Exhibit (10)(b)
KAPUALA ACQUISITIONS, INC.
1995 NONQUALIFYING STOCK OPTION PLAN
ARTICLE I
Purpose of Plan
This 1995 NONQUALIFYING STOCK OPTION PLAN (the "Plan") of KAPUALA
ACQUISITIONS, INC. (the "Company") for persons employed or associated with the
Company, including without limitation any employee, director, general partner,
officer, attorney, accountant, consultant or advisor, is intended to advance the
best interests of the Company by providing additional incentive to those persons
who have a substantial responsibility for its management, affairs, and growth by
increasing their proprietary interest in the success of the Company, thereby
encouraging them to maintain their relationships with the Company). Further, the
availability and offering of Stock Options under the Plan supports and increases
the Company's ability to attract, engage and retain individuals of exceptional
talent upon whom, in large measure, the sustained progress growth and
profitability of the Company for the shareholders depends.
ARTICLE 11
Definitions
For Plan purposes, except where the context might clearly indicate
otherwise, the following terms shall have the meanings set forth below:
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the rules and regulations promulgated thereunder.
"Committee" shall mean the Compensation Committee, or such other
committee appointed by the Board, which shall be designated by the Board to
administer the Plan. The Company shall be composed of two or more persons as
from time to time are appointed to serve by the Board and may be members of the
Board.
"Committee Shares" shall mean the Company's Common Shares no par value
per share, or, in the event that the outstanding Common Shares are hereafter
changed into or exchanged for different shares or securities of the Company,
such other shares or securities.
"Company" shall mean Kapuala Acquisitions, Inc., a Colorado
corporation, and any parent or subsidiary corporation of Kapuala Acquisitions,
Inc., as such terms are defined in Section 425(e) and 425(f), respectively of
the Code.
"Optionee" shall mean any person employed or associated with the
affairs of the Company who has been granted one or more Stock Options under the
Plan.
"Stock Option" or "NQSO" shall mean a stock option granted pursuant to
the terms of the Plan.
"Stock Option Agreement" shall mean the agreement between the Company
and the Optionee under which the Optionee may purchase Common Shares hereunder.
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ARTICLE III
Administration of the Plan
1. The Committee shall administer the plan and accordingly, it shall
have full power to grant Stock Options, construe and interpret the Plan,
establish rules and regulations and per-form all other acts, including the
delegation of administrative responsibilities, it believes reasonable and
proper.
2. The determination of those eligible to receive Stock Options, and
the amount, price, type and timing of each Stock Option and the terms and
conditions of the respective stock option agreements shall rest in the sole
discretion of the Committee, subject to the provisions of the Plan.
3. The Committee may cancel any Stock Options awarded under the Plan
if an Optionee conducts himself in a manner which the Committee determines to be
inimical to the best interest of the Company and its shareholders as set forth
more fully in paragraph 8 of Article X of the Plan.
4. The Board, or the Committee, may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or in any granted Stock
Option, in the Manner and to the extent it shall deem necessary to carry it into
effect.
5. Any decision made, or action taken, by the Committee or the Board
arising out or in connection with the interpretation and administration of the
Plan shall be final and conclusive.
6. Meetings of the Committee shall be held at such times and places as
shall be determined by the Committee. A majority of the members of the Committee
shall constitute a quorum for the transaction of business, and the vote of a
majority of those members present at any meeting shall decide any question
brought before that meeting. In addition, the Company may take any action
otherwise proper under the Plan by the affirmative vote, taken without a
meeting, of a majority of its members.
7. No member of the Committee shall be liable for any act or omission
of any other member of the Committee or for any act or omission on his own part,
including, but not limited to, the exercise of any power or discretion given to
him under the Plan except those resulting form his own gross negligence or
willful misconduct.
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8. The Company, through its management, shall supply full and timely
information to the Committee on all matters relating to the eligibility of
Optionees, their duties and performance, and current information on any
Optionee's death, retirement, disability or other termination of association
with the Company, and such other pertinent information as the Committee may
require. The Company shall furnish the Committee with such clerical and other
assistance as is necessary in the performance of its duties hereunder.
