<PAGE> 1
As filed with the Securities and Exchange Commission on August 21, 1997.
Registration No. 333-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FPA MEDICAL MANAGEMENT, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0604264
- ------------------------------ ------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3636 Nobel Drive, Suite 200
San Diego, California 92122
- ------------------------------ ------------------------------
(Address of Principal (Zip Code)
Executive Offices)
FPA MEDICAL MANAGEMENT, INC.
AMENDED OMNIBUS STOCK OPTION PLAN
------------------------------------------------------
(Full title of the plan)
James A. Lebovitz
Senior Vice President, General Counsel and Secretary
FPA Medical Management, Inc.
3636 Nobel Drive, Suite 200
San Diego, California 92122
(619) 453-1000
------------------------------
(Name, address and telephone
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
Title of Amount Proposed Maximum Proposed Amount of
Securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered per Share(1) Offering Price(1) Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 4,500,000 shares $25.75 $115,875,000 $35,114
par value $0.002
per share
=========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee on
the basis of the average of the high and low prices for the
Registrant's Common Stock as reported on the Nasdaq National Market on
August 15, 1997, the latest practicable date prior to the filing of
this Registration Statement.
This Registration Statement shall become effective upon filing in
accordance with Rule 462 under the Securities Act of 1933.
<PAGE> 2
Part I and Items 3 - 7 and 9 of Part II of FPA Medical Management,
Inc.'s Registration Statement on Form S-8 (Registration Number 33-00076) are
incorporated by reference herein pursuant to Instruction E of Form S-8.
ITEM 1. Exhibits.
4.1 Specimen of Registrant's Common Stock certificate
(incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (Registration Number
33-79714))
5 Opinion of James A. Lebovitz, Esq.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors
23.2 Consent of Coopers & Lybrand, L.L.P., Independent Auditors
23.3 Consent of Ernst & Young, LLP, Independent Auditors
23.4 Consent of James A. Lebovitz, Esq. (included as part of
Exhibit 5)
24.1 Power of Attorney for Members of the Board of Directors of
Registrant (included on signature page)
99 FPA Medical Management, Inc. Amended Omnibus Stock Option Plan
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on August 20, 1997.
FPA MEDICAL MANAGEMENT, INC.
By:/S/ JAMES A. LEBOVITZ
_________________________
James A. Lebovitz
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby authorizes and appoints Seth Flam, Steven M. Lash or James A. Lebovitz,
and any one of them, as his attorney-in-fact, to sign and file on his behalf, in
the capacities stated below, any and all pre-effective amendments and
post-effective amendments to this Registration Statement.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ SETH FLAM
___________________________ President, Chief Executive August 20, 1997
Seth Flam Officer and Director
(Principal Executive
Officer)
/S/ SOL LIZERBRAM
___________________________ Director and Chairman of the August 20, 1997
Sol Lizerbram Board of Directors
/S/ STEVEN M. LASH
___________________________ Executive Vice President, August 20, 1997
Steven M. Lash Chief Financial Officer
and Treasurer (Principal
Financial Officer and
Accounting Officer)
/S/ SHELDON DEREZIN
___________________________ Director August 19, 1997
Sheldon Derezin
___________________________ Director and Vice Chairman August __, 1997
Stephen J. Dresnick of the Board of Directors
/S/ KEVIN ELLIS
___________________________ Director August 20, 1997
Kevin Ellis
/S/ HOWARD HASSMAN
___________________________ Director August 20, 1997
Howard Hassman
___________________________ Director August __, 1997
Herbert A. Wertheim
</TABLE>
<PAGE> 4
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
<S> <C> <C>
*4.1 Registrant's Certificate of
Incorporation.
**4.2 Registrant's Bylaws.
5 Opinion of James A. Lebovitz
regarding the legality of
securities to be offered.
23.1 Consent of Deloitte & Touche LLP,
Independent Auditors.
23.2 Consent of Coopers & Lybrand L.L.P.,
Independent Auditors.
