EXHIBIT 4.1
HEMACARE CORPORATION
1996 STOCK INCENTIVE PLAN
(As Amended and Restated Through September 17, 1996)
SECTION 1. Purposes.
The purposes of the HemaCare Corporation 1996 Stock Incentive
Plan (the "Plan") are to (i) enable HemaCare Corporation (the
"Company") and Related Companies (as defined below) to attract,
motivate and retain top-quality directors, officers, employees,
consultants, advisers and independent contractors (including
without limitation dealers, distributors and other business
entities or persons providing services on behalf of the Company or
a Related Company), (ii) provide substantial incentives for such
directors, officers, employees, consultants, advisers and
independent contractors of the Company or a Related Company
("Participants") to act in the best interests of the shareholders
of the Company and (iii) reward extraordinary effort by
Participants on behalf of the Company or a Related Company. For
purposes of the Plan, a "Related Company" means any corporation,
partnership, joint venture or other entity in which the Company
owns, directly or indirectly, at least a twenty percent (20%)
beneficial ownership interest.
SECTION 2. Types of Awards. Awards under the Plan may be in
the form of (i) Stock Options or (ii) Restricted Stock.
SECTION 3. Administration.
3.1 Except as otherwise provided herein, the Plan shall be
administered by the Compensation Committee of the Board of
Directors of the Company (the "Board") or such other committee of
directors as the Board shall designate, which committee in either
such case shall consist solely of not less than two "non-employee
directors" (as such term is defined in Rule 16b-3 under the
Securities Exchange Act of 1934 (the "Exchange Act") or any
successor rule ("Rule 16b-3")) who shall serve at the pleasure of
the Board, each of whom shall also be an "outside director" within
the meaning of Section 162(m) of the Internal Revenue Code and
Section 1.162-27 of the Treasury Regulations or any successor
provision(s) thereto ("Section 162(m)"); provided, however, that if
there are not two persons on the Board who meet the foregoing
qualifications, any such committee may be comprised of two or more
directors of the Company, none of which is an officer (other than
a non-employee Chairman of the Board of the Company) or an employee
of the Company or a Related Company. If no such committee has been
appointed by the Board, the Plan shall be administered by the
Board, and the Plan shall be administered by the Board to the
extent provided in the last sentence of this Section. Such
committee as shall be designated to administer the Plan, if any, or
the Board is referred to herein as the "Committee." Notwithstanding
any other provision of the Plan to the contrary, if such a
committee has been designated to administer the Plan, all actions
with respect to the administration of the Plan in respect of the
members of such committee shall be taken by the Board.
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3.2 The Committee shall have the following authority with
respect to awards under the Plan to Participants: to grant awards
to eligible Participants under the Plan; to adopt, alter and repeal
such administrative rules, guidelines and practices governing the
Plan as it shall deem advisable; to interpret the terms and
provisions of the Plan and any award granted under the Plan; and to
otherwise supervise the administration of the Plan. In particular,
and without limiting its authority and powers, the Committee shall
have the authority:
(a) to determine whether and to what extent any
award or combination of awards will be granted hereunder;
(b) to select the Participants to whom awards will
be granted;
(c) to determine the number of shares of the common
stock of the Company (the "Stock") to be covered by each
award granted hereunder, provided that no Participant
will be granted Stock Options on or with respect to more
than 250,000 shares of Stock in any calendar year;
(d) to determine the terms and conditions of any
award granted hereunder, including, but not limited to,
any vesting or other restrictions based on performance
and such other factors as the Committee may determine,
and to determine whether the terms and conditions of the
award are satisfied;
(e) to determine the treatment of awards upon a
Participant's retirement, disability, death, termination
for cause or other termination of employment or other
qualifying relationship with the Company or a Related
Company;
(f) to determine that amounts equal to the amount
of any dividends declared with respect to the number of
shares covered by an award (i) will be paid to the
Participant currently or (ii) will be deferred and deemed
to be reinvested or (iii) will otherwise be credited to
the Participant, or that the Participant has no rights
with respect to such dividends;
(g) to determine whether, to what extent, and under
what circumstances Stock and other amounts payable with
respect to an award will be deferred either automatically
or at the election of a Participant, including providing
for and determining the amount (if any) of deemed
earnings on any deferred amount during any deferral
period;
(h) to provide that the shares of Stock received as
a result of an award shall be subject to a right of first
refusal, pursuant to which the Participant shall be
required to offer to the Company any shares that the
Participant wishes to sell, subject to such terms and
conditions as the Committee may specify;
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(i) to amend the terms of any award, prospectively
or retroactively; provided, however, that no amendment
shall impair the rights of the award holder without his
or her consent; and
(j) to substitute new Stock Options for previously
granted Stock Options, or for options granted under other
plans, in each case including previously granted options
having higher option prices.
