Exhibit 10.37
AMENDED AND RESTATED
LMI AEROSPACE, INC.
1998 STOCK OPTION PLAN
(Restated as of May 24, 2000)
I. Purpose of the Plan
The Amended and
Restated LMI Aerospace, Inc. 1998 Stock Option Plan (the “Plan”) is
intended to provide a means whereby employees and directors of LMI Aerospace,
Inc., a Missouri corporation (“LMI”), and its subsidiaries
(collectively, the “Company”) may develop a sense of proprietorship
and personal involvement in the development and financial success of the
Company, and to encourage them to remain with and devote their best efforts to
the business of the Company, thereby advancing the interests of the Company and
its stockholders. Accordingly, LMI may award to employees and directors of the
Company options (“Options”) to purchase shares of LMI’s common
stock, par value $0.02 per share (the “Stock”). Options may be either
nonqualified stock options (“NQSOs”) or options which are intended to
qualify as incentive stock options (“ISOs”) under Section 422 of the
Internal Revenue Code of 1986, as amended (the “Code”).
II. Term of Plan
The Plan was
initially approved and adopted by the directors of LMI on May 11, 1998 and
became effective as of such date. The Plan was amended and restated in its
entirety effective as of May 24, 2000. The Plan was originally approved and
adopted by the stockholders of LMI on May 11, 1998. The Plan shall remain in
effect until the earlier of ten years from the original effective date or the
earlier termination by the Board of Directors of LMI (the “Board”). If
the Plan is terminated by the Board, no Options may be awarded after the
effective date of such termination, but Options previously granted shall remain
outstanding in accordance with all applicable terms and conditions under which
they were granted and the terms and conditions of the Plan.
III. Plan Administration
The Plan shall
be administered by the Board or a committee consisting of at least two members
of the Board (the “Committee”); provided that so long as LMI is
subject to the reporting requirements of the Securities Exchange Act of 1934, as
amended (“1934 Act”), each member of the Committee shall be a
“Non-Employee Director” within the meaning of Rule 16b-3 under the
1934 Act, as such rule or its equivalent is then in effect (“Rule
16b-3”) and an “outside director,” within the meaning of Treas.
Reg. §§1.162-27(e)(3) or any successor thereto. Committee members
shall serve at the pleasure of the Board and may resign at any time by
delivering written notice to the Board. Vacancies in the Committee, however
caused, shall be filled by the Board. The Committee is authorized to interpret
the Plan and may from time to time adopt such rules and regulations, not
inconsistent with the provisions of the Plan, as it may deem advisable to carry
out the Plan. The Committee shall act by a majority of its members and the
Committee may act either by vote at a telephonic or other meeting or by a
memorandum or other written instrument signed by all of its members.
Subject to and
consistent with the terms, restrictions and limitations of the Plan, the
Committee shall have the sole authority to: (i) grant Options; (ii) determine
the terms and provisions of each agreement with an optionee pursuant to which
Options are granted under the Plan (an “Agreement”), including the
determination of the purchase price of the Stock covered by each Option (the
“Exercise Price”), the terms and duration of each Option, the
employees and directors to whom, and the times at which, Options shall be
granted, whether the Option shall be an NQSO or an ISO, and the number of shares
to be covered by each Option; (iii) prepare and distribute, in such manner as
the Committee determines to be appropriate, information about the Plan; and (iv)
make all other determinations deemed necessary or advisable for the
administration of the Plan. The Committee may vary the terms and provisions of
the individual Agreements in its discretion, and may fix such waiting and/or
vesting periods, exercise dates or other limitations as it shall deem
appropriate with respect to Options granted under the Plan including, without
limitation, the achievement of specific goals as a condition to vesting, and may
specify those conditions upon which such vesting provisions or exercise dates
may be accelerated. Notwithstanding the foregoing, the Committee is not
authorized to make any determination inconsistent with the requirements,
restrictions, prohibitions or limitations specified in the Plan.
