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Exhibit 10.1
TBM HOLDINGS, INC.
1999 STOCK OPTION PLAN
1. Purpose. TBM Holdings, Inc. (the "Company") hereby adopts the
TBM Holdings, Inc. 1999 Stock Option Plan (the "Plan"). The Plan is intended to
recognize the contributions made to the Company by employees (including
employees who are members of the Board of Directors) of and advisors or
consultants to the Company or any Affiliate, to provide such persons with
additional incentive to devote themselves to the future success of the Company
or an Affiliate, and to improve the ability of the Company or an Affiliate to
attract, retain, and motivate individuals upon whom the Company's sustained
growth and financial success depend, by providing such persons with an
opportunity to acquire or increase their proprietary interest in the Company
through receipt of rights to acquire the Company's Common Stock, par value
$0.001 per Share (the "Common Stock"). In addition, the Plan is intended as an
additional incentive to directors of the Company who are not employees of the
Company or an Affiliate to serve on the Board of Directors and to devote
themselves to the future success of the Company by providing them with an
opportunity to acquire or increase their proprietary interest in the Company
through the receipt of Options to acquire Common Stock.
2. Definitions. Unless the context clearly indicates otherwise,
the following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a parent
corporation or a subsidiary corporation with respect to the Company within the
meaning of Section 424(e) or (f) of the Code.
(b) "Board of Directors" means the Board of Directors of the
Company.
(c) "Change of Control" shall have the meaning set forth in
Section 10 of the Plan.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the Board of Directors, or a committee
of the Board of Directors appointed in accordance with Section 3 of the Plan,
when acting in connection with the administration of the Plan.
(f) "Company" means TBM Holdings, Inc., a Florida corporation.
(g) "Consultant" shall mean a non-employee advisor or
consultant retained by the Company whose services are considered by the
Committee to be of sufficient importance to the Company to merit an award of
Options hereunder.
(h) "Disability" shall have the meaning set forth in Section
22(e)(3) of the Code.
(i) "Fair Market Value" shall have the meaning set forth in
Subsection 8(b) of the Plan.
(j) "ISO" means an Option granted under the Plan which is
intended to qualify as an "incentive stock option" within the meaning of Section
422(b) of the Code.
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(k) "Non-employee Director" means a member of the Board of
Directors who is not an employee of the Company or an Affiliate.
(l) "Non-qualified Stock Option" means an Option granted under
the Plan which is not intended to qualify, or otherwise does not qualify, as an
"incentive stock option" within the meaning of Section 422(b) of the Code.
(m) "Option" means either an ISO or a Non-qualified Stock
Option granted under the Plan.
(n) "Optionee" means a person to whom an Option has been
granted under the Plan, which Option has not been exercised and has not expired
or terminated.
(o) "Option Document" means the document described in Section
8 of the Plan, which sets forth the terms and conditions of each grant of
Options.
(p) "Option Price" means the price at which Shares may be
purchased upon exercise of an Option, as calculated pursuant to Subsection 8(b)
of the Plan.
(q) "Rule 16b-3" means Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended.
(r) "Shares" means the shares of Common Stock of the Company
which are the subject of Options.
3. Administration of the Plan. The Plan shall be administered by the
Board of Directors of the Company; however, the Board of Directors may designate
a committee composed of at least two Non-employee Directors within the meaning
of Rule 16b-3(3) to operate and administer the Plan in its stead. With respect
to Non-employee Directors who are to be granted Options in accordance with the
provisions of Section 9, the directors to whom Options will be granted, the
timing of grants of Options, the price at which Shares may be purchased and the
number of Shares covered by Options granted to each Optionee shall be as
specifically set forth herein and subject to the foregoing and the other
provisions set forth herein. The Plan, as it pertains to Non-employee Directors,
shall be administered by the Board of Directors.
(a) Meetings. The Committee shall hold meetings at such times
and places as it may determine. Acts approved at a meeting by a majority of the
members of the Committee or acts approved in writing by the unanimous consent of
the members of the Committee shall be the valid acts of the Committee.