ARTICLE IV
Shares Subject to the Plan
1. The total number of shares of the Company available for grants of
Stock Options under the Plan shall be 2,000,000 Common Shares, subject to
adjustment as herein provided, which shares may be either authorized but
unissued or reacquired Common Shares of the Company.
2. If a Stock Option or portion thereof shall expire or terminate for
any reason without having been exercised in full, the unpurchased shares covered
by such NQSO shall be available for future grants of Stock Options.
ARTICLE V
Stock Option Terms and Conditions
1. Consistent with the Plan's purpose, Stock Options may be granted to
any person who is performing or who has been engaged to perform services of
special importance to management in the operation, development and growth of the
Company.
2. Determination of the option price per share for any stock option
issues hereunder shall rest in the sole and unfettered discretion of the
Committee.
3. All Stock Options granted under the Plan shall be evidenced by
agreements which shall be subject to applicable provisions of the Plan, and such
other provisions as the Committee may adopt, including the provisions set forth
in paragraphs 2 through 11 of this Article V.
4. All Stock Options granted hereunder must be granted within ten
years from the date this Plan is adopted.
5. No Stock Option granted hereunder shall be exercisable after the
expiration of ten years from the date such NQSO is granted. The Committee, in
its discretion, may provide that an option shall be exercisable during such ten
year period or during any lesser period of time. The Committee may establish
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installment exercise terms for a Stock Option such that the NQSO becomes fully
exercisable in a series of cumulating portions. If an Optionee shall not, in any
given installment period, purchase all the Common Shares which such Optionee is
entitled to purchase within such installment period, such Optionee's right to
purchase any Common Shares not purchased in such installment period shall
continue until the expiration or sooner termination of such NQSO. The Committee
may also accelerate the exercise of any NQSO.
6. A Stock Option, or portion thereof, shall be exercised by deliver
of (i) a written notice of exercise to the Company specifying the number of
Common Shares to be purchased, and (ii) payment of the full price of such Common
Shares, as fully set forth in paragraph 7 of this Article V.
No NQSO or installment thereof shall be reusable except with
respect to whole shares, and fractional share interests shall be disregarded.
Not less than 100 Common Shares may be purchased at one time unless the number
purchased is the total number at the time available for purchase under the NQSO.
Until the Common Shares represented by all exercised NQSO are issued to an
Optionee, he shall have none of the rights of a shareholder.
7. The exercise price of a Stock Option, or portion thereof, may be
paid:
A. In United States dollars, in cash or by cashier's check,
certified check, bank draft or money order, payable to the order of
the Company in an amount equal to the option price; or,
B. At the discretion of the Committee, through the delivery of
fully paid and nonassessable Common Shares, with an aggregate fair
market value (determined as the average of the highest and lowest
reported sales prices on the Common Shares as of the date of exercise
of the NQSO, as reported by such responsible reporting service as the
Committee may select, or if there were not transactions in the Common
Shares on such day, then the last preceding day on which transactions
took place), as of the date of the NQSO exercise equal to the option
price, provided such tendered shares, or any derivative security
resulting in the issuance of Common Shares, have been owned by be
Optionee for at least 30 days prior to such exercise; or,
C. By a combination of both A and B above.
The Committee shall determine acceptable methods for tendering Common
Shares as payment upon exercise of a Stock Option and may impose such
limitations and prohibitions on the use of Common Shares to exercise an NQSO as
it deems appropriate.
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8. With the Optionee's consent, the Committee may cancel any Stock
Option issued under this Plan and issue a new NQSO to such Optionee.
9. Except by will, the laws of descent and distribution, or with the
written consent of the Committee, no right or interest in any Stock Option
granted under the Plan shall be assignable or transferable, and no right or
interest of any Optionee shall be liable for, or subject to, any lien,
obligation or liability of the Optionee. Upon petition to, and thereafter with
the written consent of the Committee, an Optionee may assign or transfer all or
a portion of the Optionee's rights and interest in any stock option granted
hereunder. Stock Options shall be exercisable during the Optionee's lifetime
only by the Optionee or assignees, or the duly appointed legal representative of
an incompetent Optionee, including following all assignment consented to by the
Committee herein.
