option," to purchase an aggregate of
____________________ (______________) shares (the
"Shares") of the Corporation's $0.01 par value common
stock ("Common Stock") (such number being subject to
adjustment as provided in Section 7 hereof), on the
terms and conditions set forth in this Agreement and in
the Plan. The Option granted herein is intended to be an
"incentive stock option" within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended
(the "Code"), and this Agreement and the Plan shall be
construed and interpreted in accordance with that
intention. Such Option shall vest as follows: Thirty-
Three and One Third Percent (33 %) of the Option
herein granted (for up to _____________ shares) shall
vest and may be exercised on or after the date that is one
year after the date hereof; Thirty-Three and One Third
Percent (33 %) (for up to _____________ shares) shall
vest and may be exercised on or after the date that is
two years after the date hereof; and the remaining
Thirty-Three and One Third Percent (33 %) of the
Option herein granted (for up to _____________ shares)
shall vest and may be exercised on or after the date that
is three years after the date hereof (unless terminated
earlier pursuant to Section 6 hereof).
2. Purchase Price. The purchase price of
the Shares covered by the Option shall be
_____________________________ dollars ($_____) per
Share, which is not less than the Market Price of the
Shares on the date of grant. If the Option Holder is an
employee owning (actually or constructively under
Section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of stock of the
Corporation or of a subsidiary (a "10% Stockholder"),
the purchase price is not less than 110% of the Market
Price of the Shares on the date of grant.
3. Term of Option. Subject to Section 8
hereof, the Option granted hereby shall be exercisable as
to a portion of the total Shares in accordance with
Section 1. The Option Holder's right to exercise the
aforementioned Option shall expire ten (10) years from
the date hereof, or if the Option Holder is a 10%
Stockholder, five (5) years from the date hereof. Unless
terminated earlier pursuant to Section 6 hereof, any
Option not exercised within such time specified from the
date hereof shall terminate.
4. Nontransferability. The Option shall not
be transferable otherwise than by will or the laws of
descent and distribution and the Option may be
exercised, during the lifetime of the Option Holder, only
by the Option Holder. More particularly (but without
limiting the generality of the foregoing), the Option may
not be assigned, transferred (except as provided hereby),
pledged, or hypothecated in any way, shall not be
assignable by operation of law, and shall not be subject
to execution, attachment, or similar process. Any
attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option contrary to the provisions
hereof or of the Plan, and the levy of any execution,
attachment, or similar process upon the Options shall be
null and void and without effect.
5. Disclosure and Risk. The Option Holder
represents and warrants to the Corporation as follows:
(a) The Shares will be acquired by the
Option Holder for the Option Holder's own
account, for investment and not with a view to,
or for resale in connection with, any distribution
or public offering thereof within the meaning of
the Securities Act of 1933, as amended (the
"Securities Act").
(b) As of the date of the grant and of
exercise, because of his or her position with the
Corporation, and as a result of inquiries made by
him or her and information furnished to him or
her by the Corporation, Option Holder has and
will have all information necessary for him or
her to make an informed investment decision.
Each certificate representing the Shares shall, if
applicable, be endorsed with the following or a
substantially similar legend:
"THE SECURITIES EVIDENCED BY
THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS
AMENDED (THE 'SECURITIES
ACT'), AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS THERE IS
AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, OR
THE CORPORATION RECEIVES AN
OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES,
REASONABLY SATISFACTORY TO
THE CORPORATION, STATING
THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION
MAY BE MADE PURSUANT TO
RULE 144, PROMULGATED UNDER
THE SECURITIES ACT, OR IS
OTHERWISE EXEMPT FROM THE
REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF
SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS."
The Corporation need not allow a transfer of any
of the Shares unless one of the conditions specified in
the foregoing legend is satisfied. The Corporation may
also instruct its transfer agent not to allow the transfer of
any of the Shares useless one of the conditions specified
in the foregoing legend is satisfied.
Any legend endorsed on a certificate pursuant to
the foregoing language and the stop transfer instructions
with respect to such Shares shall be removed and the
Corporation shall promptly issue a certificate without
such legend to the holder thereof if the Shares are
registered under the Securities Act and a prospectus
meeting the requirements of Section 10 of the Securities
Act is available or if the holder provides the Corporation
with an opinion of counsel for such holder of the Shares
reasonably satisfactory to the Corporation, to the effect
that a public sale, transfer or assignment of such Shares
may be made without registration.
6. Termination of Employment.
(a) General Rule. Except as provided
in the Plan and this Section 6, in the event that the
Option Holder shall cease to be an employee of the
Corporation or any subsidiary for any reason
whatsoever, the Option may be exercised by the Option
Holder (to the extent that the Option was vested as of
the date of the Option Holder's termination of
employment with the Corporation or a subsidiary) at any
time within twelve (12) months following the Option
Holder's termination of employment with the
Corporation or a subsidiary (subject to the limitation in
Section 3 hereof), at which time the Option shall
terminate, (i) unless such termination of employment
occurs by reason of a Special Event, provided that, in
the case of a Special Event, the Committee shall have
modified the Option to remain exercisable and (ii)
provided, however, that the Option shall no longer be
treated as an "incentive stock option" unless exercised
within three (3) months of the date of termination of
employment (or within one (1) year in the case of an
employee who is "disabled" within the meaning of
Section 22(e)(3) of the Code).
The Option shall not be affected by any change
of employment so long as the Option Holder continues
to be employed by either the Corporation or a
subsidiary. The Committee may, in its sole discretion,
cause the Option to be forfeited upon an Option Holder's
termination of employment if the Option Holder was
terminated for one (or more) of the following reasons:
(i) the Option Holder's conviction, or plea of guilty or
nolo contendere to the commission of a felony, (ii) the
Option Holder's commission of any fraud,
misappropriation or misconduct which causes
demonstrable injury to the Corporation or a subsidiary,
(iii) an act of dishonesty by the Option Holder resulting
or intended to result, directly or indirectly, in gain or
personal enrichment at the expense of the Corporation or
a subsidiary, (iv) any breach of the Option Holder's
fiduciary duties to the Corporation as an employee or
officer, or (v) a violation by the Option Holder of a
Corporation policy. It shall be within the sole discretion
of the Committee to determine whether the Option
Holder's termination was for one of the foregoing
reasons, and the decision of the Committee shall be final
and conclusive.
(b) Disability or Retirement. In the
event of the Disability or Retirement of the Option
Holder, the Option, whether or not otherwise
exercisable on such date, shall become fully vested on
the date of such Disability or Retirement and shall be
exercisable by the Option Holder at any time within
twelve (12) months following the Option Holder's
Disability or Retirement (subject to the limitation in
Section 3 hereof), at which time the Option shall
terminate; provided, however, that the Option shall no
longer be treated as an "incentive stock option" unless
exercised within three (3) months of the date of such
Disability or Retirement (or within one (1) year in the
case of an employee who is "disabled" within the
meaning of Section 22(e)(3) of the Code).
(c) Death. In the event of the death of
the Option Holder while an employee of the Corporation
or any subsidiary, the Option, whether or not otherwise
exercisable on the date of death, shall become fully
vested on the date of death and shall be exercisable by
the Option Holder's Designated Beneficiary (or if no
Designated Beneficiary shall be appointed or if the
Designated Beneficiary shall predecease the Option
Holder, by the Option Holder's personal representatives,
heirs or legatees) at any time within twelve (12) months
from the date of Option Holder's death (subject to the
limitation in Section 3 hereof), at which time the Option
shall terminate; provided, however, that the Option shall
no longer be treated as an "incentive stock option"
unless exercised within three (3) months of the date of
the Option Holder's death.
In the event of the death of the Option Holder
following a termination of employment, if such death
occurs before the Option is exercised, the Option held
by the Option Holder on the date of termination of
employment shall be exercisable by the Option Holder's
Designated Beneficiary (or if no Designated Beneficiary
shall be appointed or if the Designated Beneficiary shall
predecease the Option Holder, by the Option Holder's
personal representatives, heirs or legatees) to the same
extent such Option was exercisable by the Option Holder
following such termination of employment.
(d) Special Event. In the case of a
Special Event, the Committee in its sole discretion may
elect to modify all or part of the Option which is or is
not exercisable if the Option Holder is terminated as a
result of a Special Event to provide that all or part of the
Option may continue to be exercisable for the term and
in the manner specified herein or for such other term
and subject to such other provisions and conditions
(including, without limitation, acceleration of the time or
times at which the Option may be exercised) as the
Committee shall specify. If the Committee does not
elect to modify the Option, then only the portion of the
Option currently exercisable at the date of termination
shall be exercisable.
(e) Change in Control. Notwithstanding
Section 6(d) of this Agreement, if there should be a
Change in Control of the Corporation while the Option
Holder is an employee of the Corporation or a
subsidiary, the Corporation shall give the Option Holder
written notice of such Change in Control as promptly as
practicable prior to the effective date thereof, and all of
the Option not currently exercisable shall become
immediately exercisable as of the effective date of such
Change in Control.
(f) Leave of Absence. If the Option
Holder is on an approved leave of absence, the Option
shall not be affected unless such leave is longer than 13
weeks. The date of exercisability of the portion of the
Option which is unexercisable at the beginning of an
approved leave of absence lasting longer than 13 weeks
shall be postponed for a period equal to the length of
such leave of absence. Notwithstanding the foregoing,
the Committee may, in its sole discretion, waive in
writing any such postponement of the date of
exercisability of the Option due to a leave of absence.
7. Changes in Capital Structure. If all or
any portion of the Option shall be exercised subsequent
to any stock dividend, stock split, recapitalization,
merger, consolidation, combination or exchange of
shares, separation, spin-off, reorganization, liquidation,
reclassification or the like, occurring after the date
hereof, as a result of which shares of any class shall be
issued in respect of outstanding Shares or Shares shall
be changed into the same or a different number of shares
of the same or another class or classes, the person or
persons exercising the Option shall receive, for the
aggregate price paid upon such exercise, the aggregate
number and class of shares which, if the Shares (as
authorized at the date hereof) had been purchased at the
date hereof for the same aggregate price (on the basis of
the price per share set forth in Section 2 hereof) and had
not been disposed of, such person or persons would be
holding at the time of such exercise as a result of such
purchase and all such stock dividends, stock splits,
recapitalizations, mergers, consolidations, combinations
or exchanges of shares, separations, spin-offs,
reorganizations, liquidations, reclassification and the
like; provided, however, that no fractional shares shall
be issued upon any such exercise, and the aggregate
price paid shall be appropriately reduced on account of
any fractional share not issued. In no event shall any
adjustments be made to the Option as a result of the
issuance or redemption of securities of the Corporation
for cash or other consideration, or upon the exercise of
any conversion rights of any securities of the
Corporation.
