Exhibit 4.4
INNOTECH, INC.
DIRECTORS' STOCK OPTION PLAN
(Amended as of October 4, 1996)
Section 1. Definitions
As used herein, the following terms shall be defined as
set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended from time to time and any successor thereto.
(c) "Company" means Innotech, Inc., a corporation
organized under the laws of the State of Delaware.
(d) "Date of Grant" means each date an Eligible Director
receives an Option hereunder.
(e) Fair Market Value: As said term is used in the Plan,
the "Fair Market Value" of a share of Stock on any day means: (i)
if the principal market for the Stock is The New York Stock
Exchange, any other national securities exchange or the Nasdaq
National Market, the closing sales price of the Stock on such day
as reported by such exchange or market, or on a consolidated tape
reflecting transactions on such exchange or market, or (ii) if the
principal market for the Stock is not a national securities
exchange and the Stock is quoted on the National Association of
Securities Dealers Automated Quotations System, the mean between
the closing bid and the closing asked prices for the Stock on such
day as quoted on such System, or (iii) if the principal market for
the Stock is not a national securities exchange and if the Stock is
not quoted on the National Association of Securities Dealers
Automated Quotations System, the mean between the highest bid and
lowest asked prices for the Stock on such day as reported by the
National Quotation Bureau, Inc.; provided that if clauses (i), (ii)
and (iii) of this paragraph are all inapplicable, or if no trades
have been made or no quotes are available for such day, the Fair
Market Value of the Stock shall be determined by the Company by any
method which it deems to be appropriate. The determination of the
Company shall be conclusive as to the Fair Market Value of the
Stock.
(f) "Eligible Director" means any Director of the
Company who is not an employee of the Company or its affiliates,
who has not within one year immediately preceding the determination
of such director's eligibility received any award under any other
plan of the Company or its affiliates (other than any other plan
under which participants' entitlements are governed by the
provisions meeting the requirements of Rule 16b-3(c)(2)(ii)
promulgated under the Securities Exchange Act of 1934, as amended)
and who is an "outside director" as defined in Regulation Section
1.162-27(e)(3) promulgated under the Code.
(g) "Option" means an Eligible Director's stock option
to purchase Stock granted pursuant to the provisions of Section 5
hereof.
(h) "Optionee" means an Eligible Director to whom an
Option has been granted hereunder.
(i) "Option Price" means the price at which an Optionee
may purchase a share of Stock as provided in Section 5.2 hereof.
(j) "Plan" means the Innotech, Inc. Directors' Stock
Option Plan, the terms of which are set forth herein.
(k) "Qualified Domestic Relations Order" shall have the
meaning assigned to such term under the Code and the regulations
promulgated thereunder.
(l) "Stock" means the common stock, par value $.001 per
share, of the Company.
(m) "Stock Option Agreement" means an agreement between
the Company and the Optionee under which the Optionee may purchase
Stock in accordance with the Plan.
(n) "Stockholders" means the holders of outstanding
shares of Stock of the Company.
Section 2. The Plan
2.1. Name. This Plan shall be known as the "Innotech,
Inc. 1995 Directors' Stock Option Plan".
2.2. Purpose. The purpose of the Plan is to advance the
interests of the Company and its Stockholders by affording Eligible
Directors of the Company an opportunity to acquire or increase
their proprietary interests in the Company, and thereby to
encourage their continued service as directors and to provide them
with additional incentives to achieve the growth objectives of the
Company.
2.3. Effective Date. This Plan was adopted and approved
by the Stockholders of the Company on December 21, 1995. The Plan
was adopted by the Board of Directors of the Company on December
19, 1995, and the Plan became effective on the date of a closing of
an initial public offering of shares of Stock (the "Effective
Date").
2.4. Termination Date. The Plan shall terminate and no
further Options shall be granted hereunder on or after the tenth
anniversary of the Effective Date of the Plan.
2.5. Administration of the Plan. The Plan shall be
administered by the Board. Subject to the provisions of the Plan,
the Board shall be authorized to interpret the Plan, to establish,
amend and rescind any rules and regulations relating to the Plan
and to make all other determinations necessary or advisable for the
administration of the Plan; provided, however, that the Board shall
have no discretion with respect to the selection of directors to
receive Options, the number of shares of Stock subject to any
Option, the purchase price thereunder or the timing of grants of
Options under the Plan. The determination of the Board in the
administration of the Plan, as described herein, shall be final and
conclusive. The Secretary of the Company shall be authorized to
implement the Plan in accordance with its terms and to take such
actions of a ministerial nature as shall be necessary to effectuate
the intent and purposes thereof.
