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EXHIBIT 10.01
eROOMSYSTEM TECHNOLOGIES, INC.
2000 STOCK OPTION AND INCENTIVE PLAN
AS ADOPTED BY THE BOARD OF DIRECTORS ON FEBRUARY 3, 2000
AS APPROVED BY THE STOCKHOLDERS ON MARCH 28, 2000
AS AMENDED AND RESTATED ON JUNE 6, 2000
1. PURPOSE
The purpose of this eRoomSystem Technologies, Inc. 2000 Stock Option
and Incentive Plan (this "Plan") is to further the interests of the Company, by
providing selected employees, directors, independent contractors and advisors,
upon whose judgment, initiative and effort the Company is largely dependent for
the successful conduct of its business, the opportunity to participate in a
stock option and incentive plan designed to reward them for their services and
to encourage them to continue in the employee or service of the Company. This
Plan provides for both the direct award or sale of Shares and for the grant of
Options to purchase Shares. Options granted under this Plan may include
Nonstatutory Options as well as Incentive Options intended to qualify under
Section 422 of the Code.
2. DEFINITIONS
For all purposes of this Plan, the following definitions shall apply:
(a) "BOARD" shall mean the Board of Directors of the Company, as
constituted from time to time.
(b) "CHANGE IN CONTROL" shall mean the occurrence of either of the
following events: (i) any "person" (as that term is used in Section 13(d) and
14(d) of the Exchange Act) becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of the Company's
then outstanding securities ordinarily having the right to vote at the election
of directors; or (ii) individuals who constitute the Board on the date hereof
(the "Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by at least a majority of the then remaining
directors comprising the Incumbent Board, or whose nomination or election was
approved by a majority of the board of directors of the Company serving under an
Incumbent Board, shall be, for purposes of this clause (ii), considered as if he
or she were a member of the Incumbent Board; or (iii) the approval by the
Company's stockholders of the merger or consolidation of the Company with any
other corporation or business organization, the sale of all or substantially all
the assets of the Company, or the liquidation or dissolution of the Company; or
(iv) a proxy statement is distributed soliciting proxies from the stockholders
of the Company seeking stockholder approval of a plan of reorganization, merger
or consolidation of the Company with one or more corporations, as a result of
which the outstanding shares of the Company's securities are actually exchanged
for or converted into cash or property or securities not issued by the Company;
or (v) at least a majority of the Incumbent Board who are in office immediately
prior to any action proposed to be taken by the Company determine that such
proposed action, if taken, would constitute a change of control of the Company
and such action is taken. For purposes of Subsection 2(b)(i) only, the term
"person" shall not include Steven L. Sunyich or his immediate family or any of
their affiliates, or any employee benefit plan maintained by the Company.
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(c) "CODE" shall mean the Internal Revenue Code of 1986, as amended,
together with the regulations promulgated thereunder.
(d) "COMMITTEE" shall mean the committee designated by the Board, which
is authorized to administer this Plan in accordance with Section 3 hereof. The
Committee shall be composed solely of two or more Non-Employee Directors and
otherwise have such membership composition which enables the Options or other
rights granted under this Plan to qualify for exemption under Rule 16b-3 with
respect to persons who are subject to Section 16 of the Exchange Act. Each
member of the Committee shall serve at the pleasure of the Board. If no
Committee is designated by the Board, the Board collectively shall act as the
Committee and administer this Plan.
(e) "COMMON STOCK" shall mean the Company's common stock, $.001 par
value.
(f) "COMPANY" shall mean eRoomSystem Technologies, Inc., a Nevada
corporation.
(g) "EMPLOYEE" shall mean any individual who is a full-time employee of
the Company or a Subsidiary.
(h) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any successor rule.
(i) "EXERCISE PRICE" shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee in the
Option Grant.
