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EXHIBIT 10.1
UTI WORLDWIDE INC.
NON-EMPLOYEE DIRECTORS SHARE OPTION PLAN
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UTI WORLDWIDE INC.
NON-EMPLOYEE DIRECTORS SHARE OPTION PLAN
1. PURPOSE. The purpose of this Plan is to advance the interests of
UTi Wordwide Inc., a British Virgin Islands corporation (the "Company"), and its
shareholders ("Shareholders") by (a) encouraging increased share ownership by
the Company's directors who are not employees of the Company or any of its
subsidiaries, (b) enhancing the Company's ability to attract and retain the
services of experienced, able and knowledgeable persons to serve as directors
and (c) providing additional incentive for directors to contribute their best
efforts to the Company's success.
2. NON-QUALIFIED STOCK OPTIONS. The options to be granted pursuant
to this Plan ("Options" or, individually, an "Option") are nonstatutory options
and are not intended to qualify as incentive stock options under Section 422 of
the Internal Revenue Code of 1986, as amended.
3. ADMINISTRATION. This Plan shall be administered by the Company's
Board of Directors (the "Board"). The Board shall have full authority,
consistent with this Plan, to construe and interpret this Plan and any
agreements defining the rights and obligations of the Company and Eligible
Directors (as defined below) under the Plan, to promulgate, amend and rescind
such rules and regulations with respect to this Plan as it deems desirable and
to make all other determinations necessary or desirable for the administration
of this Plan. All decisions, determinations and interpretations of the Board
shall be binding upon all Eligible Directors, the Company and all other
interested persons. The Board may, in its discretion, delegate any or all of its
authority under the Plan to a committee consisting of two or more directors of
the Company, so long as allowable under applicable law.
4. SHARES SUBJECT TO THE PLAN. The shares of stock to be issued upon
the exercise of Options shall be authorized shares of the Company's voting
ordinary shares ("Shares" or, individually, "Share"), either previously unissued
or previously issued but reacquired by the Company. The aggregate number of
Shares to be issued upon the exercise of Options granted under this Plan shall
be three million fifty two thousand (3,052,000),* subject to adjustment as
provided in Section 8 below. Any Share subject to an Option which is cancelled
or terminated without having been exercised shall again be available to be
awarded under this Plan.
5. GRANTING OF OPTIONS.
(a) Eligible Director. As used herein, "Eligible Director" means any
of the Company's directors who are not employees of the Company or any
subsidiary of
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* After giving effect to the 1 for 7.63 combination of shares which is to take
effect shortly after this Plan is adopted by the Board, this number shall be
automatically reduced to 400,000.
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the Company (collectively, "Eligible Directors" and, individually, an "Eligible
Director").
(b) Initial Grants. The Company shall grant an initial Option to
purchase twenty-two thousand eight hundred and ninety (22,890) shares** to each
person who is an Eligible Director as of the date that this Plan is approved by
the Board. Thereafter, the Company shall grant an initial Option to purchase one
hundred fourteen thousand four hundred fifty (114,450)*** shares to each person
who becomes an Eligible Director after the date this Plan is approved by the
Board (but, who previously has not been an Eligible Director under this Plan),
which Option shall be granted on the date such person is first elected or
appointed as a director.
(c) Automatic Grants. On the date of each annual meeting of
shareholders, commencing with the 2001 annual meeting, the Company shall grant
an Option to purchase twenty-two thousand eight hundred and ninety (22,890)****
shares to each Eligible Director as of the date of such meeting, provided that
such Eligible Director continues as a director after such annual meeting.
Notwithstanding the previous sentence, Eligible Directors who received an
initial grant under Section 5(b) during the calendar year in which such annual
meeting is held shall be ineligible for the automatic grant of Options provided
for in this Section 5(c) in such year.
(d) No Option Grant Where Prohibited. No person shall be granted an
Option under this Plan if at the time of such grant, the grant is prohibited by
applicable law or by the policies of the employer of such person or the policies
of any other company of which such person is a member of the board of directors,
a general partner or a manager.
(e) Option Agreement. Each Option shall be evidenced by an option
agreement executed by the Company and the Eligible Director receiving such
Option. Each such agreement shall state the terms and conditions of the grant,
not inconsistent with this Plan, as the Board in its sole discretion shall
determine and approve.
(f) Option Price. The purchase price for each Share subject to an
Option shall be its Fair Market Value (as defined in paragraph 5(g) below)
determined as of the date such Option is granted (the "Grant Date").
(g) Definition of Fair Market Value. For the purposes of this Plan,
"Fair Market Value" as of a certain date (the "Determination Date") means: (i)
the closing price of a share of the Company's voting ordinary shares of no par
value on the New York Stock Exchange or the American Stock Exchange
(collectively, the
** After giving effect to the 1 for 7.63 combination of shares which is to take
effect shortly after this Plan is adopted by the Board, this number shall be
reduced to 3,000 shares.
*** After giving effect to the 1 for 7.63 combination of shares which is to take
effect shortly after this Plan is adopted by the Board, this number shall be
reduced to 15,000 shares.
