Exhibit 10.1
EQUICAP, INC.
1998 COMPENSATORY STOCK OPTION PLAN
1. Purpose of this Plan.
This 1998 Compensatory Stock Option Plan ("Plan") is intended as an
employment incentive, to aid in attracting and retaining in the employ or
service of EQUICAP, INC. ("Company"), a California 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 ("CSOs" 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 ("Code"). Certain other terms also are defined
in Paragraph 17 and elsewhere of this Plan.
2. Administration of this Plan.
The Company's Board of Directors ("Board") may appoint and maintain as
administrator of this Plan the Compensation Committee ("Committee") of the Board
which shall consist of at least two members of the Board. At any time that the
Committee is not 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 CSOs (which need not be identical as to number of shares
covered by any CSO, the method of exercise as related to exercise in whole or in
installments, or otherwise), including the CSO price, and to interpret the
provisions and supervise the administration of this Plan. The Committee may in
its discretion provide that certain CSOs 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 consititue 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. Shareholder approval of this Plan shall be required, and all CSOs
granted under this Plan will be subject to, and may not be exercised before, the
approval of this Plan by the shareholders. Each CSO 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.
Only Employees shall be eligible for participation in this Plan. The
Committee shall have full power to designate, from among eligible individuals,
the persons to whom CSOs may be granted. A person who has been granted a CSO
hereunder may be granted an additional CSO or CSOs, if the Committee shall so
determine. The granting of a CSO shall not be construed as a contract of
employment or as entitling the recipient thereof to any rights of continued
employment or engagement by the Company or an Affiliated Corporation. Persons
eligible under this Plan additionally may be granted one or more options under
any other compensation or stock option plan or awarded shares under any other
benefit plan of the Company.
4. Stock Reserved for this Plan.
Subject to adjustment as provided in Paragraph 9 below, a total of
1,500,000 shares of Common Stock of the Company ("Plan Stock" or "Plan Shares")
shall be subject to this Plan. The Plan Stock subject to this Plan shall consist
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of unissued shares of Common Stock or previously issued shares of Common Stock
reacquired and held by the Company or any Affiliated Corporation, and such
number of Plan Shares shall be and is hereby reserved for sale for such purpose.
Any Plan Shares which may remain unsold and which are not subject to outstanding
CSOs 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 CSO expire or be cancelled prior to its exercise in full, the
unexercised Plan Shares theretofore subject to such CSO may again be subjected
to a CSO under this Plan.
5. Option Exercise Price.
The purchase price of each share of Plan Stock made subject to a CSO
shall not be less than one hundred percent (100%) of the fair market value of a
share of Common Stock on the date the CSO is granted. The fair market value of a
share of Plan Stock on a particular date shall be deemed to be the average of
either (i) the highest and lowest prices at which shares of Common Stock were
sold on the date of grant, if traded on a national securities exchange, (ii) the
high and low sale prices reported on the date of grant, if traded on the Nasdaq
Small Cap Market or National Market System, or (iii) the high bid and low asked
price, or if unavailable, the closing high bid and low asked price, on the date
of grant, if quoted on the OTC Electronic Bulletin Board. If no transactions in
the Common 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. If the Common Stock 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 Plan Stock are to be added to the general funds of the
Company.
6. Exercise Period; Vesting.
(a) The CSO exercise period shall be a term of not more than five (5)
years from the date of granting of each CSO and shall automatically terminate:
(i) Upon termination of the optionee's employment with the Company for
cause (defined as termination for reasons other than layoff due to lack of work,
injury, illness, disability, or due to economic reasons unrelated to the
optionee's job performance, or for a reason stated in subparagraph 6(b) of this
Plan);
(ii) At the expiration of six (6) months from the date of termination
without cause of the optionee's employment with the Company for any reason other
than death; provided, that if the optionee dies within such six-month period,
sub-clause (iii) below shall apply; or
(iii) At the expiration of fifteen (15) months after the date of death
of the optionee.
(b) "Employment with the Company" as used in this Plan shall include
employment with (or in the case of a consultant, adviser or agent, engagement
by) any Affiliated Corporation in any capacity, even if employment or engagement
in another capacity ceases, and CSOs 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 optionee'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
or sick leave.