10. No NQSO shall be exercisable while there is outstanding any other
NQSO which was granted to the Optionee before the grant of such option under the
Plan or any other plan which gives the right to the Optionee to purchase stock
in the Company or in a corporation which is a parent corporation (as defined in
Section 425(e) of the Code) of the Company, or any predecessor corporation of
any of such corporations at the time of the grant. An NQSO shall be treated as
outstanding until it is either exercised in full or expires by reason of lapse
of time.
11. Any Optionee who disposes of Common Shares acquired on the
exercise of a NQSO by sale or exchange either (i) within two years after the
date of the grant of the NQSO under which the stock was acquired, or (ii) within
one year after the acquisition of such Shares, shall notify the Company of such
disposition and of the amount realized upon such disposition. The transfer of
Common Shares may also be restricted by applicable provisions of the Securities
Act of 1933, as amended.
ARTICLE VI
Adjustments or Changes in Capitalization
1. In the event that the outstanding Common Shares of the Company are hereafter
changed into or exchanged for a different number of kinds of shares or other
securities of the Company by reason of merger, consolidation, other
reorganization, recapitalization, reclassification, combination of shares, stock
split-up or stock dividend:
A. Prompt, proportionate, equitable, lawful and adequate
adjustment shall be made of the aggregate number and kind of shares
subject to Stock Options which may be granted under the Plan, such
that the Optionee shall have the right to purchase such Common Shares
as may be issued in exchange for the Common Shares purchasable on
exercise of the NQSO had such merger, consolidation, other
reorganization, recapitalization, reclassification, combination of
shares, stock split-up or stock dividend not taken place;
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B. Rights under unexercised Stock Options or portions thereof
granted prior to any such change, both as to the number or kind of
shares and the exercise price per share, shall be adjusted
appropriately, provided that such adjustments shall be made without
change in the total exercise price applicable to the unexercised
portion of such NQSO's but by an adjustment in the price for each
share covered by such NQSO'S; or,
C. Upon any dissolution or liquidation of the Company or any
merger or combination in which the Company is not a surviving
corporation, each outstanding Stock Option granted hereunder shall
terminate, but the Optionee shall have the right, immediately prior to
such dissolution, liquidation, merger or combination, to exercise his
NQSO in whole or in part, to the extent that it shall not have been
exercised, without regard to any installment exercise provisions in
such NQSO.
2. The foregoing adjustment and the manner of application of the
foregoing provisions shall be determined solely by the Committee, whose'
determination as to what adjustments shall be made and the extent thereof, shall
be final, binding and conclusive. No fractional Shares shall be issued under the
Plan on account of any such adjustments.
ARTICLE VII
Merger, Consolidation or Tender Offer
1. If the Company shall be a party to a binding agreement to any
merger, consolidation or reorganization or sale of substantially all the assets
of the Company, each outstanding Stock Option shall pertain and apply to the
securities and/or property which a shareholder of the number of Common Shares of
the Company subject to the NQSO would be entitled to receive pursuant to such
merger, consolidation or reorganization or sale of assets.
2. In the event that:
A. Any person other than the Company shall acquire more thin 20%
of the Common Shares of the Company through a tender offer, exchange
offer or otherwise;
B. A change in the "control" of the Company occurs, as such ten-n
is defined in Rule 405 under the Securities Act of 1933;
C. There shall be a sale of all or substantially all of the
assets of the Company;
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any then outstanding Stock Option held by an Optionee, who is deemed by the
Committee to be a statutory officer ("insider") for purposes of Section 16 of
the Securities Exchange Act of' 1934 shall be entitled to receive, subject to
any action by the Committee revoking such all entitlement as provided for below,
in lieu of exercise of such Stock Option, to the extent that it is then
exercisable, a cash payment in an amount equal to the difference between the
aggregate exercise price of such NQSO, or portion thereof, and, (i) in the event
of an offer or similar event, the filial offer price per share paid for Common
Shares, or such lower price as the Committee may determine to conform an option
to preserve its Stock Option status, times the number of Common Shares covered
by the NQSO or portion thereof, or (ii) in the case of all event covered by B or
C above, the aggregate fair market value of the Common Shares covered by the
Stock Option, as determined by the Committee at such time.
