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EXHIBIT 4.1
ADAC LABORATORIES
1992 STOCK OPTION PLAN
1. PURPOSES OF PLAN. The purposes of this 1992 Stock Option Plan
of ADAC Laboratories (the "Plan") are to attract and retain the best available
personnel for positions of substantial responsibility, and to provide
additional incentives to key employees, officers, consultants and other persons
whose efforts are deemed worthy of encouragement in order to promote the growth
and success of the Company's business.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "BOARD" shall mean the Board of Directors of the
Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
(c) "COMMON STOCK" shall mean the Common Stock of the
Company.
(d) "COMPANY" shall mean ADAC Laboratories, a California
corporation.
(e) "COMMITTEE" shall mean the Committee appointed by the
Board of Directors in accordance with Section 4(a) below, if one has been
appointed.
(f) "CONSULTANT" shall mean any person who is engaged by
the Company or any Parent or Subsidiary of the Company to render consulting
services.
(g) "CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT"
shall mean the absence of any interruption or termination of services as an
Employee or Consultant. Continuous Status as an Employee or Consultant shall
not be considered interrupted in the case of sick leave, military leave, or any
other leave of absence approved by the Board, provided that either such leave
is for a period of not more than ninety (90) days or reemployment upon the
expiration of such leave is guaranteed by contract or statute.
(h) "EMPLOYEE" shall mean any person, including an
officer or director, employed by the Company or any Parent or Subsidiary of the
Company. The payment of a director's fee by the Company shall not be
sufficient to constitute "employment" by the Company.
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(i) "OFFICER" shall mean any person, including a
director, employed by the Company or any Parent or Subsidiary of the Company
who has been elected an officer of the Company by the Board of Directors and
who is required to file periodic reports under Section 16(a) of the Securities
Exchange Act of 1934.
(j) "OPTION" or "OPTIONS" shall mean one or more stock
options issued pursuant to the Plan. Options may be either "Incentive
Options," which are defined as Options intended to meet the requirements of
Section 422A of the Code and any regulations promulgated thereunder, or
"Nonqualified Options," which are defined as Options not intended to meet such
requirements.
(k) "OPTIONED STOCK" shall mean the Common Stock subject
to an Option.
(l) "OPTIONEE" shall mean a person who receives an
Option.
(m) "PARENT" shall mean a "parent corporation", whether
now or hereafter existing, as defined in Section 425(e) of the Code.
(n) "PLAN" shall mean this 1992 Stock Option Plan.
(o) "SHARE" shall mean a share of Common Stock, as may be
adjusted in accordance with Section 11 below.
(p) "SUBSIDIARY" shall mean a "subsidiary corporation",
whether now or hereafter existing, as defined in Section 425(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Section 11 below, the maximum aggregate number of shares that may be optioned
and sold under the Plan is three million (3,000,000) shares of Common Stock.
If an Option should expire or become unexercisable for any reason without
having been exercised in full, then the unpurchased shares that were subject to
the Option shall, unless the Plan has been terminated, become available for
future grant under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) APPOINTMENT OF COMMITTEE.
(i) Before any Option under the Plan is granted
to an Officer or Director of the Company, the Board shall
appoint a Committee, comprised of not less than two (2)
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members of the Board, each of whom shall be a "disinterested
person", as that term is defined from time to time in Rule
16b-3(c)(2)(i) promulgated under the Securities Exchange Act
of 1934, as amended. The Committee may be an existing
committee of the Board or a new committee organized for the
purpose of administering the Plan. Options granted to any
person who is both an employee and a Director may be granted
only by the Committee.
(ii) An Option to an Officer may be granted by the
Board if each member thereof is then a "disinterested person"
(as hereinabove defined). Otherwise, an Option to an Officer
may be granted only by the Committee.
(iii) A Option to a person who is neither an Officer
nor a Director may be granted by either the Board or the
Committee.
(iv) Subject to the foregoing, the Board may, from
time to time, increase the size of the Committee and appoint
additional members thereof, remove members (with or without
cause) and appoint new members in substitution therefor, fill
vacancies however caused or remove all members of the
Committee. All actions of the Board or the Committee, if
taken in accordance with the Company's Bylaws, shall be valid
notwithstanding the fact that one or more of the members
thereof do not constitute "disinterested persons", as
hereinabove defined.