23.3 Consent of Ernst & Young LLP,
Independent Auditors.
23.4 Consent of James A. Lebovitz
(included as part of Exhibit
5).
24.1 Power of Attorney for Members of
the Board of Directors of
Registrant (included on signature page).
99 FPA Medical Management, Inc. Amended
Omnibus Stock Option Plan.
</TABLE>
- ----------
* Incorporated by reference from Registrant's Registration Statement on Form
S-1, Registration Number 33-97456.
** Incorporated by reference from Registrant's Annual Report on Form 10-K/A,
filed with the Commission on April 29, 1997.
<PAGE> 1
EXHIBIT 5
August 20, 1997
FPA Medical Management, Inc.
3636 Nobel Drive, Suite 200
San Diego, California
Re: Registration Statement on Form S-8
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
FPA Medical Management, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to 4,500,000 shares of the Company's common stock, par value $0.002 per
share (the "Shares"), issuable upon the exercise of options (the "Options")
granted and to be granted under the FPA Medical Management, Inc. Amended Omnibus
Stock Option Plan (the "Omnibus Option Plan"), it is my opinion that such
Shares, when issued upon exercise of Options granted or to be granted under the
Omnibus Option Plan and upon payment of the option price, all in accordance with
the terms of the Omnibus Option Plan, will be legally issued, fully paid and
nonassessable.
This opinion is based on the assumption that the Registration Statement
on Form S-8 with respect to the Shares issuable upon the exercise of the Options
will have been filed by the Company with the Securities and Exchange Commission
and will have become effective before any of the Shares are issued and that the
persons acquiring the Shares will receive a prospectus containing all the
information required by Part I of Form S-8 before acquiring such Shares.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5 to the Registration Statement.
Very truly yours,
/S/ James A. Lebovitz
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
FPA Medical Management, Inc. on Form S-8 of our report dated March 21, 1997,
appearing in the Annual Report on Form 10-K/A of FPA Medical Management, Inc.
for the year ended December 31, 1996, our report dated May 2, 1997, appearing
in the Current Report on Form 8-K/A of FPA Medical Management, Inc. dated March
17, 1997, and our report dated May 2, 1997, appearing in the Current Report on
Form 8-K of FPA Medical Management, Inc. dated July 31, 1997.
/s/ DELOITTE & TOUCHE LLP
San Diego, California
August 18, 1997
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
FPA Medical Management, Inc. (the "Company") on Form S-8 of our report dated
March 15, 1996, on our audits of the consolidated financial statements of
Sterling Healthcare Group, Inc. as of December 31, 1995, and for the year ended
December 31, 1995 and for the period from June 1, 1994 to December 31, 1994,
which report is included in the Company's Annual Report on Form 10-K/A and in
the Company's Current Report on Form 8-K dated July 31, 1997.
Coopers & Lybrand L.L.P.
Miami, Florida
August 18, 1997
<PAGE> 1
EXHIBIT 23.3
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. ________) of FPA Medical Management, Inc. and in the related Prospectus
of our report dated February 22, 1996, with respect to the 1995 and 1994
consolidated financial statements of AHI Healthcare Systems, Inc. included in
the Current Report on Form 8-K as amended by Form 8-K/A of FPA Medical
Management, Inc. dated March 17, 1997 and May 28, 1997, and the Current Report
on Form 8-K dated July 31, 1997, which includes the Supplemental Consolidated
Financial Statements of FPA Medical Management, Inc., filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Los Angeles, California
August 18, 1997
<PAGE> 1
EXHIBIT 99
[FPA Medical Management, Inc. Amended Omnibus Stock Option Plan]
<PAGE> 2
FPA MEDICAL MANAGEMENT, INC.
AMENDED OMNIBUS STOCK OPTION PLAN
ARTICLE I
Purpose
The purpose of the Omnibus Stock Option Plan (the "Plan") is to enable
FPA Medical Management, Inc. (the "Company") to offer employees and directors
of, and consultants to, the Company and its subsidiaries, options to acquire
equity interests in the Company, thereby attracting, retaining and rewarding
such persons, and strengthening the mutuality of interests between such persons
and the Company's stockholders.
