METALCLAD CORPORATION
2000 OMNIBUS STOCK OPTION AND INCENTIVE PLAN
1,000,000 SHARES
METALCLAD CORPORATION
2000 OMNIBUS STOCK OPTION AND INCENTIVE PLAN
Page
I. PURPOSE....................................................... 1
II. DEFINITIONS................................................... 1
III. EFFECTIVE DATE................................................ 4
IV. ADMINISTRATION................................................ 4
V. PARTICIPATION................................................. 5
5.1 Eligibility.............................................. 5
5.2 Ten Percent Shareholders................................. 5
5.3 Stock Ownership.......................................... 5
5.4 Outstanding Stock........................................ 6
VI. STOCK SUBJECT TO THE PLAN..................................... 6
VII. OPTIONS....................................................... 6
7.1 Stock Option Agreements.................................. 6
7.2 Number of Shares......................................... 6
7.3 Exercise Price........................................... 6
7.4 Medium and Time of Payment............................... 6
7.5 Term and Transferability of Options...................... 7
7.6 Modification, Extension and Renewal of Options.......... 7
7.7 Limitation on Grant of Incentive Stock Options........... 7
7.8 "Formula Award" Grants to Certain Directors.............. 7
7.9 Other Provisions......................................... 8
VIII. RESTRICTED STOCK PURCHASE AGREEMENTS.......................... 8
8.1 Stock Purchase Agreements................................ 8
8.2 Number of Shares......................................... 8
8.3 Purchase Price........................................... 8
8.4 Exercisability and Nontransferability of Purchase Rights. 8
8.5 Medium and Time of Payment............................... 9
8.6 Consent of Spouse........................................ 9
8.7 Modification, Extension and Renewal of Purchase Rights... 9
8.8 Repurchase Option as to Unvested Shares.................. 9
8.9 Corporation's Right of First Refusal to Purchase
Vested Shares.......................................... 10
8.10 Other Provisions......................................... 10
IX. STOCK APPRECIATION RIGHTS..................................... 11
9.1 Grant.................................................... 11
9.2 Exercise of Stock Appreciation Rights.................... 11
9.3 Payment.................................................. 11
9.4 Maximum Stock Appreciation Right Term.................... 12
X. PERFORMANCE AWARDS............................................ 12
XI. DIVIDEND EQUIVALENTS.......................................... 12
XII. STOCK PAYMENTS................................................ 12
XIII. LOANS......................................................... 12
XIV. RIGHTS OF PARTICIPANTS AND BENEFICIARIES...................... 13
14.1 Employee Status......................................... 13
14.2 No Employment Contract.................................. 13
14.3 No Transferability...................................... 14
14.4 Plan Not Funded......................................... 14
14.5 Adjustments upon Recapitalizations and Corporate
Changes............................................... 14
14.6 Termination of Employment............................... 15
14.7 Death of Participant.................................... 15
14.8 Disability of Participant............................... 15
14.9 Retirement of Participant............................... 16
14.10 Rights as a Stockholder................................. 16
14.11 Deferral of Payments.................................... 16
14.12 Acceleration of Awards.................................. 16
XV. MISCELLANEOUS................................................. 16
15.1 Termination, Suspension and Amendment................... 16
15.2 No Fractional Shares.................................... 17
15.3 Tax Withholding and Tax Bonuses......................... 17
15.4 Restrictions of Elections Made by Participants.......... 17
15.5 Limitations on the Corporation's Obligations............ 18
15.6 Compliance with Laws.................................... 18
15.7 Governing Law........................................... 18
15.8 Securities Law Requirements............................. 18
15.9 Execution...............................................
<PAGE>
METALCLAD CORPORATION
2000 OMNIBUS STOCK OPTION AND INCENTIVE PLAN
I. PURPOSE
The Plan is intended to provide incentive to key employees and
directors of, and key consultants, vendors, customers, and others expected
to provide significant services to, the Corporation, to encourage
proprietary interest in the Corporation, to encourage such key employees
to remain in the employ of the Corporation and its Subsidiaries, to
attract new employees with outstanding qualifications, and to afford
additional incentive to consultants, vendors, customers, and others to
increase their efforts in providing significant services to the
Corporation.
II. DEFINITIONS.
2.1 "Award" shall mean an Option, which may be designated an
Incentive Stock Option or a Nonstatutory Stock Option, a Purchase Right, a
Stock Appreciation Right, a Performance Award, a Dividend Right or a Stock
Payment, in each case as granted pursuant to the Plan.
2.2 "Award Agreement" shall mean a Stock Option Agreement,
Restricted Stock Agreement or a Purchase Right Agreement.
2.3 "Beneficiary" shall mean the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive the
benefits specified under the Plan in the event of a Participant's death.
2.4 "Board" shall mean the Board of Directors of the Corporation.
2.5 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
2.6 "Committee" shall mean the committee, if any, appointed by the
Board in accordance with Section 4 of the Plan.
2.7 "Common Stock" shall mean the Common Stock, without par value,
of the Corporation.
2.8 "Corporation" shall mean Metalclad Corporation, a Delaware
corporation, and its Subsidiaries.
2.9 "Disability" shall mean the condition of a Participant who is
unable to perform his or her substantial and material job duties due to
injury or sickness or such other condition as the Board or Committee may
determine in its sole discretion/engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve
(12) months.
2.10 "Discount" shall mean, with respect to the Purchase Price of
Purchase Rights, the discount from the Fair Market Value of a Share as set
forth in Section 8.3.
2.11 "Dividend Equivalent" shall mean a right to receive a number
of Shares or a cash amount, determined as provided in Article XII hereof.
2.12 "Eligible Employee" shall mean an individual who is employed
(within the meaning of Code Section 3401 and the regulations thereunder)
by the Corporation.
2.13 "Event" shall mean any of the following:
(a) Any person or entity (or group of affiliated persons or
entities) acquires in one or more transactions, whether before or after
the effective date of the Plan, ownership of more than 50 percent of the
outstanding shares of stock entitled to vote in the election of directors
of the Corporation; or
(b) The dissolution or liquidation of the Corporation or a
reorganization, merger or consolidation of the Corporation with one or
more entities, as a result of which the Corporation is not the surviving
entity, or a sale of all or substantially all of the assets of the
Corporation as an entirety to another entity.