(b) Grants. Except with respect to Options granted to
Non-employee Directors pursuant to Section 9, the Committee shall from time to
time at its discretion direct the Company to grant Options pursuant to the terms
of the Plan. The Committee shall have plenary authority to (i) determine the
Optionees to whom, the times at which, and the price at which Options shall be
granted, (ii) determine the type of Option to be granted and the number of
Shares subject thereto, and (iii) approve the form and terms and conditions of
the Option Documents; all subject, however, to the express provisions of the
Plan. In making such determinations, the Committee may take into account the
nature of the Optionee's services and responsibilities, the Optionee's present
and potential contribution to the Company's success and such other factors as it
may deem relevant. Notwithstanding the foregoing, grants of Options to
Non-employee Directors shall be made in accordance with Section 9. The
interpretation and construction by
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the Committee of any provisions of the Plan or of any Option granted under it
shall be final, binding and conclusive.
(c) Exculpation. No member of the Board of Directors shall be
personally liable for monetary damages for any action taken or any failure to
take any action in connection with the administration of the Plan or the
granting of Options under the Plan, provided that this Subsection 3(c) shall not
apply to (i) any breach of such member's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, (iii) acts or omissions that would
result in liability under Section 607.144 of the Florida General Corporation Act
as amended, and (iv) any transaction from which the member derived an improper
personal benefit.
(d) Indemnification. Service on the Committee shall constitute
service as a member of the Board of Directors of the Company. Each member of the
Committee shall be entitled without further act on his part to indemnity from
the Company to the fullest extent provided by applicable law and the Company's
Certificate of Incorporation and/or By-laws in connection with or arising out of
any action, suit or proceeding with respect to the administration of the Plan or
the granting of Options thereunder in which he or she may be involved by reason
of his or her being or having been a member of the Committee, whether or not he
or she continues to be such member of the Committee at the time of the action,
suit or proceeding.
4. Grants under the Plan. Grants under the Plan may be in the form of a
Non-qualified Stock Option, an ISO or a combination thereof, at the discretion
of the Committee.
5. Eligibility. All employees, Consultants and members of the Board of
Directors of the Company and its Affiliates shall be eligible to receive Options
hereunder. However, Non-employee Directors may receive Options only pursuant to
Section 9. The Committee, in its sole discretion, shall determine all questions
of eligibility to receive Options hereunder.
6. Shares Subject to Plan. The aggregate maximum number of Shares for
which Options may be granted pursuant to the Plan is One Hundred Twenty-Five
Thousand (125,000) Shares, subject to adjustment as provided in Section 11 of
the Plan. The Shares shall be issued from authorized and unissued Common Stock
or Common Stock held in or hereafter acquired for the treasury of the Company.
If an Option terminates or expires without having been fully exercised for any
reason, the Shares for which the Option was not exercised may again be the
subject of one or more Options granted pursuant to the Plan.
7. Term of the Plan. The Plan is effective as of July 15, 1999, the
date on which it was adopted by the Board of Directors of the Company, subject
to approval by the stockholders on or before July 14, 2000. In the event that
such stockholder approval is not obtained on or before July 14, 2000, this Plan
shall be of no effect and any options granted hereunder shall terminate. No
Option granted hereunder shall be exercisable prior to the date on which this
Plan is duly approved by the stockholders of the Company. No Option may be
granted under the Plan after July 14, 2009.
8. Option Documents and Terms. Each Option granted under the Plan shall
be a Non-qualified Stock Option unless the Option shall be specifically
designated at the time of grant to be an ISO. If any Option designated an ISO is
determined for any reason not to qualify as an Incentive Stock Option within the
meaning of Section 422 of the Code, such Option shall be treated as a
Non-qualified Stock Option for all purposes under the provisions of the Plan.