(j) "FAIR MARKET VALUE" shall mean (i) the closing price of a Share on
the principal exchange (including the Nasdaq National Market or a successor
quotation system) on which Common Stock is trading or quoted, on the date on
which the Fair Market Value is determined (if Fair Market Value is determined on
a date which the principal exchange is closed, Fair Market Value shall be
determined on the last immediately preceding trading day), or (ii) if Common
Stock is not traded on an exchange or quoted on the Nasdaq National Market or a
successor quotation system, the fair market value of a Share as determined by
the Committee in good faith. Notwithstanding any provision of this Plan to the
contrary, no determination made with respect to the Fair Market Value of a Share
subject to an Incentive Option shall be inconsistent with Section 422 of the
Code.
(k) "IMMEDIATE FAMILY" shall mean, with respect to a particular
Optionee, the Optionee's spouse, children or grandchildren (including adopted
and step children and grandchildren).
(l) "INCENTIVE OPTION" shall mean an option granted under this Plan
which is designated and qualified as an incentive stock option within the
meaning of Section 422 of the Code. Neither the Committee, the Board nor the
Company shall have any liability if an Option or any part thereof that is
intended to be an Incentive Option does not qualify as such. An Option or any
part thereof that does not qualify as an Incentive Option is referred to herein
as a Nonstatutory Option.
(m) "NON-EMPLOYEE DIRECTOR" shall have the meaning set forth in Rule
16b-3 promulgated by the Securities and Exchange Commission pursuant to the
Exchange Act.
(n) "NONSTATUTORY OPTION" shall mean an option (or warrant for any
person other than an Employee or Non-Employee Director) granted under this Plan
which is designated as a non-qualified stock option and which does not qualify
as an incentive stock option within the meaning of Section 422 of the Code.
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(o) "OFFEREE" shall mean any person who has been offered the right to
acquire Shares under this Plan (other than upon exercise of an Option).
(p) "OPTION" shall mean an Incentive Option or a Nonstatutory Option.
(q) "OPTION GRANT" shall mean the written instrument which contains the
terms, conditions and restrictions pertaining to each Option granted to an
Optionee.
(r) "OPTIONEE" shall mean any person who has been granted an Option
under this Plan.
(s) "PERMANENT DISABILITY" shall mean a permanent and total disability
within the meaning of Section 22(e)(3) of the Code.
(t) "PLAN" shall mean this eRoomSystem Technologies, Inc. 2000 Stock
Option and Incentive Plan, as amended from time to time.
(u) "PURCHASE PRICE" shall mean the consideration for which one Share
may be acquired under this Plan (other than upon exercise of an Option), as
specified by the Committee.
(v) "RELATIONSHIP" shall mean any individual who is (i) an Employee of
the Company or a Subsidiary, (ii) a member or a member designee of the Board, or
(iii) an independent contractor or advisor who performs services for the Company
or a Subsidiary.
(w) "SHARE" shall mean one share of Common Stock, as adjusted in
accordance with Section 9 (if applicable).
(x) "SHARE AWARD" shall mean the written instrument which contains the
terms, conditions and restrictions pertaining to each award or sale of Shares to
an Offeree.
(y) "SUBSIDIARY" shall mean any company or entity of which the Company
owns, directly or indirectly, the majority of the combined voting power of all
classes of stock.
(z) "TERMINATION FOR CAUSE" shall mean the termination of the
employment or service of an individual with the Company, whether voluntary or
involuntary, that is determined by the Committee, in its sole discretion, to
have resulted from (i) the unauthorized use or disclosure of the confidential
information or trade secretes of the Company, which use or disclosure causes
harm to the Company, (ii) the conviction of, or plea of "guilty" or "no contest"
to, a felony under the laws of the United States or any state thereof, (iii)
gross negligence, or (iv) continued failure to perform assigned duties after
receiving written notification from the Board. The foregoing, however, shall not
be deemed to be an exclusive list of all acts or omissions that the Committee
may consider as grounds for Termination for Cause.