ARTICLE II
Definitions
For purposes of the Plan, the following terms shall have the following
meanings:
2.1 "Award" shall mean an award under the Plan of any Stock Option.
2.2 "Board" shall mean the Board of Directors of the Company.
2.3 "Change of Control" shall mean the occurrence of any one of the
following: (i) the Company enters into an agreement of reorganization, merger or
consolidation pursuant to which the Company or a Subsidiary is not the surviving
corporation, (ii) the Company sells substantially all its assets to a purchaser
other than a Subsidiary, or (iii) shares of stock of the Company representing in
excess of 25% of the total combined voting power of all outstanding classes of
stock of the Company are acquired, in one transaction or a series of
transactions, by a single purchaser or group of related purchasers (as such
terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934), in
any case other than in a transaction that has been approved by the Board.
<PAGE> 3
2.4 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.5 "Committee" shall mean the Compensation Committee of the Board
consisting of two or more Directors of the Company.
2.6 "Common Stock" shall mean the Common Stock, par value $.002 per
share, of the Company.
2.7 "Consultant" shall mean any individual who is a consultant to the
Company or a Subsidiary.
2.8 "Director" shall mean any individual who is a member of the Board
or the Board of Directors of a Subsidiary.
2.9 "Disability" shall mean a disability that results in the
termination of a Participant's employment with the Company or a Subsidiary, as
determined pursuant to standard Company procedures.
2.10 "Fair Market Value" for purposes of the Plan, unless otherwise
required by any applicable provision of the Code or any regulations issued
thereunder, shall mean, as of any date, the average of the high and low sales
prices of a share of Common Stock as reported on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or, if not listed or traded on any such exchange, The Nasdaq Stock Market
("Nasdaq"), or, if such sales prices are not available, the average of the bid
and asked prices per share reported on Nasdaq, or, if such quotations are not
available, the fair market value as determined by the Board, which determination
shall be conclusive.
2.11 "Incentive Stock Option" shall mean any Stock Option awarded under
the Plan intended to be and designated as an "Incentive Stock Option" within the
meaning of Section 422 of the Code.
2.12 "Non-Qualified Stock Option" shall mean any Stock Option awarded
under the Plan that is not an Incentive Stock Option.
2.13 "Participant" shall mean an employee, Director or Consultant to
whom an Award has been made pursuant to the Plan.
2.14 "Stock Option" or "Option" shall mean any option to purchase
shares of Common Stock granted pursuant to Article VI.
2
<PAGE> 4
2.15 "Subsidiary" shall mean any subsidiary of the Company, 51% or more
of the voting stock of which is owned, directly or indirectly, by the Company.
2.16 "Termination for Cause" shall mean a Termination of Employment
that has been designated as a "termination for cause" pursuant to standard
Company procedures.
2.17 "Termination of Employment" shall mean a termination of employment
with, or service as a Director or Consultant of, the Company and all of its
Subsidiaries for reasons other than a military or personal leave of absence
granted by the Company or any Subsidiary.
ARTICLE III
Administration
3.1 The Committee. The Plan shall be administered and interpreted by
the Committee.
3.2 Awards. The Committee shall have full authority to grant Stock
Options, pursuant to the terms of the Plan, to persons eligible under Article V.
In particular, the Committee shall have the authority:
(a) to select the persons to whom Stock Options may from time
to time be granted hereunder;
(b) to determine whether and to what extent Incentive Stock
Options and Non-Qualified Stock Options, or any combination thereof, are to be
granted hereunder to one or more persons eligible to receive Awards under
Article V;
(c) to determine the number of shares of Common Stock to be
covered by each such Award granted hereunder; and
(d) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any Award granted hereunder (including, but not
limited to, the option price, the term of the option, and any provision
affecting the exercisability or acceleration of, any Award).