3.3 All determinations made by the Committee pursuant to the
provisions of the Plan shall be final and binding on all persons,
including the Company and all Participants.
3.4 The Committee may from time to time delegate to one or
more officers of the Company any or all of its authorities granted
hereunder except with respect to awards granted to persons subject
to Section 16 of the Exchange Act. The Committee shall specify the
maximum number of shares that the officer or officers to whom such
authority is delegated may award, and the Committee may in its
discretion specify any other limitations or restrictions on the
authority delegated to such officer or officers.
SECTION 4. Stock Subject to Plan.
4.1 The total number of shares of Stock reserved and
available for distribution under the Plan shall be 750,000 (subject
to adjustment as provided in Section 4.3); provided, however, that
no award of a Stock Option or Restricted Stock may be made at any
time if, after giving effect to such award, the total number of
shares of Stock issuable upon exercise of all outstanding options
and warrants of the Company (whether or not under the Plan) plus
the total number of shares of Stock called for under any stock
bonus or similar plan of the Company (including shares of Stock
underlying awards of Stock Options or Restricted Stock under the
Plan) would exceed thirty percent (30%) of the total number of
shares of Stock outstanding at the time of such award. For
purposes of the foregoing: (i) those shares issuable upon exercise
of rights, options or warrants, or under a stock purchase plan,
meeting the requirements for exclusion set forth at any time and
from time to time in Rule 260.140.45 of the California Commissioner
of Corporations shall not be counted against the thirty
percent (30%) limitation; (ii) any outstanding preferred or senior
common shares of the Company convertible into Stock shall be deemed
converted in determining the total number of outstanding shares of
Stock at any time; and (iii) any shares of Stock subject to
promotional waivers under Rule 260.141 of the California
Commissioner of Corporations shall not be deemed to be outstanding.
Shares of Stock issuable in connection with any award under the
Plan may consist of authorized but unissued shares or treasury
shares.
4.2 To the extent a Stock Option terminates without having
been exercised, or shares awarded are forfeited, the shares subject
to such award shall again be available for distribution in
connection with future awards under the Plan, subject to the
limitations set forth in Section 4.1, unless the forfeiting
Participant received any benefits of ownership such as dividends
from the forfeited award.
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4.3 In the event of any merger, reorganization,
consolidation, sale of substantially all assets, recapitalization,
Stock dividend, Stock split, spin-off, split-up, split-off,
distribution of assets or other change in corporate structure
affecting the Stock, a substitution or adjustment, as may be
determined to be appropriate by the Committee in its sole
discretion, shall be made in the aggregate number of shares
reserved for issuance under the Plan, the number of shares subject
to outstanding awards and the amounts to be paid by award holders
or the Company, as the case may be, with respect to outstanding
awards; provided, however, that no such adjustment shall increase
the aggregate value of any outstanding award. In the event any
change described in this Section 4.3 occurs and an adjustment is
made in the outstanding Stock Options, a similar adjustment shall
be made in the maximum number of shares covered by Stock Options
that may be granted to any employee pursuant to Section 3.2(c).
SECTION 5. Eligibility.
Participants under the Plan shall be selected from time to
time by the Committee, in its sole discretion, from among those
eligible.
SECTION 6. Stock Options.
6.1 The Stock Options awarded to officers and employees under
the Plan may be of two types: (i) Incentive Stock Options within
the meaning of Section 422 of the Internal Revenue Code or any
successor provision thereto ("Section 422"); and (ii) Non-Qualified
Stock Options. If any Stock Option does not qualify as an
Incentive Stock Option, or the Committee at the time of grant
determines that any Stock Option shall be a Non-Qualified Stock
Option, it shall constitute a Non-Qualified Stock Option. Stock
Options awarded to any Participant who is not an officer or
employee of the Company or a Related Company shall be Non-Qualified
Stock Options.