3. Any payment which the Company is required to make pursuant to
paragraph 2 of this Article VII, shall be made within 15 business days,
following the event which results in the Optionee's right to such payment. In
the event of a tender offer in which fewer than all the shares which are
validity tendered in compliance with such offer are purchased or exchanged, then
only that portion of the shares covered by all NQSA as results from multiplying
such shares by a fraction, the numerator of which is the number of Common Shares
acquired purchase to the offer and the denominator of which is the number of
Common Shares tendered in compliance with such offer, shall be used to determine
the payment thereupon. To the extent that all or any portion of a Stock Option
shall be affected by this provision, all or such portion of the NQSO shall be
terminated.
4. Notwithstanding paragraphs I and 3 of this Article VII, the Company
may, by unanimous vote and resolution, unilaterally revoke the benefits of the
above provisions; provided, however, that such vote is taken no later than tell
business days following public announcement of the intent of an offer of the
change of control, whichever occurs earlier.
ARTICLE VIII
Amendment and Termination of Plan
1. The Board may at any time, and from time to time, suspend or
terminate the Plan in whole or in part or amend it from time to time in such
respects as the Board may deem appropriate and in the best interest of the
Company.
2. No amendment, suspension or termination of this Plan shall, without
the Optionee's consent, alter or impair any of the rights or obligations under
any Stock Option theretofore granted to him under the Plan.
3. The Board may amend the Plan, subject to the limitations cited
above, ill such manner as it deems necessary to permit the granting of Stock
Options meeting the requirements of future amendments or issued regulations, if
any, to the Code.
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4. No NQSO may be granted during any suspension of the Plan or after
termination of the Plan.
ARTICLE IX
Government and Other Regulations
The obligation of the Company to issue, transfer and deliver Common
Shares for Stock Options exercised under the Plan shall be subject to all
applicable laws, regulations, rules, orders and approval which shall then be in
effect and required by the relevant stock exchanges on which the Common Shares
are traded and by government entities as set forth below or as the Committee in
its sole discretion shall deem necessary or advisable. Specifically, in
connection with the Securities Act of 1933, as amended, upon exercise of any
Stock Option, the Company shall not be required to issue Common Shares unless
the Committee has received evidence satisfactory to it to the effect that the
Optionee will not transfer such shares except pursuant to a registration
statement in effect under such Act or unless an opinion of counsel satisfactory
to the Company has been received by the Company to the effect that such
registration is not required. Any determination in this connection by the
Committee shall be final, binding and conclusive. The Company may, but shall in
no event be obligated to take any other affirmative action in order to cause the
exercise of a Stock Option or the issuance of Common Shares purchase thereto to
comply with any law or regulation of any government authority.
ARTICLE X
Miscellaneous Provisions
1. No person shall have any claim or right to be granted a Stock
Option tender the Plan, and the grant of an NQSO under the Plan shall not be
construed as giving an Optionee the right to be retained by the Company.
Furthermore, the Company expressly reserves the right it ally hills to terminate
its relationship with an Optionee with or without cause, free from any
liability, or any claim under the Plan, except as provided herein, in an option
agreement, or in any agreement between the Company and the Optionee.
2. Any expenses of administering this Plan shall be borne by the
Company.
3. The payment received from Optionee from the exercise of Stock
Options trader the Plan shall be used for the general corporate purposes of the
Company.
4. The place of administration of the Plan shall be in the State of
Texas, and the validity, contraction, interpretation, administration and effect
of the Plan and its rules and regulations, and rights relating to the Plan,
shall be determined solely in accordance with the laws of the State of Colorado.
<PAGE>
5. Without amending the Plan, grants may be made to persons who are
foreign nationals or employed outside the United States, or both, on such terms
and conditions. consistent with the Plan's purpose, different from those
specified in the Plan as may, in the judgment of the Committee, be necessary or
desirable to create equitable opportunities given differences in tax laws in
other countries.
