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Exhibit 4.1
BIODYNAMICS INTERNATIONAL,
INC.
1996 STOCK OPTION
PLAN
ARTICLE I
General
Section 1.01.
Purpose . It is the purpose of the Plan to promote the
interests of the Company and its shareholders by attracting,
retaining and stimulating the performance of selected Employees,
Directors and Consultants by giving such Employees, Directors and
Consultants the opportunity to acquire a proprietary interest in
the Company and an increased personal interest in its continued
success and progress.
Section 1.02.
Definitions . As used herein the following terms have the
following meanings:
(a) “ Affiliate
” means any parent or subsidiary corporation of the Company
within the meaning of Section 424(e) and (f) of the
Code.
(b) “ Board
” means the Board of Directors of the Company.
(c) “ Code
” means the Internal Revenue Code of 1986, as
amended.
(d) “ Committee
” means the Compensation and Stock Option Committee described
in Article II hereof.
(e) “ Common
Stock ” means the $0.01 par value Common Stock of the
Company.
(f) “ Company
” means Biodynamics International, Inc., a Florida
corporation.
(g) “ Consultant
” means any consultant or advisor of the Company or an
Affiliate who is not an Employee or Director, provided that bona
fide services are rendered by the consultant or advisor and such
services are not in connection with the offer or sale of securities
in a capital-raising transaction.
(h) “ Director
” means a member of the Board.
(i) “ Employee
” means any employee of the Company or an
Affiliate.
(j) “
Employee-Director ” means an Employee who is a
Director.
(k) “ Fair Market
Value ” means (A) the closing sale price of the
Common Stock on the date in question (or, of there is no reported
sale on such date, then on the last preceding date on which a
reported sale occurred), as reported on the NASDAQ Market (if the
Common Stock is not listed on a national securities exchange and
sales of the Common Stock are regularly reported on such market),
or as reported on a national securities exchange (if the Common
Stock is listed for trading on such exchange), or (B) the mean
between the bid and ask prices of the Common Stock on the date in
question (or, if there is no report of such prices on such date,
then on the last preceding date on which such prices were
reported), as reported by the National Association of Securities
Dealers, Inc.
(l) “ Option
” means any option to purchase shares of Common Stock granted
pursuant to the provisions of the Plan.
(m) “ Optionee
” means an Employee, Outside Director or Consultant who has
been granted an Option under the Plan.
(n) “ Outside
Director ” means a Director who is not an
Employee.
(o) “ Plan
” means this Biodynamics International, Inc., 1996 Stock
Option Plan.
Section 1.03. Shares
Subject to Plan . The stock subject to the options granted
under the Plan shall be shares of the Company’s authorized
but unissued common stock, par value $.01 per share (“Common
Stock”). The total number of shares that may be issued
pursuant to options granted under the Plan shall not exceed
3,500,000 shares of Common Stock.
ARTICLE II
Administration
The Plan shall be
administered by a Compensation and Stock Option Committee which
shall consist of two or more Outside Directors, each of whom shall
be a disinterested person within the meaning of Rule 16b-3 under
the Securities Exchange Act of 1934, as amended (“ Rule
16b-3 ”), or any similar rule or regulation promulgated
thereunder; provided, however, that the Committee shall have no
authority to administer or interpret the provisions of the Plan
relating to the grant of Options to Outside Directors. Each member
of the Committee shall be appointed by and shall serve at the
pleasure of the Board. The Board shall have the sole continuing
authority to appoint members of the Committee both in substitution
for members previously appointed and to fill vacancies however
caused. The following provisions shall apply to the administration
of the Plan:
(a) The Committee shall
designate one of its members as Chairman and shall hold meetings at
such time and places as it may determine. Each member of the
Committee shall be notified in writing of the time and place of any
meeting of the Committee at least two days prior to such meeting,
provided that such notice may be waived by a Committee member. A
majority of the members of the Committee shall constitute a quorum,
and any action taken by a majority of the members of the Committee
present at any duly called meeting at which a quorum is present (as
well as any action unanimously approved in writing) shall
constitute action by the Committee.
(b) The Committee may appoint
a Secretary (who need not be a member of the Committee) who shall
keep minutes of its meetings. The Committee may make such rules and
regulations for the conduct of its business as it may
determine.
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(c) The Committee shall have
full authority, subject to the express provision of the Plan, to
interpret the Plan as it relates to options granted or to be
granted to Employees and Consultants under the Plan, to provide,
modify and rescind rules and regulations relating thereto, to
determine the terms and provisions of each Option granted to an
Employee or Consultant and the form of each option agreement
evidencing an Option granted to an Employee or Consultant under the
Plan and to make all other determinations and perform such actions
as the Committee deems necessary or advisable to administer the
Plan as it relates to Options granted or to be granted to Employees
or Consultants under the Plan. In addition, the Committee shall
have full authority, subject to the express provisions of the Plan,
to determine the Employees and Consultants to whom Options shall be
granted, the time or date of grant of each such Option, the number
of shares subject thereto, and the price at which such shares may
be purchased. In making such determinations, the Committee may take
into account the nature of the services rendered by the Employee or
Consultant, his present and potential contributions to the success
of the Company’s business and such other facts as the
Committee in its discretion shall deem appropriate to carry out the
purposes of the Plan.