Section 3. Participants
Each Eligible Director shall participate in the Plan,
provided that he or she is elected to a regular term as a member of
the Board of Directors of the Company at an Annual Meeting of
Stockholders, or any adjournment thereof.
Section 4. Shares of Stock Subject to Plan
4.1. Limitations. Subject to any antidilution adjustment
pursuant to the provisions of Section 4.2 hereof, the maximum
number of shares of Stock which may be issued and sold hereunder
shall not exceed 100,000 shares of Stock. Shares of Stock subject
to an Option may be either authorized and unissued shares or shares
issued and later acquired by the Company; provided, however, the
shares of Stock with respect to which an Option has been exercised
shall not again be available for the grant of an Option hereunder.
If any shares of Stock underlying an Option cease to be subject to
such Option, or if any Option is forfeited or otherwise terminates
without the shares of Stock underlying such Option being issued,
such shares shall again be available for distribution in connection
with future grants under the Plan.
4.2. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than a dividend or
its equivalent which is credited to a Plan participant or a regular
cash dividend), Stock split or other change in corporate structure
affecting the Stock, such substitution or adjustment shall be made
in the aggregate number of shares of Stock reserved for issuance
under the Plan, in the number and Option exercise price of shares
subject to outstanding Options granted under the Plan as may be
determined to be appropriate in order to prevent dilution or
enlargement of rights, provided that the number of shares subject
to any award shall always be a whole number.
The foregoing adjustments and the manner of application
thereof shall be determined solely by the Board, and any such
adjustment may provide for the elimination of fractional share
interests. The adjustments required under this Section 4 shall
apply to any successor or successors of the Company and shall be
made regardless of the number or type of successive events
requiring adjustments hereunder.
Section 5. Options
5.1. Option Grant, Number of Shares and Agreement. Each
Eligible Director shall automatically be granted an Option to
purchase 5,000 shares of Stock on the date (i) an Eligible Director
is initially elected to the Board (after the Effective Date) and
(ii) for each respective fiscal year of the Company thereafter
during which an Eligible Director continues to be an Eligible
Director, the earlier of: (A) each June 30, or (B) the date on
which the Stockholders of the Company shall elect directors at an
Annual Meeting of such Stockholders or any adjournment thereof.
An Eligible Director who shall have been elected to the Board prior
to the Effective Date of the Plan shall first be granted an Option
hereunder on the first date after the Effective Date on which the
Stockholders of the Company shall elect directors at an Annual
Meeting of such Stockholders or any adjournment thereof. Each
Option granted hereunder shall be evidenced by a written Stock
Option Agreement, dated as of the Date of Grant and executed by the
Company and the Optionee, stating the Option's duration and time of
exercise and the Option Price. The terms and conditions of the
Stock Option Agreement shall be consistent with the Plan. The
Options granted hereunder are not intended to qualify under Section
422 of the Code.
5.2. Option Price. The Option Price of the Stock subject
to each Option shall be the Fair Market Value of the Stock on its
Date of Grant.
5.3. Exercise Period. The period for the exercise of
each Option shall expire on the tenth anniversary of the Date of
Grant.
5.4. Option Exercise.
(a) Any Option granted under the Plan shall become
exercisable in full on the first anniversary of the Date of Grant
with respect to such Option, provided that the Eligible Director
has not voluntarily resigned, or been removed "for cause," as a
member of the Board of Directors on or prior to the first
anniversary of the Date of Grant. An Option shall remain
exercisable after the first anniversary of the Date of Grant at all
times during the Exercise Period, regardless of whether the
Optionee thereafter continues to serve as a member of the Board.
(b) An Option may be exercised at any time or from time
to time during the Exercise Period as to any or all full shares
which have become exercisable in accordance with this Section 5.4,
but not as to less than 100 shares of Stock unless the remaining
shares of Stock that are so exercisable are less than 100 shares of
Stock. The Option Price is to be paid in full in cash upon the
exercise of the Option. The Optionee shall not have any of the
rights of a Stockholder with respect to the shares of Stock subject
to the Option until such shares of Stock have been issued or
transferred to the Optionee upon the exercise of his or her Option.
(c) An Option shall be exercised by written notice of
exercise of the Option, with respect to a specified number of
shares of Stock, delivered to the Company at its principal office,
and by cash payment to the Company at said office of the full
amount of the Option Price for such number of shares. In addition
to, and prior to the issuance of a certificate for shares pursuant
to any Option exercise, the Optionee shall pay to the Company in
cash the full amount of any federal, state and local withholding or
other employment taxes applicable to the taxable income of such
Optionee resulting from such exercise.