6.2 Subject to the following provisions, Stock Options
awarded to Participants under the Plan shall be in such form and
shall have such terms and conditions as the Committee may
determine:
(a) Option Price. The option price per share of
Stock purchasable under a Stock Option shall be
determined by the Committee; provided, however, that the
option price per share of Stock shall be not less than
one hundred percent (100%) of the "Fair Market Value" (as
defined below) of the Stock on the date of grant of the
Stock Option; and provided, further, that if at the time
of grant the Participant owns, or would be considered to
own by reason of Section 424(d) of the Internal Revenue
Code or any successor provision thereto, more than ten
percent (10%) of the total combined voting power of all
classes of stock of the Company or any parent or
subsidiary of the Company, the option price per share of
Stock shall be not less than one hundred ten
percent (110%) of the Fair Market Value of the Stock on
the date of grant of the Stock Option. For purposes of
the Plan, "Fair Market Value" in relation to a share of
the Stock means, if the Stock is publicly traded, the
closing per share bona fide bid price of the Stock on
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such date. In any situation not covered above, the Fair
Market Value shall be determined by the Committee in
accordance with one of the valuation methods described in
Section 20.2031-2 of the Federal Estate Tax Regulations
or any successor provision thereto.
(b) Option Term. The term of each Stock Option
shall be fixed by the Committee, but in no event longer
than one hundred twenty (120) months after the date of
grant of such Stock Option.
(c) 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; provided, however, that in the case of Stock
Options awarded to Participants other than directors,
officers, consultants or independent contractors, Stock
Options under any award shall become exercisable at the
rate of at least twenty percent (20%) per year over
five (5) years from the date the Stock Option is granted.
If the Committee provides that any Stock Option is
exercisable only in installments, the Committee may waive
such installment exercise provisions at any time in whole
or in part.
(d) Method of Exercise. Stock Options may be
exercised in whole or in part at any time during the
option period by giving written notice of exercise to the
Company specifying the number of shares to be purchased,
accompanied by payment of the purchase price. Payment of
the purchase price shall be made in such manner as the
Committee may provide in the award, which may include
cash (including cash equivalents), delivery of shares of
Stock already owned by the optionee or subject to awards
hereunder, any other manner permitted by law as
determined by the Committee, or any combination of the
foregoing. The Committee may provide that all or part of
the shares received upon the exercise of a Stock Option
which are paid for using Restricted Stock shall be
restricted in accordance with the original terms of the
award in question.
(e) No Shareholder Rights. An optionee shall have
no rights to dividends or other rights of a shareholder
with respect to shares subject to a Stock Option until
the optionee has given written notice of exercise and has
paid for such shares.
(f) Surrender Rights. The Committee may provide
that Stock Options may be surrendered for cash upon any
terms and conditions set by the Committee.
(g) Non-Transferability; Limited Transferability.
A Stock Option Agreement may permit an optionee to
transfer the Stock Option to his or her children,
grandchildren or spouse ("Immediate Family"), to one or
more trusts for the benefit of such Immediate Family
members, or to one or more partnerships in which such
Immediate Family members are the only partners if (i) the
agreement setting forth such Stock Option expressly
provides that such Stock Option may be transferred only
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with the express written consent of the Committee, and
(ii) the optionee does not receive any consideration in
any form whatsoever for such transfer. Any Stock Option
so transferred shall continue to be subject to the same
terms and conditions as were applicable to such Stock
Option immediately prior to the transfer thereof. Any
Stock Option not (x) granted pursuant to any agreement
expressly allowing the transfer of such Stock Option or
(y) amended expressly to permit its transfer shall not be
transferable by the optionee otherwise than by will or by
the laws of descent and distribution, and such Stock
Option shall be exercisable during the optionee's
lifetime only by the optionee.
