Exhibit 10.15
TOKHEIM CORPORATION
MANAGEMENT OPTION PLAN
Section 1. PURPOSE OF OPTION PLAN
The name of this plan is the Tokheim Corporation Management
Option Plan (the "Option Plan"). The Option Plan was authorized and
approved by the United Stated Bankruptcy Court for the District of Delaware
on October 5, 2000 as part of the Plan of Reorganization (as hereinafter
defined) and was adopted by the Board (as hereinafter defined) on October
20, 2000. The purpose of the Option Plan is to provide additional
incentive to selected management employees of the Company and its
Subsidiaries (as hereinafter defined) whose contributions are essential to
the growth and success of the Company's business, in order to strengthen
the commitment of such persons to the Company and its Subsidiaries,
motivate such persons to faithfully and diligently perform their
responsibilities and attract and retain competent and dedicated persons
whose efforts will result in the long-term growth and profitability of the
Company. To accomplish such purposes, the Option Plan provides that the
Company may grant Incentive Stock Options and Nonqualified Stock Options
(each as hereinafter defined). The Option Plan is intended, to the extent
applicable, to satisfy the requirements of section 162(m) of the Code (as
hereinafter defined) and shall be interpreted in a manner consistent with
the requirements thereof.
Section 2. DEFINITIONS.
For purposes of the Option Plan, the following terms shall be
defined as set forth below:
(a) "Administrator" means the Board, or if and to the extent the
Board does not administer the Option Plan, the Committee in accordance
with Section 3 hereof.
(b) "Board" means the Board of Directors of the Company.
(c) "Cause" means (1) the continued failure by the Participant
substantially to perform his or her duties and obligations to the Company,
including without limitation repeated refusal to follow the reasonable
directions of the employer, knowing violation of law in the course of
performance of the duties of Participant's employment or service with the
Company, repeated absences from work without a reasonable excuse, and
intoxication with alcohol or illegal drugs while on the Company's premises
during regular business hours (other than any such failure resulting from
his or her incapacity due to physical or mental illness); (2) fraud or
material dishonesty against the Company; or (3) a conviction or plea of
guilty or nolo contendere for the commission of a felony or a crime
involving material dishonesty. Determination of Cause shall be made by the
Administrator in its sole discretion.
(d) "Change in Capitalization" means any increase, reduction, or
change or exchange of Shares for a different number or kind of shares or
other securities or property by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, issuance of
warrants or rights, stock dividend, stock split or reverse stock split,
combination or exchange of shares, repurchase of shares, change in
corporate structure or otherwise; or any other corporate action, such as
declaration of a special dividend, that affects the capitalization of the
Company.
(e) "Change in Control" means such time as ( provided that the
transactions effected by the Plan of Reorganization shall in no event
constitute a Change in Control):
(i) any Person or group of Persons (within the meaning
of Section 13 or 14 of the Securities Exchange Act of 1934, but
excluding any Specified Person (as defined below) shall acquire
beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 40% of the outstanding
securities (on a fully diluted basis and taking into account any
securities or contract rights exercisable, exchangeable or
convertible into equity securities, but excluding any Series A
Preferred Stock) of the Company having voting rights in the
election of directors under normal circumstances; or
(ii) a majority of the members of the Board of
Directors of the Company shall cease to be Continuing Members.
(iii) For purposes of the foregoing,
(A) "Continuing Member" means a
member of the Board of Directors who either (i) was a
member of the Company's Board of Directors on the date
of the New Credit Agreement and has been such
continuously thereafter, (ii) became a member of such
Board of Directors after the Closing Date (as defined
in the New Credit Agreement) and whose election or
nomination for election was approved by a vote of the
majority of the Continuing Members then members of the
Company's Board of Directors, or (iii) was designated
by the holders of the Series A Preferred Stock;
(B) "Specified Person" means any
beneficial holder of Senior Subordinate Note Claims
(under and as defined in the Plan of Reorganization)
immediately prior to the time the Plan of
Reorganization becomes effective.
(f) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor thereto.
(g) "Committee" means any committee or subcommittee the Board
may appoint to administer the Option Plan. If at any time or to any extent
the Board shall not administer the Option Plan, then the functions of the
Administrator specified in the Option Plan shall be exercised by the
Committee. The composition of the Committee shall at all times consist
solely of persons who are (i) "Nonemployee Directors" as defined in Rule
16b-3 issued under the Exchange Act, and (ii) unless otherwise determined
by the Board, "outside directors" as defined in section 162(m) of the
Code.