(b) POWERS OF THE BOARD. Subject to the provisions of
the Plan, the Board and the Committee shall have the
authority, in its discretion:
(i) to determine, upon review of relevant information,
the fair market value of the Common Stock;
(ii) to determine the persons to whom Options shall
be granted, the time or times at which Options shall be
granted, the number of Shares to be represented by each
Option and the exercise price per Share;
(iii) to interpret the Plan;
(iv) to prescribe, adopt, amend, and rescind rules
and regulations relating to the Plan;
(v) to determine whether an Option granted shall
be an Incentive Option or a Nonqualified Option and to
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determine the terms and provisions of each Option granted
(which need not be identical) and, with the consent of the
holder thereof, to modify or amend each Option;
(vi) to determine the exercise date(s) and the
number of shares exercisable at each such date, and to
accelerate or defer (with the consent of the Optionee) the
exercise date of any Option;
(vii) to authorize any person to execute on behalf of
the Company any instrument required to effectuate the grant of
an Option previously approved by the Board or the Committee;
(viii) to reduce the exercise price of outstanding
Options if the fair market value of the shares subject to any
such Option is more than twenty percent (20%) below the
existing exercise price of such Option and, in connection
therewith, to maintain or modify the existing, or commence a
new, vesting schedule and, if required in connection
therewith, to reclassify Incentive Options to Nonqualified
Options;
(ix) to make such adjustments to Options granted
under the Plan to enable them to comply with the laws of
foreign jurisdictions and/or to make them consistent with
options customarily utilized by companies in foreign
jurisdictions; and
(x) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(c) EFFECT OF DECISIONS. All decisions, determinations,
and interpretations of the Board or the Committee shall be final and binding on
all Optionees and any other holders of any Options granted under the Plan.
5. ELIGIBILITY. Options may be granted only to Employees,
Officers, Consultants or other persons whose efforts are deemed by the Board or
the Committee to be worthy of encouragement in order to promote the growth and
success of the Company. A person who has been granted an Option may, if he/she
is otherwise eligible, be granted an additional Option or Options. Options
under the Plan may not be granted to any non-employee director.
Neither the Plan nor any Option granted hereunder shall confer
upon any Optionee any right with respect to continuation
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of employment with the Company, nor shall it interfere in any way with his/her
right or the Company's right to terminate his/her employment at any time, with
or without cause.
6. TERM OF PLAN. The Plan shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 13 below. Options may be
granted hereunder immediately.
7. TERM OF OPTION. The term of any Incentive Option granted
under the Plan shall be for a period of not to exceed ten (10) years from the
date on which it is granted, as determined by the Board of Directors or the
Committee; provided, however, that any Incentive Option granted to any person
who owns shares possessing more than ten percent (10%) of the total combined
voting power or value of all classes of stock of the Company or of a Subsidiary
of the Company shall have a term of not to exceed five (5) years. The term of
a Nonqualified Option may be infinite or for a specific term.
8. EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per share exercise price for the
Shares to be issued pursuant to the exercise of an Incentive Option shall not
be less than one hundred percent (100%) of the fair market value of the
Company's Common Stock on the date of grant as determined by the Board or the
Committee; provided, however, that any Incentive Option granted to any person
who owns shares possessing more than ten percent (10%) of the total combined
voting power or value of all classes of stock of the Company or of a Subsidiary
thereof shall have a per share exercise price of one hundred ten percent (110%)
of the fair market value of the Company's Common Stock on the date of grant as
determined by the Board or the Committee. The per share exercise price for
Shares to be issued pursuant to the exercise of a Nonqualified Option shall not
be less than eighty-five percent (85%) of the fair market value of the
Company's Common Stock on the date of grant as determined by the Board or the
Committee.
(b) FAIR MARKET VALUE. The fair market value shall be
determined by the Board or the Committee in its discretion; provided, however,
that if there is a public market for the Common Stock, the fair market value
per Share shall be, in the event the Common Stock is listed on the NASDAQ
National Market System or on a stock exchange, the closing price on such
National Market System or exchange on the date of grant of the Option, as
reported in the "Wall Street Journal", and, if not so listed, fair market value
shall be the mean of the bid and asked prices of the Common Stock on the date
of the grant, as reported in the "Wall Street Journal"
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(or, if not so reported, as otherwise reported by the National Association of
Securities Dealers Automated Quotation (NASDAQ) System).