8. Method of Exercising Option. Subject to
the terms and conditions of the Plan and this Agreement,
the Option may be exercised by written notice to the
Secretary of the Corporation, at its principal office or
such other location as may be designated by the
Secretary of the Corporation. Such notice shall state the
election to exercise the Option and the number of Shares
in respect of which it is being exercised, and shall be
signed by the person or persons so exercising the
Option. The notice of election shall be accompanied by
a copy of this Agreement and payment of the full
purchase price for the Shares being purchased. Such
payment shall be made in cash or, in the discretion of
the Committee, through delivery of shares of Common
Stock or a combination of cash and Common Stock, in
accordance with procedures to be established by the
Committee. Any shares so delivered shall be valued at
their Market Price on the date of exercise and, unless
otherwise determined by the Committee, must have been
owned by the person exercising the Option for at least
six months prior to the date of exercise.
The Corporation or its agent shall deliver a
certificate or certificates representing Shares as soon as
practicable after the notice of election and full payment
has been received. In the event the Option shall be
exercised by any person or persons other than the
Option Holder, the notice of election shall be
accompanied by appropriate proof of the right of such
person or persons to exercise the Option. All Shares
that shall be purchased upon the exercise of the Option
as provided herein shall be fully paid and nonassessable.
9. Compliance With Section 16(b) of the
Act. It is the intent of the Corporation that the Plan,
this Agreement and the Option granted hereunder satisfy
and be interpreted in a manner that satisfies the
applicable requirements of Section 16(b) of the Act and
Rule 16b-3 thereunder, so that Option Holders will be
entitled to the benefits of Rule 16b-3 or other exemptive
rules under Section 16 of the Act and will not be
subjected to liability thereunder. If any provision of the
Plan, this Agreement or the Option would otherwise
conflict with the intent expressed herein, that provision,
to the extent possible, shall be interpreted and deemed
amended so as to avoid such conflict. To the extent of
any remaining irreconcilable conflict with such intent,
such provision shall be deemed void as applicable to
persons who are or may be subject to Section 16 of the
Act.
10. Optionee Not a Shareholder. The Option
Holder under this Option, as such, shall not be entitled
by any reason of this Option to any rights whatsoever as
a shareholder of the Corporation. In addition, the
Option Holder shall have no rights as a stockholder with
respect to any shares issuable or transferable upon
exercise of the Option until the date a stock certificate is
issued to the Option Holder representing such Shares.
Except as otherwise expressly provided in the Plan, no
adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date such
stock certificate is issued.
11. Tax Withholding. The Corporation shall
have the right to require the person exercising the
Option to remit to the Corporation an amount sufficient
to satisfy Federal, state and local withholding tax
requirements, or to deduct from all payments under the
Plan or this Agreement amounts sufficient to satisfy all
withholding tax requirements. The Committee may, in
its sole discretion, permit the person exercising the
Option to satisfy his or her tax withholding obligation
either by (i) surrendering Shares owned by such person
or (ii) having the Corporation withhold from Shares
otherwise deliverable to such person. Shares
surrendered or withheld shall be valued at their Market
Price as of the date on which income is required to be
recognized for income tax purposes.
12. General Provisions.
(a) The Corporation shall at all times during
the term of the Option reserve and keep available
such number of Shares as will be sufficient to
satisfy the requirements of this Agreement, shall
pay all fees and expenses necessarily incurred by
the Corporation in connection therewith, and
shall use its best efforts to comply with all laws
and regulations which, in the reasonable opinion
of counsel for the Corporation, are applicable
thereto.
(b) To the extent not preempted by Federal
law, the Plan and this Agreement shall be
construed in accordance with and governed by
the laws of the State of Delaware.
(c) Notices required or permitted to be made
under this Agreement shall be sufficiently made
if personally delivered to the Option Holder or
sent by regular mail addressed (a) to the Option
Holder at the Option Holder's address as set
forth in the books and records of the Corporation
or its subsidiaries, or (b) to the Corporation or
the Committee at the principal office of the
Corporation clearly marked "Attention:
Compensation Committee."
(d) The Plan and this Agreement set forth the
entire agreement of the parties concerning the
subject matter hereto, and no other
representations or warranties, express or
implied, other than those contained herein, and
no amendments or modifications hereto, shall be
binding unless made in writing and signed by the
parties hereto.
(e) The waiver by either party of a breach of
any term or provision of the Plan or this
Agreement shall not operate or be construed as
a waiver of a subsequent breach of the same
provision or of the breach of any other term or
provision of the Plan or this Agreement.
(f) The headings in this Agreement are solely
for convenience of reference and shall be given
no effect in the construction or interpretation of
this Agreement.
(g) In the event that any provision of the Plan
or this Agreement shall be held illegal or invalid
for any reason, such illegality or invalidity shall
not affect the remaining parts of the Plan or this
Agreement, and the Plan or this Agreement as
the case may be shall be construed and enforced
as if the illegal or invalid provision had not been
included.
(h) Nothing in the Plan or this Agreement,
nor the grant of this Option, shall confer upon
the Option Holder any right to continue in the
employ of the Corporation or a subsidiary or to
be entitled to any remuneration or benefits not
set forth in the Plan or this Agreement or
interfere with or limit the right of the
Corporation or a subsidiary to modify the terms
of or terminate the Option Holder's employment
at any time.
13. Plan Incorporation. This Option and this
Agreement are subject to, and the Company and the
Option Holder agree to be bound by, the terms and
conditions of this Agreement and all of the terms and
conditions of the Plan, as the same may have been
amended from time to time in accordance with its terms.
The Plan is hereby incorporated into and made a part of
this Agreement as though set forth in full herein.
14. Acknowledgment. The Option Holder
hereby acknowledges receipt of a copy of the Plan.
IN WITNESS WHEREOF, the Corporation has
caused this Option Agreement to be duly executed by its
officer thereunto duly authorized, and the Option Holder
has executed this Agreement, all as of the day and year
first above written.
OPTION HOLDER
Name:
Address:
UNILAB CORPORATION
By:
Name:
Title:
Exhibit 4.1
FORM OF
RESTRICTED STOCK AGREEMENT
Pursuant to the Unilab Corporation 1996 Stock
Option and Performance Incentive Plan (the "Plan"), this
Restricted Stock Agreement (the "Agreement") is made as
of _____________ 199__, between Unilab Corporation,
a Delaware corporation (the "Corporation"), and
____________________________, a key employee of the
Corporation (the "Employee"), for the grant by the
Corporation to the Employee of restricted shares of the
Corporation's common stock, par value $.01 per share (the
"Common Stock").
Capitalized terms used but not defined herein have
the meaning set forth in the Plan.
1. Grant of Shares. In accordance with the
terms of the Plan, and in consideration of valuable
services heretofore rendered by the Employee to the
Corporation and of the agreements hereinafter set forth,
the Corporation hereby grants to the Employee
_______________ Thousand (____,000) shares of
Common Stock of the Corporation (the "Shares"). As
soon as reasonably practicable following the Employee's
execution of this Agreement, a certificate or certificates
representing the Shares and bearing the legend described
in Section 7 shall be issued in the name of the Employee.
The Corporation, at the direction of the Committee, shall
hold such certificate or certificates, properly endorsed for
transfer, for the Employee's benefit until such time as the
Shares are forfeited to the Corporation, or the restrictions
herein set forth have lapsed. The Shares, shall be issued
from the Corporation's available treasury shares or from
authorized but unissued shares. Upon issuance of the
certificates representing the Shares, the Employee shall
have all the rights of a stockholder with respect to the
Shares, including the right to vote and to receive all
dividends or other distributions paid or made with respect
to the Shares. However, the Shares (and any securities of
the Corporation which may be issued with respect to the
Share by virtue of any stock split, combination, stock
dividend or recapitalization, which securities shall be
deemed to be "Shares" hereunder) shall be subject to all
the restrictions hereinafter set forth.
2. Restriction. The Share shall not be sold,
exchanged, assigned, transferred, pledged or otherwise
disposed of, and shall be subject to forfeiture as set forth
in Section 5 below until the restriction imposed by this
Section 2 (the "Restriction") has lapsed pursuant to
Sections 3 or 4 below.
3. Lapse of Restriction by Passage of Time.
The Restriction shall lapse and have no further force or
effect with respect to the Shares as follows: Twenty-Five
Percent (25%) of the Shares herein granted (for up to
____________ shares) shall be free of the Restriction on
or after ________________________; Twenty-Five
Percent (25%) of the Shares herein granted (for up to
____________ shares) shall be free of the Restriction on
or after ________________________; Twenty-Five
Percent (25%) of the Shares herein granted (for up to
_____________ shares) shall be free of the Restriction on
or after ________________________; Twenty-Five
Percent (25%) of the Shares herein granted (for up to
_____________ shares) shall be free of the Restriction on
or after ________________________.
4. Lapse of Restriction by Death, Disability,
Retirement or Change In Control. The Restriction shall
lapse and have no further force or effect upon the
Employee's death, Disability, Retirement or upon a
Change In Control which occurs while the Employee is
employed by the Corporation or a subsidiary.
5. Forfeiture of Shares. In the event of
termination of the Employee's employment with the
Corporation or a subsidiary, prior to lapse of the
Restriction under Sections 3 or 4, the Shares which
remain subject to the Restriction shall be forfeited, unless
otherwise determined by the Committee, in its sole
discretion. In the event of any such termination the
Committee shall promptly notify the Employee or his
executor, administrator, personal representative or heir
("Representative") of the number of the Shares to be
forfeited. The forfeited Shares shall be transferred to the
Corporation and be available for subsequent awards under
the Plan, unless the Committee directs that such Shares be
cancelled upon forfeiture. The Employee or his
Representative shall promptly deliver to the Corporation
any documents requested by the Corporation which are
necessary to effectuate such transfer.
6. Delivery of Restricted Shares. Upon the
lapse of the Restriction pursuant to Sections 3 or 4, a
stock certificate for the number of Shares with respect to
which the Restriction has lapsed shall be delivered, free of
all restrictions, to the Employee or the Employee's
Representative, beneficiary or estate, as the case may be.
