Exhibit 4
International Biochemical Industries, Inc.
2002 STOCK OPTION PLAN
As Amended December 23, 2002
1. Purpose of this Plan
This Stock Option Plan (the "Plan") is intended as an employment
incentive, to aid in attracting and retaining in the employ or service of
International Biochemical Industries, Inc. (the "Company"), a Georgia
corporation, and any Affiliated Corporation, persons of experience and
ability and whose services are considered valuable, to encourage the sense of
proprietorship in such persons, and to stimulate the active interest of such
persons in the development and success of the Company. This Plan provides
for the issuance of non-statutory stock options ("NSOs" or "Options") which
are not intended to qualify as "incentive stock options" within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Administration of this Plan
The Company's Board of Directors ("Board") may appoint and maintain as
administrator of this Plan the Compensation Committee (the "Committee") of
the Board which shall consist of at least three members of the Board. Until
such time as the Committee is duly constituted, the Board itself shall have
and fulfill the duties herein allocated to the Committee. The Committee
shall have full power and authority to designate Plan participants, to
determine the provisions and terms of respective NSOs (which need not be
identical as to number of shares covered by any NSO, the method of exercise
as related to exercise in whole or in installments, or otherwise), including
the NSO price, and to interpret the provisions and supervise the
administration of this Plan. The Committee may, in its discretion, provide
that certain NSOs not vest (that is, become exercisable) until expiration of
a certain period after issuance or until other conditions are satisfied, so
long as not contrary to this Plan.
A majority of the members of the Committee shall constitute a quorum.
All decisions and selections made by the Committee pursuant to this Plan's
provisions shall be made by a majority of its members. Any decision reduced
to writing and signed by all of the members shall be fully effective as if it
had been made by a majority at a meeting duly held. The Committee shall
select one of its members as its chairman and shall hold its meetings at such
times and places as it deems advisable. If at any time the Board shall
consist of seven or more members, then the Board may amend this Plan to
provide that the Committee shall consist only of Board members who shall not
have been eligible to participate in this Plan (or similar stock or stock
option plan) of the Company or its affiliates at any time within one year
prior to appointment to the Committee.
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All NSOs granted under this Plan are subject to, and may not be
exercised before, the approval of this Plan by the holders of a majority of
the Company's outstanding shares, and if such approval is not obtained, all
NSOs previously granted shall be void. Each NSO shall be evidenced by a
written agreement containing terms and conditions established by the
Committee consistent with the provisions of this Plan.
3. Designation of Participants
The persons eligible for participation in this Plan as recipients of
NSOs shall include all full time and part-time employees (as determined by
the Committee) and officers of the Company or of an Affiliated Corporation.
In addition, directors of the Company or any Affiliated Corporation who are
not employees of the Company or an Affiliated Corporation and any attorney,
consultant or other adviser to the Company or any Affiliated Corporation
shall be eligible to participate in this Plan. For all purposes of this
Plan, any director who is not also a common law employee and is granted an
option under this Plan shall be considered an "employee" until the effective
date of the director's resignation or removal from the Board of Directors,
including removal due to death or disability. The Committee shall have full
power to designate, from among eligible individuals, the persons to whom NSOs
may be granted. A person who has been granted an NSO hereunder may be
granted an additional NSO or NSOs, if the Committee shall so determine. The
granting of an NSO shall not be construed as a contract of employment or as
entitling the recipient thereof to any rights of continued employment.
4. Stock Reserved for this Plan
Subject to adjustment as provided in Paragraph 9 below, a total of
14,000,000 shares of Common Stock ("Stock"), of the Company shall be subject
to this Plan. The Stock subject to this Plan shall consist of unissued
shares or previously issued shares reacquired and held by the Company or any
Affiliated Corporation, and such amount of shares shall be and is hereby
reserved for sale for such purpose. Any of such shares which may remain
unsold and which are not subject to outstanding NSOs at the termination of
this Plan shall cease to be reserved for the purpose of this Plan, but until
termination of this Plan, the Company shall at all times reserve a sufficient
number of shares to meet the requirements of this Plan. Should any NSO
expire or be canceled prior to its exercise in full, the unexercised shares
theretofore subject to such NSO may again be subjected to an NSO under this
Plan.