3.3 Guidelines. Subject to Article VII hereof, the Committee shall have
the authority to adopt, alter and repeal such administrative rules, guidelines
and practices governing the Plan as it shall, from time to time, deem advisable;
to interpret the terms and provisions of the Plan and any Award issued under the
Plan (and any agreements relating thereto); and to otherwise supervise the
administration of the Plan. The Committee may
3
<PAGE> 5
correct any defect, supply any omission or reconcile any inconsistency in the
Plan or in any Award granted in the manner and to the extent it shall deem
necessary to carry the Plan into effect. Notwithstanding the foregoing, no
action of the Committee under this Section 3.3 shall impair the rights of any
Participant without the Participant's consent, unless otherwise required by law.
3.4 Decisions Final. Any decision, interpretation or other action made
or taken in good faith by the Committee arising out of or in connection with the
Plan shall be final, binding and conclusive on the Company, all Participants and
their respective heirs, executors, administrators, successors and assigns.
ARTICLE IV
Share Limitation
4.1 Shares. The maximum aggregate number of shares of Common Stock
which may be issued under the Plan shall be 8,500,000 shares of Common Stock
(subject to any increase or decrease pursuant to Section 4.2), which may be
either authorized and unissued Common Stock or issued Common Stock reacquired by
the Company. If any Option granted under the Plan shall expire, terminate or be
cancelled for any reason without having been exercised in full, the number of
unpurchased shares shall again be available for the purposes of the Plan.
4.2 Changes. In the event of any merger, reorganization, consolidation,
recapitalization, dividend (other than a dividend or its equivalent which is
credited to a Participant or a regular cash dividend), stock split, or other
change in corporate structure affecting the Common Stock, such substitution or
adjustment shall be made in the maximum aggregate number of shares which may be
issued under the Plan, in the number and option price of shares subject to
outstanding Options granted under the Plan as may be determined to be
appropriate by the Committee, in its sole discretion, provided that the number
of shares subject to any Award shall always be a whole number.
ARTICLE V
Eligibility
5.1 Employees. Officers and other employees of the Company and its
Subsidiaries are eligible to be granted Awards under the Plan.
4
<PAGE> 6
5.2 Directors and Consultants. Directors and Consultants are eligible
to be granted Awards under the Plan, provided that Directors and Consultants who
are not employees of the Company or a Subsidiary may not be granted Incentive
Stock Options.
ARTICLE VI
Stock Options
6.1 Options. Each Stock Option granted under the Plan shall be either
an Incentive Stock Option or a Non-Qualified Stock Option.
6.2 Grants. The Committee shall have the authority to grant to any
person eligible under Article V one or more Incentive Stock Options,
Non-Qualified Stock Options, or both types of Stock Options. To the extent that
any Stock Option does not qualify as an Incentive Stock Option (whether because
of its provisions or the time or manner of its exercise or otherwise), such
Stock Option or the portion thereof which does not qualify as an Incentive Stock
Option shall constitute a separate Non-Qualified Stock Option. The Committee
shall not grant to any person during any calendar year options to purchase more
than 750,000 shares of Common Stock.
6.3 Incentive Stock Options. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to Incentive Stock Options shall
be interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be exercised, so as to disqualify the Plan under Section
422 of the Code, or, without the consent of the Participants affected, to
disqualify any Incentive Stock Option under such Section 422.
6.4 Terms of Options. Options granted under the Plan shall be subject
to the following terms and conditions and shall contain such additional terms
and conditions, not inconsistent with the terms of the Plan, as the Committee
shall deem desirable:
(a) Stock Option Contract. Each Stock Option shall be
evidenced by, and subject to the terms of, a Stock Option Contract executed by
the Company and the Participant. The Stock Option Contract shall specify whether
the Option is an Incentive Stock Option or a Non-Qualified Stock Option, the
number of shares of Common Stock subject to the Stock Option, the option price,
the option term, and the other terms and conditions applicable to the Stock
Option.
