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EXHIBIT 10.16
WBT Holdings LLC
2000 Stock Option Plan
1. Purpose. The purpose of the Plan is to provide additional incentive to
those officers, key employees, non-employee directors and consultants of WBT
Holdings LLC (the "Company") and its Subsidiaries whose substantial
contributions are essential to the continued growth and success of the Company's
business in order to strengthen their commitment to the Company and its
Subsidiaries, to motivate such persons to faithfully and diligently perform
their assigned responsibilities and to attract and retain competent and
dedicated individuals whose efforts will result in the long-term growth and
profitability of the Company. To accomplish such purposes, the Plan provides
that the Company may grant nonqualified stock options ("Options") to acquire WBT
Corp.(the "Corporation") common stock. From and after the consummation of a
Public Offering, as hereunder defined, the Plan is intended, to the extent
applicable, to satisfy the requirements of Section 162(m) of the Code and shall
be interpreted in a manner consistent with the requirements thereof.
2. Definitions. For purposes of the Plan:
(a) "Agreement" means the written agreement evidencing the grant
of an Option, and setting forth the terms and conditions thereof. Each Agreement
shall be approved by the Board or the Committee.
(b) "Board" means the Board of Managers of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a committee appointed by the Board to
administer the Plan and to perform the functions set forth herein. Where the
Board has failed to appoint such a Committee, the Committee shall be the Board.
From and after the consummation of a Public Offering, the composition of the
Committee shall at all times consist solely of persons who are (i) "Nonemployee
Directors" as defined in Rule 16b-3 issued under the Exchange Act, and (ii)
"outside directors" as
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defined in Section 162(m) of the Code, of the Corporation.
(e) "Company" means WBT Holdings LLC, a Delaware limited liability
company.
(f) "Corporation" means WBT Corp., a Delaware corporation.
(g) "Disability" means, with respect to an Optionee, if his or her
employment is discontinued by reason of death or a physical or mental condition
causing the Optionee's inability to substantially perform his or her duties with
the Company or a Subsidiary, including, without limitation, such condition
entitling him or her to benefits under any sick pay or disability income policy
or program of the Company.
(h) "Eligible Employee" means any officer or other key employee of
the Company or a Subsidiary designated by the Board or Committee as eligible to
receive Options subject to the conditions set forth herein.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(j) "Fair Market Value" of a Share, as of a date of determination,
shall mean (1) the closing sales price per Share on the national securities
exchange on which such stock is principally traded for the last preceding date
on which there was a sale of such stock on such exchange, or (2) if the Shares
are not listed or admitted to trading on any such exchange, the closing price as
reported by the Nasdaq Stock Market for the last preceding date on which there
was a sale of such stock on such exchange, or (3) if the Shares are not then
listed on a national securities exchange or traded in an over-the-counter market
or the value of such Shares is not otherwise determinable, such value as
determined by the Committee in good faith.
(k) "LLC Agreement" means the Limited Liability Agreement of the
Company dated as of February 9, 2000, as it may be amended from time to time.
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(l) "Optionee" means a person to whom an Option has been granted
under the Plan.
(m) "Plan" means this WBT Holdings LLC 2000 Stock Option Plan, as
amended from time to time.
(n) "Public Offering" means the first underwritten initial public
offering of Shares by the Corporation.
(o) "Securities Act" means the Securities Act of 1933, as amended.
(p) "Shares" means shares of the common stock, $.001 par value, of
the Corporation (including any new, additional or different stock or securities
resulting from a Change in Capitalization).
(q) "Subsidiary" means any corporation or other entity of which
the Company has, directly or indirectly, (i) ownership of securities or other
interests having the power to elect a majority of the Board of Directors or
similar governing body of such corporation or entity, or (ii) the power to
direct the business and policies of that corporation or other entity.
Terms used herein and not defined shall have the meaning ascribed
to them in the LLC Agreement.