5. Option Price
The purchase price of each share of Stock placed under NSO shall not be
less than Twenty (20%) Percent of the fair market value of such share on the
date the NSO is granted. The fair market value of a share on a particular
date shall be deemed to be the average of either (i) the highest and lowest
prices at which shares were sold on the date of grant, if traded on a
national securities exchange, (ii) the high and low prices reported in the
consolidated reporting system, if traded on a "last sale reported" system,
such as NASDAQ, or (iii) the high bid and high asked price for
over-the-counter securities. If no transactions in the Stock occur on the
date of grant, the fair market value shall be determined as of the next
earliest day for which reports or quotations are available.
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If the common shares are not then quoted on any exchange or in any quotation
medium at the time the option is granted, then the Board of Directors or
Committee will use its discretion in selecting a good faith value believed to
represent fair market value based on factors then known to them. The cash
proceeds from the sale of Stock are to be added to the general funds of the
Company.
6. Exercise Period
a. The NSO exercise period shall be a term of not more than ten (10) years
from the date of granting of each NSO and shall automatically terminate:
i. Upon termination of the optioned's employment with the Company
for cause;
ii. At the expiration of twelve (12) months from the date of
termination of the optioned's employment with the Company for
any reason other than death, without cause; provided, that if
the optioned dies within such twelve-month period, sub-clause
(iii) below shall apply; or
iii. At the expiration of fifteen (15) months after the date of
death of the optioned.
b. "Employment with the Company" as used in this Plan shall include
employment with any Affiliated Corporation, and NSOs granted under this Plan
shall not be affected by an employee's transfer of employment among the Company
and any Parent or Subsidiary thereof. An optioned's employment with the Company
shall not be deemed interrupted or terminated by a bona fide leave of absence
(such as sabbatical leave or employment by the Government) duly approved,
military leave, maternity leave or sick leave.
7. Exercise of Options
a. The Committee, in granting NSOs, shall have discretion to determine the
terms upon which NSOs shall be exercisable, subject to applicable provisions of
this Plan. Once available for purchase, un-purchased shares of Stock shall
remain subject to purchase until the NSO expires or terminates in accordance
with Paragraph 6 above. Unless otherwise provided in the NSO, an NSO may be
exercised in whole or in part, one or more times, but no NSO may be exercised
for a fractional share of Stock.
b. NSOs may be exercised solely by the optionee during his lifetime, or
after his death (with respect to the number of shares which the optioned could
have purchased at the time of death) by the person or persons entitled thereto
under the decedent's will or the laws of descent and distribution.
c. The purchase price of the shares of Stock as to which an NSO is
exercised shall be paid in full at the time of exercise and no shares of Stock
shall be issued until full payment is made therefore.
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Payment shall be made either (i) in cash, represented by bank or cashier's
check, certified check or money order (ii) in lieu of payment for bona fide
services rendered, and such services were not in connection with the offer or
sale of securities in a capital raising transaction, (iii) by delivering shares
of the Company's Common Stock which have been beneficially owned by the
optioned, the optioned's spouse, or both of them for a period of at least six
(6) months prior to the time of exercise (the "Delivered Stock") in a number
equal to the number of shares of Stock being purchased upon exercise of the NSO
or (iv) by delivery of shares of corporate stock which are freely tradable
without restriction and which are part of a class of securities which has been
listed for trading on the NASDAQ system or a national securities exchange, with
an aggregate fair market value equal to or greater than the exercise price of
the shares of Stock being purchased under the NSO, or (v) a combination of cash,
services, Delivered Stock or other corporate shares. An NSO shall be deemed
exercised when written notice thereof, accompanied by the appropriate payment in
full, is received by the Company. No holder of an NSO shall be, or have any of
the rights and privileges of, a shareholder of the Company in respect of any
shares of Stock purchasable upon exercise of any part of an NSO unless and until
certificates representing such shares shall have been issued by the Company to
him or her.
8. Assignability
No NSO shall be assignable or otherwise transferable (by the optioned
or otherwise) except by will or the laws of descent and distribution or
except as permitted in accordance with SEC Release No.33-7646 as effective
April 7, 1999 and in particular that portion thereof which expands upon
transferability as is contained in Article III entitled "Transferable Options
and Proxy Reporting" as indicated in Section A 1 through 4 inclusive and
Section B thereof. No NSO shall be pledged or hypothecated in any manner,
whether by operation of law or otherwise, nor be subject to execution,
attachment or similar process.