7. Legend on Certificates. All certificates
representing the Shares shall be endorsed on the face
thereof with the following legend:
"The shares of stock represented by this
certificate, and the transferability thereof
are restricted by and subject to the Unilab
Corporation 1996 Stock Option and
Performance Incentive Plan and to a
"Restricted Stock Agreement" dated as of
_______________, 199__, copies of both
documents are on file with the Secretary
of the Corporation."
8. Withholding Taxes. Notwithstanding any
other provision of the Plan or this Agreement, the lapse of
the Restriction on the Shares pursuant to Sections 3 or 4
shall be conditioned on the Employee or the
Representative having made appropriate arrangements
with the Corporation to provide for the withholding of
any taxes required to be withheld by Federal, state or local
law with respect to such lapse.
9. General Provisions.
(a) To the extent not preempted by Federal
law, the Plan and this Agreement shall be
construed in accordance with and governed by the
laws of the State of Delaware.
(b) Notices required or permitted to be made
under this Agreement shall be sufficiently made if
personally delivered to the Employee or his or her
Representative or sent by regular mail addressed
(a) to the Employee or his or her Representative at
the Employee's address as set forth in the books
and records of the Corporation or its subsidiaries,
or (b) to the Corporation or the Committee at the
principal office of the Corporation clearly marked
"Attention: Compensation Committee."
(c) The Plan and this Agreement set forth the
entire agreement of the parties concerning the
subject matter hereto, and no other representations
or warranties, express or implied, other than those
contained herein, and no amendments or
modifications hereto, shall be binding unless
made in writing and signed by the parties hereto.
(d) The waiver by either party of a breach of
any term or provision of the Plan or this
Agreement shall not operate or be construed as a
waiver of a subsequent breach of the same
provision or of the breach of any other term or
provision of the Plan or this Agreement.
(e) The headings in this Agreement are solely
for convenience of reference and shall be given no
effect in the construction or interpretation of this
Agreement.
(f) In the event that any provision of the Plan
or this Agreement shall be held illegal or invalid
for any reason, such illegality or invalidity shall
not affect the remaining parts of the Plan or this
Agreement, and the Plan or this Agreement as the
case may be shall be construed and enforced as if
the illegal or invalid provision had not been
included.
(g) Nothing in the Plan or this Agreement
confers on the Employee any right to continue in
the employ of the Corporation or of any of its
subsidiaries or to be entitled to any remuneration
or benefits not set forth in the Plan or this
Agreement or interfere with or limit the right of
the Corporation or a subsidiary to modify the
terms of or terminate the Employee's employment
at any time.
10. Plan Incorporation. This Agreement is
subject to, and the Corporation and the Employee agree to
be bound by, the terms and conditions of this Agreement
and all of the terms and conditions of the Plan, as the
same may have been amended from time to time in
accordance with its terms. The Plan is hereby
incorporated into and made a part of this Agreement as
though set forth in full herein.
11. Acknowledgment. Employee hereby
acknowledges receipt of a copy of the Plan.
IN WITNESS WHEREOF, the parties have
executed this Agreement, on the date first above written.
UNILAB CORPORATION
By:
Name:
Title:
EMPLOYEE
Name:
Address:
Exhibit 4.2
UNILAB CORPORATION
NON-EMPLOYEE DIRECTORS
STOCK PLAN
1. Purpose
The purpose of the Unilab Corporation Non-Employee Directors Stock Plan
(the "Plan") is to secure for Unilab Corporation (the "Corporation") and its
stockholders the benefits of the incentive inherent in increased ownership of
common stock, par value $.01 per share (the "Common Stock"), of the
Corporation by the members of the Board of Directors (the "Board") of the
Corporation who are not employees of the Corporation or any of its
subsidiaries ("Non-Employee Directors"). It is expected that such ownership
will provide such Non-Employee Directors with a more direct stake in the
future welfare of the Corporation and encourage them to remain directors of
the Corporation. It is also expected that the Plan will encourage qualified
persons to become directors of the Corporation. This purpose will be
accomplished by making annual grants to Non-Employee Directors of
non-qualified stock options to purchase shares of Common Stock and by
allowing Non-Employee Directors to elect voluntarily to receive all or a
portion of their annual retainer for services as a director into Common
Stock.
2. Administration
The Plan shall be administered by the Board. The Board shall have all the
powers vested in it by the terms of the Plan, such powers to include
authority (within the limitations described herein) to prescribe the form of
the agreement embodying awards of stock options made under the Plan (the
"Options"). Subject to the provisions of the Plan, the Board shall have the
power to construe the Plan, to determine all questions arising thereunder,
and to adopt and amend such rules and regulations for the administration of
the Plan as it may deem desirable. Any decision of the Board in the
administration of the Plan, as described herein, shall be final and
conclusive. The Board may act only by a majority of its members in office,
except that the members thereof may authorize any one or more of their number
or the Secretary or any other officer of the Corporation to execute and
deliver documents on behalf of the Board. No member of the Board shall be
liable for anything done or omitted to be done by such member or by any other
member of the Board in connection with the Plan, except for such member's own
willful misconduct or as expressly provided by statute.
3. Amount of Stock
The stock which may be issued and sold under the Plan shall not exceed
1,000,000 shares of Common Stock, subject to adjustment as provided in
Section 9. The Common Stock to be issued may be either authorized and
unissued shares or issued shares acquired by the Corporation. If Options
granted under the Plan terminate or expire without being exercised in whole
or in part, the shares not purchased under such lapsed Options shall be
available for future grants under the Plan.
4. Eligibility for Options
Each Non-Employee Director shall be eligible to receive an Option in
accordance with Section 5. Each Option granted under the Plan shall be
evidenced by an agreement in such form as the Board shall prescribe from time
to time in accordance with the Plan and shall comply with the terms and
conditions set forth in Sections 5, 6 and 7.
5. Grant of Options
(a) Each year on the first business day in January on which shares of Common
Stock are traded, commencing on January 3, 1996, each Non-Employee Director
shall automatically receive an Option to purchase for 10 years 10,000 shares
of Common Stock, subject to adjustment as provided in Section 9.
(b) Each year on the first business day in January on which shares of
Common Stock are traded, commencing on January 3, 1996, each Non-Employee
Director who serves as the Chairman of a committee or committees of the Board
shall automatically receive an additional option to purchase for 10 years
10,000 shares of Common Stock, subject to adjustment as provided in Section
9.
6. Exercise Price
The Option exercise price per share shall be 100% of the Market Value of a
share of Common Stock on the date of grant of the Option under Section 5,
subject to adjustment as provided in Section 9. As used herein, Market Value
shall be the last reported sales price of the Common Stock (if the Common
Stock is then traded on a national securities exchange or in the Nasdaq Stock
Market/Nasdaq National Market) or, if not so traded, the average of the
closing bid and asked prices thereof, on the applicable date.
7. Termination of Options and Limitations on Exercise
(a) No Option shall be exercisable until and unless the Plan is approved by
the Corporation's stockholders at the Corporation's 1996 Annual Meeting of
Stockholders, and, unless the Plan is so approved, all Options will terminate
and be of no further force or effect on the earlier to occur of (i) the day
after the Corporation's 1996 Annual Meeting of Stockholders and (ii) December
31, 1996.
(b) Except as otherwise provided in this Section 7, fifty percent (50%) of
the total number of shares of Common Stock covered by an Option shall be
vested and exercisable immediately upon the date of grant of the Option and
the remaining number of shares of Common Stock covered by the Option shall
vest and become exercisable one year after the date of grant of the Option;
provided, however, that no shares of Common Stock which are received upon
exercise of an Option may be sold or otherwise disposed of until six months
and one day after the later of (i) the date of grant of the Option or (ii)
the date on which the Plan is approved by the Corporation's stockholders,
unless such sale or disposition may be made without violating Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the "Act").
(c) If a person shall cease to be a Non-Employee Director for any reason
while holding an Option that has not expired and has not been fully
exercised, such person, or in the case of his death or adjudication of
incompetency, his Designated Beneficiary (as defined below), executors,
administrators, distributees, guardian or legal representative, as the case
may be, may, at any time until the earlier to occur of the (y) first
anniversary of the date of cessation to be a Non-Employee Director and (z)
the termination of such Option pursuant to Section 7(e)(i), exercise the
Option with respect to any shares of Common Stock as to which it was or
became exercisable on the date the person ceased to be such a Non-Employee
Director.
Any Options which are not yet vested will vest and become exercisable if a
Non-Employee Director terminates service on the Board due to death,
Disability or Retirement (each as defined below). In addition, any Options
which are not yet vested will vest and become exercisable in the event of a
Change in Control (as defined below). "Disability" shall mean a cessation of
service on the Board by a Non-Employee Director who is "disabled" within the
meaning provided in Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended. "Retirement" shall mean a cessation of service on the Board by a
Non-Employee Director who is at least 65 years of age. A "Change in Control"
shall mean that any of the following events have occurred: (i) any person or
entity as defined in Section 13(d) of the Exchange Act becomes a beneficial
owner of 40% or more of the outstanding Common Stock of the Corporation; or
(ii) as the consequence of any cash tender or exchange offer, merger, or
other business combination (a "Transaction"), the persons who were directors
of the Corporation before the Transaction cease to constitute a majority of
the Board following the Transaction.
(d) If a Non-Employee Director dies while holding an Option that has not
expired and has not been fully exercised, such Option shall be exercisable by
the beneficiary designated by the Non- Employee Director for such purpose
(the "Designated Beneficiary") or, if no Designated Beneficiary shall be
appointed or if the Designated Beneficiary shall predecease the Non-Employee
Director, by the Non-Employee Director's executors, administrators, personal
representatives, heirs or legatees at any time within the time limits
permitted under Sections 7(c) and 7(e)(i).
(e) No Option or any part of an Option shall be exercisable:
(i) after the expiration of 10 years from the date the Option was granted; and
(ii) unless written notice of the exercise is delivered to the Corporation
specifying the number of shares to be purchased, and payment in full by check
or bank draft is made for the shares of Common Stock being acquired
thereunder at the time of exercise. Notwithstanding the foregoing, the Board
may establish procedures which permit the exercise price to be paid, in whole
or in part, by delivery of shares of Common Stock which have been owned by
the person exercising the Option for at least six months prior to the date of
exercise, in which event any shares so delivered shall be valued at their
Market Value (as defined in Section 6) on the date of exercise of the Option.