(c) The Board or Committee may determine at the time of grant that a
CSO granted hereunder shall not vest immediately but over a specified time, in
specified amounts per time period, or subject to other restrictions or
limitations. Unless otherwise set forth in the granting resolution, a CSO shall
vest immediately upon grant. If employment with the Company ceases before a CSO
vests, then vesting shall never take place, and unvested CSOs shall then be lost
forever.
7. Exercise of Options.
(a) The Committee, in granting CSOs, shall have discretion to
determine the terms upon which CSOs shall be exercisable, subject to applicable
provisions of this Plan. Once available for purchase, unpurchased Plan Shares
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shall remain subject to purchase until the CSO expires or terminates in
accordance with Paragraph 6 above. Unless otherwise provided in the CSO, a CSO
may be exercised in whole or in part, one or more times, but no CSO may be
exercised for a fractional share. Resulting fractions shall be rounded up or
down, as appropriate.
(b) CSOs may be exercised solely by the optionee or a permitted
transferee during his lifetime or by a spouse or former spouse pursuant to a
qualified domestic relations order, or after his death (with respect to the
number of shares which the optionee 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 Plan Shares as to which a CSO is
exercised shall be paid in full at the time of exercise and no Plan Shares shall
be issued until full payment is made therefor. Payment shall be made either (i)
in cash, represented by bank or cashier's check, certified check or money order,
or made by bank wire transfer; (ii) by delivering shares of the Company's Common
Stock which have been beneficially owned by the optionee, the optionee'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 Plan Shares
being purchased upon exercise of the CSO; (iii) a combination of cash and
Delivered Stock; (iv) by delivery of shares of corporate stock which are freely
tradeable 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 Plan Shares being purchased under the CSO ("Other
Shares"), or (v) a combination of cash, Delivered Stock and Other Shares. A CSO
shall be deemed exercised when written notice thereof, accompanied by the
appropriate payment in full, is received by the Company. No holder of a CSO
shall be, or have any of the rights and privileges of, a shareholder of the
Company in respect of any Plan Shares purchasable upon exercise of a CSO unless
and until certificates representing such shares shall have been issued by the
Company to him or her. The Committee shall have absolute discretion whether to
accept Other Shares offered and in valuing such shares.
8. Assignability.
No CSO shall be assignable or otherwise transferable except by will or
by operation of law, pursuant to a qualified domestic relations order (as
defined in Rule 16b-3 of the Securities and Exchange Commission, or any
successor rule), or pursuant to Title I of the Employee Retirement Income
Security Act of 1974, as amended (ERISA), or rules thereunder. No CSO 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 CSOs 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 or other
indebtedness, or any preferred or prior preference stocks senior to 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 any other corporate act or proceeding, whether of
a similar character or otherwise.
(b) The Plan Shares with respect to which CSOs 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
Plan Shares which are subject to CSOs granted hereunder, the Company shall
effect a split or combination of the Common Stock or other capital readjustment,
the payment of a Common Stock dividend, or recapitalization or other increase or
reduction of the number of shares of the Common Stock outstanding without
receiving compensation therefor in money, services or property, then the number
of Plan Shares available under this Plan and the number of Plan Shares with
respect to which CSOs granted hereunder may thereafter be exercised shall (i) in
the event of an increase in the number of outstanding shares of Common Stock, 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 of Common Stock, 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 in exchange for the
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Common Stock, there shall be substituted for the Plan Shares subject to the
unexercised portions of outstanding CSOs 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 the Common Stock in the case of a reorganization,
merger, consolidation or plan of exchange; provided, however, that all
outstanding CSOs may be cancelled 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 optionee or his personal
representative of its intention to do so and by permitting the purchase of all
the Plan Shares subject to such outstanding CSOs for a period of not less than
thirty (30) days during the sixty (60) days immediately preceding such effective
date.
(d) Except as expressly provided above, the Company's issuance of
shares of its capital stock of any class, or securities convertible into shares
of its capital 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 therefor, or upon conversion of shares or obligations of the Company
convertible into or exchangeable for shares of capital stock or other securities
of the Company, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of Plan Shares subject to CSOs granted
hereunder or the purchase price of such shares.