6. In addition to such other rights of indemnification as they may
have as members of the Board or Committee, the members of the Committee shall be
indemnified by the Company against all costs and expenses reasonably incurred by
them in connection with any actions suite or proceeding to which they or any of
them may be party by reason of any action taken or failure to act under or in
connection with the Plan or any Stock Option granted thereunder, an against ill
amount paid by them in settlement thereof (provided such settlement is approved
by independent legal Counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except a
judgment based upon a finding of bad faith; provided that upon the institution
of any such action, suit or proceeding a Committee member shall in writing, give
the Company notice thereof and an opportunity, at its own expense, to handle and
defend the same before steel) Committee member undertakes to handle and defend
it on his own behalf.
7. Stock Options may be granted under this Plan form time to time, ill
substitution for stock options held by employees of other corporations who are
about to become employees of the Company as the result of a merger or
consolidation of the employing corporation with the Company or the acquisition
by the Company of the assets of the employing corporation or the acquisition by
the Company of stock of the employing corporation as a result of which it become
a subsidiary of the Company. The terms and conditions of such substitute stock
options so granted my vary from the terms and conditions set forth in this Plan
to Such extent as the Board of Director of the Company at the time of grant may
deem appropriate to conform, in whole, or in part, to the provisions of the
stock options in substitution for which they are granted, but no such variations
shall be such as to affect the status of any such Substitute stock options as a
stock option under Section 422A of the Code.
8. Notwithstanding anything to the contrary in the Plan, if the
Committee finds by a majority vote, after full consideration of the facts
presented on behalf of both the Company the Optionee, that the Optionee has been
engaged in fraud, embezzlement, theft, commission of a felony or proven
dishonesty in the course of his association with the Company or any subsidiary
corporation which damaged the Company or any subsidiary corporation, or (or
disclosing trade secrets of the Company or any subsidiary corporation, the
Optionee shall forfeit all unexercised Stock Options and all exercised NQSO's
under which the Company has not yet delivered the certificates and which have
been earlier granted the Optionee by the Committee. The decision of the
Committee as to the case of an Optionee's discharge and the damage done to the
Company shall be final. No decision of the Committee, however, shall affect the
finality of the discharge of such Optionee by the Company or any subsidiary
corporation in ally Clarifier. Further, if Optionee voluntarily terminates
employment with the Company, the Optionee shall forfeit all unexercised stock
options.
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ARTICLE XI
Written Agreement
Each Stock Option granted hereunder shall be embodied in a written Stock Option
Agreement which shall be subject to the terms and conditions prescribed above
and shall be subject to the terms and conditions prescribed above and shall be
signed by the Optionee and by the President or any Vice President of the
Company, for and in the name and on behalf of the Company. Such Stock Option
Agreement shall contain such other provisions as the Committee, in its
discretion shall deem advisable.
ARTICLE XII
Effective Date
This Plan shall become unconditionally effective as of the effective date of
approval of the Plan by the Board of Directors of the Company. No Stock Option
may be granted later than ten (10) years from the effective date of the Plan;
provided, however, that the Plan and all outstanding Stock Options shall remain
in effect until such NQSO's have expired or until such options are cancelled.
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Number of Shares: Date of Grant:
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NON QUALIFYING STOCK OPTION AGREEMENT
AGREEMENT made this ________ day of __________ 19 _____, between
____________________ (the "Optionee"), and Kapuala Acquisitions, Inc., a
Colorado Corporation (the "Company").
1. Grant of Option. The Company, pursuant to the provisions of the
Kapuala Acquisitions, Inc. 1995 Nonqualifying Stock Option Plan (the "1995
Plan"), set forth as Attachment A hereto, hereby grants to the Optionee, subject
to the terms and conditions set forth or incorporated herein, an Option and
Purchase from the Company all or any part of an aggregate of Common Shares, as
such Common Shares are now constituted, at the purchase price of $ per share.
The provisions of the 1995 Plan governing the terms and conditions of the Option
granted hereby are incorporated in full herein by reference.