9. Reorganizations and Recapitalizations of the Company
a. The existence of this Plan and NSOs granted hereunder shall not affect
in any way the right or power of the Company or its shareholders to make or
authorize any and all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stocks ahead of or affecting the Company's Common Stock or the
rights thereof, or the dissolution or liquidation of the Company, or any sale,
exchange or transfer of all or any part of its assets or business, or the other
corporation act or proceeding, whether of a similar character or otherwise.
b. The shares of Stock with respect to which NSOs may be granted hereunder
are shares of the Common Stock of the Company as currently constituted. If, and
whenever, prior to delivery by the Company of all of the shares of Stock which
are subject to NSOs granted hereunder, the Company shall effect a subdivision or
consolidation of shares or other capital readjustment, the payment of a Stock
dividend, a stock split, combination of shares (reverse stock split) or
recapitalization or other increase or reduction of the number of shares of the
Common Stock outstanding without receiving compensation therefore in money,
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services or property, then the number of shares of Stock available under this
Plan and the number of shares of Stock with respect to which NSOs granted
hereunder may thereafter be exercised shall (i) in the event of an increase in
the number of outstanding shares, be proportionately increased, and the cash
consideration payable per share shall be proportionately reduced; and (ii) in
the event of a reduction in the number of outstanding shares, be proportionately
reduced, and the cash consideration payable per share shall be proportionately
increased.
c. If the Company is reorganized, merged, consolidated or party to a plan
of exchange with another corporation pursuant to which shareholders of the
Company receive any shares of stock or other securities, there shall be
substituted for the shares of Stock subject to the unexercised portions of
outstanding NSOs an appropriate number of shares of each class of stock or other
securities which were distributed to the shareholders of the Company in respect
of such shares of Stock in the case of a reorganization, merger, consolidation
or plan of exchange; provided, however, that all such NSOs may be canceled by
the Company as of the effective date of a reorganization, merger, consolidation,
plan of exchange, or any dissolution or liquidation of the Company, by giving
notice to each optioned or his personal representative of its intention to do so
and by permitting the purchase of all the shares subject to such outstanding
NSOs for a period of not less than thirty (30) days during the sixty (60) days
next preceding such effective date.
d. Except as expressly provided above, the Company's issuance of shares of
Stock of any class, or securities convertible into shares of Stock of any class,
for cash or property, or for labor or services, either upon direct sale or upon
the exercise of rights or warrants to subscribe therefore, or upon conversion of
shares or obligations of the Company convertible into shares of Stock or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number of shares of Stock subject to NSOs granted hereunder
or the purchase price of such shares.
10. Purchase for Investment
Unless the shares of Stock covered by this Plan have been registered
under the Securities Act of 1933, as amended, each person exercising an NSO
under this Plan may be required by the Company to give a representation in
writing that he is acquiring such shares for his own account for investment
and not with a view to, or for sale in connection with, the distribution of
any part thereof.
11. Effective Date and Expiration of this Plan
This Plan became effective as of September 6, 2002 (the date of its
adoption by the Board of Directors) as Amended December 23, 2002 (the date of
its adoption by the Board) and no NSO shall be granted pursuant to this Plan
after its expiration. This Plan shall expire on September 5, 2012, except as
to NSOs then outstanding, which shall remain in effect until they have
expired or been exercised.