The day-to-day
administration of the Plan may be carried out by such officers and employees of
the Company as shall be designated from time to time by the Committee. All
expenses and liabilities incurred by the Committee in connection with the
administration of the Plan shall be borne by the Company. The Committee may
employ attorneys, consultants, accountants, appraisers, brokers or other
persons, and the Committee, the Board, the Company and the directors, officers
and employees of the Company shall be entitled to rely upon the advice, opinions
or valuations of any such persons. The interpretation and construction by the
Committee of any provisions of the Plan and any determination by the Committee
under any provision of the Plan shall be final and conclusive for all purposes.
Neither the Committee nor any member thereof shall be liable for any act,
omission, interpretation, construction or determination made in connection with
the Plan in good faith, and the members of the Committee shall be entitled to
indemnification and reimbursement by the Company in respect of any claim, loss,
damage or expense (including counsel fees) arising therefrom to the fullest
extent permitted by law. The members of the Committee shall be named as insureds
in connection with any directors and officers liability insurance coverage that
may be in effect from time to time.
IV. Eligibility
Employees and
directors of the Company shall be eligible to receive Options under the Plan. In
granting Options to an employee, the Committee shall take into consideration the
contribution the employee has made or may make to the success of the Company and
such other considerations as the Committee shall determine. The Committee shall
also have the authority to consult with and receive recommendations from
officers and other employees of the Company with regard to these matters;
provided, however, that the Chief Executive Officer of the Company shall not
consult with or otherwise participate in any decision with respect to granting
of Options to such Chief Executive Officer. In no event shall any employee or
his or her legal representatives, heirs, legatees, distributees, or successors
have any right to participate in the Plan, except to such extent, if any, as the
Committee shall determine. All non-employee directors shall be granted Options
as provided in Article VI hereof.
V. Shares Subject to the Plan
Subject to
adjustment as provided in Article VII, the aggregate number of shares which may
be issued pursuant to the exercise of Options granted under the Plan shall not
exceed 900,000. Such shares may consist of authorized but unissued shares of
Stock or previously issued shares reacquired by LMI. Any of such shares which
remain unsold and which are not subject to outstanding Options at the
termination of the Plan shall cease to be subject to the Plan, but until
termination of the Plan and the expiration of all Options granted under the
Plan, LMI shall at all times reserve for issuance upon the exercise of Options
granted under the Plan a sufficient number of shares to meet the requirements of
the Plan and the outstanding Options. If any Option, in whole or in part,
terminates by expiration or for any other reason other than exercise, the shares
reserved for issuance upon exercise of such Option shall be available for later
grants under the Plan.
VI. Grants of Options
Options granted
under the Plan shall be of such type (ISO or NQSO), for such number of shares of
Stock, and subject to such terms and conditions as the Committee shall
designate. The Committee may grant Options to any eligible individual at any
time and from time to time during the term of the Plan as set forth in Article
II. For purposes of the Plan, the date on which an Option is granted is referred
to as the “Grant Date.”
To the extent
that the aggregate Market Value Per Share (determined at the Grant Date) of
Stock with respect to which ISOs (determined without regard to this sentence)
are exercisable for the first time by any individual during any calendar year
(under all plans of the Company) exceeds $100,000, such ISOs shall be treated as
NQSOs. The foregoing limitation on ISOs shall be applied by taking into account
the ISOs in the order in which they were granted.
Options granted
pursuant to the Plan shall be evidenced by Agreements that shall comply with and
be subject to the following terms and conditions and may contain such other
provisions, consistent with the Plan, as the Committee shall deem advisable.
References herein to “Agreements” shall include, to the extent
applicable, any amendments to such Agreements.
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A.