3. Administration.
(a) The Plan shall be administered by the Committee, which shall
hold meetings at such times as may be necessary for the proper administration of
the Plan. No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan and
all members of the Committee shall be fully indemnified by the Company with
respect to any such action, determination or interpretation. The Company shall
pay all expenses incurred in the administration of the Plan.
(b) Subject to the express terms and conditions set forth herein,
the Committee shall have the power from time to time:
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(i) to determine those Eligible Employees,
non-employee directors and consultants to whom Options shall be
granted under the Plan and the number of Options to be granted to
each Eligible Employee, non-employee director or consultant and to
prescribe the terms and conditions (which need not be identical)
of each Option, including the purchase price per Share of each
Option;
(ii) to construe and interpret the Plan and the
Options granted hereunder and to establish, amend and revoke rules
and regulations for the administration of the Plan, including, but
not limited to, correcting any defect or supplying any omission,
or reconciling any inconsistency in the Plan or in any Agreement,
in the manner and to the extent it shall deem necessary or
advisable to make the Plan fully effective, and all decisions and
determinations by the Committee in the exercise of this power
shall be final and binding upon the Company or a Subsidiary, and
the Optionees, as the case may be;
(iii) generally, to exercise such powers and to
perform such acts as are deemed necessary or advisable to promote
the best interests of the Company with respect to the Plan.
4. Stock Subject to Plan; Limitation on Grants.
(a) The maximum number of Shares that may be issued pursuant to
Options shall be 10% of the number of Shares of the Corporation outstanding from
time to time (or the number and kind of shares of stock or other securities that
are substituted for those Shares or to which those Shares are adjusted in
accordance with Section 7).
(b) Whenever any outstanding Option or portion thereof expires, is
cancelled or is otherwise terminated (other than by exercise of the Option), the
Shares allocable to the unexercised portion of such Option may again be the
subject of grants of Options hereunder.
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(c) From and after the consummation of a Public Offering, the
aggregate number of Shares with respect to which an Option or Options may be
granted to any individual Optionee during any fiscal year shall not exceed
[2,500,000].
5. Eligibility. Subject to the provisions of the Plan, the Committee
shall have full and final authority to select those Eligible Employees,
non-employee directors and consultants who will receive Options hereunder.
6. Options. The Committee may grant Options in accordance with the Plan,
the terms and conditions of which shall be set forth in an Agreement. Each
Option and Agreement shall be subject to the following conditions:
(a) Purchase Price. The purchase price for Shares under each
Option shall be set forth in the applicable Agreement.
(b) Duration. Options granted hereunder shall be for such term as
the Committee shall determine, provided that no Option shall be exercisable
after the expiration of ten (10) years from the date it is granted. The
Committee may, subsequent to the granting of any Option, extend the term thereof
but in no event shall the term as so extended exceed the maximum term provided
for in the preceding sentence.
(c) Transferability. Subject to the approval of the Committee and
to any conditions that the Committee may prescribe, an Optionee may, upon
providing written notice to the General Counsel of the Company, elect to
transfer any or all Options granted to such Optionee pursuant to the Plan to
members of his or her immediate family or household, including, but not limited
to, children, grandchildren and spouse or to trusts for the benefit of such
immediate family members or to partnerships in which such family members are the
only partners; provided, however, that no such transfer by any Optionee may be
made in exchange for consideration. Any such transferee must agree, in writing,
to be bound by all provisions of the Plan (and the provisions of the LLC
Agreement incorporated herein).
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(d) Vesting. Each Option shall become exercisable as determined by
the Board or Committee as set forth in the Agreement. The Committee may
accelerate the exercisability of any Option or portion thereof at any time.
(e) Termination of Employment or Service. Unless otherwise set
forth in an Agreement, if Optionee's employment or service with the Company or a
Subsidiary is terminated for any reason, all Options that are not exercisable as
of the date of such termination shall terminate as of the date of termination
and all exercisable Options shall (unless earlier terminated in accordance with
their terms) remain exercisable for a period of 60 days immediately following
the date of termination and shall terminate thereafter.