**** After giving effect to the 1 for 7.63 combination of shares which is to
take effect shortly after this Plan is adopted by the Board, this number shall
be reduced to 3,000 shares.
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"Exchange"), on the Determination Date, or, if shares were not traded on the
Determination Date, then on the nearest preceding trading day during which a
sale occurred; or (ii) if such stock is not traded on the Exchange but is quoted
on NASDAQ or a successor quotation system, (A) the last sales price (if the
stock is then listed as a National Market Issue under The Nasdaq National Market
System) or (B) the mean between the closing representative bid and asked prices
(in all other cases) for the stock on the Determination Date as reported by
NASDAQ or such successor quotation system; or (iii) if such stock is not traded
on the Exchange or quoted on NASDAQ but is otherwise traded in the United States
over-the-counter, the mean between the representative bid and asked prices on
such date in the United States over-the-counter market as reported by the
National Quotation Bureau, Inc. or any successor organization; or (iv) if
subsections (i)-(iii) do not apply, the fair market value established in good
faith by the Board.
(h) Nontransferability. An Option shall be nonassignable and
nontransferable other than by will or the laws of descent and distribution.
Notwithstanding the foregoing, Options may be transferred to an Eligible
Director's family members who acquire the Options from the Eligible Director
through a gift or a domestic relations order which meets the requirements set
forth in general instruction a(5) of Form S-8 Registration Statement under the
United States Security Act of 1933, as amended. In the event of an Eligible
Director's death, an Option may be exercised by such director's designated
beneficiary or, in the absence of such designation, by will or the laws of
descent and distribution to the extent permitted by this Plan.
6. EXERCISE OF OPTIONS.
(a) Vesting Schedule. Except as provided in Section 6(d) hereof,
each Option shall become exercisable on the following schedule: (i) beginning on
the first anniversary of the Grant Date, as to thirty-three percent (33%) of the
Shares covered by such Option (the "Covered Shares"), (ii) beginning on the
second anniversary of the Grant Date, as to sixty-six percent (66%) of the
Covered Shares, and (iii) beginning on the third anniversary of the Grant Date,
and thereafter until the expiration of such Option pursuant to Section 7 of this
Plan, as to one hundred percent (100%) of the Covered Shares. Any other
provision of this Plan notwithstanding, no Option shall be exercisable as to any
Shares with respect to which such Option previously has been exercised.
(b) Method of Exercise. Prior to its expiration pursuant to Section
7 hereof and in accordance with the vesting schedule outlined in Section 6(a)
hereof, each Option may be exercised, in whole or in part (provided, however,
that the Company shall not be required to issue fractional shares) by delivery
of written notice of exercise to the secretary of the Company accompanied by the
full purchase price of the Shares being purchased. The purchase price shall be
paid at the time of exercise (i) in cash, (ii) in Payment Shares (as defined in
Section 6(c) hereof), the Fair Market Value of which, as of the date of
exercise, is equal to the Purchase Price, or (iii) by any combination of cash or
Payment Shares. At its discretion, the Company shall arrange for the sale of the
shares
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underlying the Option through a broker in connection with so-called cashless
exercises of the Options.
(c) Payment Shares. As used herein, "Payment Shares" means shares of
the Company's voting ordinary shares of no par value that (i) are owned by the
Eligible Director who is purchasing Shares pursuant to an Option, (ii) were not
acquired by such Eligible Director pursuant to an exercise of an Option (unless
such shares have been owned by such Eligible Director for at least 365
consecutive days), (iii) are all, at the time of such transfer, free and clear
of any and all claims, pledges, liens and encumbrances, or any restrictions
which would in any manner restrict the transfer of such shares to or by the
Company (other than such restrictions as may have existed prior to an issuance
of such shares by the Company to such Eligible Director), and (iv) are duly
endorsed for transfer to the Company.
(d) Effect of Change in Control. In the event of a Change in Control
of the Company (as defined below), all unexpired Options held by each Eligible
Director on the date of such Change in Control shall be immediately exercisable
in full, notwithstanding the vesting schedule of Section 6(a) hereof.
For purposes of this Plan, a "Change in Control" of the Company
shall mean a change in control of a nature that would be required to be reported
in response to Item 1 of Form 8-K required to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided that,
without limitation, such a Change in Control shall be deemed to have occurred
if:
(i) the shareholders of the Company approve a definitive
agreement to sell, transfer, or otherwise dispose of all or
substantially all of the Company's assets and properties; or
(ii) any "person" (as such term is used in Section 13(d) and
14(d) of the Exchange Act), other than the Company or any "person" who
as of the date this Plan is adopted by the Board, is a director or
officer of the Company (including any trust of such director or
officer), is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the combined voting
power of the Company's then outstanding securities provided, however,
that the following shall not constitute a "Change in Control" of the
Company:
(a) any acquisition directly from the Company (excluding
any acquisition resulting from the exercise of a conversion or exchange
privilege in respect of outstanding convertible or exchangeable
securities);
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(b) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company; or
(c) upon the death of any person who as of the date of
this Agreement is a director or officer of the Company, the transfer (a)
by testamentary disposition or the laws of intestate succession to the
estate or the legal beneficiaries or heirs of such person, or (b) by the
provisions of any living trust to the named current income beneficiaries
thereof of the securities of the Company beneficially owned by such
director or officer of the Company; or
(iii) during any period of two consecutive years during the term
of this Plan, 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 of each director who was not a director at
the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who
were directors at the beginning of the period; or
(iv) the Shareholders of the Company approve the dissolution of
the Company or a definitive agreement to merge or consolidate the
Company with or into another entity in which the Company is not the
continuing or surviving corporation or pursuant to which any shares of
the Company's stock would be converted into cash, securities or other
property of another entity, other than a merger of the Company in which
holders of the Company's voting ordinary shares of no par value
immediately prior to the merger own, either directly or indirectly,
fifty percent (50%) or more of the equity interests or combined voting
power of the surviving corporation or entity immediately following such
merger.