(h) Termination of Relationship. If an optionee's
employment or other qualifying relationship with the
Company or a Related Company terminates by reason of
death, disability, retirement, voluntary or involuntary
termination or otherwise, the Stock Option shall be
exercisable to the extent determined by the Committee;
provided, however, that unless employment or such other
qualifying relationship is terminated for cause (as may
be defined by the Committee in connection with the grant
of any Stock Option), the Stock Option shall remain
exercisable (to the extent that it was otherwise
exercisable on the date of termination) for (A) at least
six (6) months from the date of termination if
termination was caused by death or disability or (B) at
least ninety (90) days from the date of termination if
termination was caused by other than death or disability.
The Committee may provide that, notwithstanding the
option term fixed pursuant to Section 6.2(b), a Stock
Option which is outstanding on the date of an optionee's
death shall remain outstanding for an additional period
after the date of such death.
(i) Option Grants to Participants Subject to Sect
ion 16. If for any reason any Stock Option granted to a
Participant subject to Section 16 of the Exchange Act is
not approved in the manner provided for in clause (d)(1)
or (d)(2) of Rule 16b-3, neither the Stock Option (except
upon its exercise) nor the Stock underlying the Stock
Option may be disposed of by the Participant until six
months have elapsed following the date of grant of the
Stock Option, unless the Committee otherwise specifically
permits such disposition.
6.3 Notwithstanding the provisions of Section 6.2, no
Incentive Stock Option shall (i) have an option price which is less
than one hundred percent (100%) of the Fair Market Value of the
Stock on the date of the award of the Stock Option (or less than
one hundred ten percent (110%) of the Fair Market Value of the
Stock on the date of award of the Stock Option if the Participant
owns, or would be considered to own by reason of Section 424(d) of
the Internal Revenue Code or any successor provision thereto, more
than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any parent or subsidiary of the
Company at the time of the grant of the Stock Option), (ii) be
exercisable more than ten (10) years after the date such Incentive
Stock Option is awarded (five (5) years after the date of award if
the Participant owns, or would be considered to own by reason of
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Section 424(d) of the Internal Revenue Code or any successor
provision thereto, more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any
parent or subsidiary of the Company at the time of the grant of the
Stock Option), (iii) be awarded more than ten (10) years after the
effective date of the Plan (or the latest restatement of the Plan)
or (iv) be transferable other than by will or by the laws of
descent and distribution. In addition, the aggregate Fair Market
Value (determined as of the time a Stock Option is granted) of
Stock with respect to which Incentive Stock Options granted after
December 31, 1986 are exercisable for the first time by a
Participant in any calendar year (under the Plan and any other
plans of the Company or any subsidiary or parent corporation) shall
not exceed $100,000.
SECTION 7. Restricted Stock.
Subject to the following provisions, all awards of Restricted
Stock to Participants shall be in such form and shall have such
terms and conditions as the Committee may determine:
(a) The Restricted Stock award shall specify the
number of shares of Restricted Stock to be awarded, the
price, if any, to be paid by the recipient of the
Restricted Stock and the date or dates on which, or the
conditions upon the satisfaction of which, the Restricted
Stock will vest. The vesting of Restricted Stock may be
conditioned upon the completion of a specified period of
service with the Company or a Related Company, upon the
attainment of specified performance goals or upon such
other criteria as the Committee may determine.
(b) Stock certificates representing the Restricted
Stock awarded to an employee shall be registered in the
Participant's name, but the Committee may direct that
such certificates be held by the Company on behalf of the
Participant. Except as may be permitted by the
Committee, no share of Restricted Stock may be sold,
transferred, assigned, pledged or otherwise encumbered by
the Participant until such share has vested in accordance
with the terms of the Restricted Stock award. At the
time Restricted Stock vests, a certificate for such
vested shares shall be delivered to the Participant (or
his or her designated beneficiary in the event of death),
free of all restrictions.
(c) The Committee may provide that the Participant
shall have the right to vote or receive dividends, or
both, on Restricted Stock. The Committee may provide
that Stock received as a dividend on, or in connection
with a stock split of, Restricted Stock shall be subject
to the same restrictions as the Restricted Stock.