For purposes of this definition, ownership does not include
ownership (i) by a person owning such shares merely of record (such as a
member of a securities exchange, a nominee or a securities depository
system), (ii) by a person as a bona fide pledgee of shares prior to a
default and determination to exercise powers as an owner of the shares,
(iii) by a person who is not required to file statements on Schedule 13D
by virtue of Rule 13d-1(b) of the Securities and Exchange Commission under
the Exchange Act, or (iv) by a person who owns or holds shares as an
underwriter acquired in connection with an underwritten offering pending
and for purposes of resale.
2.14 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
2.15 "Exercise Price" shall mean the price per Share of Common
Stock, determined by the Board or the Committee, at which an Award may be
exercised.
2.16 "Fair Market Value" shall mean the value of one (1) Share of
Common Stock, determined as follows:
(i) If the Shares are traded on an exchange, the price at
which Shares traded at the close of business on the date of valuation; or
(ii) If the Shares are traded over-the-counter on the NASDAQ
System, the closing price if one is available, or the mean between the bid
and asked prices on said System at the close of business on the date of
valuation; or
(iii) If neither (i) nor (ii) above applies, the fair market
value as determined by the Board or the Committee in good faith. Such
determination shall be conclusive and binding on all persons.
2.17 "Incentive Stock Option" shall mean an option described in
Section 422A(b) of the Code.
2.18 "Nonstatutory Stock Option" shall mean an option not described
in Section 422(b), 422A(b), 423(b) or 424(b) of the Code.
2.19 "Option" shall mean either an Incentive Stock Option or a
Nonstatutory Stock Option granted pursuant to the Plan.
2.20 "Participant" shall mean an Eligible Employee who has received
an Award under the Plan.
2.21 "Performance Award" shall mean a cash bonus, stock bonus or
other performance or incentive award that is paid in cash, stock or a
combination of both.
2.22 "Plan" shall mean the Metalclad Corporation 2000 Omnibus Stock
Option and Incentive Plan, as it may be amended from time to time.
2.23 "Purchase Price" shall mean the Exercise Price times the
number of Shares with respect to which an Award is exercised.
2.24 "Purchase Right" shall mean the grant to an Employee of the
right to purchase Shares under the Plan.
2.25 "Restricted Stock" shall mean those Shares issued pursuant to
a Restricted Stock Award that are not free of the restrictions set forth
in the related Restricted Stock Agreement.
2.26 "Restricted Stock Award" shall mean an award of a fixed number
of shares subject to payment of such consideration, if any, and such
forfeiture provisions, as are set forth in the related Restricted Stock
Agreement.
2.27 "Retirement" shall mean the voluntary termination of
employment by an Employee upon the attainment of age sixty-five (65) and
the completion of not less than twenty (20) years of service with the
Corporation or a Subsidiary.
2.28 "Share" shall mean one (1) share of Common Stock, adjusted in
accordance with Section 15.4 of the Plan (if applicable).
2.29 "Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
2.30 "Stock Appreciation Right" shall mean the right to receive a
number of Shares or a cash amount, or a combination of Shares and cash,
based upon the Fair Market Value, book value or other measure determined
by the Board or the Committee, as the case may be, pursuant to Section
10.1 of the Plan.
2.31 "Stock Payment" shall mean a payment in the form of Shares, or
a Purchase Right, as part of a deferred compensation arrangement, made in
lieu of all or any portion of the compensation, including without
limitation the salary, bonuses or commissions, that would otherwise become
payable in cash to an Eligible Employee.
2.32 "Subsidiary" shall mean any corporation at least fifty percent
(50%) of the total combined voting power of which is owned by the
Corporation or by another Subsidiary.
2.33 "Tax Date" shall have the meaning set forth in Section 15.3
hereof.
III. EFFECTIVE DATE
The Plan was adopted by the Board on September 20, 2000, subject to the
approval by the Corporation's shareholders. The Plan is being submitted
to the shareholders of the Corporation for their approval at the Annual
Meeting thereof scheduled for November 20, 2000. The effective date of
the Plan shall be September 20, 2000 (the "Effective Date"), provided that
the Plan is approved by the shareholders of the Corporation at the Annual
Meeting.
IV. ADMINISTRATION
The Plan shall be administered by the Board in compliance with Rule
16b-3 of the Securities Exchange Act of 1934 ("Rule 16b-3"), or by a
Committee appointed by the Board, which Committee shall be constituted to
permit the Plan to comply with Rule 16b-3, and which shall consist of not
less than three (3) members. The Board shall appoint one of the members
of the Committee, if there be one, as Chairman of the Committee. If a
Committee has been appointed, the Committee shall hold meetings at such
times and places as it may determine. Acts of a majority of the Committee
at which a quorum is present, or acts reduced to or approved in writing by
a majority of the members of the Committee, shall be the valid acts of the
Committee. The Board, or the Committee if there be one, shall from time
to time at its discretion select the Eligible Employees and consultants
who are to be granted Awards, determine the number of Shares or cash, or
the combination thereof, to be applicable to such Award, and designate any
Options as Incentive Stock Options or Nonstatutory Stock Options, except
that no Incentive Stock Option may be granted to a non-employee director
or a non-employee consultant. A member of the Board or a Committee member
shall in no event participate in any determination relating to Awards held
by or to be granted to such Board or Committee member; however, a member
of the Board or a Committee member shall be entitled to receive Awards
approved by the shareholders in accordance with the provisions of Rule
16b-3. The interpretation and construction by the Board, or by the
Committee if there be one, of any provision of the Plan or of any Award
granted thereunder shall be final. No member of the Board or of the
Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any Award granted thereunder. In
addition to any right of indemnification provided by the Articles of
Incorporation or Bylaws of the Corporation, such person shall be
indemnified and held harmless by the Corporation from any loss, cost,
liability or expense that may be imposed upon or reasonably incurred by
him in connection with any claim, suit, action or proceeding to which he
may be a party by reason of any action or omission under the Plan.
V. PARTICIPATION
5.1 Eligibility. Subject to the terms and conditions of Section
5.2 below, the Participants shall be such persons as the shareholders may
approve or as the Committee may select from among the following classes of
persons: (i) Employees of the Corporation or of a Subsidiary (who may be
officers, whether or not they are directors); and (ii) Consultants,
vendors, customers, and others expected to provide significant services to
the Corporation or a Subsidiary.