3. ADMINISTRATION
(a) COMMITTEE PROCEDURES. The Board of Directors shall designate one of
the members of the Committee as chairman. The Committee may hold meetings at
such times and places as it shall determine. The acts of a majority of the
Committee members present at meetings at which a quorum exists, or acts reduced
to or approved in writing by all Committee members, shall be valid acts of the
Committee.
(b) COMMITTEE RESPONSIBILITIES. Subject to the provisions of this Plan,
the Committee shall have full authority and discretion to take the following
actions:
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(i) To interpret this Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms
relating to this Plan;
(iii) To authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of this
Plan;
(iv) To determine when Shares are to be awarded or offered for
sale and when Options are to be granted under this Plan;
(v) To select the Offerees and Optionees;
(vi) To determine the number of Shares to be offered to each
Offeree or to be made subject to each Option;
(vii) To prescribe the terms, restrictions and conditions of each
award or sale of Shares, including, without limitation, the Purchase
Price and the vesting of the award (including accelerating the vesting
of awards);
(viii) To prescribe the terms, restrictions and conditions of
each Option, including, without limitation, the Exercise Price and the
vesting or duration of the Option (including accelerating the vesting
of the Option), and to determine whether such Option is to be
classified as an Incentive Option or as a Nonstatutory Option;
(ix) To amend any outstanding Share Award or Option Grant,
subject to the limitations of this Plan;
(x) To correct any defect, supply any omission, or reconcile any
inconsistency in this Plan or any Option or other right granted under
this Plan; and
(xi) To take any other actions or make any other determinations
or interpretations deemed necessary or advisable for the
administration of this Plan.
(c) INDEMNIFICATION. No member of the Committee shall be liable for any
action that he has taken or has failed to take in good faith with respect to
this Plan, any Option, or any right to acquire Shares under this Plan. Service
on the Committee shall constitute service as a director of the Company so that a
member of the Committee shall be entitled to indemnification and reimbursement
as a director of the Company to the full extent allowable under its governing
instruments and applicable law.
(d) OTHER. Subject to the requirements of applicable law, the Committee
may designate persons other than members of the Committee to carry out its
responsibilities and may prescribe such conditions and limitations as it may
deem appropriate, except that the Committee may not delegate its authority with
regard to the selection for participation of or the granting of Options or other
rights under this Plan to persons subject to Section 16 of the Exchange Act. All
decisions, interpretations and other actions of the Committee shall be final and
binding on all Offerees, all Optionees, and all persons deriving their rights
from an Offeree or Optionee.
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4. ELIGIBILITY
(a) GENERAL RULE. Nonstatutory Options may be granted to any individual
who has a Relationship with the Company or a Subsidiary. Incentive Options may
be granted to any Employee of the Company or a Subsidiary.
(b) NON-EMPLOYEE DIRECTORS. Notwithstanding any provision of this Plan
to the contrary, the participation of Non-Employee Directors in this Plan shall
be subject to the following restrictions:
(i) Non-Employee Directors shall only be eligible for the grant
of Nonstatutory Options as described in this Section 4(b);
(ii) To the extent not previously granted under a separate plan
or option, each Non-Employee Director shall automatically be granted a
Nonstatutory Option to purchase 5,000 Shares (subject to adjustment
under Section 9) as a result of their appointment as an Non-Employee
Director on, or after, the effectiveness of the Company's initial
public offering of Common Stock. In addition, upon the conclusion of
each regular annual meeting of the Company's stockholders occurring
after 2000 and following the meeting at which they were appointed,
each Non-Employee Director who continues serving as a member of the
Board thereafter shall receive a Nonstatutory Option to purchase 5,000
Shares (subject to adjustment under Section 9). All such Nonstatutory
Options shall vest and become exercisable at the date of grant;
(iii) The Exercise Price of all Nonstatutory Options granted to a
Non-Employee Director under this Section 4(b) shall be equal to 100
percent of the Fair Market Value of a Share on the date of grant,
payable in one of the forms described in Sections 8(a), (b) and (d);
and
(iv) All Nonstatutory Options granted to a Non-Employee Director
under this Section 4(b) shall terminate on the earliest of (A) the
tenth anniversary of the date of grant of such Options or (B) the date
twelve months after the termination of such Non-Employee Director's
service for any reason.