7. EXPIRATION OF OPTIONS. Except as hereinafter provided, each
Option shall expire on the earlier of (a) the tenth anniversary of the Grant
Date of such Option or (b) the date that the Eligible Director holding such
Option ceases to be a member of the Board; provided, however, that to the extent
any unexpired Options are otherwise exercisable on the date that an Eligible
Director ceases to be a member of the Board for any reason other than "cause",
death or retirement under a retirement plan of the Company, such Options shall
remain exercisable for 90 days following the last day of the Eligible Director's
Board membership and shall expire if not exercised within said 90-day period. If
Board membership ceases on account of death or retirement under a retirement
plan of the Company, all unexpired Options held by the Eligible Director on the
last day of Board membership, which are then exercisable shall remain
exercisable for one year following the last day of the Eligible Director's Board
membership and shall expire if not exercised within said one-year period. To the
extent any otherwise unexpired Options are not exercisable in accordance with
the immediately preceding sentences, they shall expire as of the date of death
or the effective date of retirement, as the case may be. All Options held by an
Eligible Director whose membership on the Board ends after the occurrence of
"cause" shall expire immediately on the last date of membership. "Cause", for
the purposes of this paragraph 7, means any (i) act or
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omission for which indemnification of the Eligible Director is prohibited by the
laws of the jurisdiction of formation of the Company, (ii) conviction of a
felony which adversely affects the Company, or (iii) misconduct involving
personal profit to the Eligible Director.
8. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. If a reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, rights offering, or any other change in the corporate structure
or shares of voting ordinary shares of no par value of the Company occurs, the
number and kind of shares authorized by this Plan, and the number, Option price
and kind of shares covered by the Options granted hereunder, shall be
automatically adjusted as required in order to prevent an unfavorable effect
upon the value of the shares covered by the then outstanding Options and shares
covered by Options subsequently granted.
9. TAX WITHHOLDING. Any exercise of an Option pursuant to this Plan
shall be subject to withholding of state and federal income taxes, FICA tax or
other taxes to the extent required by applicable law.
10. LAWS AND REGULATIONS.
(a) U.S. Securities Laws. This Plan, the grant and exercise of
Options under this Plan, and the obligation of the Company to sell or deliver
any of its securities (including, without limitation, Options and Shares) under
this Plan shall be subject to all applicable laws, regulations and rules. In the
event that the Shares are not registered under the Securities Act of 1933, as
amended (the "Act"), or any applicable state securities laws prior to the
delivery of such Shares, the Company may require, as a condition to the issuance
thereof, that the persons to whom Shares are to be issued represent and warrant
in writing to the Company that such Shares are being acquired by him or her for
investment for his or her own account and not with a view to, for resale in
connection with, or with an intent of participating directly or indirectly in,
any distribution of such Shares within the meaning of the Act, and a legend to
that effect may be placed on the certificates representing the Shares.
(b) The Company may adopt rules and procedures relating to the
operation and administration of this Plan to accommodate the specific
requirements of local laws and procedures of particular countries. Without
limiting the foregoing, the Company is specifically authorized to adopt rules
and procedures regarding the conversion of local currency, taxes, withholding
procedures and handling of stock certificates which vary with the customs and
requirements of particular countries. The Company may adopt sub-plans applicable
to particular locations and countries.
11. TERMINATION AND AMENDMENT OF THIS PLAN. The Board may at any
time terminate this Plan or may at any time or times amend this Plan or amend
any outstanding Options for the purpose of satisfying the requirements of any
changes in applicable laws or regulations or for any other purpose which at the
time may be permitted by law.
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12. EFFECTIVE DATE. This Plan shall become effective on the date of
approval by the Board; provided, however, that this Plan shall be submitted to
the Company's shareholders for approval, and if not approved by the shareholders
within one year from the date of approval by the Board, this Plan shall be of no
force and effect. Options granted under this Plan before approval of this Plan
by the shareholders shall be granted subject to such approval and shall not be
exercisable before such approval.
13. GOVERNING LAW. This Plan, and the related option agreements,
shall be governed by and enforced and construed in accordance with the internal
substantive laws (and not the laws of conflicts of laws) of the British Virgin
Islands.
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