Payment of Option Exercise Price. Upon exercise of an Option, the full
Exercise Price for the shares with respect to which the Option is being
exercised shall be payable to the Company: (i) in cash or by check payable and
acceptable to the Company; (ii) by tendering to the Company shares of Stock
owned by the optionee having an aggregate Market Value Per Share (as defined
below) as of the date of exercise and tender that is not greater than the full
Exercise Price for the shares with respect to which the Option is being
exercised and by paying any remaining amount of the Exercise Price as provided
in (i) above; or (iii) subject to such instructions as the Committee may
specify, at the optionee’s written request the Company may deliver
certificates for the shares of Stock for which the Option is being exercised to
a broker for sale on behalf of the optionee, provided that the optionee has
irrevocably instructed such broker to remit directly to the Company on the
optionee’s behalf the full amount of the Exercise Price from the proceeds
of such sale. In the event the optionee elects to make payment as allowed under
clause (ii) above, the Committee may, upon confirming that the optionee owns the
number of shares of Stock being tendered, authorize the issuance of a new
certificate for the number of shares being acquired pursuant to the exercise of
the Option less the number of shares being tendered upon the exercise and return
to the optionee (or not require surrender of) the certificate for the shares of
Stock being tendered upon the exercise. Payment instruments will be received
subject to collection.
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B.
Number of Shares. Each Agreement shall state the total number of shares of Stock that
are subject to the Option.
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C.
Exercise Price. The Exercise Price for each Option shall be fixed by the Committee at
the Grant Date, but (i) in no event may the Exercise Price per share for shares of Stock subject to an
ISO be less than the Market Value Per Share (as defined below) on the Grant Date; and (ii) in no event
may the Exercise Price for shares of Stock subject to an ISO granted to an employee who owns (including
ownership through the attribution provisions of Section 424(d) of the Code) in excess of 10 percent of
the outstanding voting stock of the Company (a "10 percent Stockholder") be less than 110 percent of the
Market Value Per Share on the Grant Date.
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D.
Market Value Per Share. The “Market Value Per Share” as of any
particular date (“Date”) shall be determined as follows: (i) if the
Stock is listed for trading on a national or regional stock exchange or is
included in the NASDAQ National Market or Small-Cap Market, the closing selling
price quoted on such exchange or in such market which is published in The Wall
Street Journal for the trading day immediately preceding the Date, or if no
trade of the Stock shall have been reported for the Date, the closing price
quoted on such exchange or in such market which is published in The Wall Street
Journal for the next day prior thereto on which a trade of the Stock was
reported; or (ii) if the Stock is not so listed, admitted to trading or included
in such market, the average of the highest reported bid and lowest reported
asked prices as quoted in the “pink sheets” published by the National
Daily Quotation Bureau for the first day immediately preceding the Date on which
the Stock is traded. If shares of the Stock are not listed or admitted to
trading on any exchange, including either of such markets, or quoted in the
“pink sheets,” the “Market Value Per Share” shall be
determined by the Committee in good faith using any fair and reasonable means
selected in its discretion.
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E.
Term. The term of each Option shall be determined by the Committee at the Grant Date;
provided, however, that each Option shall, notwithstanding anything in the Plan or an Agreement to the
contrary, expire not more than ten years (five years with respect to an ISO granted to an employee who
is a 10 percent Stockholder) from the Grant Date or, if earlier, the date specified in the Agreement.
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F.
Terms Governing Exercise. In the discretion of the Committee, each
Agreement may contain provisions stating that the Option granted therein may not
be exercised in whole or in part for a period or periods of time or until the
achievement of specific goals, in either case as specified in such Agreement.
Except as so specified therein, any Option may be exercised in whole at any time
or in part from time to time during its term, provided that in no event shall an
Option, or any portion thereof, be exercisable until at least six months after
the date of grant of such Option. No ISO granted to a 10 percent Stockholder may
be exercisable later than five years from the Grant Date.
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G.
Termination of Employment. If an individual's employment with the Company shall
terminate for a reason other than: (i) retirement in accordance with the terms of a retirement plan or
policy of LMI or one of its subsidiaries ("Retirement"); (ii) "Permanent Disability" (as defined in
Section 22(e)(3) of the Code); or (iii) death, the individual's Options and all unexercised rights
thereunder shall expire and automatically terminate.
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If
termination of employment is due to Retirement or permanent disability, the
individual shall have the right to exercise any Option at any time within the
12-month period (three-month period in the case of Retirement for Options that
are ISOs) following such termination of employment or the expiration date of
such Option, whichever shall first occur, provided that such Option shall be
exercisable only to the extent it was exercisable immediately prior to such
termination of employment.