Options granted pursuant to the Plan shall be evidenced by the Option Documents
in such form as the Committee shall from time to time approve, which Option
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Documents shall comply with and be subject to the following terms and conditions
and such other terms and conditions as the Committee shall from time to time
require which are not inconsistent with the terms of the Plan. However, the
provisions of this Section 8 shall not be applicable to Options granted to
Non-employee Directors, except as otherwise provided in Subsection 9(c).
(a) Number of Option Shares. Each Option Document shall state
the number of Shares to which it pertains. An Optionee may receive more than one
Option, which may include Options which are intended to be ISO's and Options
which are not intended to be ISO's, but only on the terms and subject to the
conditions and restrictions of the Plan.
(b) Option Price. Each Option Document shall state the Option
Price which, for a Non-qualified Stock Option, may be less than, equal to or
greater than the Fair Market Value of the Shares on the date the Option is
granted and, for an ISO, shall be at least 100% of the Fair Market Value of the
Shares on the date the Option is granted as determined by the Committee in
accordance with this Subsection 8(b); provided, however, that if an ISO is
granted to an Optionee who then owns, directly or by attribution under Section
424(d) of the Code, shares possessing more than ten percent of the total
combined voting power of all classes of stock of the Company or an Affiliate,
then the Option Price shall be at least 110% of the Fair Market Value of the
Shares on the date the Option is granted. If the Common Stock is traded in a
public market, then the Fair Market Value per share shall be, if the Common
Stock is listed on a national securities exchange or included in the NASDAQ
National Market System, the last reported sale price thereof on the relevant
date or, if the Common Stock is not so listed or included, the average of the
last reported "bid" and "asked" prices thereof on the relevant date, as reported
on NASDAQ or, if not so reported, as reported by the National Quotation Bureau,
Inc., or as reported in a customary financial reporting service, as applicable
and as the Committee determines. At any time at which the Common Stock is not
traded in a public market, then the Fair Market Value per share shall be
determined by the Board of Directors, acting in good faith, and such
determination shall be final and binding for all purposes of this Plan.
(c) Exercise. No Option shall be deemed to have been exercised
prior to the receipt by the Company of written notice of such exercise and of
payment in full of the Option Price for the Shares to be purchased. Each such
notice shall specify the number of Shares to be purchased and (unless the Shares
are covered by a then current registration statement or a Notification under
Regulation A under the Securities Act of 1933 (the "Act")) shall contain the
Optionee's acknowledgment in form and substance satisfactory to the Company that
(a) such Shares are being purchased for investment and not for distribution or
resale (other than a distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the registration
provisions of the Act), (b) the Optionee has been advised and understands that
(i) the Shares have not been registered under the Act and are "restricted
securities" within the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (ii) the Company is under no obligation to register
the Shares under the Act or to take any action which would make available to the
Optionee any exemption from such registration, (c) such Shares may not be
transferred without compliance with all applicable federal and state securities
laws, and (d) an appropriate legend referring to the foregoing restrictions on
transfer and any other restrictions imposed under the Option Documents may be
endorsed on the certificates. Notwithstanding the foregoing, if the Company
determines that issuance of Shares should be delayed pending (A) registration
under federal or state securities laws, (B) the receipt of an opinion of counsel
satisfactory to the Company that an appropriate exemption from such registration
is available, (C) the listing or inclusion of the Shares on any securities
exchange or an automated quotation system or (D) the consent or approval of any
governmental regulatory body whose consent or approval is necessary in
connection with the issuance of such Shares, the Company may defer exercise of
any Option granted hereunder until any of the events described in this sentence
has occurred.
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(d) Medium of Payment. An Optionee shall pay for Shares (i) in
cash, (ii) by certified, bank or cashier's check payable in clearing house funds
to the order of the Company, or (iii) by such other mode of payment as the
Committee may approve, including payment through a broker in accordance with
procedures permitted by Regulation T of the Federal Reserve Board. Furthermore,
the Committee may provide in an Option Document that payment may be made in
whole or in part in shares of the Company's Common Stock held by the Optionee.