5
<PAGE> 7
(b) Option Price. Subject to section (l) below, the option
price per share of Common Stock purchasable upon exercise of a Stock Option
shall be determined by the Committee at the time of grant but shall be not less
than 100% of the Fair Market Value of the Common Stock on the date of grant if
the Stock Option is intended to be an Incentive Stock Option.
(c) Option Term. Subject to section (l) below, the term of
each Stock Option shall be fixed by the Committee, but no Stock Option shall be
exercisable more than ten years after the date it is granted.
(d) Exercisability. Stock Options shall be exercisable at such
time or times and subject to such terms and conditions as shall be determined by
the Committee at the time of grant; provided, however, that the Committee may
waive any installment exercise or waiting period provisions, in whole or in
part, at any time after the date of grant, based on such factors as the
Committee shall deem appropriate in its sole discretion.
(e) Method of Exercise. Subject to such installment exercise
and waiting period provisions as may be imposed by the Committee, Stock Options
may be exercised in whole or in part at any time during the option term by
giving written notice of exercise to the Company specifying the number of shares
of Common Stock to be purchased and the option price therefor. The notice of
exercise shall be accompanied by payment in full of the option price in such
form as the Committee may accept and, if requested, by the representation
described in Section 9.2. The option price may be paid in cash or check
acceptable to the Company or by any other consideration as the Committee deems
acceptable. Unless otherwise determined by the Committee in its sole discretion
at or after grant, payment in full or in part may be made in the form of Common
Stock duly owned by the Participant (and for which the Participant has good
title free and clear of any liens and encumbrances), based on the Fair Market
Value of the Common Stock on the last trading date preceding payment. Upon
payment in full of the option price, as provided herein, a stock certificate or
stock certificates representing the number of shares of Common Stock to which
the Participant is entitled shall be issued and delivered to the Participant. A
Participant shall not be deemed to be the holder of Common Stock, or to have the
rights of a holder of Common Stock, with respect to shares subject to the
Option, unless and until a stock certificate or stock certificates representing
such shares of Common Stock are issued to such Participant.
(f) Death. If a Participant's employment by the Company or a
Subsidiary terminates by reason of death, unless otherwise determined by the
Committee at the time of grant, any Stock Option held by such Participant which
was exercisable at
6
<PAGE> 8
the date of death may be exercised by the legal representative of the
Participant's estate at any time or times during the period beginning on the
date of death and ending one year after the date of death or until the
expiration of the stated term of such Stock Option, whichever period is shorter,
and any Stock Option not exercisable at the date of death shall be forfeited.
(g) Disability. If a Participant's employment by the Company
or a Subsidiary terminates by reason of Disability, unless otherwise determined
by the Committee at the time of grant, any Stock Option held by such Participant
which was exercisable on the date of such Termination of Employment may
thereafter be exercised by the Participant at any time or times during the
period beginning on the date of such termination and ending one year after the
date of such termination or until the expiration of the stated term of such
Stock Option, whichever period is shorter, and any Stock Option not exercisable
on the date of such Termination of Employment shall be forfeited. If an
Incentive Stock Option is exercised after the expiration of the exercise period
that applies for purposes of Section 422 of the Code, such Stock Option will
thereafter be treated as a Non- Qualified Stock Option.
(h) Termination of Employment. In the event of a Termination
of Employment by reason of retirement or for any reason other than death,
Disability or Termination for Cause, unless otherwise determined by the
Committee at the time of grant, any Stock Option held by such Participant which
was exercisable on the date of such Termination of Employment may be exercised
by the Participant at any time or times during the period beginning on the date
of such Termination of Employment and ending one month after such date or until
the expiration of the stated term of such Stock Option, whichever period is
shorter, and any Stock Option not exercisable on the date of such Termination of
Employment shall be forfeited.
(i) Termination for Cause. In the event of a Termination for
Cause, any Stock Option held by the Participant which was not exercised prior to
the date of such Termination for Cause shall be forfeited.