(c) CONSIDERATION. The consideration to be paid for the
Shares to be issued upon exercise of an Option, including the method of
payment, shall be determined by the Board or the Committee and may consist
entirely of cash, check, promissory note or shares of Company Common Stock
(which must have been held for at least six (6) months) having a fair market
value on the date of surrender equal to the aggregate exercise price of the
Shares as to which the Option shall be exercised, or any combination of such
methods of payment, or other consideration and method of payment for the
issuance of Shares to the extent permitted under Section 408 and 409 of the
California General Corporation Law. In making its determination as to the type
of consideration to accept, the Board or the Committee shall consider whether
such consideration may be reasonably expected to benefit the Company.
(d) RE-LOAD OPTION. Whenever an Optionee exercises an
Option by surrendering already-owned shares to pay all or a portion of the
exercise price, if the Option Agreement so provides or if permitted by the
Board or the Committee, at its discretion, at the time of such exercise, the
Optionee shall receive a new Option for the purchase of a number of Shares
equal to the number of Shares so surrendered, and such new Option shall have an
exercise price of not less than the fair market value of a Share of Common
Stock on the date of such surrender and shall vest and become exercisable as
may be determined by the Board or the Committee.
(e) WITHHOLDING TO PAY TAXES. Option Agreements under
the Plan may contain a provision to the effect that all Federal and state taxes
required to be withheld or collected from an Optionee upon exercise of an
Option may be satisfied by either (i) delivering outstanding shares of Common
Stock of the Company previously owned for six (6) months by the Optionee or
(ii) the withholding of a sufficient number of exercised Option shares which,
valued at fair market value on the date of exercise, would be equal to the
total withholding obligation of the Optionee; provided, however, that no person
who is an "officer" of the Company, as such term is defined in Rule 3b-2 under
the Securities Exchange Act of 1934, may elect to satisfy the withholding of
Federal and state taxes upon the exercise of an Option by the withholding of
Optioned Stock unless such election is made either (i) at least six months
prior to the date that the exercise of the Option becomes a taxable event or
(ii) during any of the periods beginning on the third business day following
the date on which the Company releases publicly the operating results of a
fiscal quarter or fiscal year and ending on
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the twelfth (12th) business day following such date. Such election shall be
deemed made upon receipt of notice thereof by an officer of the Company, by
mail, personal delivery or by facsimile message, and shall be operative for all
Option exercises which occur following the election, until terminated by a
notice revoking such withholding election (such termination shall become
effective six (6) months after the date of such new notice).
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER.
(i) Any Option granted hereunder shall be
exercisable at such times and under such conditions as determined by the Board
or the Committee, including performance criteria with respect to the Company
and/or the Optionee, and as otherwise permissible under the terms of the Plan.
(ii) An Option may not be exercised for a fraction
of a Share.
(iii) An Option shall be deemed to be exercised when
written notice of such exercise has been given to the Company in accordance
with the terms of the Option by the person entitled to exercise the Option and
full payment for the Shares with respect to which the Option is exercised has
been received by the Company; provided, however, that the Board or the
Committee may prescribe and adopt rules and procedures allowing an Optionee to
exercise an Option and sell the Optioned Stock simultaneously (or on the same
business day) under circumstances which provide reasonable certainty that the
Company will receive the Option exercise price by the settlement date of the
sale of the Optioned Stock. Until the issuance (as evidenced by an appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company) of the stock certificate evidencing such Shares, no right to vote or
receive dividends or any other rights as a shareholder shall exist with respect
to the Optioned Stock, notwithstanding the exercise of the Option. No
adjustment shall be made for a dividend or other right for which the record
date is prior to the date the stock certificate is issued, except as provided
in Section 11 below.
(iv) Exercise of an Option in any manner shall
result in a decrease in the number of Shares which thereafter may be available,
both for purposes of the Plan and for exercise under the Option, by the number
of Shares as to which the Option is exercised.
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(b) TERMINATION OF CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT.
(i) Except as set forth in Section 9(b)(ii)
below, if an Employee or Consultant ceases his/her Continuous Status as an
Employee or Consultant (as the case may be), he/she may, but only within ninety
(90) days (or, with respect to Nonqualified Options, such longer period of time
as may be determined by the Board or the Committee), after the date he/she
ceases to have such Continuous Status, exercise his/her Option to the extent
that he/she was entitled to exercise it at the date of such termination.