If payment is made in whole or in part in shares of the Company's Common Stock,
then the Optionee shall deliver to the Company certificates registered in the
name of such Optionee representing the shares owned by such Optionee, free of
all liens, claims and encumbrances of every kind and having an aggregate Fair
Market Value on the date of delivery that is at least as great as the Option
Price of the Shares (or relevant portion thereof) with respect to which such
Option is to be exercised by the payment in shares of Common Stock, endorsed in
blank or accompanied by stock powers duly endorsed in blank by the Optionee. In
the event that certificates for shares of the Company's Common Stock delivered
to the Company represent a number of shares in excess of the number of shares
required to make payment for the Option Price of the Shares (or relevant portion
thereof) with respect to which such Option is to be exercised by payment in
shares of Common Stock, the stock certificate issued to the Optionee shall
represent the Shares in respect of which payment is made, and an additional
certificate shall be issued to the Optionee for such excess number of shares.
Notwithstanding the foregoing, the Committee may impose from time to time such
limitations and prohibitions on the use of shares of the Common Stock to
exercise an Option as it deems appropriate.
(e) Termination of Options.
(i) No Option shall be exercisable after the first to
occur of the following:
(A) Expiration of the Option term specified in the
Option Document, which shall not occur after (1) ten years from the date of
grant, or (2) five years from the date of grant of an ISO if the Optionee on the
date of grant owns, directly or by attribution under Section 424(d) of the Code,
shares possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of an Affiliate.
(B) Expiration of three months from the date the
Optionee's employment or service with the Company or its affiliates (other than
service as a Non-employee Director) terminates for any reason other than
disability or death or as otherwise specified in Subsection 8(e)(i)(D) or
8(e)(i)(E), or as otherwise specifically provided by the Committee acting
pursuant to Subsection 8(e)(ii) below.
(C) Expiration of one year from the date such
employment or service with the Company or its Affiliates, including service as a
Non-employee Director, terminates due to the Optionee's Disability or death.
(D) A finding by the Committee, after full
consideration of the facts presented on behalf of both the Company and the
Optionee, that the Optionee has breached his employment or service contract with
the Company or an Affiliate, or has been engaged in disloyalty to the Company or
an Affiliate, including, without limitation, fraud, embezzlement, theft,
commission of a felony or proven dishonesty in the course of his employment or
service, or has disclosed trade secrets or confidential information of the
Company or an Affiliate. In such event, in addition to immediate termination of
the Option, the Optionee shall automatically forfeit all Shares for which the
Company has not yet delivered the share certificates upon refund by the Company
of the Option Price. Notwithstanding anything herein to the contrary, the
Company may withhold delivery of share
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certificates pending the resolution of any inquiry that could lead to a finding
resulting in a forfeiture.
(E) The date, if any, set by the Board of Directors
as an accelerated expiration date in the event of the liquidation or dissolution
of the Company.
(ii) Notwithstanding the foregoing, the Committee may
extend the period during which all or any portion of an Option may be exercised
to a date no later than the Option term specified in the Option Document
pursuant to Subsection 8(e)(i)(A), provided that any change pursuant to this
Subsection 8(e)(ii) which would cause an ISO to become a Non-qualified Stock
Option may be made only with the consent of the Optionee.
(f) Transfers. No Option granted under the Plan may be
transferred, except by will or by the laws of descent and distribution. During
the lifetime of the person to whom an Option is granted, such Option may be
exercised only by him. Notwithstanding the foregoing, a Non-qualified Stock
Option may be transferred pursuant to the terms of a "qualified domestic
relations order," within the meaning of Sections 401(a)(13) and 414(p) of the
Code or within the meaning of Title I of the Employee Retirement Income Security
Act of 1974, as amended.
(g) Limitation on ISO Grants. In no event shall the aggregate
fair market value of the shares of Common Stock (determined at the time the ISO
is granted) with respect to which incentive stock options under all incentive
stock option plans of the Company or its Affiliates are exercisable for the
first time by the Optionee during any calendar year exceed $100,000.