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Whether
any termination of employment is due to Retirement or permanent disability and
whether an authorized leave of absence or absence for military or government
service or for other reasons shall constitute a termination of employment for
purposes of the Plan shall be determined by the Committee in its sole
discretion.
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If
an individual shall die while entitled to exercise an Option, the
individual’s estate, personal representative or beneficiary, as the case
may be, shall have the right to exercise the Option at any time within the
12-month period following the date of the optionee’s death or the
expiration date of such Option, whichever shall first occur, provided that such
Option shall be exercisable only to the extent that the optionee was entitled to
exercise the same on the day immediately prior to the optionee’s death.
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Non-qualified
stock options shall be granted to each non-employee director of the Company to
purchase 3,000 shares of Stock non-qualified stock options each year coincident
with the annual meeting of the shareholders of the Company. The Exercise Price
for such Option shall be the Market Value Per Share as of the date of the annual
meeting of shareholders. The term of any such Option shall be 10 years from date
of grant and such Option shall be fully exercisable upon grant. Except as
provided in Section G of this Article VI with respect to death and disability,
any Option granted to a non-employee director shall terminate upon the earlier
of the expiration of the term of the Option or the termination of the
optionee’s status as a director of the Company.
Options may be
granted under the Plan from time to time in substitution for stock options and
stock appreciation rights held by employees of corporations other than the
Company who become employees of the Company as a result of a merger or
consolidation of such other corporation with any entity within the Company, the
acquisition by any entity within the Company of assets of such other
corporation, or the acquisition by any entity within the Company of stock of
such other corporation with the result that such other corporation becomes a
subsidiary of an entity within the Company.
VII. Changes in Capital Structure – Change
in Control
A. Changes in
Capital Structure. The existence of the Plan and the Options granted
hereunder shall not affect in any way the right or power of the Board or the
stockholders of LMI to make or authorize any adjustment, recapitalization,
reorganization or other change in LMI’s capital structure or its business,
any merger or consolidation of LMI, any issuance of bonds, debentures, preferred
or prior preference stocks ahead of or affecting the Stock or the rights
thereof, the dissolution or liquidation of LMI or any sale or transfer of all or
any part of its assets or business, or any other corporate act or proceeding.
The shares with
respect to which Options may be granted are shares of Stock as presently
constituted, but if, and whenever, prior to the termination of the Plan or the
expiration of an Option theretofore granted, LMI shall effect a subdivision or
consolidation of shares of Stock or the payment of a stock dividend on Stock
without receipt of consideration by LMI, the remaining shares of Stock available
under the Plan and the number of shares of Stock with respect to which such
Option may thereafter be exercised: (i) in the event of an increase in the
number of outstanding shares, shall be proportionately increased and the
Exercise Price per share shall be proportionately reduced; and (ii) in the event
of a reduction in the number of outstanding shares, shall be proportionately
reduced and the Exercise Price per share shall be proportionately increased,
such that there shall be no change in the aggregate Exercise Price applicable to
the unexercised portion of the Option. Adjustments under this Article VII shall
be made by the Committee, whose determination as to what adjustments shall be
made, and the extent thereof, shall be final, binding and conclusive. No
fractional shares of Stock shall be issued under the Plan or in connection with
any such adjustment.
Except as may
otherwise be expressly provided in the Plan, the issuance by LMI of shares of
capital stock of any class or securities convertible into shares of capital
stock of any class for cash, property, labor, or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of LMI convertible into such shares of
capital stock or other securities, and in any case whether or not for fair
value, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number of shares of Stock available under the Plan or subject to
Options theretofore granted or the Exercise Price per share with respect to
outstanding Options.
If LMI effects a
recapitalization or otherwise materially changes its capital structure (both of
the foregoing are herein referred to as a “Fundamental Change”), then
thereafter upon any exercise of an Option granted before the Fundamental Change
the Optionee shall be entitled to purchase under such Option, in lieu of the
number of shares of Stock as to which such Option shall then be exercisable, the
number and class of shares of capital stock and securities to which the optionee
would have been entitled pursuant to the terms of the Fundamental Change if,
immediately prior to such Fundamental Change, the Optionee had been the holder
of record of the number of shares of Stock as to which such Option is then
exercisable.