For purposes of this Plan, a Participant who is a director or a
consultant, vendor, customer, or other provider of significant services to
the Corporation or a Subsidiary shall be deemed to be an Eligible
Employee, and service as a director, consultant, vendor, customer, or
other provider of significant services to the Corporation or a Subsidiary
shall be deemed to be employment, except that no Incentive Stock Option
may be granted to a non-employee director or non-employee consultant,
vendor, customer, or other provider of significant services to the
Corporation or a Subsidiary, and except that no Nonstatutory Stock Option
may be granted to a non-employee director or non-employee consultant,
vendor, customer, or other provider of significant services to the
Corporation or a Subsidiary other than upon a vote of a majority of
disinterested directors finding that the value of the services rendered or
to be rendered to the Corporation or a Subsidiary by such non-employee
director or non-employee consultant, vendor, customer, or other provider
of services is at least equal to the value of the Awards granted.
5.2 Ten-Percent Shareholders. An Eligible Employee who owns more
than ten percent (10%) of the total combined voting power of all classes
of outstanding stock of the Corporation, its parent or any of its
Subsidiaries shall not be eligible to receive an Award for an Incentive
Stock Option unless (i) the Exercise Price of the Shares subject to such
Award is at least one hundred ten percent (110%) of the Fair Market Value
of such Shares on the date of grant; and (ii) such Award by its terms is
not exercisable after the expiration of five (5) years from the date of
grant.
5.3 Stock Ownership. For purposes of Section 5.2 above, in
determining stock ownership an Eligible Employee shall be considered as
owning the stock owned, directly or indirectly, by of for his brothers,
sisters, spouses, ancestors and lineal descendants. Stock owned, directly
or indirectly, by or for a corporation, partnership, estate or trust shall
be considered as being owned proportionately by or for its shareholders,
partners or beneficiaries. Stock with respect to which such Eligible
Employee holds an Award shall not be counted.
5.4 Outstanding Stock. For purposes of Section 5.2 above,
"outstanding stock" shall include all stock actually issued and
outstanding immediately after the grant of the Award to the Participant.
"Outstanding stock" shall not include shares authorized for issue under
outstanding Options or Purchase Rights held by the Participant or by any
other person.
VI. STOCK SUBJECT TO THE PLAN
The stock subject to Awards granted under the Plan shall be Shares
of the Corporation's authorized but unissued or reacquired Common Stock.
The aggregate number of Shares which may be issued as Awards or upon
exercise of Awards under the Plan shall not exceed One Million (1,000,000)
shares. The number of Shares subject to unexercised Options, Stock
Appreciation Rights or Purchase Rights (plus the number of Shares
previously issued under the Plan) shall not at any time exceed the number
of Shares available for issuance under the Plan. In the event that any
unexercised Option, Stock Appreciation Right or Purchase Right, or any
portion thereof, for any reason expires or is terminated, or if any shares
subject to a Restricted Stock Award do not vest or are not delivered, the
unexercised or unvested Shares allocable to such Option, Stock
Appreciation Right, Purchase Right or Restricted Stock Award may again be
made subject to any Award. Any Shares withheld by the Corporation
pursuant to Section 15.3 shall not be deemed to be issued. The number of
withheld Shares shall be deducted from the applicable Award and shall not
entitle the Participant to receive additional Shares. The limitations
established by this Article VI shall be subject to adjustment in the
manner provided in Section 14.5 hereof upon the occurrence of an event
specified therein.
VII. OPTIONS
7.1 Stock Option Agreements. Options shall be evidenced by written
stock option agreements in such form as the Committee shall from time to
time determine. Such agreements shall comply with and be subject to the
terms and conditions set forth below.
7.2 Number of Shares. Each Option shall state the number of Shares
to which it pertains and shall provide for the adjustment thereof in
accordance with the provisions of Section 14.5 hereof.
7.3 Exercise Price. Each Option shall state the Exercise Price
thereof. The Exercise Price in the case of any Incentive Stock Option
shall not be less than the Fair Market Value on the date of grant and, in
the case of any Option granted to an Optionee described in Section 5.2
hereof, shall not be less than one hundred ten percent (110%) of the Fair
Market Value on the date of grant. The Exercise Price in the case of any
Nonstatutory Stock Option shall not be less than eighty-five percent (85%)
of the Fair Market Value on the date of grant.
7.4 Medium and Time of Payment. The Purchase Price shall be
payable in full in United States dollars upon the exercise of the Option;
provided, however, that if the applicable Stock Option Agreement so
provides the Purchase Price may be paid (i) by the surrender of Shares in
good form for transfer, owned by the Participant and having a Fair Market
Value on the date of exercise equal to the Purchase Price, or in any
combination of cash and Shares, as long as the sum of the cash so paid and
the Fair Market Value of the Shares so surrendered equal the Purchase
Price, (ii) by cancellation of indebtedness owed by the Corporation to the
Participant, (iii) with a full recourse promissory note executed by the
Participant, or (iv) any combination of the foregoing. The interest rate
and other terms and conditions of such note shall be determined by the
Committee. The Committee may require that the Participant pledge his or
her Shares to the Corporation for the purpose of securing the payment of
such note. In no event shall the stock certificate(s) representing such
Shares by released to the Participant until such note shall be been paid
in full.
7.5 Term and Nontransferability of Options. Each Option shall
state the time or times which all or part thereof becomes exercisable. No
Option shall be exercisable after the expiration of ten (10) years from
the date it was granted, and no Option granted to a Participant described
in Section 5.2 hereof shall be exercisable after the expiration of five
(5) years from the date it was granted. During the lifetime of the
Participant, the Option shall be exercisable only by the Participant and
shall not be assignable or transferable. In the event of the
Participant's death, the Option shall not be transferable by the
Participant other than by will or the laws of descent and distribution.
7.6 Modification, Extension and Renewal of Option. Within the
limitations of the Plan, the Committee may modify, extend or renew
outstanding Options or accept the cancellation of outstanding Options (to
the extent not previously exercised) for the granting of new Options in
substitution therefor. The foregoing notwithstanding, no modification of
an Option shall, without the consent of the Participant, alter or impair
any rights or obligations under any Option previously granted.