(f) An Option shall not be transferable by the optionee otherwise than by
will or the laws of descent and distribution and shall be exercisable during
his lifetime only by him or his guardian or legal representative.
Notwithstanding anything to the contrary in the preceding paragraph, the
Board may, in its sole discretion, cause the written agreement relating to
any Options granted hereunder to provide that the recipient of such Options
may transfer any of such Options other than by will or the laws of descent
and distribution in any manner authorized under applicable law; provided,
however, that in no event may the Board permit any transfers which would
cause this Plan to fail to satisfy the applicable requirements of Rule 16b-3
under the Act or would cause any recipient of awards hereunder to fail to be
entitled to the benefits Rule 16b-3 or other exemptive rules under Section 16
of the Act or be subject to liability thereunder.
8. Elective Payment in Common Stock
Each Non-Employee Director shall have the right to elect, in writing filed
with the Secretary of the Corporation, to receive all or a portion of the
retainer or other cash compensation otherwise payable to such Non-Employee
Director for his services as a director of the Corporation in an equivalent
number of shares of Common Stock, commencing after the Plan is approved by
the Corporation's stockholders. The number of shares of Common Stock to be
issued to a Non- Employee Director who makes such an election shall be
determined each quarter based on (y) the retainer or other cash compensation
which would otherwise be payable to such Non- Employee Director at the
beginning of the quarter and (z) the Market Value of a share of Common Stock
on the first business day of the quarter on which shares of Common Stock are
traded. The number of shares shall be rounded to the nearest whole number.
Elections under this Section 8 shall be made at least six months and one
day prior to the date on which the payment is to be made. A Non-Employee
Director's election shall remain in effect from year to year until changed by
the Non-Employee Director. Any change in an election must be made in writing
filed with the Secretary of the Corporation, and no change in an election
shall be effective prior to at least six months and one day after the date of
filing the change with the Secretary of the Corporation.
No shares of Common Stock which are received pursuant to an election under
this Section 8 may be sold or otherwise disposed of until six months and one
day after the later of (i) the date of receipt of the shares of Common Stock
or (ii) the date on which the Plan is approved by the Corporation's
stockholders, unless such sale or disposition may be made without violating
Rule 16b-3 under the Act.
9. Adjustments upon Changes In Capitalization
(a) If the outstanding Common Stock is hereafter changed by reason of
reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, combination, exchange of shares, or the like, or dividends
payable in shares of the Common Stock, an appropriate adjustment shall be
made by the Board in the aggregate number of shares available under the Plan,
in the number of shares subject to Options to be granted thereafter pursuant
to Sections 5(a) and 5(b), in the number of shares and price per share
subject to outstanding Options, and in the number of shares of Common Stock
to be granted pursuant to Section 8. If the Corporation shall be reorganized,
consolidated or merged with another corporation, or if all or substantially
all of the assets of the Corporation shall be sold or exchanged, the holder
of an Option shall, after the occurrence of such a corporate event, be
entitled to receive upon the exercise of his Option the same number and kind
of shares of stock or the same amount of property, cash or securities as he
would have been entitled to receive upon the happening of any such corporate
event as if he had exercised such Option and had been, immediately prior to
such event, the holder of the number of shares covered by such Option.
(b) Any adjustment in the number of shares shall apply proportionately to
only the unexercised portion of any Option granted hereunder. If fractions of
a share would result from any such adjustment, the adjustment shall be
revised to the next higher whole number of shares.
10. Miscellaneous Provisions
(a) Except as expressly provided for in the Plan, no Non-Employee Director or
other person shall have any claim or right to be granted an Option or Common
Stock under the Plan. Neither the Plan nor any action taken hereunder shall
be construed as giving any Non-Employee Director any right to be retained in
the service of the Corporation.
(b) The Corporation shall not be obligated to deliver any shares of Common
Stock hereunder until they have been listed on each securities exchange on
which the Common Stock may then be listed, or until there has been
qualification under or compliance with such state or federal laws, rules or
regulations as the Corporation may deem applicable.
(c) It shall be a condition to the obligation of the Corporation to issue
shares of Common Stock upon exercise of an Option, that the optionee (or any
person entitled to act under Sections 7(c) and 7(f)) pay to the Corporation,
upon its demand, such amount, if any, as may be requested by the Corporation
for the purpose of satisfying any liability to withhold federal, state, local
or foreign income or other taxes. If the amount requested is not paid, the
Corporation may refuse to issue shares of Common Stock.
(d) The expenses of the Plan shall be borne by the Corporation.
(e) If an Option is exercised by the executors, administrators, legatees
or distributees of the estate of a deceased optionee or by the guardian or
legal representative of an optionee, the Corporation shall be under no
obligation to issue stock thereunder unless and until the Corporation is
satisfied that the person or persons exercising the Option are the duly
appointed legal representatives of the optionee or of the deceased optionee's
estate or the proper legatees or distributees of such estate.
(f) To the extent not preempted by Federal law, the Plan, and all
agreements hereunder, shall be construed in accordance with and governed by
the laws of the State of Delaware.
11. Amendment or Discontinuance
The Plan may be amended at any time and from time to time by the Board as the
Board shall deem advisable including, but not limited to amendments necessary
to qualify for any exemption or to comply with applicable law or regulations;
provided, however, that the Plan shall not be amended more than once every
six months, other than to comport with changes in the Internal Revenue Code
of 1986, as amended, or the regulations thereunder, or the Employee
Retirement Income Security Act of 1974, as amended, or the regulations
thereunder; and provided, further, that if shareholder approval of an
amendment is necessary in order to ensure compliance with Rule 16b-3 under
the Act, such amendment shall be subject to approval by the Corporation's
stockholders in the manner required by Rule 16b-3. No amendment of the Plan
shall materially and adversely affect any right of any optionee with respect
to any Option theretofore granted without such optionee's written consent.
12. Compliance With Section 16(b) of the Act
It is the intent of the Corporation that the Plan and any Option granted
hereunder satisfy and be interpreted in a manner that satisfies the
applicable requirements of Section 16(b) of the Act and Rule 16b-3
thereunder, so that such persons will be entitled to the benefits of Rule
16b-3 or other exemptive rules under Section 16 of the Act and will not be
subjected to liability thereunder. If any provision of the Plan or any Option
would otherwise conflict with the intent expressed herein, that provision, to
the extent possible, shall be interpreted and deemed amended so as to avoid
such conflict. To the extent of any remaining irreconcilable conflict with
such intent, such provision shall be deemed void as applicable to persons who
are or may be subject to Section 16 of the Act.
13. Termination
The Plan shall terminate upon the earliest to occur of (a) the adoption of a
resolution of the Board terminating the Plan, (b) December 31, 2005 and (c)
December 31, 1996 if the Plan has not been approved by the Corporation's
stockholders at the Corporation's 1996 Annual Meeting of Stockholders.
14. Effective Date of Plan
The Plan shall become effective as of January 1, 1996, provided that the
Corporation's stockholders shall have approved the Plan at the Corporation's
1996 Annual Meeting of Stockholders.
Exhibit 4.2
FORM OF
DIRECTOR STOCK OPTION AGREEMENT
Pursuant to the Unilab Corporation Non-
Employee Directors Stock Plan (the "Plan"), this Stock
Option Agreement (the "Agreement") is made as of
_____________________, 199__, between Unilab
Corporation, a Delaware corporation (hereinafter called
the "Corporation"), and
____________________________________, a director
of the Corporation (hereinafter called the "Option
Holder").
Capitalized terms used but not defined herein
have the meaning set forth in the Plan.
1. Grant of Option. In accordance with the
terms of the Plan, the Corporation hereby grants to the
Option Holder the right and option, hereinafter called
the "Option," to purchase an aggregate of
_____________ (___________) shares (the "Shares")
of the Corporation's $0.01 par value common stock
(such number being subject to adjustment as provided
in Section 7 hereof), on the terms and conditions set
forth in this Agreement and in the Plan.
______________ shares are granted in connection with
Option Holder's service as a Board committee member
and ____________ shares are granted in connection
with Option Holder's service as Chairman of a Board
committee. Such Option shall vest as follows: Fifty
(50%) Percent of the Option herein granted (for up to
___________ shares) shall vest and may be exercised
on or after the date hereof, and the remaining Fifty
(50%) Percent of the Option herein granted (for up to
__________ shares) shall vest and may be exercised on
or after ______________, 19__ (unless terminated
earlier pursuant to Section 6 hereof); provided,
however, that no Shares which are received upon
exercise of the Option may be sold or otherwise
disposed of until six months and one day after the later
of (i) the date of grant of the Option or (ii) the date on
which the Plan is approved by the Corporation's
stockholders, unless such sale or disposition may be
made without violating Rule 16b-3 under the Securities
Exchange Act of 1934, as amended (the "Act").
2. Purchase Price. The purchase price of
the Shares covered by the Option shall be
________________________ dollars ($_______) per
Share.
3. Term of Option. Subject to Section 8
hereof, the Option granted hereby shall be exercisable
in whole or in part in accordance with Section 1. The
Option Holder's right to exercise the aforementioned
Option shall expire ten (10) years from the date hereof.
Unless terminated earlier pursuant to Section 6 hereof,
any Option not exercised within such time specified
from the date hereof shall terminate.
4. Transferability. The Option shall not be
transferable otherwise than (i) by will or the laws of
descent and distribution and (ii) with the written
consent of the Committee to parents, siblings, spouses
or children of the Option Holder or to any trust or
similar device intended for any of such persons'
respective benefit (a "Permitted Transferee"); provided,
however, that in no event shall a transfer be allowed if
such transfer would cause the Plan to fail to satisfy the
applicable requirements of Rule 16b-3 under the Act, or
would cause the Option Holder to fail to be entitled to
the benefits of Rule 16b-3 or other exemptive rules
under Section 16 of the Act or be subject to liability
thereunder. The Option may be exercised, during the
lifetime of the Option Holder, only by the Option
Holder or a Permitted Transferee. More particularly
(but without limiting the generality of the foregoing),
the Option may not be assigned, transferred (except as
provided herein), pledged, or hypothecated in any way,
shall not be assignable by operation of law, and shall
not be subject to execution, attachment, or similar
process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any
execution, attachment, or similar process upon the
Option shall be null and void and without effect.