(j) Change of Control. In the event of a Change of Control,
all outstanding Stock Options shall immediately become fully exercisable, and
upon payment by the Participant of the option price (and, if requested, delivery
of the representation described in Section 9.2), a stock certificate or
certificates representing the Common Stock covered thereby shall be issued and
delivered to the Participant.
(k) Incentive Stock Option Limitations. To the extent that the
aggregate Fair Market Value (determined as of the
7
<PAGE> 9
date of grant) of the Common Stock with respect to which Incentive Stock Options
are exercisable for the first time by the Participant during any calendar year
under the Plan and/or any other stock option plan of the Company or any
subsidiary or parent corporation (within the meaning of Section 424 of the Code)
exceeds $100,000, such Options shall be treated as Options which are not
Incentive Stock Options.
Should the foregoing provisions not be necessary in order for
the Stock Options to qualify as Incentive Stock Options, or should any
additional provisions be required, the Committee may amend the Plan accordingly,
without the necessity of obtaining the approval of the stockholders of the
Company.
(l) Ten-Percent Stockholder Rule. Notwithstanding any other
provision of the Plan to the contrary, no Incentive Stock Option shall be
granted to any person who, immediately prior to the grant, owns stock possessing
more than ten percent of the total combined voting power of all classes of stock
of the Company, unless the option price is at least 110% of the Fair Market
Value of the Common Stock on the date of grant and the Option, by its terms,
expires no later than five years after the date of grant.
ARTICLE VII
Termination or Amendment
7.1 Termination or Amendment of the Plan. The Committee may at any time
amend, discontinue or terminate the Plan or any part thereof (including any
amendment deemed necessary to ensure that the Company may comply with any
regulatory requirement referred to in Article IX); provided, however, that,
unless otherwise required by law, the rights of a Participant with respect to
Awards granted prior to such amendment, discontinuance or termination, may not
be impaired without the consent of such Participant and, provided further, tht
no amendment may be made without the approval of the Company's stockholders if
such stockholder approval is required by applicable law or regulations.
7.2 Amendment of Awards. The Committee may amend the terms of any Award
theretofore granted, prospectively or retroactively, but, subject to Article IV,
no such amendment or other action by the Committee shall (i) impair the rights
of any holder without the holder's consent or (ii) reduce the option price of
any Stock Option.
8
<PAGE> 10
ARTICLE VIII
Unfunded Plan
8.1 Unfunded Status of Plan. The Plan is intended to constitute an
"unfunded" plan for incentive compensation. With respect to any payment not yet
made to a Participant by the Company, nothing contained herein shall give any
such Participant any rights that are greater than those of a general creditor of
the Company.
ARTICLE IX
General Provisions
9.1 Nonassignment. Except as otherwise provided in the Plan, Awards
made hereunder and the rights and privileges conferred thereby shall not be
sold, transferred, assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise), and shall not be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of such Award, right or privilege contrary to
the provisions hereof, or upon the levy of any attachment or similar process
thereon, such Award and the rights and privileges conferred hereby shall
immediately terminate and the Award shall immediately be forfeited to the
Company.
9.2 Legend. The Committee may require each person acquiring shares
pursuant to an Award under the Plan to represent to the Company in writing that
the Participant is acquiring the shares without a view to distribution thereof.
The stock certificates representing such shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer.
All certificates representing shares of Common Stock delivered under
the Plan shall be subject to such stock transfer orders and other restrictions
as the Committee may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any stock exchange or
stock market upon which the Common Stock is then listed or traded, any
applicable Federal or state securities law, and any applicable corporate law,
and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
9
<PAGE> 11
9.3 Other Plans. Nothing contained in the Plan shall prevent the Board
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases.
9.4 No Right to Employment. Neither the Plan nor the grant of any Award
hereunder shall give any Participant or other employee any right with respect to
continuance of employment by the Company or any Subsidiary, nor shall there be a
limitation in any way on the right of the Company or any Subsidiary by which a
Participant is employed to terminate such Participant's employment at any time.