7.7 Limitation on Grant of Incentive Stock Options. In the case of
Incentive Stock Options granted hereunder, the aggregate Fair Market Value
(determined as of the date of the grant thereof) of the Shares with
respect to which Incentive Stock Options become exercisable by any
Participant for the first time during any calendar year (under this Plan
and all other plans maintained by the Corporation, its parent or its
Subsidiaries) shall not exceed One Hundred Thousand Dollars ($100,000).
The Board or Committee may, however, with the Participant's consent
authorize an amendment to the Incentive Stock Option which renders it a
Nonstatutory Stock Option.
7.8 "Formula Award" Grants to Certain Directors. Each Director of
the Company who is a member of the Compensation Committee shall be
eligible to receive a grant of Nonstatutory Options for 20,000 Shares at
an exercise price of $3.00 per share as of September 20, 2000 and for
20,000 Shares at an exercise price equal to the Fair Market Value on the
date of grant on June 1st of each year during the term of the Plan,
commencing on June 1, 2001, for so long as there shall remain shares
available for grant. The "formula award" options shall vest ratable over
a three-year period on each anniversary of the grant date; however, in the
event of a change of control of the Company that results in a change in
the majority of the members of the Board of Directors, all of the Options
granted shall immediately vest. In the event that there shall at any time
be an insufficient number of shares remaining available to award and grant
to each of the eligible Directors hereunder an Option covering the full
number of shares then to be awarded, then and in such event each Director
shall receive an Option coving a pro rata number of shares, calculated on
the basis of the number of Directors then eligible to participate in the
formula award hereunder. Nothing in this Plan or any Stock Option
Agreement shall obligate the Company to increase the number of shares
subject to the Plan so that the Company may grant Options to eligible
Directors throughout the entire term of this Plan or to grant Options or
other rights to any Director after Options covering the total number of
shares covered by the Plan have been granted or after the expiration of
the term of the Plan.
7.9 Other Provisions. The Stock Option Agreements authorized under
the Plan may contain such other provisions not inconsistent with the terms
of the Plan (including, without limitation, restrictions upon the exercise
of the Option) as the Committee shall deem advisable.
VIII. RESTRICTED STOCK PURCHASE RIGHTS
8.1 Stock Purchase Agreements. Purchase Rights shall be evidenced
by written Stock Purchase Agreements in such form as the Committee shall
from time to time determine. Such agreements shall comply with and be
subject to the terms and conditions set forth below.
8.2 Number of Shares. Each Purchase Right shall state the number
of Shares to which it pertains and shall provide for the adjustment
thereof in accordance with the provisions of Section 14.5 hereof.
8.3 Purchase Price. Each Stock Purchase Agreement shall state the
Purchase Price per Share at which the Purchase Right may be exercised,
which shall not be less than the Fair Market Value of a Share on the date
on which the Purchase Rights are granted. Unless the Board or Committee
otherwise determines, the Purchase Price per Share at which any Purchase
Right granted under the Plan may be exercised shall not be less than the
Fair Market Value of a Share as of the date on which the Purchase Right is
granted, less a discount (the "Discount") equal to not more than seventy-five
percent (75%) of such value.
8.4 Exercisability and Non-Transferability of Purchase Rights.
Purchase Rights granted to an Eligible Employee pursuant to the Plan must
be exercised within sixty (60) days after the later to occur of (i) Board
approval of the grant of the Purchase Right or (ii) delivery of notice of
such grant. Purchase Rights may not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner and shall expire
immediately upon the death of the Participant or the termination of such
Participant's employment with the Corporation.
8.5 Medium and Time of Payment. The Purchase Price shall be
payable in full in United States dollars upon exercise of the Purchase
Right; provided, however, that if the applicable Stock Purchase Agreement
so provides, the Purchase Price may be paid (i) by the surrender of Shares
in good form for transfer, owned by the person exercising the Purchase
Right and having a Fair Market Value on the date of exercise equal to the
Purchase Price, or in any combination of cash and Shares, as long as the
sum of the cash so paid and the Fair Market Value of the Shares so
surrendered equal the Purchase Price, or (ii) with a full recourse
promissory note executed by the Participant. The interest rate and other
terms and conditions of such note shall be determined by the Committee.
The Committee may require that the Participant pledge his or her Shares to
the Corporation for the purpose of securing the payment of such note. In
no event shall the stock certificate(s) representing such Shares by
released to the Participant until such note shall be been paid in full.
In the event the Corporation determines that it is required to withhold
state or Federal income tax as a result of the exercise of a Purchase
Right, as a condition to the exercise thereof, a Participant may be
required to make arrangements satisfactory to the Corporation to enable it
to satisfy such withholding requirements. In addition, the Participant
shall agree to immediately notify the Corporation if he or she files an
election pursuant to Section 83(b) of the Code with respect to receipt of
the Shares.
8.6 Consent of Spouse. Each Participant who is married must cause
his or her spouse to sign and deliver the Stock Purchase Agreement to the
Corporation, in the place provided for such signature on the Stock
Purchase Agreement.
8.7 Modification, Extension and Renewal of Purchase Rights. Within
the limitations of the Plan, the Board or the Committee may modify, extend
or renew outstanding Purchase Rights or accept the cancellation of
outstanding Purchase Rights (to the extent not previously exercised) for
the granting of new Purchase Rights in substitution therefor. The
foregoing notwithstanding, no modification of a Purchase Right shall,
without the consent of the Employee, alter or impair any rights or
obligations under any Purchase Right previously granted.
8.8. Repurchase Option as to Unvested Shares.
(a) Termination of Employment. In the event of the voluntary
or involuntary termination or cessation of employment or association of
the Participant with the Corporation or any Subsidiary for any reason
whatsoever, with or without cause (including death or disability), the
Corporation shall, upon the date of such termination, have an irrevocable,
exclusive option to repurchase (the "Repurchase Option") all or any
portion of the Shares held by the Employee that are subject to the
Repurchase Option as of such date at the original Purchase Price.
(b) Vesting. Initially, all of the Shares shall be subject
to the Repurchase Option. Thereafter, the Repurchase Option shall lapse
and expire, or "vest," as to a specified number of the Shares in
accordance with a schedule to be determined by the Board or the Committee,
as the case may be, which shall be attached to the Stock Purchase
Agreement to be entered into between the Participant and the Corporation
as provided in Section 8.1 above. All Shares which continue to be subject
to the Repurchase Option are sometimes hereinafter referred to as
"Unvested Shares."