(f) Method of Exercise. The exercise of an Option shall be made
only by a written notice delivered to the Secretary of the Company at the
Company's principal executive office, specifying the number of Shares to be
purchased and accompanied by payment therefor and otherwise in accordance with
the Agreement pursuant to which the Option was granted. The purchase price for
any Shares purchased pursuant to the exercise of an Option shall be paid in full
upon such exercise in cash, by check, or, at the discretion of the Committee and
upon such terms and conditions as the Committee shall approve, by transferring
Shares to the Company or by a cashless exercise procedure. Any Shares
transferred to the Company as payment of the purchase price under an Option
shall be valued at their Fair Market Value on the day preceding the date of
exercise of such Option. If requested by the Committee, the Optionee shall
deliver the Agreement evidencing the Option to the Secretary of the Company who
shall endorse thereon a notation of such exercise and return such Agreement to
the Optionee.
(g) LLC Agreement. All Options granted pursuant to the Plan and
all Shares acquired under the Plan shall be subject to and governed by certain
sections of the LLC Agreement, as described below. For the purposes of the
applicable sections of the LLC Agreement enumerated below, an Option granted
hereunder shall be treated as if it were granted to a Management Member and a
Share acquired under the Plan shall be treated as a Unit held by a Management
Member.
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(i) Options shall be governed by and subject to the provisions of
Article XI of the LLC Agreement.
(ii) Shares shall be governed by and subject to the following
provisions of the LLC Agreement:
(A) sections 8.1 and 8.2;
(B) prior to an IPO Event, all of the sections of Article
IX;
(C) all of the sections of Article X except for section
10.6;
(D) all of the sections of Article XI;
(E) all of the sections of Article 12 except for section
12.1; and
(F) all of the sections of Article XIII.
Notwithstanding clauses (i) and (ii) above, the rights and obligations hereunder
shall terminate in accordance with Article XVI of the LLC Agreement.
7. Adjustments.
(a) Adjustment for Change in Capitalization. In the event that the
Committee shall determine that any dividend or other distribution (whether in
the form of cash, stock of the Corporation, or other property),
re-capitalization, stock split, reverse stock split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, makes an adjustment appropriate in order
to prevent dilution or enlargement of the rights of Optionees under the Plan,
then the Committee shall make such equitable changes or adjustments as it deems
necessary or appropriate to (1) the number and kind of shares of stock of the
Corporation issuable in respect of outstanding Options and/or (2) the exercise
price of the Options.
(b) Adjustment for Change or Exchange of Shares for Other
Consideration. In the event the outstanding Shares shall be changed into or
exchanged for any other class or series of capital stock or cash, securities or
other
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property pursuant to a re-capitalization, reclassification, merger,
consolidation, combination or similar transaction ("Transaction"), then, unless
otherwise determined by the Committee, (1) each Option shall thereafter become
exercisable for the number and/or kind of capital stock, and/or the amount of
cash, securities or other property so distributed, into which the Shares
subject to the Option would have been changed or exchanged had the Option been
exercised in full prior to such transaction, provided that, if the kind or
amount of capital stock or cash, securities or other property received in such
transaction is not the same for each outstanding Share, then the kind or amount
of capital stock or cash, securities or other property for which the Option
shall thereafter become exercisable shall be the kind and amount so receivable
per share by a plurality of the Shares, and provided further that, if
necessary, the provisions of the Option shall be appropriately adjusted so as
to be applicable, as nearly as may reasonably be, to any shares of capital
stock, cash, securities or other property thereafter issuable or deliverable
upon exercise of the Option.
8. Termination and Amendment of the Plan. The Plan shall terminate on the
day preceding the tenth anniversary of its effective date, except with respect
to Options outstanding on such date, and no Options may be granted thereafter.
The Board may sooner terminate or amend the Plan at any time, and from time to
time.