Notwithstanding
anything to the contrary contained in this Article VII, upon the dissolution or
liquidation of LMI, or upon a reorganization, merger or consolidation of LMI
with one or more corporations as a result of which LMI is not the surviving
corporation (or, in the case of a three party merger where LMI, while the
surviving corporation, becomes a subsidiary of another corporation), or upon a
sale of substantially all of the assets of LMI, then the Plan shall terminate,
and any Options granted under the Plan shall terminate simultaneously with the
consummation of any such transaction (a “Control Transaction”),
provided, however, that upon the execution by the Company of an agreement
providing for or the recommendation of the Company with respect to, a Control
Transaction, all restrictions with respect to the exercisability of outstanding
Options shall lapse and each such Option shall be exercisable in full.
Notwithstanding the foregoing, if the provision shall be made in writing in
connection with the Control Transaction in question for the continuance of the
Plan, for the assumption of Options previously granted, or the substitution for
such Options with new options to purchase the stock of a successor corporation,
or parent or subsidiary thereof, with appropriate adjustments as to number and
kind of shares and the option price, Options previously granted shall continue
in the manner and under the terms so provided; provided, however, that the
Committee or the Board shall have the authority to amend this Article to require
that a successor assume all obligations under any outstanding Options.
B. Change in
Control. Notwithstanding any other provision of this Plan, if the terms of
the agreement under which the Committee has granted an option hereunder
(“Subject Option Agreement”) shall so provide, upon a “Change in
Control” (as hereinafter defined), any outstanding and unexercised Options
granted under a Subject Option Agreement shall become immediately and fully
exercisable, and shall remain exercisable until it would otherwise expire by
reason of lapse of time.
For purposes of
this Plan, the term “Change in Control” shall mean a change in the
control of the Company of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
1934 Act; provided that, for purposes of this Plan, a Change in Control shall be
deemed to have occurred if (i) any person, corporation (other than the Company),
partnership, trust, association, pool, syndicate organization or other entity
(each, a “Person”) or group of Persons acting in concert is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, of securities of the Company which represent more than
twenty-five percent (25%) of the combined voting power of the Company’s
then outstanding securities; (ii) during any period of two (2) consecutive
years, individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof, unless the
election, or the nomination for election, by the Company’s stockholders, of
each new director is approved by a vote of at least two-thirds (2/3) of the
directors then still in office who were directors at the beginning of the period
but excluding any individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such term is used
in Rule 14a-11 of Regulation 14A promulgated under the 1934 Act) or other actual
or threatened solicitation of proxies or consents by or on behalf of a person
other than the Board; (iii) there is consummated any consolidation or merger of
the Company in which the Company is not the continuing or surviving corporation
or pursuant to which shares of Common Stock are converted into cash, securities
or other property, other than a merger of the Company in which the holders of
Common Stock immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately after the
merger; (iv) there is consummated any consolidation or merger of the Company in
which the Company is the continuing or surviving corporation in which the
holders of Common Stock immediately prior to the merger do not own more than
fifty percent (50%) of the voting capital stock of the surviving corporation
immediately after the merger; (v) there is consummated any sale, lease,
exchange, or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company; or
(vi) the stockholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company.
VIII. Optionee’s Agreement
If, at the time of the exercise of any Option, in the opinion of counsel for LMI, it is
necessary or desirable, in order to comply with any then applicable laws or regulations relating to the sale of
securities, for the individual exercising the Option to agree to hold any shares issued to the individual for
investment and without intention to resell or distribute the same and for the individual to agree to dispose of
such shares only in compliance with such laws and regulations, the individual shall be required, upon the request
of LMI, to execute and deliver to LMI, an agreement to such effect.
IX. Amendment and Termination
Subject to any
requirement of stockholder approval contained in Section 422 of the Code or Rule
16b-3, the Board may from time to time and at any time alter, amend, suspend,
discontinue or terminate this Plan and any Options hereunder; provided, that no
change in any Option granted before such time may be made which would impair the
rights of the optionee without the consent of such optionee.