(c) Notice. Within ninety (90) days following the date of
the Participant's termination of employment by the Corporation, the
Corporation shall notify the Employee as to whether it wishes to
repurchase the Unvested Shares pursuant to the exercise of the Repurchase
Option. If the Corporation elects to repurchase said Unvested Shares, it
shall set a date for the closing of the transaction at the Executive
Offices of the Corporation, not later than thirty (30) days from the date
such notice.
(d) Transfers. Except for transfers to Participant's
descendants and spouses, the Participant shall not transfer by sale,
assignment, hypothecation donation or otherwise any of the Shares or any
interest therein prior to the release of such Shares from the Repurchase
Option.
(e) Assignment. The Corporation's Repurchase Option may be
assigned in whole or in part to any stockholder or stockholders of the
Corporation or other persons or organizations.
8.9 Corporation's Right of First Refusal to Purchase Vested Shares.
Each Stock Purchase Agreement entered into as provided herein shall
provide for a right of first refusal and option on the part of the
Corporation to purchase all or any part of any Shares which are no longer
subject to the Repurchase Option which the Participant purposes to sell,
transfer or otherwise dispose of (except for transfers to Participant's
descendants and spouses) on the following terms and conditions:
(a) The Participant must notify the Corporation in writing of
any proposed sale, transfer or other disposition of any of the Shares,
specifying the proposed transferee, the number of Shares proposed to be
transferred, and the price at which such Shares are to be sold,
transferred or otherwise disposed.
(b) The Corporation shall have a period of thirty (30) days
from receipt of such notice to notify the Participant in writing as to
whether or not the Corporation elects to purchase all or a specified
portion of such Shares at the lower of (i) price per share set forth in
the notice given by the Participant, or (ii) the Fair Market Value for a
share of the Corporation's Common Stock, without restrictions, on the date
on which the notice is given by Participant to the Corporation (determined
as provided in Section 2.13 above), less in either case an amount equal to
the Discount.
(c) If the Corporation elects not to purchase all of the
Shares specified in the notice, the Participant may sell, transfer or
otherwise dispose of the remaining Shares in strict accordance with the
terms specified in the notice within ninety (90) days following the date
of the notice. It is understood and agreed that any transferee of any of
such Shares (other than the Corporation) will take and acquire all of such
Shares subject to the continuing right of first refusal and option on the
part of the Corporation to purchase all or any portion of such Shares from
the transferee on all of the same terms and conditions as are set forth in
the Stock Purchase Agreement, unless the Participant shall have paid to
the Corporation, out of the proceeds from the sale of such Shares or
otherwise, an amount equal to the lesser of (i) the Discount or (ii) the
amount by which the Fair Market Value for a share of the Corporation's
Common Stock, without restrictions, on the date on which the notice is
given by Participant to the Corporation (determined as provided in Section
2.13 above) exceeds the price per Share paid by the Participant for such
Shares.
8.10 Other Provisions. The Stock Purchase Agreements authorized
may contain such other provisions not inconsistent with the terms of the
Plan as the Board or the Committee shall deem advisable.
IX. STOCK APPRECIATION RIGHTS
9.1 Grant. Stock Appreciation Rights related or unrelated to
Options or other Awards may be granted to Eligible Employees (i) at any
time if unrelated to an Award or if related to an Award other than an
Incentive Stock Option; or (ii) only at the time of grant of an Option if
related thereto. A Stock Appreciation Right may extend to all or a
portion of the shares covered by a related Award.
9.2 Exercise of Stock Appreciation Rights. A Stock Appreciation
Right granted in connection with an Award shall be exercisable only at
such time or times, and to the extent, that a related Award is
exercisable. A Stock Appreciation Right granted in connection with an
Option may be exercisable only when the Fair Market Value of the stock
subject to the Option exceeds the exercise price of the Incentive Stock
Option.
9.3 Payment.
(a) Upon the exercise of a Stock Appreciation Right, and, if
such Stock Appreciation Right is related to an Award, surrender of an
exercisable portion of the related Award, the Participant shall be
entitled to receive payment of an amount determined by multiplying:
(i) the difference obtained by subtracting the purchase
price of a share of Common Stock specified in the related Award, or if
such Stock Appreciation Right is unrelated to an Award, from the Fair
Market Value, book value or other measure specified in the Award of such
Stock Appreciation Right of a share of Common Stock on the date of
exercise of such Stock Appreciation Right, by
(ii) the number of shares as to which such Stock
Appreciation Right has been exercised.
(b) The Board or the Committee, as the case may be, in its
sole discretion, may require settlement of the amount determined under
paragraph (b) above solely in cash, solely in shares of Common Stock
(valued at Fair Market Value on the business day next preceding the date
of exercise of such Stock Appreciation Right), or partly in such shares
and partly in cash.
9.4 Maximum Stock Appreciation Right Term. Each Stock Appreciation
Right and all rights and obligations thereunder shall expire on such date
as shall be determined by the Board or the Committee, but not later than
ten (10) years after the date of the Award thereof, and shall be subject
to earlier termination as provided in the related Award Agreement and
Sections 14.6, 14.7, 14.8, 14.9 and 15.1.
X. PERFORMANCE AWARDS
One or more Performance Awards may be granted to any Eligible
Employee. The value of such Awards may be linked to the market value,
book value or other measure of the value of the Common stock or other
specific performance criteria determined appropriate by the Board or the
Committee, in each case on a specified date or over any period determined
by the Board or the Committee, or may be based upon the appreciation in
the market value, book value or other measure of the value of a specified
number of shares of Common stock over a fixed period determined by the
Board or the Committee. In making such determinations, the Board or the
Committee shall consider (among such other factors as it deems relevant in
light of the specific type of award) the contributions, responsibilities
and other compensation of the Participant.
XI. DIVIDEND EQUIVALENTS
A Participant may also be granted "Dividend Equivalents" based on
the dividends declared on the Common Stock, to be credited as of dividend
payment dates, during the period between the Award Date and the date such
Award is exercised, vests or expires, as determined by the Board or the
Committee. Such Dividend Equivalents shall be converted to cash or
additional shares of Common Stock by such formula and at such time and
subject to such limitations as may be determined by the Board or the
Committee.