(ii) Notwithstanding the provisions of Section
9(b)(i) above, if the holder of an Option (A) is terminated due to Optionee's
willful refusal to perform the normal and/or reasonable duties and
responsibilities delegated to Optionee as an Employee of the Company, (B) is
terminated due to Optionee's expropriation of Company property (including trade
secrets or other proprietary rights), or (C) leaves the employment of the
Company in order to directly (or indirectly, as an employee or agent of another
business or business entity) compete with the Company, the Board or the
Committee shall have the authority, by notice to the holder of an Option, to
immediately terminate such Option, effective on the date of termination, and
such Option shall no longer be exercisable to any extent whatsoever.
(c) RETIREMENT. Notwithstanding the provisions of
Section 9(a) above, if an Optionee ceases Continuous Status as an Employee or
Consultant as a result of retiring as an active Employee or Consultant of the
Company at age 62 or older, such ninety-day period shall be extended to one (1)
year. To the extent that Optionee was not entitled to exercise the Option at
the date of such termination, or if Optionee does not exercise such Option
within the time specified herein, the Option shall terminate.
(d) DISABILITY. Notwithstanding the provisions of
Section 9(a) above, in the event an Employee or Consultant is unable to
continue his/her employment or consulting relationship (as the case may be)
with the Company as a result of his/her total and permanent disability (as
defined in Section 105(d)(4) of the Code), he/she may, but only within a period
of up to twenty-four (24) months (or such shorter or longer period of time as
is determined by the Board or the Committee or as set forth in the Option
Agreement) from the date of termination, exercise the Option to the extent
Optionee was entitled to exercise it at the date of such termination. To the
extent that Optionee was not entitled to exercise the Option at the date of
termination, or if Optionee does
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not exercise such Option within the time specified herein, the Option shall
terminate.
(e) DEATH OF OPTIONEE. In the event of the death of an
Optionee which occurs during the time in which an Option may be exercised, such
Option may be exercised at any time within two (2) years following the date of
death or such shorter period as may be set forth in the Option Agreement, by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise that would have accrued had the Optionee continued living and remained
in Continuous Status as an Employee or Consultant for two (2) years after the
date of death.
(f) DESIGNATION OF BENEFICIARY. Notwithstanding anything
in the Plan to the contrary, any Option Agreement issued under the Plan may
provide for the designation of a beneficiary of the Optionee (which may be an
individual or a trust) who may exercise the Option after the Optionee's death
and enjoy the economic benefits thereof, subject to the consent of Optionee's
spouse if required by law.
10. NON-TRANSFERABILITY OF OPTIONS.
Options shall not be transferable by the holder thereof
otherwise than (i) by will, (ii) pursuant to the laws of descent and
distribution or (iii) if then permitted by Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended, pursuant to a qualified domestic
relations order as defined in the Code or Title I of the Employee Retirement
Income Security Act (ERISA), or the rules thereunder; provided, however, that
an Optionee may designate a beneficiary who, upon Optionee's death, may
exercise the Option to the extent permitted in Section 9 of the Plan.
11. ADJUSTMENTS.
(a) STOCK SPLITS, DIVIDENDS AND OTHER COMBINATIONS.
Subject to any required action by the shareholders of the Company, the number
of shares of Common Stock covered by each outstanding Option, and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but as to which no Options have yet been granted or which have been returned to
the Plan upon cancellation or expiration of an Option, as well as the price per
share of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or
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reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board or the Committee, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares of Common Stock
subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the
proposed dissolution or liquidation of the Company, each Option shall terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board or the Committee. The Board or the Committee may, in the
exercise of its sole discretion in such instances, declare that any Option
shall terminate as of a date fixed by the Board or the Committee and give each
Optionee the right to exercise his/her Option as to all or any part of the
Optioned Stock, including Shares as to which the Option would not otherwise be
exercisable.
(c) SALE OF ASSETS OR MERGER. In the event of a proposed
sale of all or substantially all of the assets of the Company, or the merger of
the Company with or into another corporation, the Option shall be assumed or an
equivalent option (containing the same vesting schedule and equivalent exercise
price) shall be substituted by such successor corporation or a parent or
subsidiary of such successor corporation, unless the Board or the Committee
determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the Optionee shall have the right to exercise
the Option as to all of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. If the Board or the Committee makes
an Option fully exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, then the Board shall notify the Optionee that
the Option shall be fully exercisable for a period of thirty (30) days from the
date of such notice, and the Option shall terminate upon the expiration of such
period.