5. Disclosure and Risk. The Option Holder
represents and warrants to the Corporation as follows:
(a) The Shares will be acquired by the Option
Holder for the Option Holder's own account, for
investment and not with a view to, or for resale
in connection with, any distribution or public
offering thereof within the meaning of the
Securities Act of 1933, as amended (the
"Securities Act").
(b) As of the date of the grant and of
exercise, because of his or her position with the
Corporation, and as a result of inquiries made by
him or her and information furnished to him or
her by the Corporation, Option Holder has and
will have all information necessary for him or
her to make an informed investment decision.
Each certificate representing the Shares shall, if
applicable, be endorsed with the following or a
substantially similar legend:
"THE SECURITIES EVIDENCED BY
THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS
AMENDED (THE 'SECURITIES
ACT'), AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS THERE
IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, OR
THE CORPORATION RECEIVES AN
OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES,
REASONABLY SATISFACTORY TO
THE CORPORATION, STATING
THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR
HYPOTHECATION MAY BE MADE
PURSUANT TO RULE 144,
PROMULGATED UNDER THE
SECURITIES ACT, OR IS
OTHERWISE EXEMPT FROM THE
REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF
SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS."
The Corporation need not allow a transfer of any
of the Shares unless one of the conditions specified in
the foregoing legend is satisfied. The Corporation may
also instruct its transfer agent not to allow the transfer
of any of the Shares unless one of the conditions
specified in the foregoing legend is satisfied.
Any legend endorsed on a certificate pursuant to
the foregoing language and the stop transfer instructions
with respect to such Shares shall be removed and the
Corporation shall promptly issue a certificate without
such legend to the holder thereof if the Shares are
registered under the Securities Act and a prospectus
meeting the requirements of Section 10 of the Securities
Act is available or if the holder provides the
Corporation with an opinion of counsel for such holder
of the Shares reasonably satisfactory to the Corporation,
to the effect that a public sale, transfer or assignment of
such Shares may be made without registration.
6. Termination of Service.
(a) General Rule. Except as provided in the
Plan and this Section 6, in the event that the Option
Holder shall cease to be a director of the Corporation
for any reason whatsoever, the Option may be exercised
by the person holding the Option (to the extent of the
Option held and the extent that such Option was vested
as of the date the Option Holder ceases to be a director
of the Corporation) at any time until the first
anniversary of the date on which the Option Holder
ceased to be a director of the Corporation (subject to
Section 3 hereof), at which time the Option shall
terminate. So long as the Option Holder shall continue
to be a director of the Corporation, the Option shall not
be affected by any change of duties or position of the
Option Holder.
(b) Death, Disability, Retirement or Change
In Control. Any portion of the Option which is not yet
vested will fully vest and become exercisable by the
person holding the Option (to the extent of the Option
held) if the Option Holder ceases to be a director of the
Corporation due to death, Disability or Retirement. In
addition, any portion of the Option which is not yet
vested will vest and become exercisable by the person
holding the Option (to the extent of the Option held) in
the event of a Change in Control while the Option
Holder is a director of the Corporation.
In the event of the death of the Option Holder
after the Option Holder ceases to be a director of the
Corporation, if such death occurs before the Option is
exercised, the Option held by the Option Holder or a
Permitted Transferee as the case may be on the date the
Option Holder ceased to be a director of the
Corporation, shall be exercisable by the Option Holder's
Designated Beneficiary (or if no Designated
Beneficiary shall be appointed or if the Designated
Beneficiary shall predecease the Option Holder, by the
Option Holder's personal representatives, heirs or
legatees) or by a Permitted Transferee as the case may
be (to the extent of the Option held) to the same extent
such Option was exercisable by the Option Holder or
Permitted Transferee on the date the Option Holder
ceased to be a director of the Corporation.
7. Changes in Capital Structure. If all or
any portion of the Option shall be exercised subsequent
to any stock dividend, stock split, recapitalization,
merger, consolidation, combination or exchange of
shares, separation, spin-off, reorganization, liquidation,
reclassification or the like, occurring after the date
hereof, as a result of which shares of any class shall be
issued in respect of outstanding Shares or Shares shall
be changed into the same or a different number of
shares of the same or another class or classes, the
person or persons exercising the Option shall receive,
for the aggregate price paid upon such exercise, the
aggregate number and class of shares which, if the
Shares (as authorized at the date hereof) had been
purchased at the date hereof for the same aggregate
price (on the basis of the price per share set forth in
Section 2 hereof) and had not been disposed of, such
person or persons would be holding at the time of such
exercise as a result of such purchase and all such stock
dividends, stock splits, recapitalizations, mergers,
consolidations, combinations or exchanges of shares,
separations, spin-offs, reorganizations, liquidations,
reclassifications and the like. If fractions of a Share
would result from any such adjustment, the adjustment
shall be revised to the next higher whole number of
Shares. In no event shall any adjustments be made to
the Option as a result of the issuance or redemption of
securities of the Corporation for cash or other
consideration, or upon the exercise of any conversion
rights of any securities of the Corporation.
8. Method of Exercising Option. Subject
to the terms and conditions of the Plan and this
Agreement, the Option may be exercised by written
notice to the Secretary of the Corporation, at its
principal office or such other location as may be
designated by the Secretary of the Corporation. Such
notice shall state the election to exercise the Option and
the number of Shares in respect of which it is being
exercised, and shall be signed by the person or persons
so exercising the Option. The notice of election shall
be accompanied by a copy of this Agreement and
payment by check or bank draft of the full purchase
price for the Shares being purchased.
Notwithstanding the foregoing, the Board may
establish procedures which shall permit the purchase
price to be paid, in whole or in part, by delivery of
Shares which have been owned by the person exercising
the Option for at least six months prior to the date of
exercise, in which event any Shares so delivered shall
be valued at their Market Value on the date of exercise
of the Option. However, until such time as such
procedures are established, the purchase price may only
be paid by check or bank draft.
The Corporation shall deliver a certificate or
certificates representing Shares as soon as practicable
after the notice of election has been received. In the
event the Option shall be exercised by any person or
persons other than the Option Holder, the notice of
election shall be accompanied by appropriate proof of
the right of such person or persons to exercise the
Option. All Shares that shall be purchased upon the
exercise of the Option as provided herein shall be fully
paid and nonassessable.
9. Compliance With Section 16(b) of the
Act. It is the intent of the Corporation and Option
Holder that the Plan, this Agreement and the Option
granted hereunder satisfy and be interpreted in a manner
that satisfies the applicable requirements of Section
16(b) of the Act and Rule 16b-3 thereunder, so that
Option Holders and Permitted Transferees will be
entitled to the benefits of Rule 16b-3 or other exemptive
rules under Section 16 of the Act and will not be
subjected to liability thereunder. If any provision of the
Plan, this Agreement or the Option would otherwise
conflict with the intent expressed herein, that provision,
to the extent possible, shall be interpreted and deemed
amended so as to avoid such conflict. To the extent of
any remaining irreconcilable conflict with such intent,
such provision shall be deemed void as applicable to
persons who are or may be subject to Section 16 of the
Act.
10. Optionee Not a Shareholder. The Option
Holder or a Permitted Transferee under this Option, as
such, shall not be entitled by any reason of this Option
to any rights whatsoever as a shareholder of the
Corporation. In addition, the Option Holder or a
Permitted Transferee shall have no rights as a
stockholder with respect to any shares issuable or
transferable upon exercise of the Option until the date a
stock certificate is issued to the Option Holder or a
Permitted Transferee representing such Shares. Except
as otherwise expressly provided in the Plan, no
adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date such
stock certificate is issued.
11. Tax Withholding. It shall be a condition
to the obligation of the Corporation to issue Shares
upon exercise of the Option, that the person exercising
the Option pay to the Corporation, upon its demand,
such amount, if any, as may be requested by the
Corporation for the purpose of satisfying any liability to
withhold Federal, state, local or foreign income or other
taxes. If the amount requested is not paid, the
Corporation may refuse to issue shares of Common
Stock.
12. General Provisions.
(a) The Corporation shall at all times during
the term of the Option reserve and keep
available such number of Shares as will be
sufficient to satisfy the requirements of this
Agreement, shall pay all fees and expenses
necessarily incurred by the Corporation in
connection therewith, and shall use its best
efforts to comply with all laws and regulations
which, in the reasonable opinion of counsel for
the Corporation, are applicable thereto.
(b) To the extent not preempted by Federal
law, the Plan and this Agreement shall be
construed in accordance with and governed by
the laws of the State of Delaware.
(c) Notices required or permitted to be made
under this Agreement shall be sufficiently made
if personally delivered to the Option Holder or a
Permitted Transferee or sent by regular mail
addressed (a) to the Option Holder or a
Permitted Transferee at the Option Holder's or
Permitted Transferee's address as set forth in the
books and records of the Corporation or its
subsidiaries, or (b) to the Corporation or the
Committee at the principal office of the
Corporation clearly marked "Attention:
Compensation Committee."
(d) The Plan and this Agreement sets forth
the entire agreement of the parties concerning
the subject matter hereto, and no other
representations or warranties, express or
implied, other than those contained herein, and
no amendments or modifications hereto, shall be
binding unless made in writing and signed by
the parties hereto.
(e) The waiver by either party of a breach of
any term or provision of the Plan or this
Agreement shall not operate or be construed as a
waiver of a subsequent breach of the same
provision or of the breach of any other term or
provision of the Plan or this Agreement.
(f) The headings in this Agreement are
solely for convenience of reference and shall be
given no effect in the construction or
interpretation of this Agreement.
(g) In the event that any provision of the
Plan or this Agreement shall be held illegal or
invalid for any reason, such illegality or
invalidity shall not affect the remaining parts of
the Plan or this Agreement, and the Plan or this
Agreement as the case may be shall be
construed and enforced as if the illegal or
invalid provision had not been included.
(h) Except as expressly provided for in the
Plan or this Agreement, no Option Holder or
other person shall have any claim or right to be
granted an Option or Shares under the Plan.
Neither the Plan nor this Agreement shall be
construed as giving the Option Holder any right
to be retained in the service of the Corporation.
13. Plan Incorporation. This Agreement and
this Option are subject to, and the Corporation and the
Option Holder agree to be bound by, the terms and
conditions of this Agreement and all of the terms and
conditions of the Plan, as the same may have been
amended from time to time in accordance with its
terms. The Plan is hereby incorporated into and made a
part of this Agreement as though set forth in full herein.