Except as provided in Section 6(i) and 7 hereof, rights and obligations
under any Option granted before any amendment of the Plan shall not be adversely
altered or impaired by such amendment, if such alteration or impairment would be
material, except with the consent of the Optionee.
(9) Nonexclusivity of the Plan. The adoption of the Plan by the Board
shall not be construed as creating any limitations on the power of the Board to
adopt other incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise than under the Plan, and
such arrangements may be either applicable generally or only in specific cases.
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10. Limitation of Liability. As illustrative of the limitations of
liability of the Company, but not intended to be exhaustive thereof, nothing in
the Plan shall be construed to:
(a) give any person any right to be granted an Option other than
at the sole discretion of the Board or the Committee;
(b) give any person any rights whatsoever with respect to Shares
except as specifically provided in the Plan;
(c) limit in any way the right of the Company or its Subsidiaries
to terminate the employment or service of any person at any time; or
(d) be evidence of any agreement or understanding, expressed or
implied, that the Company or its Subsidiaries will employ any person in any
particular position, at any particular rate of compensation or for any
particular period of time.
11. Regulations and Other Approvals; Governing Law.
(a) The Plan and the rights of all persons claiming hereunder
shall be construed and determined in accordance with the laws of the State of
Delaware without giving effect to the choice of law principles thereof.
(b) The obligation of the Company to sell or deliver Shares with
respect to Options granted under the Plan shall be subject to all applicable
laws, rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
(c) Except as otherwise provided in Section 8, the Board may make
such changes as may be necessary or appropriate to comply with the rules and
regulations of any government authority.
(d) Each Option is subject to the requirement that, if at any time
the Committee determines,
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in its absolute discretion, that the listing, registration or qualification of
Shares issuable pursuant to the Plan is required by any securities exchange or
under any state or federal law, or the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or in connection
with, the grant of an Option, or the issuance of Shares, no Options, shall be
granted or payment made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or obtained
free of any conditions as acceptable to the Committee.
(e) In the event that the disposition of Shares acquired pursuant
to the Plan is not covered by a then current registration statement under the
Securities Act and is not otherwise exempt from such registration, such Shares
shall be restricted against transfer to the extent required by the Securities
Act or regulations thereunder, and the Committee may require an Optionee
receiving Shares pursuant to the Plan, as a condition precedent to receipt of
such Shares, to make such representations as the Committee deems appropriate,
including, but not limited to a representation to the Company in writing that
the Shares acquired by such Optionee are acquired for investment only and not
with a view to distribution.
12. Miscellaneous.
(a) Multiple Agreements. The terms of each Option, may differ from
other Options granted under the Plan at the same time, or at any other time. The
Committee may also grant more than one Option, to a given Optionee during the
term of the Plan, either in addition to, or in substitution for, one or more
Options previously granted to that Optionee. The grant of multiple Options may
be evidenced by a single Agreement or multiple Agreements, as determined by the
Committee.
(b) Withholding of Taxes. The Company shall have the right to
deduct from any payment to any Optionee an amount equal to the federal, state
and local income taxes and other amounts required by law to be withheld with
respect to any Option. Notwithstanding anything to the contrary contained
herein, if an Optionee is entitled to receive Shares upon exercise of an Option,
the Company shall have the right to require the Optionee,
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prior to the delivery of such Shares, to pay to the Company the amount of any
federal, state or local income taxes and other amounts which the Company is
required by law to withhold. Notwithstanding anything in the Plan to the
contrary, the Committee, in its discretion, may permit an Optionee (or
beneficiary or other person entitled to act on behalf of an Optionee) to elect
to pay a portion or all of the amount requested by the Company for such taxes,
at such time and in such manner as the Committee shall deem appropriate,
including, but not limited to, authorizing the Company to withhold, or agreeing
to surrender to the Company, Shares or other Company securities or property, or
other form of payment, or any combination thereof, owned by such person or that
otherwise would be distributed to such person.
13. Effective Date. The effective date of the Plan is shall be the date
on which it is adopted by the Board.
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