(h) Other Provisions. Subject to the provisions of the Plan,
the Option Documents shall contain such other provisions including, without
limitation, provisions authorizing the Committee to accelerate the
exercisability of all or any portion of an Option granted pursuant to the Plan,
additional restrictions upon the exercise of the Option or additional
limitations upon the term of the Option, as the Committee shall deem advisable.
(i) Amendment. Subject to the provisions of the Plan, the
Committee shall have the right to amend Option Documents issued to an Optionee,
subject to the Optionee's consent if such amendment is not favorable to the
Optionee, except that the consent of the Optionee shall not be required for any
amendment made pursuant to Subsection 8(e)(i)(E) or Section 10 of the Plan, as
applicable.
9. Special Provisions Relating to Grants of Options to Non-employee
Directors. Options granted pursuant to the Plan to Non-employee Directors shall
be granted, without any further action by the Committee, in accordance with the
terms and conditions set forth in this Section 9. Options granted pursuant to
this Section 9 shall be evidenced by Option Documents in such form as the
Committee shall from time to time approve, which Option Documents shall comply
with and be subject to the following terms and conditions and such other terms
and conditions as the Committee shall from time to time require which are not
inconsistent with the terms of the Plan.
(a) Timing of Grants; Number of Shares Subject to Options;
Exercisability of Options; Option Price. Each Non-employee Director shall be
granted an Option to purchase Two Thousand (2,000) Shares on the date such
person first becomes a director of the Company. Except as otherwise provided
herein or in the applicable Option Document with respect to the termination of
such Options or the acceleration of the exercisability thereof, each such Option
shall be a Non-qualified Stock Option, exercisable at any time during its term
following the date of grant. The Option Price shall be equal to the Fair Market
Value of the Shares on the date the Option is granted.
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(b) Termination of Option Granted Pursuant to Section 9. All
Options granted pursuant to this Section 9 shall be exercisable until the first
to occur of the following:
(i) Expiration of ten (10) years from the date of grant;
or
(ii) Expiration of one (1) year from the date the
Optionee's service with the Company as a director terminates due to the
Optionee's Disability or death.
10. Change of Control. In the event of a Change of Control, the
Committee may take whatever action it deems necessary or desirable with respect
to the Options outstanding (other than Options granted pursuant to Section 9),
including, without limitation, accelerating the expiration or termination date
in the respective Option Documents to a date no earlier than thirty (30) days
after notice of such acceleration is given to the Optionees. In addition to the
foregoing, in the event of a Change of Control, Options granted pursuant to the
Plan shall become immediately exercisable in full. Any amendment to this Section
10 which diminishes the rights of Optionees shall not be effective with respect
to Options outstanding at the time of adoption of such amendment, whether or not
such outstanding Options are then exercisable.
A "Change of Control" shall be deemed to have occurred upon the
earliest to occur of the following events: (i) the date the stockholders of the
Company (or the Board of Directors, if stockholder action is not required)
approve a plan or other arrangement pursuant to which the Company will be
dissolved or liquidated, or (ii) the date the stockholders of the Company (or
the Board of Directors, if stockholder action is not required) approve a
definitive agreement to sell or otherwise dispose of all or substantially all of
the assets of the Company, or (iii) the date the stockholders of the Company (or
the Board of Directors, if stockholder action is not required) and the
stockholders of the other constituent corporation (or its board of directors if
stockholder action is not required) have approved a definitive agreement to
merge or consolidate the Company with or into such other corporation, other
than, in either case, a merger or consolidation of the Company in which holders
of shares of the Company's Common Stock immediately prior to the merger or
consolidation will own at least a majority of the common stock of the surviving
corporation (and, if one class of common stock is not the only class of voting
securities entitled to vote on the election of directors of the surviving
corporation, a majority of the voting power of the surviving corporation's
voting securities) immediately after the merger or consolidation, which common
stock (and, if applicable, voting securities) is to be held in the same
proportion as such holders' ownership of Common Stock of the Company immediately
before the merger or consolidation, or (iv) the date any entity, person or
group, within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended, other than the Company or any of
its subsidiaries or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries shall have become the
beneficial owner of, or shall have obtained voting control over, more than fifty
percent (50%) of the outstanding shares of the Company's Common Stock, or (v)
the first day after the date this Plan is effective when directors are elected
such that a majority of the Board of Directors shall have been members of the
Board of Directors for less than two (2) years, unless the nomination for
election of each new director who was not a director at the beginning of such
two (2) year period was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period.