14. Acknowledgment. The Option Holder
hereby acknowledges receipt of a copy of the Plan.
IN WITNESS WHEREOF, the Corporation has
caused this Agreement to be duly executed by its officer
thereunto duly authorized, and the Option Holder has
hereunto executed this Agreement, all as of the day and
year first above written.
OPTION HOLDER
Name:
Address:
UNILAB CORPORATION
By:
Name:
Title:
Exhibit 4.3
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made as of
the ___ day of _____, 1995, between Unilab Corporation, a
Delaware corporation (hereinafter called the "Corporation"),
and __________________, a key employee of the
Corporation (hereinafter called the "Option Holder").
1. Grant of Option. The Corporation hereby grants
to the Option Holder the right and option, hereinafter called
the "Option", to purchase an aggregate of ______ shares (the
"Shares") of the Corporation's $0.01 par value common
stock (such number being subject to adjustment as provided
in paragraph 7 hereof), on the terms and conditions herein
set forth. Such Option shall vest as follows: Fifty (50%)
Percent of the Option herein granted (for up to ______
shares) shall vest and may be exercised on or after the date
hereof, and the remaining Fifty (50%) Percent of the Option
herein granted (for up to _____ shares) shall vest and may be
exercised on or after _______________ (unless terminated
earlier pursuant to paragraph 6 hereof).
2. Purchase Price. The purchase price of the Shares
covered by the Option shall be ____________________
($____) per Share.
3. Term of Option. Subject to paragraph 8 hereof,
the Option granted hereby shall be exercisable as to a portion
of the total Shares in accordance with paragraph 1. The
Option Holder's right to exercise the aforementioned Option
shall expire ten (10) years from the date hereof. Unless
terminated earlier pursuant to paragraph 6 hereof, any
Option not exercised within such time specified of the date
hereof shall terminate.
4. Nontransferability. The Option shall not be
transferable otherwise than (i) by will or the laws of descent
and distribution and (ii) to parents, siblings, spouses or
children of the Option Holder or to any trust or similar
device intended for any of such persons' respective benefit (a
"Permitted Transferee"), and the Option may be exercised,
during the lifetime of the Option Holder, only by him or
such Permittee Transferree. More particularly (but without
limiting the generality of the foregoing), the Option may not
be assigned, transferred (except as provided herein),
pledged, or hypothecated in any way, shall not be assignable
by operation of law, and shall not be subject to execution,
attachment, or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the
Option contrary to the provisions hereof, and the levy of any
execution, attachment, or similar process upon the Option
shall be null and void and without effect.
5. Disclosure and Risk. The Option Holder
represents and warrants to the Corporation as follows:
(a) The Shares will be acquired by the Option
Holder for the Option Holder's own account, for
investment and not with a view to, or for resale in
connection with, any distribution or public offering
thereof within the meaning of the Securities Act of
1933, as amended (the "Securities Act").
(b) As of the date of the grant and of exercise,
because of his position with the Corporation, and as a
result of inquiries made by him and information
furnished to him by the Corporation, Option Holder
has and will have all information necessary for him to
make an informed investment decision.
Each certificate representing the Shares shall, if
applicable, be endorsed with the following or a substantially
similar legend:
"THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE
SECURITIES ACT'), AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, OR THE
CORPORATION RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF
THESE SECURITIES, REASONABLY
SATISFACTORY TO THE CORPORATION,
STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR
HYPOTHECATION MAY BE MADE
PURSUANT TO RULE 144,
PROMULGATED UNDER THE
SECURITIES ACT, OR IS OTHERWISE
EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT AND
APPLICABLE STATE SECURITIES
LAWS."
The Corporation need not allow a transfer of any of
the Shares unless one of the conditions specified in the
foregoing legend is satisfied. The Corporation may also
instruct its transfer agent not to allow the transfer of any of
the Shares unless one of the conditions specified in the
foregoing legend is satisfied.
Any legend endorsed on a certificate pursuant to the
foregoing language and the stop transfer instructions with
respect to such Shares shall be removed and the Corporation
shall promptly issue a certificate without such legend to the
holder thereof if the Shares are registered under the
Securities Act and a prospectus meeting the requirements of
Section 10 of the Securities Act is available or if the holder
provides the Corporation with an opinion of counsel for such
holder of the Shares reasonably satisfactory to the
Corporation, to the effect that a public sale, transfer or
assignment of such Shares may be made without registration.
6. Termination of Employment; Death.
(a) In the event that the Option Holder shall cease
to be an employee of the Corporation or any of its
subsidiaries for any reason whatsoever, the Option
may be exercised by the Option Holder (to the extent
that the Option Holder shall have been entitled to do
so as of the date of his termination of employment
with the Corporation or any of its subsidiaries) at any
time within 365 days after such termination but in any
event not later than the date of expiration of the
Option term. So long as the Option Holder shall
continue to be an employee of the Corporation or any
of its subsidiaries, the Option shall not be affected by
any change of duties or position. Nothing in this
Option Agreement shall confer upon the Option
Holder any right to continue as an employee of the
Corporation or any of its subsidiaries.
(b) In the event that the Option Holder dies prior
to exercising all or any portion of the Option, the
Option may be exercised by the estate of the Option
Holder (to the extent that the Option Holder shall
have been entitled to do so) at any time within 365
days after the death of the Option Holder, but in any
event not later than the date of expiration of the
Option term.
7. Changes in Capital Structure. If all or any portion
of the Option shall be exercised subsequent to any share
dividend, split-up, recapitalization, merger, consolidation,
combination or exchange of shares, separation,
reorganization, or liquidation occurring after the date hereof,
as a result of which shares of any class shall be issued in
respect of outstanding Shares or Shares shall be changed into
the same or a different number of shares of the same or
another class or classes, the person or persons exercising the
Option shall receive, for the aggregate price paid upon such
exercise, the aggregate number and class of shares which, if
the Shares (as authorized at the date hereof) had been
purchased at the date hereof for the same aggregate price (on
the basis of the price per share set forth in paragraph 2
hereof) and had not been disposed of, such person or persons
would be holding at the time of such exercise as a result of
such purchase and all such share dividends, split-ups,
recapitalizations, mergers, consolidations, combinations or
exchanges of shares, separations, reorganizations, or
liquidations; provided, however, that no fractional shares
shall be issued upon any such exercise, and the aggregate
price paid shall be appropriately reduced on account of any
fractional share not issued. In no event shall any adjustments
be made to the Option as a result of the issuance or
redemption of securities of the Corporation for cash or other
consideration, or upon the exercise of any conversion rights
of any securities of the Corporation.
8. Method of Exercising Option. Subject to the
terms and conditions of this Option Agreement, the Option
may be exercised by written notice to the Secretary of the
Corporation, at its principal office or such other location as
may be designated by the Secretary of the Corporation.
Such notice shall state the election to exercise the Option and
the number of Shares in respect of which it is being
exercised, and shall be signed by the person or persons so
exercising the Option. The notice of election shall be
accompanied by this Agreement and payment of the full
purchase price for the Shares being purchased. The
Corporation shall deliver a certificate or certificates
representing Shares as soon as practicable after the notice of
election has been received. In the event the Option shall be
exercised by any person or persons other than the Option
Holder, the notice of election shall be accompanied by
appropriate proof of the right of such person or persons to
exercise the Option. All Shares that shall be purchased upon
the exercise of the Option as provided herein shall be fully
paid and nonassessable.
9. Mergers, Recapitalizations and Dissolutions.
As long as Optionee is an employee of the Corporation or
any of its subsidiaries, the "acquisition" of the Corporation
by another entity or a "change in control" of the Corporation
shall cause each outstanding option: (i) in the event of an
acquisition, to become an option to purchase shares of the
acquiring entity, for the balance of the term of the option
without regard to any nonsatisfied vesting provisions or
condition precedent which may be contained in paragraph 1
of this Agreement, at a price and for a number of shares as is
consistent with the acquisition terms; and (ii) in the event of
a change in control, to become exercisable in whole or in
part, without regard to any vesting provisions or condition
precedent which may be contained in paragraph 1 of this
Agreement. The "acquisition" of the Corporation by another
entity shall be defined to be either a merger or consolidation
with an acquiring entity (or subsidiary or affiliate thereof) in
which the Corporation is not the surviving entity or in which
the Corporation becomes a subsidiary of an acquiring entity;
the sale of substantially all of the Corporation's assets; or the
dissolution or liquidation of the Corporation. For purposes
of this paragraph, a "change in control" shall mean a change
of control of a nature that would be required to be reported
in response to Item 1(a) of the Current Report on Form 8-K,
pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"); provided that, without
limitation, such a change in control shall be deemed to have
occurred at such time as any "person", within the meaning of
Section 14(d) of the Exchange Act, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 40% or more of the
outstanding capital stock of the Corporation.
10. Optionee Not a Shareholder. The Option Holder
under this Option, as such, shall not be entitled by any
reason of this Option to any rights whatsoever as a
shareholder of the Corporation.
11. General Provisions.
(a) The Corporation shall at all times during the
term of the Option reserve and keep available such
number of Shares as will be sufficient to satisfy the
requirements of this Option Agreement, shall pay all
fees and expenses necessarily incurred by the
Corporation in connection therewith, and shall use its
best efforts to comply with all laws and regulations
which, in the reasonable opinion of counsel for the
Corporation, are applicable thereto.
(b) This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware other than its conflicts of laws provisions.
(c) Any notice to be given hereunder by either
party to the other shall be in writing and shall be
given either by personal delivery or by mail,
registered or certified, postage prepaid, return receipt
requested, addressed to the other party at the
respective addresses set forth below their signatures
to this Agreement, or at any other address as such
party may hereafter specify in writing.
(d) This Agreement sets forth the entire
agreement of the parties concerning the subject matter
hereto, and no other representations or warranties,
express or implied, other than those contained herein,
and no amendments or modifications hereto, shall be
binding unless made in writing and signed by the
parties hereto.
(e) The waiver by either party of a breach of any
term or provision of this Agreement shall not operate
or be construed as a waiver of a subsequent breach of
the same provision or of the breach of any other term
or provision of this Agreement.
(f) As used herein, the masculine gender shall
include the feminine and the neuter genders, the
neuter shall include the masculine and the feminine
genders, the singular shall include the plural, and the
plural shall include the singular.