(d) At the discretion of the Board, the Stock Option
Agreement may provide that an Option granted under the Plan may be
exercised with respect to a specified number of shares of Stock by
written notice of exercise to the Company stating that (i) the
Option Price for the shares and any withholding tax due thereon
will be paid to the Company directly by a broker-dealer designated
by the Optionee and irrevocable instructions to such effect have
been furnished by the Optionee to such broker-dealer; and (ii) an
advice from the broker-dealer confirming payment to the Company
will be promptly delivered to the Company. The exercise of any
such Option shall be irrevocable at the time of notice to the
Company; provided, however, that the Company shall not be required
to deliver certificates for shares of Stock with respect to the
exercise of the Option until the Company has confirmed the receipt
of good and sufficient funds in payment of the Option Price
therefor.
5.5. Non-transferability of Option. Options may not be
transferred by an Optionee otherwise than by will, the laws of
descent and distribution, or by a Qualified Domestic Relations
Order. During the lifetime of an Optionee, an Option may be
exercised only by the Optionee (or by his or her guardian or legal
representative, should one be appointed) or by his or her spouse to
whom the Option has been transferred pursuant to the terms of a
Qualified Domestic Relations Order. In the event of the death of
an Optionee, any Option held by an Optionee may be exercised by the
legatee(s) or other distributee(s) or by the personal
representative of the Optionee.
5.6. Listing and Registration. Each Option 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 of Stock subject to such Option upon
any securities exchange, stock market or quotation system or under
any state, federal or local 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 issuance or purchase of shares of Stock thereunder, no such
Option may be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any condition not acceptable to the
Board.
Section 6. Stock Certificates
The Company shall not be required to issue or deliver any
certificate for shares of Stock purchased upon the exercise of any
Option granted hereunder or any portion thereof unless, in the
opinion of counsel to the Company, there has been compliance with
all applicable legal and contractual requirements. An Option
granted under the Plan may provide that the Company's obligation to
deliver shares of Stock upon the exercise thereof may be
conditioned upon the receipt by the Company of a representation as
to the investment intention of the Optionee in such form as the
Company shall determine to be necessary or advisable solely to
comply with the provisions of the Securities Act of 1933, as
amended, or any other federal, state or local securities laws.
Section 7. Termination and Amendment of the Plan
7.1. Termination. The Board may, at any time, terminate
the Plan.
7.2. Amendment. The Plan may be amended by the Board, as
it shall deem advisable or to conform to any change in law or
regulation applicable thereto; provided, that the Board may not,
without the authorization and approval of the Stockholders: (a)
increase the number of shares of Stock which may be purchased
pursuant to Options hereunder, either individually or in the
aggregate, except as permitted by Section 4.2 hereof; (b) change
the requirement of Section 5.2 hereof that Options be priced at
Fair Market Value, except as permitted by Section 4.2 hereof; (c)
modify in any respect the class of individuals who constitute
Eligible Directors or (d) materially increase the benefits accruing
to Optionees hereunder. The provisions of Sections 5.1 and 5.2
hereof may not be amended more often than once every six months
other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, as amended, or the rules
under either such statute.
Section 8. Relationship to Other Compensation Plans
The adoption of the Plan shall neither affect any other
stock option, incentive or other compensation plans in effect for
the Company or any of its subsidiaries, nor shall the adoption of
the Plan preclude the Company from establishing any other forms of
incentive or other compensation plans for directors of the Company.
Section 9. Miscellaneous
9.1. Plan Binding on Successors. The Plan shall be
binding upon the successors and assigns of the Company.
9.2. Singular, Plural; Gender. Whenever used herein,
nouns in the singular shall include the plural, and the masculine
pronoun shall include the feminine gender.
9.3. Headings etc., No Part of Plan. Headings of
articles and paragraphs hereof are inserted for convenience and
reference, and do not constitute a part of the Plan.
9.4. Governing Law. The validity, construction and
effect of the Plan and any rules and regulations relating to the
Plan shall be determined in accordance with the laws of the State
of Delaware (without regard to choice of law provisions).
9.5. Compliance with Section 16 of the Securities
Exchange Act of 1934. As of October 4, 1996, the Plan shall be
governed by the provisions of Rule 16b-3 under Section 16 of the
Securities Exchange Act of 1934, as amended by Release Number 34-
37260, and shall not be subject to the phase-in period for such
amendment after such date.
As of October 4, 1996