(c) Reserved.
(d) TEN-PERCENT STOCKHOLDERS. An Employee who owns more than ten
percent of the total combined voting power of all classes of outstanding stock
of the Company or any of its Subsidiaries shall not be eligible for the grant of
an Incentive Option unless such grant satisfies the requirements of Section
422(c)(6) of the Code.
(e) ATTRIBUTION RULES. For purposes of Subsection (d) above, in
determining stock ownership, an Employee shall be deemed to own the stock owned,
directly or indirectly, by or for his brothers, sisters, spouse, ancestors and
lineal descendants. Stock owned, directly or indirectly, by or for a company,
corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its members, shareholders, partners or beneficiaries.
(f) OUTSTANDING STOCK. For purposes of Subsection (d) above,
"outstanding stock" shall include all stock actually issued and outstanding
immediately after the grant. "Outstanding stock" shall not include shares
authorized for issuance under outstanding options held by the Employee or by any
other person.
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5. STOCK SUBJECT TO THIS PLAN
(a) BASIC LIMITATION. Shares offered under this Plan shall be
authorized but unissued Shares or treasury Shares. Two million (2,000,000)
Shares have been reserved for issuance under this Plan (upon exercise of Options
or other rights to acquire Shares). The aggregate number of Shares which may be
issued under this Plan shall at all times be subject to adjustment pursuant to
Section 9. The number of Shares which are subject to Options or other rights
outstanding at any time under this Plan shall not exceed the number of Shares
which then remain available for issuance under this Plan. The Company, during
the term of this Plan, shall at all times reserve and keep available sufficient
Shares to satisfy the requirements of this Plan.
(b) ADDITIONAL SHARES. In the event that any outstanding Option or
other right for any reason expires or is canceled or otherwise terminated, the
Shares allocable to the unexercised portion of such Option or other right shall
again be available for the purposes of this Plan. If Shares are forfeited before
any dividends have been paid with respect to the Shares, then such Shares shall
again be available for award or sale under this Plan.
6. TERMS AND CONDITIONS OF OPTIONS
(a) OPTION GRANT. Each grant of an Option under this Plan shall be
evidenced by an Option Grant approved by the Committee. Such Option shall be
subject to all applicable terms and conditions of this Plan and may be subject
to any other terms and conditions which are not inconsistent with this Plan and
which the Committee deems appropriate for inclusion in an Option Grant. The
provisions of the various Option Grants entered into under this Plan need not be
identical. In no event shall the aggregate fair market value (determined as of
the time the Incentive Option is granted) of the Shares with respect to which
Incentive Options (granted under this Plan or any other plans of the Company)
are exercisable for the first time by an Optionee in any calendar year exceed
$100,000. No Incentive Option shall be granted pursuant to this Plan after ten
years from the earlier of the date of adoption of this Plan by the Board or the
date of approval of this Plan by the Company's stockholders.
(b) NUMBER OF SHARES. Each Option Grant shall specify the number of
Shares that are subject to the Option. The Option Grant shall also specify
whether the Option is a Nonstatutory Option or an Incentive Option.
(c) EXERCISE PRICE. Each Option Grant shall specify the Exercise Price.
The Exercise Price of an Incentive Option shall not be less than 100 percent of
the Fair Market Value of a Share on the date of grant, except as otherwise
provided in Section 4(d). Subject to the preceding sentence, the Exercise Price
under any Option shall be determined by the Committee at its sole discretion.
The Exercise Price shall be payable in one or the forms described in Sections
8(a), (b) and (d).