XII. STOCK PAYMENTS
The Board or the Committee may approve Stock Payments to Eligible
Employees who elect to receive such payments in the manner determined from
time to time by the Board or the Committee. The number of shares shall be
determined by the Board or the Committee and may be based upon the Fair
Market Value, book value or other measure of the value of such shares on
the Award Date or on any date thereafter.
XIII. LOANS
The Corporation may, with the Board's or the Committee's approval,
extend one or more loans to Participants in connection with the exercise
or receipt of outstanding Awards granted under the Plan; provided any such
loan shall be subject to the following terms and conditions:
(i) The principal of the loan shall not exceed the amount required
to be paid to the Corporation upon the exercise or receipt of one or more
Awards under the Plan less the aggregate Par Value of any Common Stock
deliverable on such event, and the loan proceeds shall be paid directly to
the Corporation in consideration of such exercise or receipt.
(ii) The initial term of the loan shall be determined by the Board
or the Committee; provided that the term of the loan, including
extensions, shall not exceed a period of ten years.
(iii) The loan shall be with full recourse to the Participant,
shall be evidenced by the Participant's promissory note and shall bear
interest at a rate determined by the Board or the Committee but not less
than the Corporation's average cost of funds as of a date within thirty-one
(31) days of the date of such loan, as determined by the Board or the
Committee.
(iv) In the event a Participant terminates his or her employment at
the request of the Corporation, the unpaid principal balance of the note
hall become due and payable on the tenth (10th) business days after such
termination; provided, however, that if a sale of such shares would cause
such Participant to incur liability under Section 16(b) of the Exchange
Act, the unpaid balance shall become due and payable on the tenth (10th)
business day after the first day on which a sale of such shares could have
been made without incurring such liability assuming for these purposes
that there are no other transactions by the Participant subsequent to such
termination. In the event a Participant terminates employment other than
at the request of the Corporation, the unpaid principal balance of the
note shall become due and payable six (6) months after the date of such
termination.
XIV. RIGHTS OF ELIGIBLE EMPLOYEES, PARTICIPANTS AND BENEFICIARIES
14.1 Employee Status. Status as an Eligible Employee shall not be
construed as a commitment that any Award will be made under the Plan to an
Eligible Employee or to Eligible Employees generally.
14.2 No Employment Contract. Nothing contained in the Plan (or in
the Award Agreements or in any other documents related to the Plan or to
Awards) shall confer upon any Eligible Employee or any Participant any
right to continue in the employee of the Corporation or constitute any
contract or agreement of employment, or interfere in any way with the
right of the Corporation to reduce such person's compensation or to
terminate the employment of such Eligible Employee or Participant, with or
without cause, but nothing contained in the plan or any document related
thereto shall affect any other contractual right of any Eligible Employee
or Participant. Nothing contained in the plan (or in the Award Agreements
or in any other documents related to the Plan or the Awards) shall confer
upon any director of the Corporation any right to continue as a director
of the Corporation.
14.3 No Transferability. Awards may be exercised only by, and
amounts payable or shares issuable pursuant to an Award shall be paid only
to or registered only in the name of, the Participant or, in the event of
the Participant's death, to the Participant's Beneficiary or, in the event
of the Participant's Disability, to the Participant's Personal
Representative or, if there is none, to the Participant. Other than by
will or the laws of descent and distribution, no right or benefit under
the Plan or any Award, including, without limitation, any Option or share
of Restricted Stock that has not vested, shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance
or charge and any such attempted action shall be void and no such right or
benefit shall be, in any manner, liable for, or subject to, debts,
contract, liabilities, engagements or torts of any Eligible Employee,
Participant or Beneficiary, in any case except as may otherwise be
expressly required by applicable law. The Board or the Committee shall
disregard any attempt at transfer, assignment or other alienation
prohibited by the preceding sentence and shall pay or deliver such cash or
shares of Common Stock in accordance with the provisions of the Plan.
Notwithstanding the foregoing, the Board or the Committee may authorize
exercise by or transfers or payments to a third party in a specific case
or more generally; provided, however, with respect to any option or
similar right (including any stock appreciation right) such discretion may
only be exercised to the extent that applicable rules under Section 16 of
the Exchange Act would so permit without disqualifying the Plan from
certain benefits thereunder.
14.4 Plan Not Funded. No Participant, Beneficiary or other person
shall have any right, title or interest in any fund or in any specific
asset (including shares of Common Stock) of the Corporation by reason of
any Award granted hereunder. There shall be no funding of any benefits
which may become payable hereunder. Neither the provisions of the Plan
(or of any documents related hereto), nor the creation or adoption of the
plan, nor any action taken pursuant to the provisions of the Plan shall
create, or be construed to create, a trust of any kind or a fiduciary
relationship between the Corporation and any Participant, Beneficiary. To
the extent that a Participant, a Beneficiary or other person acquires a
right to receive an Award hereunder, such right shall be no greater than
the right of any unsecured general creditor of the Corporation. Awards
payable under the Plan shall be paid in shares of Common Stock or from the
general assets of the Corporation, and no special or separate fund or
deposit shall be established and no segregation of assets or shares shall
be made to assure payment of such Awards.
14.5 Adjustment Upon Recapitalizations and Corporate Changes. If
the outstanding shares of Common Stock are changed into or exchanged for
cash or a different number or kind of shares or securities of the
Corporation, or if the outstanding shares of the Common Stock are
increased, decreased, exchanged for, or otherwise changed, or if
additional shares or new or different shares or securities are distributed
with respect to the outstanding shares of the Common Stock, through a
reorganization or merger in which the Corporation is the surviving entity
or through a combination, consolidation, recapitalization,
reclassification, stock split, stock dividend, reverse stock split, stock
consolidation or other capital change or adjustment, an appropriate
adjustment shall be made in the number and kind of shares of other
consideration that is subject to or may be delivered under the Plan and
pursuant to outstanding Awards. A corresponding adjustment to the
consideration payable with respect to Awards granted prior to any such
change and to the price, if any, to be paid in connection with Restricted
Stock Awards shall also be made as appropriate. Corresponding adjustments
shall be made with respect to Stock Appreciation Rights related to Options
to which they are related. In addition, the Board or the Committee may
grant such additional rights in the foregoing circumstances as the Board
or the Committee deems to be in the best interest of any Participant and
the Corporation in order to preserve for the Participant the benefits of
an Award.