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12. Amendments or Termination
The Board may amend, alter or discontinue this Plan at any time in such
respects as it shall deem advisable in order to conform to any change in any
other applicable law, or in order to comply with the provisions of any rule
or regulation of the Securities and Exchange Commission required to exempt
this Plan or any NSOs granted thereunder from the operation of Section 16(b)
of the Securities Exchange Act of 1934, as amended ("Exchange Act"), or in
any other respect not inconsistent with Section 16(b) of the Exchange Act;
provided, that no amendment or alteration shall be made which would impair
the rights of any participant under any NSO theretofore granted, without his
consent (unless made solely to conform such NSO to, and necessary because of,
changes in the foregoing laws, rules or regulations), and the Board may
further amend or alter this Plan in order to increase the total number of
shares reserved for the purposes of this Plan except that no amendment or
alteration to the Plan shall be made without the approval of stockholders
which would:
a. Decrease the NSO price provided for in Paragraph 5 (except as provided
in Paragraph 9), or change the classes of persons eligible to participate in
this Plan as provided in Paragraph 3; or
b. Extend the NSO period provided for in Paragraph 6; or
c. Materially increase the benefits accruing to participants under this
Plan; or
d. Materially modify the requirements as to eligibility for participation
in this Plan or
e. Extend the expiration date of this Plan as set forth in Paragraph 11.
13. Government Regulations
This Plan, and the granting and exercise of NSOs hereunder, and the
obligation of the Company to sell and deliver shares of Stock under such
NSOs, shall be subject to all applicable laws, rules and regulations, and to
such approvals by any governmental agencies or national securities exchanges
as may be required.
14. Liability
No member of the Board of Directors, the Committee or officers or
employees of the Company or any Affiliated Corporation shall be personally
liable for any action, omission or determination made in good faith in
connection with this Plan.
15. Miscellaneous
a. The term "Affiliated Corporation" used herein shall mean any Parent or
Subsidiary.
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b. The term "Parent" used herein shall mean any corporation owning 50
percent or more of the total combined voting stock of all classes of the Company
or of another corporation qualifying as a Parent within this definition.
c. The term "Subsidiary" used herein shall mean any corporation more than
50 percent of whose total combined voting stock of all classes is held by the
Company or by another corporation qualifying as a Subsidiary within this
definition.
d. This 2002 Stock Option Plan and the Amendment thereto is separate and
distinct from the Company's prior 2002 Non-Statutory Option Plans as filed with
the SEC on December 28, 2001 and March 6, 2002 as Exhibit 4 to Forms S-8,
Registration Numbers: 333-76036 and 333-83810 respectively.
16. Options in Substitution for Other Options
The Committee may, in its sole discretion, at any time during the term
of this Plan, grant new options to an employee under this Plan or any other
stock option plan of the Company on the condition that such employee shall
surrender for cancellation one or more outstanding options which represent
the right to purchase (after giving effect to any previous partial exercise
thereof) a number of shares, in relation to the number of shares to be
covered by the new conditional grant hereunder, determined by the Committee.
If the Committee shall have so determined to grant such new options on such a
conditional basis ("New Conditional Options"), no such New Conditional Option
shall become exercisable in the absence of such employee's consent to the
condition and surrender and cancellation as appropriate. New Conditional
Options shall be treated in all respects under this Plan as newly granted
options. Option may be granted under this Plan from time to time in
substitution for similar rights held by employees of other corporations who
are about to become employees of the Company or an Affiliated Corporation, or
the merger or consolidation of the employing corporation with the Company or
an Affiliated Corporation, or the acquisition by the Company or an Affiliated
Corporation of the assets of the employing corporation, or the acquisition by
the Company or an Affiliated Corporation of stock of the employing
corporation as the result of which it becomes an Affiliated Corporation.
17. Withholding Taxes
Pursuant to applicable federal and state laws, the Company may be
required to collect withholding taxes upon the exercise of a NSO. The
Company may require, as a condition to the exercise of a NSO, that the
optioned concurrently pay to the Company the entire amount or a portion of
any taxes which the Company is required to withhold by reason of such
exercise, in such amount as the Committee or the Company in its discretion
may determine. In lieu of part or all of any such payment, the optioned may
elect to have the Company withhold from the shares to be issued upon exercise
of the option that number of shares having a Fair Market Value equal to the
amount which the Company is required to withhold.
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18. Transferability in Accordance With Form S-8 as Amended and Effective
April 7, 1999
Notwithstanding anything to the contrary as may be contained in this
Plan regarding rights as to transferability or lack thereof, all options
granted hereunder may and shall be transferable to the extent permitted in
accordance with SEC Release No. 33-7646 entitled "Registration of Securities
on Form S-8" as effective April 7, 1999 and in particular in accordance with
that portion of such Release which expands Form S-8 to include stock option
exercise by family members so that the rules governing the use of Form S-8
(a) do not impede legitimate intra family transfer of options and (b) may
facilitate transfer for estate planning purposes - all as more specifically
defined in Article III, Sections A and B thereto, the contents of which are
herewith incorporated by reference.