11. Adjustments on Changes in Capitalization. The aggregate number of
Shares and class of shares as to which Options may be granted hereunder, the
number and class or classes of shares covered by each outstanding Option and the
Option Price thereof shall be appropriately adjusted in the event of a stock
dividend, stock split, recapitalization or other change in the number or class
of issued and outstanding equity securities of the Company resulting from a
subdivision or consolidation of the
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Common Stock and/or, if appropriate, other outstanding equity securities or a
recapitalization or other capital adjustment (not including the issuance of
Common Stock on the conversion or exchange of other securities of the Company
which are convertible into or exchangeable for Common Stock) affecting the
Common Stock which is effected without receipt of consideration by the Company.
The Committee shall have authority to determine the adjustments to be made under
this Section, and any such determination by the Committee shall be final,
binding and conclusive; provided, however, that no adjustment shall be made
which will cause an ISO to lose its status as such without the consent of the
Optionee, except for adjustments made pursuant to Section 10 hereof.
12. Amendment of the Plan. The Board of Directors of the Company may
amend the Plan from time to time in such manner as it may deem advisable.
Nevertheless, the Board of Directors of the Company may not change the class of
individuals eligible to receive an ISO or increase the maximum number of shares
as to which Options may be granted without obtaining approval, within twelve
months before or after such action, by vote of a majority of the votes cast at a
duly called meeting of the stockholders at which a quorum representing a
majority of all outstanding voting stock of the Company is, either in person or
by proxy, present and voting on the matter. In addition, the provisions of
Section 9 that determine (i) which directors shall be granted Options pursuant
to Section 9; (ii) the amount of Shares subject to Options granted pursuant to
Section 9; (iii) the price at which shares subject to Options granted pursuant
to Section 9 may be purchased; and (iv) the timing of grants of Options pursuant
to Section 9 shall not be amended more than once every six months, other than to
comport with changes in the Code or the Employee Retirement Security Act of
1974, as amended. No amendment to the Plan shall adversely affect any
outstanding Option, however, without the consent of the Optionee.
13. No Commitment to Retain. The grant of an Option pursuant to the
Plan shall not be construed to imply or to constitute evidence of any agreement,
express or implied, on the part of the Company or any Affiliate to retain the
Optionee in the employ of the Company or an Affiliate and/or as a member of the
Company's Board of Directors or in any other capacity.
14. Withholding of Taxes. Whenever the Company proposes or is required
to deliver or transfer Shares in connection with the exercise of an Option, the
Company shall have the right to (a) require the recipient to remit or otherwise
make available to the Company an amount sufficient to satisfy any federal, state
and/or local withholding tax requirements prior to the delivery or transfer of
any certificate or certificates for such Shares or (b) take whatever other
action it deems necessary to protect its interests with respect to tax
liabilities. The Company's obligation to make any delivery or transfer of Shares
shall be conditioned on the Optionee's compliance, to the Company's
satisfaction, with any withholding requirement.
15. Interpretation. The Plan is intended to enable transactions under
the Plan with respect to directors and Officers (within the meaning of Section
16(a) under the Securities Exchange Act of 1934, as amended) to satisfy the
conditions of Rule 16b-3 or its successors; to the extent that any provision of
the Plan would cause a conflict with such conditions or would cause the
administration of the Plan as provided in Section 3 to fail to satisfy the
conditions of Rule 16b-3, such provision shall be deemed null and void to the
extent permitted by applicable law. This Section shall not be applicable if no
class of the Company's equity securities is then registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended.
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