X. Preemption by Applicable Laws and Regulations
Anything in the
Plan or any Agreement entered into pursuant to the Plan to the contrary
notwithstanding, if, at any time specified in the Plan or in any Agreement for
the making of any determination with respect to the issuance or other
distribution of shares of Stock, any law, regulation or requirement of any
governmental authority having jurisdiction in the premises shall require either
LMI or the Optionee (or the Optionee’s beneficiary), as the case may be, to
take any action in connection with any such determination, the issuance or
distribution of such shares or the making of such determination shall be
deferred until such action shall have been taken.
XI. Miscellaneous
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A.
No Employment Contract. Nothing contained in the Plan shall be construed as
conferring upon any employee the right to continue in the employ of the Company.
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B.
Employment with Subsidiaries. Employment by the Company for the purpose of this Plan
shall be deemed to include employment by, and to continue during any period in which an employee is in
the employment of, any subsidiary of LMI.
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C.
No Rights as a Stockholder. An Optionee shall have no rights as a
stockholder with respect to shares issuable upon exercise of an Option until the
date of the issuance of shares to the Optionee pursuant to such exercise. No
adjustment will be made for dividends or other distributions or rights for which
the record date is prior to the date of such issuance.
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D.
No Right to Corporate Assets. Nothing contained in the Plan shall be
construed as giving any Optionee, such Optionee ‘s beneficiaries, or any
other person any equity or other interest of any kind in any assets of LMI or
any subsidiary or creating a trust of any kind or a fiduciary relationship of
any kind between LMI or any subsidiary and any such person.
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E.
No Restriction on Corporate Action. Nothing contained in the Plan shall
be construed to prevent LMI or any subsidiary from taking any corporate action
that is deemed by it to be appropriate or in its best interests, whether or not
such action would have an adverse effect on the Plan or any Option granted under
the Plan. No Optionee, beneficiary or other person shall have any claim against
LMI or any subsidiary as a result of any such action.
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F.
Non-Assignability. Neither an Optionee nor an Optionee's beneficiary shall have the
power or right to sell, exchange, pledge, transfer, assign or otherwise encumber or dispose of such
employee's or beneficiary's interest arising under the Plan or any Option granted under the Plan; nor
shall such interest be subject to seizure for the payment of an employee's or beneficiary's debts,
judgments, alimony, or separate maintenance or be transferable by operation of law in the event of an
Optionee's or beneficiary's bankruptcy or insolvency and to the extent any such interest arising under
the Plan or an Option granted under the Plan is awarded to a spouse pursuant to any divorce proceeding,
such interest shall be deemed to be terminated and forfeited notwithstanding any vesting provisions or
other terms herein or in the Agreement evidencing such Option.
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G.
Privilege of Stock Ownership. No person entitled to exercise any Option
granted under the Plan shall have rights or privileges of a stockholder of the
Company for any shares of Stock issuable upon exercise of such Option until such
person has become the holder of record of such shares.
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H.
Application of Funds. The proceeds received by the Company from the sale of shares of
Stock pursuant to the Plan shall be used for general corporate purposes.
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I.
Governing Law; Construction. All rights and obligations under the Plan shall be
governed by, and the Plan shall be construed in accordance with, the laws of the State of Missouri
without regard to the law of conflicts. Titles and headings to articles in the Plan are for purposes of
reference only, and shall in no way limit, define or otherwise affect the meaning or interpretation of
any provisions of the Plan.
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J.
Tax Withholding. The Company shall have the right to take all necessary
action to satisfy applicable obligations to withhold amounts pursuant to
federal, state, or local tax law, including, without limitation, the deduction
from shares of Stock delivered to an Optionee upon exercise of NQSO shares
having an aggregate value equal to or less than the amount required to be
withheld. The Committee may permit Optionees to elect whether to pay cash or to
use shares of Stock to satisfy tax withholding requirements. Shares so used
shall be valued at the Market Value Per Share as of the date of the event
triggering a withholding obligation.
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