19. No Stockholder Approval Required for Establishment of Plan
Notwithstanding anything to the contrary contained in this Plan it is
the intention of the Company that the Plan comply, in all respects, with what
is referred to as a "Broadly Based Plan" in NASDAQ Marketplace Rule
4350(i)(1)(A) and such other sections in the NASDAQ Marketplace Rules as may
be applicable to "Broadly Based Plans". In that respect it is understood and
agreed as follows:
1. No stockholder approval was required or obtained for establishment
of the Plan, nor is any stockholder approval required for this
Amendment and approval of the majority of the Company's Board of
Directors shall suffice.
2. Less than fifty percent (50%) of all options issued under the Plan
shall be issued to officers and directors of the Company; "officers"
and "directors" being defined herein in the same manner as defined
in Section 16 of the Securities Exchange Act of 1934; and
3. "Broadly Based" as defined herein shall mean that at the end of
three (3) years from the date of the Plan as amended at least fifty
one percent (51%) of all options granted thereunder shall have been
granted to "rank and file" personnel of the Company (i.e., persons
who are not officers and directors as defined in "2" above) and that
at the anniversary date of each succeeding year no less than 51% of
all options granted shall have been granted to the aforesaid "rank
and file".
International Biochemical Industries, Inc.
/s/ Timothy C. Moses
By: ________________________________
Timothy C. Moses, President and
Chief Executive Officer
ATTEST:
/s/ Timothy C. Moses
By: ______________________________
Timothy C. Moses, Secretary
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CERTIFICATION OF PLAN ADOPTION
I, the undersigned Secretary of this Corporation, hereby certify that
the foregoing 2002 Stock Option Plan was duly approved by the requisite
majority of the Company's Board of Directors and subsequently Amended
December 23, 2002 in accordance with the required majority of the Company's
Board of Directors.
/s/ Timothy C. Moses
____________________________
Timothy C. Moses, Secretary
(SEAL)
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OPTION AGREEMENT
The undersigned hereby grants ________________________________ (pursuant to the
International Biochemical Industries, Inc. 2002 Non-Statutory Stock Option Plan
dated September 6, 2002, as amended December 23, 2002, an option to purchase
___________ shares of International Biochemical Industries, Inc. (the
"Corporation").
Option Period. This option shall be for a period of ten years from the
date of this Option Agreement ("Option Period").
Option Price. The option price shall be $_____ per share for an aggregate of
$_____ if the entire shares are purchased. The option price of the shares of
Common Stock shall be paid in full at the time of exercise and no shares of
Common Stock shall be issued until full payment is made therefore. Payment shall
be made either (i) in cash, represented by bank or cashier's check, certified
check or money order (ii) in lieu of payment for bona fide services rendered,
and such services were not in connection with the offer or sale of securities in
a capital-raising transaction, (iii) by delivering shares of the undersigned's
Common Stock which have been beneficially owned by the optioned, the optioned's
spouse, or both of them for a period of at least six (6) months prior to the
time of exercise (the "Delivered Stock") in a number equal to the number of
shares of Stock being purchased upon exercise of the Option or (iv) by delivery
of shares of corporate stock which are freely tradable without restriction and
which are part of a class of securities which has been listed for trading on the
NASDAQ system or a national securities exchange, with an aggregate fair market
value equal to or greater than the exercise price of the shares of Stock being
purchased under the Option, or (v) a combination of cash, services, Delivered
Stock or other corporate shares.
Shareholder Rights. No holder of an Option shall be, or have any of the
rights and privileges of, a shareholder of the Corporation in respect of any
shares of Common Stock purchasable upon exercise of any part of an Option
unless and until certificates representing such shares shall have been issued
by the Corporation to him or her.
Determination of Exercise Date. This Option or a portion of this Option
shall be deemed exercised when written notice thereof, accompanied by the
appropriate payment in full, is received by the Corporation.
Date: ___________, 2003
International Biochemical Industries, Inc.
By:
___________________________________
Timothy C. Moses, President and
Chief Executive Officer
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