Neither the Plan nor the grant of any Award hereunder shall give any Director or
Consultant any right with respect to continued service as a director or
consultant, nor shall the Plan impose any limitation on the right of the Company
to terminate a Consultant's services at any time or constitute evidence of any
agreement or understanding by the Company's stockholders that the Company will
nominate any director for reelection.
9.5 Withholding of Taxes. The Company shall have the right to reduce
the number of shares of Common Stock otherwise deliverable pursuant to the Plan
by an amount that would have a Fair Market Value equal to the amount of all
Federal, state and local taxes required to be withheld, or to deduct the amount
of such taxes from any cash payment otherwise to be made to the Participant. In
connection with such withholding, the Committee may make such arrangements as
are consistent with the Plan as it may deem appropriate.
9.6 Listing and Other Conditions.
(a) If the Common Stock is listed on a national securities
exchange, the issuance of any shares of Common Stock pursuant to an Award shall
be conditioned upon such shares being listed on such exchange. The Company shall
have no obligation to issue such shares unless and until such shares are so
listed, and the right to exercise any Option shall be suspended until such
listing has been effected.
(b) If at any time counsel to the Company shall be of the
opinion that any sale or delivery of shares of Common Stock pursuant to an Award
is or may in the circumstances be unlawful or result in the imposition of excise
taxes under the statutes, rules or regulations of any applicable jurisdiction,
the Company shall have no obligation to make such sale or delivery, or to make
any application or to effect or to maintain any qualification or registration
under the Securities Act of 1933, as amended, or otherwise with respect to
shares of Common Stock or Awards, and the right to exercise any Option shall be
10
<PAGE> 12
suspended until, in the opinion of such counsel, such sale or delivery shall be
lawful or shall not result in the imposition of excise taxes.
(c) Upon termination of any period of suspension under this
Section 9.6, any Award affected by such suspension which shall not then have
expired or terminated shall be reinstated as to all shares available before such
suspension and as to shares which would otherwise have become available during
the period of such suspension, but no such suspension shall extend the term of
any Option.
9.7 Governing Law. The Plan and actions taken in connection herewith
shall be governed and construed in accordance with the laws of the State of
Delaware.
9.8 Construction. Wherever any words are used in the Plan in the
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they were
also used in the plural form in all cases where they would so apply.
9.9 Liability of the Board and the Committee. No member of the Board or
the Committee nor any employee of the Company or any of its subsidiaries shall
be liable for any act or action hereunder, whether of omission or commission, by
any other member or employee or by any agent to whom duties in connection with
the administration of the Plan have been delegated or, except in circumstances
involving bad faith, gross negligence or fraud, for anything done or omitted to
be done by himself.
9.10 Other Benefits. No payment pursuant to an Award under the Plan
shall be deemed compensation for purposes of computing benefits under any
retirement plan of the Company or any Subsidiary nor affect any benefits under
any other benefit plan now or hereafter in effect under which the availability
or amount of benefits is related to the level of compensation.
9.11 Costs. The Company shall bear all expenses incurred in
administering the Plan, including expenses of issuing Common Stock upon the
exercise of Options granted.
9.12 Severability. If any part of the Plan shall be determined to be
invalid or void in any respect, such determination shall not affect, impair,
invalidate or nullify the remaining provisions of the Plan which shall continue
in full force and effect.
11
<PAGE> 13
9.13 Successors. The Plan shall be binding upon and inure to the
benefit of any successor or successors of the Company.
9.14 Headings. Article and section headings contained in the Plan are
included for convenience only and are not to be used in construing or
interpreting the Plan.
ARTICLE X
Effective Date of Plan
10.1 The Plan shall be effective as of the date of its approval by the
Company's stockholders.
ARTICLE XI
Term of Plan
11.1 No Stock Option shall be granted pursuant to the Plan on or after
the tenth anniversary of its approval by the Company's stockholders, but Awards
granted prior to such tenth anniversary may extend beyond that date.
12