(d) Notwithstanding the
authority hereby delegated to the Committee to grant Options to
Employees and Consultants under the Plan, the Board also shall have
full authority, subject to the express provisions of the Plan, to
grant Options to Employees and Consultants under the Plan, to
interpret that Plan, to provide, modify and rescind rules and
regulations relating to it, to determine the terms and provisions
of Options granted to Employees, Consultants and Outside Directors
under the Plan and to make all other determinations and perform
such actions as the Board deems necessary or advisable to
administer the Plan; provided, however that (i) the Board
shall not grant any Option to any Employee-Director or officer (as
defined in Rule 16b-3) of the Company, and (ii) the Board
shall have no authority, discretion or power to select the Outside
Directors who will receive Options under the Plan, to set the
number of shares to be covered by any Option granted to an Outside
Director, to set the exercise price or the period within which such
Options may be exercised, or to alter any other terms or conditions
specified herein relating to such Options except in accordance with
the express provisions of the Plan, including Section 6.02 of
Article VI hereof.
(e) No member of the
Committee or the Board shall be liable for any action taken or
determination made in good faith with respect to the Plan or any
Option granted hereunder.
(f) No member of the
Committee shall be eligible to receive an Option, except Options
granted in accordance with the terms of Article III of the
Plan.
ARTICLE III
Grants of Options to
Outside Directors
Section 3.01. Grants
of Option s. Beginning with the year 1996, Options shall be
granted by the Company to its Outside Directors in the terms and
conditions herein described. The Options granted under this Article
III shall not be incentive stock options under Section 422 of
the Code.
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(a) Initial Grant. An Option
to purchase 10,000 shares of Common Stock shall be granted
automatically to each Outside Director who is newly elected to the
Board, irrespective of whether such Outside Director is elected by
the Board or by the shareholders. The date of grant of such Option
shall be the effective date of such Outside Director’s
election to the Board, unless such date is not a business day, in
which case the date of grant shall be the next business day
immediately following such effective date. For purposes of this
Section 3.01, the term “ newly elected to the
Board ” shall mean that the Outside Director was not
serving as a Director or an Outside Director immediately prior to
the time of his election in respect of which such Option is
granted.
(b) Annual Grant. An option
to purchase 2,500 shares of Common Stock shall be granted
automatically, on the date of each annual meeting of shareholders
of the Company (or, if such date is not a business day, on the next
business day immediately following the date of such annual
meeting), to each person who (I) is an Outside Director on the
date of such grant and immediately following such annual meeting
and (ii) has served in that capacity for at least six months
immediately preceding the date of such grant.
Section 3.02
Declination . Any Outside Director may decline to accept any
Option granted to him pursuant to this Article III by giving
written notice to the Company of his election to decline to accept
such Option or by refusing to execute a stock option agreement
relating to such Option.
Section 3.03
Price . The purchase price per share of Common Stock under
each Option granted under this Article III shall be the Fair Market
Value per share of Common Stock on the date of grant of such
Option.
Section 3.04 Option
Period and Terms of Exercise of Options . Except as otherwise
provided for herein, each Option granted to an Outside Director
under the Plan shall be exercisable in whole or in part during the
four-year period commencing on the date of grant of such Option.
Any Option granted to an Outside Director shall remain effective
during its entire term regardless of whether the Optionee continues
to serve as a Director; provided, however, that the otherwise
unexpired portion of any Option granted hereunder to an Outside
Director shall expire and become null and void immediately upon the
termination of such Outside Director’s Board membership if
such Outside Director ceases to serve on the Board by reason of
such Outside Director’s (a) fraud or intentional
misrepresentation, or (b) embezzlement, misappropriation or
conversion of assets or opportunities of the Company or any
Affiliate. Nothing in the Plan or in any option agreement
evidencing an Option granted under the Plan to an Outside Director
shall confer upon such Director any right to continue as a Director
of the Company.
ARTICLE IV
Grant of Options to
Employees
Section 4.01 Grant of
Options . At any time and from time to time during the term of
the Plan and subject to the express provisions hereof, Options may
be granted by the Committee to any Employee for such number of
shares of Common Stock as the Committee in its
discretion
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shall deem to be in the best interest of
the Company and which will serve to further the purposes of the
Plan. The Committee, in its discretion, may designate any Option
granted to an Employee as an incentive stock option intended to
qualify under Section 422 of the Code; provided, however, that
the aggregate Fair Market Value of the Common Stock with respect to
which incentive stock options granted to an Employee under the Plan
(including all options qualifying as incentive stock options
pursuan
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