(d) Except as may be provided by the Committee, in
the event of a Participant's termination of employment or
other qualifying relationship with the Company or a
Related Company before all of his or her Restricted Stock
has vested, or in the event any conditions to the vesting
of Restricted Stock have not been satisfied prior to any
deadline for the satisfaction of such conditions set
forth in the award, the shares of Restricted Stock which
have not vested shall be forfeited, and the Committee may
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provide that the lower of (i) any purchase price paid by
the Participant and (ii) the Restricted Stock's aggregate
Fair Market Value on the date of forfeiture shall be paid
in cash to the Participant.
(e) The Committee may waive, in whole or in part,
any or all of the conditions to receipt of, or
restrictions with respect to, any or all of the
Participant's Restricted Stock.
(f) If for any reason any Restricted Stock awarded
to a Participant subject to Section 16 of the Exchange
Act is not approved in the manner provided for in
clause (d)(1) or (d)(2) of Rule 16b-3, the Restricted
Stock may not be disposed of by the Participant until six
months have elapsed following the date of award of the
Restricted Stock, unless the Committee otherwise
specifically permits such disposition.
SECTION 8. Substitute Options in Business Combinations.
If the Company at any time should succeed to the business of
another corporation through a merger or consolidation, or through
the acquisition of stock or assets of such corporation, Stock
Options may be granted under the Plan to those employees of such
corporation or its related companies who, in connection with such
succession, become employees of the Company or a Related Company in
substitution for options to purchase stock of such acquired
corporation held by them at the time of such succession. The
Committee, in its sole discretion, shall determine the extent to
which such substitute Stock Options shall be granted (if at all),
the persons to receive such substitute Stock Options (who need not
be all optionees of such corporation), the number and type of Stock
Options to be received by each such person, the exercise price of
such Stock Options (which may be determined without regard to
Section 6) and the terms and conditions of such substitute Stock
Options; provided, however, that the exercise price of each
substitute Stock Option shall be an amount such that, in the sole
judgment of the Committee (and if the Stock Options to be granted
are intended to be Incentive Stock Options, in compliance with
Section 424(a) of the Code), the economic benefit provided by such
Stock Option is not greater than the economic benefit represented
by the stock option of the acquired corporation as of the date of
the Company's acquisition of such corporation. Any substitute
Stock Option granted under this Section 8 shall expire upon the
expiration date of such other stock option or, if earlier, ten (10)
years after the date of grant of the substitute Stock Option, and,
notwithstanding Section 6, shall be exercisable during the
period(s) in which the other stock option would have been
exercisable. Any provision of this Section 8 to the contrary
notwithstanding, no Stock Option shall be granted, nor any action
taken, permitted or omitted, which would have the effect of causing
the Plan or any awards hereunder to fail to qualify for exemption
under Rule 16b-3, without the express approval of the Board.
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SECTION 9. Election to Defer Awards.
The Committee may permit a Participant to elect to defer
receipt of an award for a specified period or until a specified
event, upon such terms as are determined by the Committee.
SECTION 10. Tax Withholding.
10.1 Each Participant shall, no later than the date as of
which the value of an award first becomes includible in such
person's gross income for applicable tax purposes, pay to the
Company, or make arrangements satisfactory to the Committee (which
may include delivery of shares of Stock already owned by the
optionee or subject to awards hereunder) regarding payment of, any
federal, state, local or other taxes of any kind required by law to
be withheld with respect to the award. The obligations of the
Company under the Plan shall be conditional on such payment or
arrangements, and the Company (and, where applicable, any Related
Company), shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise due to
the Participant.
10.2 To the extent permitted by the Committee, and subject to
such terms and conditions as the Committee may provide, a
Participant may elect to have the withholding tax obligation, or
any additional tax obligation with respect to any awards hereunder,
satisfied by (i) having the Company withhold shares of Stock
otherwise deliverable to such person with respect to the award or
(ii) delivering to the Company shares of unrestricted Stock.
SECTION 11. Amendments and Termination.
No awards may be granted under the Plan more than ten (10)
years after the date of approval of the Plan by the shareholders of
the Company. The Board may discontinue the Plan at any earlier
time and may amend it from time to time. No amendment or
discontinuation of the Plan shall adversely affect any award
previously granted without the award holder's written consent.