(g) The headings in this Agreement are solely for
convenience of reference and shall be given no effect
in the construction or interpretation of this
Agreement.
(h) The invalidity or enforceability of any
provision of this Agreement shall not affect the
validity or enforceability of any other provision of
this Agreement, which shall remain in full force and
effect.
IN WITNESS WHEREOF, the Corporation has
caused this Option Agreement to be duly executed by its
officer thereunto duly authorized, and the Option Holder has
hereunto set his hand and seal, all as of the day and year first
above written.
OPTION HOLDER
______________________________
Name:
Address:
UNILAB CORPORATION
Name: Andrew Baker
Title: Chairman, President and
Chief Executive Officer
Address: 18448 Oxnard Street
Tarzana, CA 91356
Exhibit 4.3
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made as of
the ____ day of ________, 1996, between Unilab
Corporation, a Delaware corporation (hereinafter called the
"Corporation"), and ____________________, a director of
the Corporation (hereinafter called the "Option Holder").
1. Grant of Option. The Corporation hereby grants
to the Option Holder the right and option, hereinafter called
the "Option", to purchase an aggregate of ________ shares
(the "Shares") of the Corporation's $0.01 par value common
stock (such number being subject to adjustment as provided
in paragraph 7 hereof), on the terms and conditions herein
set forth. Such Option shall fully vest as of the date hereof
and may be exercised at any time during the term of this
Agreement (unless terminated earlier pursuant to paragraph 6
hereof).
2. Purchase Price. The purchase price of the Shares
covered by the Option shall be _____________ dollars
($______) per Share.
3. Term of Option. Subject to paragraph 8 hereof,
the Option granted hereby shall be exercisable in whole or in
part in accordance with paragraph 1. The Option Holder's
right to exercise the aforementioned Option shall expire ten
(10) years from the date hereof. Unless terminated earlier
pursuant to paragraph 6 hereof, any Option not exercised
within such time specified of the date hereof shall terminate.
4. Transferability. Subject to paragraph 5 hereof,
the Option Holder shall have the right to freely assign,
transfer, pledge or hypothecate the Option.
5. Disclosure and Risk. The Option Holder
represents and warrants to the Corporation as follows:
(a) The Shares will be acquired by the Option
Holder for the Option Holder's own account, for
investment and not with a view to, or for resale in
connection with, any distribution or public offering
thereof within the meaning of the Securities Act of
1933, as amended (the "Securities Act").
(b) As of the date of the grant and of exercise,
because of his position with the Corporation, and as a
result of inquiries made by him and information
furnished to him by the Corporation, Option Holder
has and will have all information necessary for him to
make an informed investment decision.
Each certificate representing the Shares shall, if
applicable, be endorsed with the following or a substantially
similar legend:
"THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE
SECURITIES ACT'), AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, OR THE
CORPORATION RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF
THESE SECURITIES, REASONABLY
SATISFACTORY TO THE CORPORATION,
STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR
HYPOTHECATION MAY BE MADE
PURSUANT TO RULE 144,
PROMULGATED UNDER THE
SECURITIES ACT, OR IS OTHERWISE
EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT AND
APPLICABLE STATE SECURITIES
LAWS."
The Corporation need not allow a transfer of any of
the Shares unless one of the conditions specified in the
foregoing legend is satisfied. The Corporation may also
instruct its transfer agent not to allow the transfer of any of
the Shares unless one of the conditions specified in the
foregoing legend is satisfied.
Any legend endorsed on a certificate pursuant to the
foregoing language and the stop transfer instructions with
respect to such Shares shall be removed and the Corporation
shall promptly issue a certificate without such legend to the
holder thereof if the Shares are registered under the
Securities Act and a prospectus meeting the requirements of
Section 10 of the Securities Act is available or if the holder
provides the Corporation with an opinion of counsel for such
holder of the Shares reasonably satisfactory to the
Corporation, to the effect that a public sale, transfer or
assignment of such Shares may be made without registration.
6. Termination of Employment; Death.
(a) In the event that the Option Holder shall cease
to be a director of the Corporation for any reason
whatsoever, the Option may nevertheless continue to
be exercised by the Option Holder (to the extent that
the Option Holder shall have been entitled to do so as
of the date of the termination of his directorship with
the Corporation) until the date of expiration of the
Option term. So long as the Option Holder shall
continue to be a director of the Corporation, the
Option shall not be affected by any change of duties
or position. Nothing in this Option Agreement shall
confer upon the Option Holder any right to continue
as a director of the Corporation.
(b) In the event that the Option Holder dies prior
to exercising all or any portion of the Option, the
Option may be exercised by the estate of the Option
Holder (to the extent that the Option Holder shall
have been entitled to do so) at any time until the date
of expiration of the Option term.
7. Changes in Capital Structure. If all or any portion
of the Option shall be exercised subsequent to any share
dividend, split-up, recapitalization, merger, consolidation,
combination or exchange of shares, separation,
reorganization, or liquidation occurring after the date hereof,
as a result of which shares of any class shall be issued in
respect of outstanding Shares or Shares shall be changed into
the same or a different number of shares of the same or
another class or classes, the person or persons exercising the
Option shall receive, for the aggregate price paid upon such
exercise, the aggregate number and class of shares which, if
the Shares (as authorized at the date hereof) had been
purchased at the date hereof for the same aggregate price (on
the basis of the price per share set forth in paragraph 2
hereof) and had not been disposed of, such person or persons
would be holding at the time of such exercise as a result of
such purchase and all such share dividends, split-ups,
recapitalizations, mergers, consolidations, combinations or
exchanges of shares, separations, reorganizations, or
liquidations; provided, however, that no fractional shares
shall be issued upon any such exercise, and the aggregate
price paid shall be appropriately reduced on account of any
fractional share not issued. In no event shall any adjustments
be made to the Option as a result of the issuance or
redemption of securities of the Corporation for cash or other
consideration, or upon the exercise of any conversion rights
of any securities of the Corporation.
8. Method of Exercising Option. Subject to the
terms and conditions of this Option Agreement, the Option
may be exercised by written notice to the Secretary of the
Corporation, at its principal office or such other location as
may be designated by the Secretary of the Corporation.
Such notice shall state the election to exercise the Option and
the number of Shares in respect of which it is being
exercised, and shall be signed by the person or persons so
exercising the Option. The notice of election shall be
accompanied by this Agreement and payment of the full
purchase price for the Shares being purchased. The
Corporation shall deliver a certificate or certificates
representing Shares as soon as practicable after the notice of
election has been received. In the event the Option shall be
exercised by any person or persons other than the Option
Holder, the notice of election shall be accompanied by
appropriate proof of the right of such person or persons to
exercise the Option. All Shares that shall be purchased upon
the exercise of the Option as provided herein shall be fully
paid and nonassessable.
9. Mergers, Recapitalizations and Dissolutions.
As long as Optionee is an employee of the Corporation or
any of its subsidiaries, the "acquisition" of the Corporation
by another entity or a "change in control" of the Corporation
shall cause each outstanding option: (i) in the event of an
acquisition, to become an option to purchase shares of the
acquiring entity, for the balance of the term of the option
without regard to any nonsatisfied vesting provisions or
condition precedent which may be contained in paragraph 1
of this Agreement, at a price and for a number of shares as is
consistent with the acquisition terms; and (ii) in the event of
a change in control, to become exercisable in whole or in
part, without regard to any vesting provisions or condition
precedent which may be contained in paragraph 1 of this
Agreement. The "acquisition" of the Corporation by another
entity shall be defined to be either a merger or consolidation
with an acquiring entity (or subsidiary or affiliate thereof) in
which the Corporation is not the surviving entity or in which
the Corporation becomes a subsidiary of an acquiring entity;
the sale of substantially all of the Corporation's assets; or the
dissolution or liquidation of the Corporation. For purposes
of this paragraph, a "change in control" shall mean a change
of control of a nature that would be required to be reported
in response to Item 1(a) of the Current Report on Form 8-K,
pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"); provided that, without
limitation, such a change in control shall be deemed to have
occurred at such time as any "person", within the meaning of
Section 14(d) of the Exchange Act, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 40% or more of the
Capital Stock of the Corporation.
10. Optionee Not a Shareholder. The Option Holder
under this Option, as such, shall not be entitled by any
reason of this Option to any rights whatsoever as a
shareholder of the Corporation.
11. General Provisions.
(a) The Corporation shall at all times during the
term of the Option reserve and keep available such
number of Shares as will be sufficient to satisfy the
requirements of this Option Agreement, shall pay all
fees and expenses necessarily incurred by the
Corporation in connection therewith, and shall use its
best efforts to comply with all laws and regulations
which, in the reasonable opinion of counsel for the
Corporation, are applicable thereto.
(b) This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware other than its conflicts of laws provisions.
(c) Any notice to be given hereunder by either
party to the other shall be in writing and shall be
given either by personal delivery or by mail,
registered or certified, postage prepaid, return receipt
requested, addressed to the other party at the
respective addresses set forth below their signatures
to this Agreement, or at any other address as such
party may hereafter specify in writing.
(d) This Agreement sets forth the entire
agreement of the parties concerning the subject matter
hereto, and no other representations or warranties,
express or implied, other than those contained herein,
and no amendments or modifications hereto, shall be
binding unless made in writing and signed by the
parties hereto.
(e) The waiver by either party of a breach of any
term or provision of this Agreement shall not operate
or be construed as a waiver of a subsequent breach of
the same provision or of the breach of any other term
or provision of this Agreement.
(f) As used herein, the masculine gender shall
include the feminine and the neuter genders, the
neuter shall include the masculine and the feminine
genders, the singular shall include the plural, and the
plural shall include the singular.
(g) The headings in this Agreement are solely for
convenience of reference and shall be given no effect
in the construction or interpretation of this
Agreement.
(h) The invalidity or enforceability of any
provision of this Agreement shall not affect the
validity or enforceability of any other provision of
this Agreement, which shall remain in full force and
effect.
IN WITNESS WHEREOF, the Corporation has
caused this Option Agreement to be duly executed by its
officer thereunto duly authorized, and the Option Holder has
hereunto set his hand and seal, all as of the day and year first
above written.