(d) WITHHOLDING TAXES. As a condition to the exercise of an Option, the
Optionee shall make such arrangements as the Committee may require for the
satisfaction of any federal, state or local withholding tax obligations that may
arise in connection with such exercise. The Optionee shall also make such
arrangements as the Committee may require for the satisfaction of any federal,
state or local withholding tax obligations that may arise in connection with the
disposition of Shares acquired by exercising an Option.
(e) EXERCISABILITY AND TERM. Each Option Grant shall specify the date
when all or any installment of the Option is to become exercisable. An Option
may be exercised only by delivery to the Company of a written notice of exercise
signed by the proper person together with payment in full for the number of
Shares which the Option is exercised. The Option Grant shall also specify the
term of the
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Option. The term shall not exceed ten years from the date of grant (five years
for Employees described in Section 4(d)). Subject to the preceding three
sentences, the Committee at its sole discretion shall determine when all or any
installment of an Option is to become exercisable and when an Option is to
expire. Notwithstanding anything to the contrary herein, no Option will be
exercisable (and any attempted exercise will be deemed null and void) if such
exercise would create a right of recovery for "short-swing profits" under
Section 16(b) of the Exchange Act. This Section 6(e)(ii) is intended to protect
persons subject to Section 16(b) against inadvertent violations of Section 16(b)
and shall not apply with respect to any particular exercise of an Option if this
Section 6(e)(ii) is expressly waived in writing by the Optionee at the time of
such exercise.
(f) TERMINATION OF RELATIONSHIP. Except as the Committee may otherwise
determine at any time with respect to any particular Nonstatutory Option granted
hereunder:
(i) If an Optionee ceases to have a Relationship for any
reason other than his death or Permanent Disability, any Options
granted to him shall terminate ninety days from the date on which such
Relationship terminates. During the ninety day period, the Optionee may
exercise any Option granted to him but only to the extent such Option
was exercisable on the date of termination of his Relationship and
provided that such Option has not previously expired by its own terms
or otherwise terminated as provided herein. A leave of absence approved
in writing by the Committee shall not be deemed a termination of
Relationship for purposes of this Section 6(f), but no Option may be
exercised during any such leave of absence, except during the first
ninety days thereof.
(ii) For purposes hereof, termination of an Optionee's
Relationship for reasons other than death or Permanent Disability shall
be deemed to take place upon the earliest to occur of the following:
(w) the date of the Optionee's retirement from employment under the
normal retirement policies of the Company; (x) the date of the
Optionee's retirement from employment with the approval of the
Committee because of disability (other than Permanent Disability); (y)
the date the Optionee receives notice or advice that his employment or
other Relationship is terminated; or (z) the date the Optionee ceases
to render the services which he was employed, engaged or retained to
render to the Company (absences for temporary illness, emergencies and
vacations or leaves of absence approved in writing by the Committee
excepted). The fact that the Optionee may receive payment from the
Company after termination for vacation pay, for services rendered prior
to termination, for salary in lieu of notice or for other benefits
shall not affect the termination date.
(iii) Notwithstanding anything in this Plan to the contrary,
no Option may be exercised or claimed by Optionee following the
termination of his Relationship as a result of a Termination for Cause,
and no Option may be exercised or claimed while the Optionee is being
investigated for a Termination for Cause.
(g) DEATH OR PERMANENT DISABILITY OF OPTIONEE. Except as the Committee
may otherwise determine at any time with respect to any particular Nonstatutory
Option granted hereunder, if an Optionee shall die at a time when he is in a
Relationship or if the Optionee shall cease to have a Relationship by reason of
Permanent Disability, any Options granted to him shall terminate one year after
the date of his death or termination of Relationship due to Permanent Disability
unless by its terms it shall expire before such date or otherwise terminate
earlier as provided herein, and shall only be exercisable to the extent that it
would have been exercisable on the date of his death or his termination of
Relationship due to Permanent Disability. In the case of death, the Option may
be exercised by the person or persons to whom the Optionee's rights under the
Option shall pass by will or by the laws of descent and distribution.