Amendments may be made without shareholder approval except (i) if
and to the extent necessary to satisfy any applicable mandatory
legal or regulatory requirements (including the requirements of any
stock exchange or over-the-counter market on which the Stock is
listed or qualified for trading and any requirements imposed under
any state securities laws or regulations as a condition to the
registration of securities distributable under the Plan or
otherwise), or (ii) as required for the Plan to satisfy the
requirements of Section 162(m), Section 422 or any other non-
mandatory legal or regulatory requirements if the Board of
Directors deems it desirable for the Plan to satisfy any such
requirements.
SECTION 12. Change of Control.
12.1 In the event of a Change of Control, unless otherwise
determined by the Committee at the time of grant or by amendment
(with the holder's consent) of such grant:
(a) all outstanding Stock Options awarded under the
Plan shall become fully exercisable and vested; and
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(b) the restrictions applicable to any outstanding
Restricted Stock awards under the Plan shall lapse and
such shares and awards shall be deemed fully vested.
12.2 A "Change of Control" shall be deemed to occur if:
(a) individuals who, as of July 19, 1996,
constitute the entire Board of Directors of the Company
("Incumbent Directors") cease for any reason to
constitute at least a majority of the Board; provided,
however, that any individual becoming a director
subsequent to such date whose election, or nomination for
election by the Company's shareholders, was approved by
a vote of at least a majority of the then Incumbent
Directors (other than an election or nomination of an
individual whose assumption of office is the result of an
actual or threatened election contest relating to the
election of directors of the Company, as such terms are
used in Rule 14a-11 under the Exchange Act), also shall
be an Incumbent Director;
(b) the shareholders of the Company shall approve
(i) any merger, consolidation or recapitalization of the
Company (or, if the capital stock of the Company is
affected, any subsidiary of the Company) or any sale,
lease, or other transfer (in one transaction or a series
of transactions contemplated or arranged by any party as
a single plan) of all or substantially all of the assets
of the Company (each of the foregoing being an
"Acquisition Transaction") where (1) the shareholders of
the Company immediately prior to such Acquisition
Transaction would not immediately after such Acquisition
Transaction beneficially own, directly or indirectly,
shares representing in the aggregate more than fifty
percent (50%) of (A) the then outstanding common stock of
the corporation surviving or resulting from such merger,
consolidation or recapitalization or acquiring such
assets of the Company, as the case may be (the "Surviving
Corporation"), (or of its ultimate parent corporation, if
any) and (B) the Combined Voting Power (as defined below)
of the then outstanding Voting Securities (as defined
below) of the Surviving Corporation (or of its ultimate
parent corporation, if any) or (2) the Incumbent
Directors at the time of the initial approval of such
Acquisition Transaction would not immediately after such
Acquisition Transaction constitute a majority of the
Board of Directors of the Surviving Corporation (or of
its ultimate parent corporation, if any) or (ii) any plan
or proposal for the liquidation or dissolution of the
Company; or
(c) any Person (as defined below) shall become the
beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of
securities of the Company representing in the aggregate
forty percent (40%) or more of either (i) the then
outstanding shares of Company Common Stock or (ii) the
Combined Voting Power of all then outstanding Voting
Securities of the Company; provided, however, that
notwithstanding the foregoing, a Change of Control of the
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Company shall not be deemed to have occurred for purposes
of this clause (c) solely as the result of:
(1) an acquisition of securities by the
Company which, by reducing the number of shares of
Company Common Stock or other Voting Securities
outstanding, increases (i) the proportionate number
of shares of Company Common Stock beneficially
owned by any Person to forty percent (40%) or more
of the shares of Company Common Stock then
outstanding or (ii) the proportionate voting power
represented by the Voting Securities beneficially
owned by any Person to forty percent (40%) or more
of the Combined Voting Power of all then
outstanding Voting Securities; or
(2) an acquisition of securities directly
from the Company except that this paragraph (2)
shall not apply to:
(A) any conversion of a security that
was not acquired directly from the Company; or
(B) any acquisition of securities if the
Incumbent Directors at the time of the initial
approval of such acquisition would not
immediately after (or otherwise as a result
of) such acquisition constitute a majority of
the Board of the Company;
provided, however, that if any Person referred to
in clauses (1) or (2) of this clause (c) shall
thereafter become the beneficial owner of any
additional shares of Company Common Stock or other
Voting Securities of the Company (other than
pursuant to a stock split, stock dividend or
similar transaction or an acquisition exempt under
such clause (2)), then a Change of Control shall be
deemed to have occurred for purposes of this
clause (c).