OPTION HOLDER
______________________________
Name:
Address:
Facsimile:
UNILAB CORPORATION
By:_______________________________
Name: Andrew Baker
Title: Chairman, President and
Chief Executive Officer
Address: 18448 Oxnard Street
Tarzana, CA 91356
Exhibit 4.4
Restricted Stock Agreement
This Agreement made as of March 20, 1996, between Unilab
Corporation, a Delaware corporation (the "Company"), and
Craig Trask, a key employee of the Company (the
"Employee"), for the grant by the Company to the Employee
of restricted shares of the Company's common stock, par
value $.01 per share (the "Common Stock").
1. Grant of Shares. Pursuant to the discretionary
restricted stock pool of the Chief Executive Officer created by
action of the Compensation Committee of the Board of
Directors of the Company, and in consideration of valuable
services heretofore rendered by the Employee to the
Company and of the agreements hereinafter set forth, the
Company hereby grants to the Employee Twenty-Five
Thousand (25,000) shares of Common Stock of the Company
(the "Shares"). As soon as practicable following the
Employee's execution of this Agreement, a certificate or
certificates representing the Shares and bearing the legend
described in Section 6 shall be delivered to the Employee.
The Shares shall be issued from the Company's available
treasury shares or from authorized but unissued shares. Upon
issuance of the certificates representing the Shares, the
Employee shall have all the rights of a stockholder with
respect to the Shares, including the right to vote and to
receive all dividends or other distributions paid or made with
respect to the Shares. However, the Shares (and any
securities of the Company which may be issued with respect
to the Shares by virtue of any stock split, combination, stock
dividend or recapitalization, which securities shall be deemed
to be "Shares" hereunder) shall be subject to all the
restrictions hereinafter set forth.
2. Restriction. The Shares shall not be sold,
exchanged, assigned, transferred, pledged or otherwise
disposed of, and shall be subject to forfeiture as set forth in
Section 5 below, until the restriction imposed by this Section
2 (the "Restriction") has lapsed pursuant to Sections 3 or 4
below
3. Lapse of Restriction by Passage of Time. The
Restriction shall lapse as follows: (i) the restrictions on 8,333
shares shall lapse on the date that is one year after the date
hereof, (ii) the restrictions on an additional 8,333 shares
shall lapse on the date that is two years after the date hereof,
and (iii) the restrictions on the remaining 8,334 shares shall
lapse on the date that is three years after the date hereof
(unless terminated earlier pursuant to paragraph 6 hereof).
4. Lapse of Restriction by Death or Disability or
Involuntary Termination. The Restriction shall lapse and
have no further force or effect upon the Employee's death or
disability or upon the Employee's involuntary discharge other
than "for cause". For purposes of this Agreement, the term
"disability" shall mean the Employee's incapacity, due to
physical or mental illness or accidental bodily injury, to
perform his duties with the Company on a full time basis for
twelve consecutive months. Once the Employee has been
disabled as defined in this Section 4 for twelve consecutive
months, the disability shall be deemed to have occurred on
the first day of such twelve month period. The term discharge
"for cause" shall have the meaning given that term by Section
10.
5. Forfeiture of Shares. In the event of
termination of the Employee's employment with the Company
due to the Employee's voluntary resignation or involuntary
discharge for cause, prior to lapse of the Restriction under
Sections 3 or 4, some or all of the Shares shall be forfeited, as
determined by the Compensation Committee of the Board of
Directors of the Company, in its sole discretion. In the event
of any such termination the Compensation Committee shall
promptly notify the Employee or his executor, administrator,
personal representative or heir ("Representative") of the
number of the Shares to be forfeited. The forfeited Shares
shall be transferred by the Employee or his Representative to
the Company without consideration to the Employee or his
Representative. The Employee or his Representative shall
promptly deliver the certificates representing the forfeited
Shares to the Company together with any documents
requested by the Company necessary to effectuate such
transfer. If the Compensation Committee fails to notify the
Employee or his Representative of any such forfeiture within
ninety (90) days after the date of such termination, none of
the Shares shall be deemed forfeited. The Restriction shall be
deemed to have lapsed and shall have no further force or
effect as to any Shares not forfeited as a result of any such
termination of employment.
6. Legend on Certificates. All certificates
representing the Shares shall be endorsed on the face thereof
with the following legend:
"The shares of stock represented by this certificate and
the transferability thereof are restricted by and subject
to a "Restricted Stock Agreement" dated as of March
20, 1996, a copy of which is on file with the Secretary
of the Company."
7. Withholding Taxes. The lapse of the
Restriction on the Shares pursuant to Sections 3 or 4 above
shall be conditioned on the Employee or the Representative
having made appropriate arrangements with the Company to
provide for the withholding of any taxes required to be
withheld by federal, state or local law with respect to such
lapse.
8. Rights Not Enlarged. Nothing herein confers
on the Employee any right to continue in the employ of the
Company or of any of its subsidiaries.
9. Succession. This Agreement shall be binding
upon and operate for the benefit of the Company and its
successors and assigns, and the Employee and his
Representative.
10. Discharge for Cause. The term discharge "for
cause" shall mean termination by the Company of the
Employee's employment for (a) the Employee's intentional
and continued failure to be present for work at his customary
place of employment during normal business hours (other
than any such failure resulting from the Employee's physical
or mental illness or accidental bodily injury), (b) intentional
or negligent wrongful damage by the Employee to property of
the Company or its subsidiaries; (c) an act of fraud,
embezzlement or theft committed by the Employee in
connection with his duties or in the course of his
employment; (d) conviction of a felony; or (e) intentional or
negligent wrongful disclosure by the Employee of secret
processes or confidential information of the Company or its
subsidiaries.
11. Change of Control. In the event of the
"acquisition" of the Company by another entity or a "change
in control" of the Company, all Shares which have not
theretofore vested in the Employee shall immediately vest and
become non-forfeitable. For purposes of this Agreement, the
"acquisition" of the Company by another entity shall be
defined to be either a merger or consolidation with an
acquiring entity (or subsidiary or affiliate thereof) in which
the Company is not the surviving entity or in which the
Company becomes a subsidiary of an acquiring entity; the
sale of substantially all of the Company's assets; or the
dissolution or liquidation of the Company. For purposes of
this Agreement, a "change in control" shall mean a change of
control of a nature that would be required to be reported in
response to Item 1(a) of the Current Report on Form 8-K,
pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"); provided that, without
limitation, such a change in control shall be deemed to have
occurred at such time as any "person", within the meaning of
Section 14(d) of the Exchange Act, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 40% or more of the
capital stock of the Company.
12. Notices. Any notices required by this
Agreement shall be deemed duly given when placed in
writing and delivered or mailed by United States mail,
postage prepaid, addressed to the recipient at his or her last
address known to the Company.
13. Governing Law. This Agreement shall be
governed by the laws of the State of Delaware, without regard
to conflicts of laws.
IN WITNESS WHEREOF, the parties have executed
this Agreement, on the date first above written.
UNILAB CORPORATION
By:__________________________
Name: Craig Trask
Address: 22177 Vacation Drive
Canyon Lake, CA 92587
EMPLOYEE
By:______________________________
Name: Andrew H. Baker
Title: Chairman & CEO
Address: 18448 Oxnard Street
Tarzana, CA 91356
Exhibit 5.1
June 20, 1996
Unilab Corporation
18448 Oxnard Street
Tarzana, CA 91356
Re: Registration Statement on Form S-8
Gentlemen:
I am Vice President, Secretary and General Counsel of
Unilab Corporation, a Delaware corporation (the
"Company"). I have represented the Company in connection
with the preparation of a Registration Statement on Form S-8
(as amended, the "Registration Statement") being filed by the
Company on the date hereof with the Securities and Exchange
Commission (the "Commission") relating to the registration
under the Securities Act of 1933, as amended (the "Securities
Act"), of an aggregate of 5,350,000 shares (the "Common
Shares") of the Company's common stock, par value $.01 per
share (the "Unilab Common Stock"), to be offered in
connection with the transactions described in the Prospectus
dated the date hereof (the "Prospectus"), which is included in
the Registration Statement.
The Registration Statement has been filed in
connection with:
(i) 350,000 Common Shares that have been or
may be acquired by certain affiliated and nonaffiliated persons
of the Company pursuant to (a) issuances to such persons by
the Company of 25,000 restricted Common Shares (the
"Restricted Shares") and (b) 325,000 shares issuable upon the
exercise of certain options (the "Option Shares") granted to
certain employees and officers of the Company;
(ii) 4,000,000 Common Shares that are issuable
under the Company's 1996 Stock Option and Performance
Incentive Plan (the "Stock Option Plan Shares"); and
(iii) 1,000,000 Common Shares that are issuable
under the Company's Non-Employee Directors Stock Plan
("Director Shares").
The Unilab Common Stock is described in the
Prospectus included in the Registration Statement, to which
this opinion is an exhibit. Except as otherwise specifically
provided herein, all capitalized terms shall have the same
meanings assigned to them in the Prospectus.
For purposes of this opinion, I have examined
originals, or copies certified to my satisfaction, of such
documents and records and certificates of public officials as I
have deemed necessary in connection with the opinions
expressed below. As to certain factual matters relevant to
this opinion, I have relied upon my personal knowledge of
certain facts herein, an examination of relevant documents,
corporate records, certificates of public officials, and
representations made to me in my professional capacity by
members of the Company's management, officers and
employees. I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals
and the conformity to original documents of all documents
submitted to me as certified, conformed or photostatic copies.
Based upon the foregoing, I am of the opinion that:
1. The Option Shares, the Stock Option Plan
Shares and the Director Shares will, when issued and paid for
in accordance with the terms of their respective option
agreements, be duly authorized, validly issued, fully paid and
nonassessable.
2. The Restricted Shares are duly authorized,
validly issued and nonassessable.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. I also consent to the
reference to me under the heading "Legal Matters" in the
Prospectus which forms a part of the Registration Statement.
I am a member of the Bar of the State of New York
and do not hold myself out as being expert or express any
opinion as to the laws of any jurisdiction other than those of
the United States and the State of New York.
This opinion is intended for the Company's use in
connection with this Registration Statement only.
Very truly yours,
Mark L. Bibi
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the incorporation by reference in this registration statement
of our reports dated February 16, 1996 included in and
incorporated by reference in Unilab Corporation's Form
10-K/A for the year ended December 31, 1995 and to all
references to our Firm included in this registration
statement.
ARTHUR ANDERSEN LLP
June 19, 1996
New York, NY