14.6 Termination of Employment, Except by Death, Disability or
Retirement. If a Participant ceases to be an Employee for any reason other
than his or her death, Disability or Retirement, such Participant shall
have the right, subject to the restrictions of Section 14.3 above, to
exercise any Award at any time within three (3) months after termination
of employment, but only to the extent that, at the date of termination of
employment, the Participant's right to exercise such Award had accrued
pursuant to the terms of the applicable agreement and had not previously
been exercised; provided, however, that if the Participant was terminated
for cause (as defined in the applicable agreement) any Award not exercised
in full prior to such termination shall be canceled. For this purpose,
the employment relationship shall be treated as continuing intact while
the Participant is on military leave, sick leave or other bona fide leave
of absence (to be determined in the sole discretion of the Board or the
Committee). The foregoing notwithstanding, in the case of an Incentive
Stock Option, employment shall not be deemed to continue beyond the
ninetieth (90th) day after the Participant's reemployment rights are
guaranteed by statute or by contract.
14.7 Death of Participant. If an Participant dies while an
Employee, or after ceasing to be an Employee but during the period while
he or she could have exercised the Award under this Section 14.7, and has
not fully exercised the Award, then the Award may be exercised in full at
any time within twelve (12) months after the Participant's death (but not
later than the date of termination fixed in the applicable agreement), by
the executors or administrators of his or her estate or by any person or
persons who have acquired the Award directly from the Participant by
bequest or inheritance, but only to the extent that, at the date of death,
the Participant's right to exercise such Award had accrued and had not
been forfeited pursuant to the terms of the applicable agreement and had
not previously been exercised.
14.8 Disability of Participant. If an Participant ceases to be an
Employee by reason of Disability, such Participant shall have the right to
exercise the Award at any time within twelve (12) months after termination
of employment (but not later than the termination date fixed in the
applicable agreement), but only to the extent that, at the date of
termination of employment, the Participant's right to exercise such Award
had accrued pursuant to the terms of the applicable agreement and had not
previously been exercised.
14.9 Retirement of Participant. If an Participant ceases to be an
Employee by reason of Retirement, such Participant shall have the right to
exercise the Award at any time within three (3) months after termination
of employment (but not later than the termination date fixed in the
applicable agreement), but only to the extent that, at the date of
termination of employment, the Participant's right to exercise such Award
had accrued pursuant to the terms of the applicable agreement and had not
previously been exercised.
14.10 Rights as a Stockholder. An Participant, or a transferee of
an Participant, shall have no rights as a stockholder with respect to any
Shares covered by his or her Award until the date of the issuance of a
stock certificate for such Shares. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property), distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as provided in
Section 14.5 hereof.
14.11 Deferral of Payments. The Board or the Committee may approve
the deferral of any payments that may become due under the Plan. Such
deferrals shall be subject to any conditions, restrictions or requirements
as the Board or the Committee may determine.
14.12 Acceleration of Awards. Immediately prior to the occurrence
of an Event, (i) each Option and Stock Appreciation Right under the Plan
shall become exercisable in full; (ii) Restricted Stock delivered under
the Plan shall immediately vest free of restrictions; and (iii) each other
Award outstanding under the Plan shall be fully vested or exercisable,
unless, prior to the Event, the Board or the Committee otherwise
determines that there shall be no such acceleration or vesting of an Award
or otherwise determines those Awards which shall be accelerated or vested
and to the extent to which they shall be accelerated or vested, or that an
Award shall terminate, or unless in connection with such Event the Board
provides (A) for the assumption of such Awards theretofore granted; or (B)
for the substitution for such Awards of new awards covering securities or
obligations (or any combination thereof) of a successor corporation, or a
parent or subsidiary thereof, with appropriate adjustments as to number
and kind of shares and prices; or (C) for the payment of the fair market
value of the then outstanding Awards. In addition, the Board or the
Committee may grant such additional rights in the foregoing circumstances
as the Board or the Committee deems to be in the best interest of the
Participant and the Corporation in order to preserve for the Participant
the benefits of an Award. For purposes of this Section 14.12 only, Board
shall mean the Board of Directors of the Corporation as constituted
immediately prior to the Event. In addition, the Board may in its sole
discretion accelerate the exercisability or vesting of any or all Awards
outstanding under the Plan in circumstances under which the Board or the
Committee determines such acceleration appropriate.
XV. MISCELLANEOUS
15.1 Termination, Suspension and Amendment. The Board or the
Committee may, at any time, suspend, amend, modify of terminate the Plan
(or any part thereof) and may, with the consent of a Participant,
authorize such modifications of the terms and conditions of such
Participant's Award as it shall deem advisable; provided that, except as
permitted under the provisions of Section 14.5 hereof, no amendment or
modification of the plan may be adopted without approval by a majority of
the shares of the Common Stock represented (in person or by proxy) at a
meeting of stockholders at which a quorum is present and entitled to vote
thereat, if such amendment or modification would:
(i) materially increase the benefits accruing to Participants
under the plan within the meaning of Rule 16b-3 under the Exchange Act or
any successor provision;
(ii) materially increase the aggregate number of shares which
may be delivered pursuant to Awards granted under the Plan; or
(iii) materially modify the requirements of eligibility for
participation in the Plan.
Neither adoption of the plan nor the provisions hereof shall
limit the authority of the Board to adopt other plans or to authorize
other payments of compensation and benefits under applicable law. No
Awards under the plan may be granted or amended during any suspension of
the Plan or after its termination. The amendment, suspension or
termination of the Plan shall not, without the consent of the Participant,
alter or impair any rights or obligations pertaining to any Awards granted
under the plan prior to such amendment, suspension or termination.
15.2 No Fractional Shares. No Award or installment thereof shall
be exercisable except in respect of whole shares, and fractional share
interests shall be disregarded.