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(h) PRIVILEGES OF STOCK OWNERSHIP. No person entitled to exercise any
Option granted under this Plan shall have any of the rights or privileges of a
stockholder of the Company with respect to any Shares issuable upon exercise of
such Option until such person has become the holder of record of such Shares. No
adjustment shall be made for dividends or distributions of rights in respect of
such Shares if the record date is prior to the date on which such person becomes
the holder of record, except as provided in Section 9 hereof.
(i) AMENDMENT OF OPTIONS. The Committee may amend, modify, extend,
renew or terminate outstanding Options or may accept the cancellation of
outstanding Options (to the extent not previously exercised), whether or not
granted hereunder, in return for the grant of new Options at the same or a
different price. The Committee may shorten the vesting period, extend the
exercise period, remove any or all restrictions or convert an Incentive Option
to a Nonstatutory Option, if, in its sole discretion, the Committee determines
that such action is in the best interests of the Company. The foregoing
notwithstanding, the Optionee's consent to any such action shall be required
unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Optionee.
(j) RESTRICTIONS ON TRANSFER OF SHARES. Any Shares issued upon exercise
of an Option shall be subject to such special forfeiture conditions, rights of
repurchase, rights of first refusal and other transfer restrictions as the
Committee may determine. Such restrictions shall be set forth in the applicable
Option Grant and shall apply in addition to any general restrictions that may
apply to all holders of Shares. Each certificate representing any Shares issued
upon exercise of an Option shall bear a legend making appropriate reference to
the restrictions imposed on the Shares.
7. TERMS AND CONDITIONS OF AWARDS OR SALES
(a) SHARE AWARD. Each award or sale of Shares under this Plan (other
than upon exercise of an Option) shall be evidenced by a Share Award approved by
the Committee. Such award or sale shall be subject to all applicable terms and
conditions of this Plan and may be subject to any other terms and conditions
which are not inconsistent with this Plan and which the Committee deems
appropriate for inclusion in a Share Award. The provisions of the various Share
Awards entered into under this Plan need not be identical.
(b) DURATION OF OFFERS AND NONTRANSFERABILITY OF RIGHTS. Any right to
acquire Shares under this Plan (other than an Option) shall automatically expire
if not exercised by the Offeree within thirty days after the grant of such right
was communicated to the Offeree by the Committee. Such right shall not be
transferable and shall be exercisable only by the Offeree to whom such right was
granted.
(c) PURCHASE PRICE. The Purchase Price shall be determined by the
Committee at its sole discretion. The Purchase Price shall be payable in one of
the forms described in Sections 8(a), (b) or (c).
(d) WITHHOLDING TAXES. As a condition to the receipt or purchase of
Shares, the Offeree shall make such arrangements as the Committee may require
for the satisfaction of any federal, state or local withholding tax obligations
that may arise in connection with a recognition of income from such Shares
(either on the date of grant or the date the restrictions lapse).
(e) AMENDMENT OF SHARE AWARDS. The Committee may amend, modify or
terminate any outstanding Share Awards. The Committee may shorten the vesting
period or remove any or all restrictions if, in its sole discretion, the
Committee determines that such action is in the best interests of the Company.
The foregoing notwithstanding, the Offeree's consent to any such action shall be
required
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unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Offeree.
(f) RESTRICTIONS ON TRANSFER OF SHARES. Any Shares awarded or sold
under this Plan shall be subject to such special forfeiture conditions, rights
of repurchase, rights of first refusal and other transfer restrictions as the
Committee may determine. Such restrictions shall be set forth in the applicable
Stock Purchase Agreement and shall apply in addition to any general restrictions
that may apply to all holders of Shares. Each certificate representing any
Shares awarded or sole under this Plan will bear a legend making appropriate
reference to the restrictions imposed on the Shares.