(d) CHANGE IN CONTROL. Upon a Change in Control (as
defined below), which is not approved by the vote of a majority of the
directors then in office, all Optionees shall have the right to exercise
Options as to all Optioned Stock, including Optioned Stock which would not
otherwise be exercisable. For purposes of this
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Agreement, a "Change in Control" shall mean any event in which (i) any "person"
or "group" (as defined in or pursuant to Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), becomes the
"beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the voting power of the Common Stock
outstanding which votes generally for the election of directors; (ii) as a
result of market or corporate transactions or stockholder action, the
individuals who constitute the Board of Directors of the Company at the
beginning of any period of twenty-four (24) consecutive months, plus any new
directors whose election by such Board or nomination for election by the
stockholders of the Company is approved by a vote of at least two-thirds of the
directors still in office who were directors at the beginning of such period of
twenty-four (24) consecutive months, cease for any reason during such period of
twenty-four (24) consecutive months to constitute at least two- thirds of the
members of such Board; or (iii) the Company or any of its subsidiaries sells,
in one or more transactions other than in the ordinary course of business,
assets constituting all or substantially all of the assets of the Company and
its subsidiaries on a consolidated basis. Notwithstanding the above, the
following events shall not constitute a Change in Control: (1) any acquisition
of beneficial ownership pursuant to a will or the laws of descent and
distribution; (2) or any acquisition of beneficial ownership pursuant to (a) a
reclassification, however effected, of the Company's authorized Common Stock,
or (b) a corporate reorganization involving the Company or any of its
subsidiaries which does not result in a material change in the ultimate
ownership by the stockholders of the Company (through their ownership of the
Company or the successor to the Company resulting from the reorganization) of
the assets of the Company and its subsidiaries, if such reclassification or
reorganization is approved by the Company's Board of Directors, a majority of
whom are disinterested directors.
12. SPECIAL PROVISIONS RELATING TO INCENTIVE OPTIONS. The Company
shall not grant Incentive Options under the Plan to any Optionee to the extent
that the aggregate fair market value of the Common Stock covered by such
Incentive Options which are exercisable for the first time during any calendar
year, when combined with the aggregate fair market value of all stock covered
by incentive stock options granted to such Optionee after December 31, 1986 by
the Company, its Parent or a Subsidiary thereof which are exercisable for the
first time during the same calendar year, exceeds $100,000. Incentive Options
shall be granted only to persons who, on the date of grant, are Employees of
the Company or a Parent or a Subsidiary of the Company. Notwithstanding the
above, to the extent the fair market value of Shares subject to
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Incentive Stock Options first exercisable in a calendar year is greater than
$100,000, the excess Options shall be treated as Non-qualified Options.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board or the
Committee may at any time suspend, amend or terminate the Plan with or without
shareholder approval; provided, however, that if the Plan has been previously
approved by the shareholders, no amendment or modification may be adopted
without shareholder approval if the amendment would (i) materially increase the
benefits accruing to participants under the Plan; (ii) materially increase the
number of Shares which may be issued under the Plan or (iii) materially modify
the requirements as to the eligibility for participation in the Plan.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such
amendment or termination of the Plan shall not affect Options already granted
and such Options shall remain in full force and effect as if the Plan had not
been amended or terminated, unless mutually agreed otherwise between the
Optionee and the Board or the Committee, which agreement must be in writing and
signed by the Optionee and the Company.
14. CONDITIONS UPON ISSUANCE OF SHARES.
(a) COMPLIANCE WITH SECURITIES LAWS. Shares shall not be
issued pursuant to the exercise of an Option unless the exercise of such Option
and the issuance and delivery of such Shares pursuant thereto complies with all
relevant provisions of law, including, without limitation, the Securities Act
of 1933, the Securities Exchange Act of 1934, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Shares may then be listed. The exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall be further subject to the
approval of counsel for the Company with respect to such compliance.
(b) INVESTMENT REPRESENTATION. As a condition to the
exercise of an Option, the Company may require the person exercising such
Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
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15. RESERVATION OF SHARES. The Company, during the term of the
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan. The inability of
the Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
16. OPTION AGREEMENTS. Options shall be evidenced by written
Option Agreements in such form as the Board or the Committee shall approve.
17. SHAREHOLDER APPROVAL. The Plan shall become effective when
approved by the Board or any committee thereof having authority to do so. The
Plan may be submitted to the shareholders for approval, but the lack of such
shareholder approval shall not affect the validity or effectiveness of any
Option granted hereunder.
Adopted and Approved
Effective July 8, 1992
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