15.3 Tax Withholding and Tax Bonuses. As required by law, federal,
state or local taxes that are subject to the withholding of tax at the
source shall be withheld by the Corporation as necessary to satisfy such
requirements. The Corporation is entitled to require deduction from other
compensation payable to each Participant or, in the alternative: (i) the
Corporation may require the Participant to advance such sums; or (ii) if a
Participant elects, the Corporation may withhold (or require the return
of) Shares having the Fair Market Value equal to the sums required to be
withheld. If the Participant elects to advance such sums directly,
written notice of that election shall be delivered prior to such exercise
and, whether pursuant to such election or pursuant to a requirement
imposed by the Corporation, payment in cash or by check of such sums for
taxes shall be delivered within ten (10) days after the exercise date. If
the Participant elects to have the Corporation withhold Shares (or be
entitled to the return of Shares) having a Fair Market Value equal to the
sums required to be withheld, the value of the Shares to be withheld (or
returned) will be equal to the Fair Market Value on the date the amount of
tax to be withheld (or subject to return) is to be determined (the "Tax
Date").
15.4 Restrictions on Elections Made by Participants. Elections by
Participants to have Shares withheld (or subject to return) for this
purpose will be subject to the following restrictions: (i) the election
must be made prior to the Tax Date; (ii) the election must be irrevocable;
(iii) the election will be subject to the Board's disapproval; and (iv) if
the Participant is an "officer" within the meaning of Section 16 of the
Exchange Act, the election shall be subject to such additional
restrictions as the Board or the Committee may impose in an effort to
secure the benefits of any regulations thereunder.
15.5 Limitations on the Corporation's Obligations. The Corporation
shall not be obligated to issue shares and/or distribute cash to the
Participant upon any Award exercise until such payment has been received
or Shares have been withheld, unless withholding (or offset against a cash
payment) as of or prior to the exercise date is sufficient to cover all
such sums due or which may be due with respect to such exercise. In
addition, the Board or the Committee may grant to a Participant a cash
bonus in any amount required by federal, state, or local tax law to be
withheld with respect to an Award.
15.6 Compliance with Laws. The Plan, the granting of Awards under
the Plan, the Stock Option Agreements and Stock Purchase Agreements and
the delivery of Options, Shares and Awards (and/or the payment of money or
Common Stock) pursuant thereto and the extension of any loans hereunder
are subject to such additional requirements as the Board or the Committee
may impose to assure or facilitate compliance with all applicable federal
and state laws, rules and regulations (including, without limitation,
securities laws and margin requirements) and to such approvals by any
regulatory or governmental agency which may be necessary or advisable in
connection therewith. In connection with the administration of the Plan
or the grant of any Award, the Board or the Committee may impose such
further limitations or conditions as in its opinion may be required or
advisable to satisfy, or secure the benefits of, applicable regulatory
requirements (including those rules promulgated under Section 16 of the
Exchange Act or those rules that facilitate exemption from or compliance
with the Securities Act or the Exchange Act), the requirements of any
stock exchange upon which such shares or shares of the same class are then
listed, and any blue sky or other securities laws applicable to such
shares.
15.7 Governing Laws. The Plan and all Awards granted under the
Plan and the documents evidencing Awards shall be governed by, and
construed in accordance with, the laws of the State of California, except
as to those matters governed by the laws of the State of Arizona as the
state of incorporation of the Corporation.
15.8 Securities Law Requirements.
(a) Legality of Issuance. The issuance of any Shares upon
the exercise of any Option and the grant of any Option shall be contingent
upon the following:
(i) the Corporation and the Participant shall have taken
all actions required to register the Shares under the Securities Act of
1933, as amended (the "Securities Act"), and to qualify the Option and the
Shares under any and all applicable state securities or "blue sky" laws or
regulations, or to perfect an exemption from the respective registration
and qualification requirements thereof;
(ii) any applicable listing requirement of any stock
exchange on which the Common Stock is listed shall have been satisfied;
and
(iii) any other applicable provision of state of Federal
law shall have been satisfied.
(b) Restrictions on Transfer. Regardless of whether the
offering and sale of Shares under the plan has been registered under the
Securities Act or has been registered or qualified under the securities
laws of any state, the Corporation may impose restrictions on the sale,
pledge or other transfer of such Shares (including the placement of
appropriate legends on stock certificates) if, in the judgment of the
Corporation and its counsel, such restrictions are necessary or desirable
in order to achieve compliance with the provisions of the Securities Act,
the securities laws of any state or any other law. In the event that the
sale of Shares under the Plan is not registered under the Securities Act
but an exemption is available which required an investment representation
or other representation, each Participant shall be required to represent
that such Shares are being acquired for investment, and not with a view to
the sale or distribution thereof, and to make such other representations
as are deemed necessary or appropriate by the Corporation and its counsel.
Any determination by the Corporation and its counsel in connection with
any of the matters set forth in this Section 15.6(b) shall be conclusive
and binding on all persons. Stock certificates evidencing Shares acquired
under the Plan pursuant to an unregistered transaction shall bear the
following restrictive legend and such other restrictive legends as are
required or deemed advisable under the provisions of any applicable law:
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"). ANY TRANSFER OF SUCH SECURITIES WILL BE INVALID UNLESS
A REGISTRATION STATEMENT UNDER THE SECURITIES ACT IS IN EFFECT
AS TO SUCH TRANSFER OR IN THE OPINION OF COUNSEL FOR THE ISSUER
SUCH REGISTRATION IS UNNECESSARY IN ORDER FOR SUCH TRANSFER TO
COMPLY WITH THE SECURITIES ACT."
(c) Registration or Qualification of Securities. The Corporation
may, but shall not be obligated to register or qualify the issuance of
Awards and/or the sale of Shares under the Securities Act or any other
applicable law. The Corporation shall not be obligated to take any
affirmative action in order to cause the issuance of Awards or the sale of
Shares under the plan to comply with any law.
(d) Exchange of Certificates. If, in the opinion of the
Corporation and its counsel, any legend placed on a stock certificate
representing shares issued under the Plan is no longer required, the
holder of such certificate shall be entitled to exchange such certificate
for a certificate representing the same number of Shares but lacking such
legend.
15.9 Execution. To record the adoption of the Plan in the form set
forth above by the Board effective as of September 20, 2000, the
Corporation has caused this Plan to be executed in the name and on behalf
of the Corporation where provided below by an officer of the Corporation
thereunto duly authorized.
METALCLAD CORPORATION
By: /s/ Grant S. Kesler
----------------------------
Grant S. Kesler, President
ATTEST:
/s/ Bruce H. Haglund
------------------------------
Bruce H. Haglund, Secretary
(SEAL)