8. PAYMENT FOR SHARES
(a) GENERAL RULE. The entire Purchase Price or Exercise Price for the
number of Shares being purchased and, if applicable, any federal, state or local
withholding taxes required to be paid in accordance with Section 6(d) or 7(d)
hereof, shall be payable in full, by cash or by certified or cashier's check
payable to the order of the Company or equivalent thereof acceptable to the
Company, at the time when such Shares are purchased, except as provided in
Subsections (b), (c) and (d) below. Notwithstanding the foregoing, the Company
shall have the right to postpone the time of delivery of the Shares for such
period as may be required for it to comply, with reasonable diligence, with any
applicable listing requirements of any national securities exchange (including
the Nasdaq National Market) or any federal, state or local law. If an Optionee
or Offeree fails to accept delivery of or fails to pay for all or any portion of
the Shares requested, the Committee shall have the right to terminate his Option
(or other right to acquire Shares) with respect to the number of such Shares
requested.
(b) SURRENDER OF STOCK. At the discretion of the Committee, payment may
be made in whole or in part with Shares which were acquired by the Optionee in
the open market or which have already been owned by the Optionee or his
representative for more than six months, and which certificate(s) representing
the Shares is surrendered to the Company duly endorsed and in good form for
transfer. Such Shares shall be valued at their Fair Market Value on the date
when the new Shares are purchased under this Plan.
(c) SERVICES RENDERED. At the discretion of the Committee, Shares may
be awarded under this Plan in consideration of services rendered to the Company
or a Subsidiary prior to the award. If Shares are awarded without the payment of
a Purchase Price in cash, the Committee shall make a determination (at the time
of the award) of the value of the services rendered by the Offeree and the
sufficiency of the consideration to meet the requirements of this Section 6(c).
(d) CASHLESS EXERCISE. At the discretion of the Committee, payment may
be made in whole or in part by delivery (on a form prescribed by the Committee)
to the Company of a copy of irrevocable and unconditional instructions to a
creditworthy securities broker to sell Shares and to deliver promptly all or
part of the sale proceeds to the Company in payment of the aggregate Exercise
Price.
9. ADJUSTMENT OF SHARES
(a) GENERAL. In the event of a subdivision of the outstanding Common
Stock, a declaration of a dividend payable in Shares, a declaration of a
dividend payable in a form other than Shares in an amount that has a material
effect on the value of Shares, a combination or consolidation of the outstanding
Common Stock (by reclassification or otherwise) into a lesser number of Shares,
a recapitalization or a similar occurrence, the Committee shall make appropriate
adjustments in one or more of (i) the number of Shares available for future
grants under Section 5, (ii) the number of Shares covered
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by each outstanding Option, (iii) the Exercise Price under each outstanding
Option, (iv) the number of Shares covered by each outstanding award or (v) the
Purchase Price of each outstanding award.
(b) REORGANIZATION. In the event that the Company is a party to a
merger or other reorganization, outstanding Options shall be subject to the
agreement of merger or reorganization. Such agreement may provide for the
assumption of outstanding Options by the surviving corporation or its parent or
for their continuation by the Company (if the Company is a surviving
corporation); PROVIDED, HOWEVER, that if assumption or continuation of the
outstanding Options is not provided by such agreement then the Committee shall
have the option of offering the payment of a cash settlement equal to the
difference between the amount to be paid for one Share under such agreement and
the Exercise Price, in all cases without the Optionees' consent.
(c) RESERVATION OF RIGHTS. Except as provided in this Section 9, an
Optionee or Offeree shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend or
any other increase or decrease in the number of shares of stock of any class.
Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to this Plan shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
10. CHANGE OF CONTROL
Notwithstanding any other section this Plan, in the event of a Change
in Control, all restrictions on all awards or sales of Shares will lapse and
vesting on all unexercised Options will accelerate to the Change in Control
date.