2. Exercise. The Option evidenced hereby shall be exercisable in whole
or in part (but only in multiples of 100 Shares unless such exercise is as to
the remaining balance of this Option) on or after and on or before_________
provided that the cumulative number of Common Shares as to which this Option may
be (except as provided in paragraph I of Article VI of this 1995 Plan) shall not
exceed the following amounts:
Cumulative Number Prior to Date
of Shares (Not inclusive of)
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The Option evidenced hereby shall be exercisable by the deliver to and receipt
by the Company of (i) a written notice of election to exercise, in the form set
forth in Attachment B hereto, specifying the number of shares to be purchased;
(ii) accompanied by payment of the full purchase price thereof in case or
certified check payable to the order of the Company, or by fully-paid and
nonassessable Common Shares of the Company properly endorsed over to the
Company, or by a combination thereof; and, (iii) by return of this Stock Option
Agreement for endorsement of exercise by the Company on Schedule I hereof. In
the event fully paid and nonassessable Common Shares are submitted as whole or
partial payment for Shares to be purchased hereunder, such Common Shares will be
valued at their Fair Market Value (as (Inclined in the 1995 Plan) on the date
such Shares are received by the Company and applied to payment of the exercise
price.
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3. Transferabilitv. The Option evidenced hereby is NOT assignable on
transferable by the Optionee other than by the Optionee's will, by the laws of
descent and distribution, as provided in paragraph 9 of Article V of the 1995
Plan. The Option shall be exercisable only by the Optionee during his lifetime.
KAPUALA ACQUISITIONS, INC.
BY:
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Joseph F. Longo, President
ATTEST:
----------------
Secretary
Optionee hereby acknowledges receipt of a copy of the 1995 Plan,
attached hereto and accepts this Option subject to each and every term and
provision of such Plan. Optionee hereby agrees to accept as binding, conclusive
and final, all decisions or interpretations of the Compensation Committee of the
Board of Directors administering the 1995 Plan on any questions arising under
such Plan. Optionee recognizes that if Optionee's employment with the Company or
any subsidiary thereof shall be terminated with cause, or by the Optionee, all
of the Optionee's rights hereunder shall thereupon terminate; and that, pursuant
to paragraph 10 of Article V of the 1995 Plan, this Option may not be exercised
while there is outstanding to Optionee any unexercised Stock Option, granted to
Optionee before the date of grant of this Option, to purchase Common Shares of
the Company or any parent or Subsidiary thereof.
Dated:
--------------------------------
Optionee
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Type or Print Name
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Address
--------------------------------
Social Security No.
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Attachment B
(Suggested form of letter to be used for
notification of election to exercise.)
Date:
Secretary,
KAPUALA ACQUISITIONS, INC.
79 Old Ridgefield Road
Wilton, Connecticut 06897
Dear Sir:
In accordance with paragraph 2 of the Nonqualifying Stock Option
Agreement evidencing the Option granted to me on under the Kapuala
Acquisitions, Inc. 1995 Nonqualifying Stock Option Plan, I hereby
elect to exercise this Option to the extent of __________ Common
Shares.
Enclosed are (i) Certificate(s) No.(s) representing fully-paid Common
Shares of Kapuala Acquisitions, Inc. endorsed to the Company with
signature guaranteed, and/or a certified check payable to the order of
Kapuala Acquisitions, Inc. in the amount of $ as the balance of the
purchase price of $ for the Shares which I have elected to purchase
and (ii) the original Stock Option Agreement for endorsement by the
Company as to exercise on Schedule I thereof. I acknowledge that the
Common Shares (if any) submitted as part payment for the exercise
price due hereunder will be valued by the Company at their Fair Market
Value (as defined in the 1995 Plan) on the date this Option exercise
is effected by the Company. In the event I hereafter sell any Common
Shares issued pursuant to this option exercise within one year from
the date of exercise or within two years after the date of grant of
this Option, I agree to notify the Company promptly of the amount of
taxable compensation realized by me by reason of such sale for federal
income tax purposes.
When the certificate for Common Shares which I have elected to
purchase has been issued, please deliver it to me, along with my endorsed Stock
Option Agreement in the event there remains an unexercised balance of Shares
under the Option, at the following address:
Signature of Optionee:
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Type or Print Name:
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