For purposes of this Section 12.2:
(i) "Person" shall mean any individual, entity
(including, without limitation, any corporation,
partnership, trust, joint venture, association or
governmental body) or group (as defined in
Section 13(d)(3) or 14(d)(2) of the Exchange Act and the
rules and regulations thereunder); provided, however,
that "Person" shall not include the Company, any of its
subsidiaries, any employee benefit plan of the Company or
any of its majority-owned subsidiaries or any entity
organized, appointed or established by the Company or
such subsidiary for or pursuant to the terms of any such
plan.
(ii) "Voting Securities" shall mean all securities
of a corporation having the right under ordinary
circumstances to vote in an election of the Board of
Directors of such corporation.
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(iii) "Combined Voting Power" shall mean the
aggregate votes entitled to be cast generally in the
election of directors of a corporation by holders of then
outstanding Voting Securities of such corporation.
SECTION 13. General Provisions.
13.1 If the granting of any award under the Plan or the
issuance, purchase or delivery of Stock thereunder shall require,
in the determination of the Committee from time to time and at any
time, (i) the listing, registration or qualification of the Stock
subject or related thereto upon any securities exchange or over-
the-counter market or under any federal or state law or (ii) the
consent or approval of any government regulatory body, then any
such award shall not be granted or exercised, in whole or in part,
unless such listing, registration, qualification, consent or
approval shall have been effected or obtained on conditions, if
any, as shall be acceptable to the Committee. In addition, in
connection with the granting or exercising of any award under the
Plan, the Committee may require the recipient to agree not to
dispose of any Stock issuable in connection with such award, except
upon the satisfaction of specified conditions, if the Committee
determines such agreement is necessary or desirable in connection
with any requirement or interpretation of any federal or state
securities law, rule or regulation.
13.2 Nothing set forth in this Plan shall prevent the Board
from adopting other or additional compensation arrangements.
Neither the adoption of the Plan nor any award hereunder shall
confer upon any employee of the Company, or of a Related Company,
any right to continued employment, and no award under the Plan
shall confer upon any director any right to continued service as a
director.
13.3 Determinations by the Committee under the Plan relating
to the form, amount, and terms and conditions of awards need not be
uniform, and may be made selectively among persons who receive or
are eligible to receive awards under the Plan, whether or not such
persons are similarly situated.
13.4 No member of the Board or the Committee, nor any officer
or employee of the Company acting on behalf of the Board or the
Committee, shall be personally liable for any action, determination
or interpretation taken or made with respect to the Plan, and all
members of the Board or the Committee and all officers or employees
of the Company acting on their behalf shall, to the extent
permitted by law, be fully indemnified and protected by the Company
in respect of any such action, determination or interpretation.
SECTION 14. Provision of Financial Information.
Each Participant then holding unexercised Stock Options or
shares of Restricted Stock the restrictions on which have not then
lapsed shall be furnished with financial statements of the Company
at least annually not later than the time such financial statements
are delivered to shareholders of the Company.
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SECTION 15. Effective Date of Plan.
The Plan shall be effective upon the later of (i) the approval
of the Plan by the shareholders of the Company by a majority of the
votes cast at a duly held meeting of shareholders at which a quorum
representing at least a majority of the outstanding shares is,
either in person or by proxy, present and voting on the Plan,
(ii) August 15, 1996 and (iii) the date upon which the Company
becomes subject to the version of Rule 16b-3 adopted by the
Securities and Exchange Commission in Release No. 34-37260
promulgated under the Exchange Act.
The Plan was duly approved by the shareholders of the Company
on July 19, 1996. The Plan, as amended and restated, was most
recently adopted by the Board of Directors on September 17, 1996.
The Plan became effective on September 17, 1996, upon the election
by the Board on that date for the Company to become subject to the
version of Rule 16b-3 adopted by the Securities and Exchange
Commission in Release No. 34-37260 promulgated under the Exchange
Act.
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