11. LEGAL AND REGULATORY REQUIREMENTS
Shares shall not be issued under this Plan unless the issuance and
delivery of such Shares complies with (or is exempt from) all applicable
requirements of law, including (without limitation) the Securities Act of 1933,
as amended, the rules and regulations promulgated thereunder, state securities
laws and regulations and the regulations of any stock exchange on which the
Company's securities may then be listed.
12. NO EMPLOYMENT RIGHTS
Nothing contained in this Plan or in any right or Option granted under
this Plan shall confer upon any Offeree or Optionee any right with respect to
the continuation of his employment by or other Relationship with the Company or
a Subsidiary. The Company and its Subsidiaries reserve the right to terminate
any person's employment and/or Relationship at any time and for any reason, with
or without notice.
13. DURATION AND AMENDMENTS
(a) TERM OF THIS PLAN. This Plan shall terminate automatically on
February 2, 2010 and may be terminated on any earlier date pursuant to
Subsection (b) below.
(b) RIGHT TO AMEND, SUSPEND OR TERMINATE THIS PLAN. The Board of
Directors may amend, suspend or terminate this Plan at any time and from time to
time. An amendment of this Plan shall be
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subject to the approval of the Company's stockholders only to the extent
required by applicable laws, regulations or rules.
(c) EFFECT OF TERMINATION. No Shares shall be issued or sold under this
Plan after the termination thereof, except upon exercise of an Option granted
prior to such termination. The termination of this Plan shall not affect any
Share previously issued or any Option previously granted under this Plan.
14. PLAN NOT A TRUST
Nothing contained in this Plan and no action taken pursuant to this
Plan shall create or be construed to create a trust of any kind, or a fiduciary
relationship, between the Company and any Offeree or Optionee, the executor,
administrator or other personal representative, or designated beneficiary of
such Offeree or Optionee, or any other persons. If and to the extent that any
Offeree or Optionee or such Offeree's or Optionee's executor, administrator or
other personal representative, as the case may be, acquires a right to receive
any payment from the Company pursuant to this Plan, such right shall be no
greater than the right of an unsecured general creditor of the Company.
15. NOTICES
Each Offeree or Optionee shall be responsible for furnishing the
Committee with the current and proper address for the mailing of notices and
delivery of agreements, Common Stock and cash pursuant to this Plan. Any notices
required or permitted to be given shall be deemed given if directed to the
person to whom addressed at such address and mailed by regular United States
mail, first-class and prepaid. If any item mailed to such address is returned as
undeliverable to the addressee, mailing will be suspended until the Offeree or
Optionee furnishes the proper address. This provision shall not be construed as
requiring the mailing of any notice or notification if such notice is not
required under the terms of this Plan or any applicable law.
16. SEVERABILITY OF PROVISIONS
If any provision of this Plan shall be held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provisions
hereof, and this Plan shall be construed and enforced as if such provisions had
not been included.
17. PAYMENT TO MINORS, ETC.
Any benefit payable to or for the benefit of a minor, an incompetent
person or other person incapable of receipting therefor shall be deemed paid
when paid to such person's guardian or to the party providing or reasonably
appearing to provide for the care of such person, and such payment shall fully
discharge the Committee, the Company and other parties with respect thereto.
18. HEADINGS AND CAPTIONS
The headings and captions herein are provided for reference and
convenience only, shall not be considered part of this Plan, and shall not be
employed in the construction of this Plan.
19. CONTROLLING LAW
This Plan shall be construed and enforced according to the laws of the
State of Nevada to the extent not preempted by federal law, which shall
otherwise control.
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20. EXECUTION
To record the adoption of this Plan by the Board effective as of
February 3, 2000, the Company has caused its authorized officer to execute the
same.
eROOMSYSTEM TECHNOLOGIES, INC.
By: /s/ GREGORY L. HRNCIR
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GREGORY L. HRNCIR
Its: Secretary
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