10. Purchase for Investment.
Unless the Plan Shares covered by this Plan have been registered under
the Act prior to issuance, each person exercising a CSO under this Plan may be
required by the Company to give a representation in writing that he is acquiring
such shares for his or her 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 shall be effective as of May 20,1998 the date of its
adoption by the Board, and no CSO shall be granted pursuant to this Plan after
its expiration. This Plan shall expire on May 19, 2008 except as to CSOs then
outstanding, which shall remain in effect until they have expired or been
exercised.
12. Amendments or Termination.
The Committee or 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 CSOs 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 CSO theretofore granted, without his consent
(unless made solely to conform such CSO to, and necessary because of, changes in
the foregoing laws, rules or regulations), and except that no amendment or
alteration shall be made without the approval of shareholders which would
increase the total number of shares reserved for the purposes of this Plan
(except as provided in Paragraph 9) or extend the expiration date of this Plan
as set forth in Paragraph 11.
13. Government Regulations.
This Plan, and the granting and exercise of CSOs hereunder, and the
obligation of the Company to sell and deliver Plan Shares under such CSOs, 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 or the Committee, nor any
officers, employees or agents 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.
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15. 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. Options 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 as a result of a 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 such other corporation
becomes an Affiliated Corporation.
16. Withholding Taxes.
Pursuant to applicable federal and state laws, the Company may be
required to collect withholding taxes upon the exercise of a CSO. The Company
may require, as a condition to the exercise of a CSO, that the optionee
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 optionee 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.
17. Definitions.
Whenever used in this Plan, except where the context might clearly
indicate otherwise, the following terms shall have the meanings set forth below:
(a) "Act" means the U.S. Securities Act of 1933, as amended.
(b) "Affiliated Corporation" means any Parent or Subsidiary of the
Company.
(c) "Award" or "grant" means any grant of a CSO (option) made under
this Plan.
(d) "Board of Directors" means the Board of Directors of the Company.
The term "Committee" is defined in Section 2 of this Plan.
(e) "Common Stock" or "Common Shares" means the common stock, no par
value per share, of the Company, or in the event that the outstanding Common
Shares are hereafter changed into or exchanged for different shares or
securities of the Company or any other issuer, such other shares or securities.
(f) "Date of Grant" means the day the Committee authorizes the grant
of a CSO or such later date as may be specified by the committee as the date a
particular grant will become effective.
(g) "Employee" means and includes the following persons: (i) executive
officers, officers and directors (including advisory and other special
directors) of the Company or an Affiliated Corporation; (ii) full-time and
part-time employees of the Company or an Affiliated Corporation; (iii) natural
persons engaged by the Company or an Affiliated Corporation as consultant,
advisor or agent; and (iv) a lawyer, law firm, accountant or accounting firm, or
other professional or professional firm engaged by the Company or an Affiliated
Corporation.
(h) "Optionee" means an Employee to whom a CSO is granted.
(i) "Parent" means any corporation owning 50% 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.
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(j) "Subsidiary" means a corporation more than 50% of whose total
combined capital stock of all classes held by the Company or by another
corporation qualifying as a Subsidiary within this definition.
SIGNATURE PAGE
By signature below, the undersigned officers of the Company hereby
certify that the foregoing is a true and correct copy of the 1998 Compensatory
Stock Option Plan of the Company.
DATED: May 20, 1998
EQUICAP, INC.
(SEAL)
By: /s/ Stephen M. Siedow
--------------------------------------
Stephen M. Siedow, President,
Chief Executive Officer and Treasurer
/s/ Orville L. Sandberg
X .................................
Orville L. Sandberg, Secretary
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CERTIFICATION OF PLAN ADOPTION
I, the undersigned Secretary of this corporation, hereby certify that
the foregoing 1998 Compensatory Stock Option Plan of this corporation was duly
approved by the requisite number of holders of the issued and outstanding common
stock of this corporation as of the below date.
Date of Approval: June 26, 1998
(SEAL)
/s/ Orville L. Sandberg
X................................
Orville L. Sandberg Secretary