(h) "Common Stock" means the common stock, no par value per
share, of the Company.
(i) "Company" means Tokheim Corporation, an Indiana corporation
(or any successor corporation).
(j) "Disability" means (1) any physical or mental condition that
would qualify a Participant for a disability benefit under any long- term
disability plan maintained by the Company; or (2) such other condition as
may be determined in the sole discretion of the Administrator to
constitute Disability.
(k) "Effective Date" means the business day that the Plan of
Reorganization becomes effective.
(l) "Eligible Recipient" means a management employee of the
Company or any of its Subsidiaries who has been selected as an eligible
participant by the Board.
(m) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(n) "Exercise Price" means the per share price at which a holder
of an Option may purchase the Shares issuable upon exercise of the Option.
(o) "Fair Market Value" as of a particular date shall mean the
fair market value of a share of Common Stock as determined by the
Administrator in its sole discretion; provided that (i) if the Common
Stock is admitted to trading on a national securities exchange, fair
market value of a share of Common Stock on any date shall be the closing
sale price reported for such share on such exchange on the last day
preceding such date on which a sale was reported, (ii) if the Common Stock
is admitted to quotation on the National Association of Securities Dealers
Automated Quotation ("Nasdaq") System or other comparable quotation system
and has been designated as a National Market System ("NMS") security, fair
market value of a share of Common Stock on any date shall be the closing
sale price reported for such share on such system on the last date
preceding such date on which a sale was reported, or (iii) if the Common
Stock is admitted to quotation on the Nasdaq System but has not been
designated as an NMS security, fair market value of a share of Common
Stock on any date shall be the average of the highest bid and lowest asked
prices of such share on such system on the last date preceding such date
on which both bid and ask prices were reported.
(p) "Immediate Family" means any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law or
sister-in-law, including adoptive relationships of the Participant; trusts
for the benefit of such immediate family members; or partnerships in which
such immediate family members are the only partners.
(q) "Incentive Stock Option" shall mean an Option that is an
"incentive stock option" within the meaning of section 422 of the Code, or
any successor provision, and that is designated by the Committee as an
Incentive Stock Option.
(r) "New Credit Agreement" means that certain Post- Confirmation
Credit Agreement dated as of October 20, 2000, among the Corporation,
various subsidiaries thereof as borrowers, various financial institutions,
AmSouth Bank, as documentation agent, and ABN AMRO Bank N.V, as
administrative agent, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
(s) "Nonqualified Stock Option" means any Option that is not an
Incentive Stock Option, including any Option that provides (as of the time
such Option is granted) that it will not be treated as an Incentive Stock
Option.
(t) "Option" means an Incentive Stock Option, a Nonqualified
Stock Option, or either of them, as the context requires.
(u) "Option Agreement" means, with respect to each Option, the
written agreement between the Company and the Participant setting forth
the terms and conditions of the Option.
(v) "Participant" means any Eligible Recipient selected by the
Administrator, pursuant to the Administrator's authority in Section 3
hereof, to receive grants of Options. A Participant who receives the grant
of an Option is sometimes referred to herein as "Optionee."
(w) "Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or any of
its subsidiaries, (ii) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its Affiliates,
(iii) an underwriter temporarily holding securities pursuant to an
offering of such securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(x) "Plan of Reorganization" means the Company's chapter 11 plan
of reorganization, including all supplements, appendices and schedules
thereto, as filed with the United States Bankruptcy Court on August 16,
2000.
(y) "Qualifying Termination" means a termination of a
Participant's employment or service by the Company other than for Cause.
(z) "Series A Preferred Stock" means the Series A Senior
Preferred Stock issued by the Company.
(aa) "Shares" means shares of Common Stock and any successor
security.
(ab) "Subsidiary" means any corporation (other than the Company)
in an unbroken chain of corporations beginning with the Company, if each
of the corporations (other than the last corporation) in the unbroken
chain owns stock possessing 50% or more of the total combined voting power
of all classes of stock in one of the other corporations in the chain.
Section 3. ADMINISTRATION.
(a) The Option Plan shall be administered by the Board or, at
the Board's sole discretion, by the Committee, which shall serve at the
pleasure of the Board. If the Option Plan is intended to comply with
Section 162(m) of the Code, the Committee shall consist of two or more
persons, each of whom is an "outside director" within the meaning of
Section 162(m) of the Code. Pursuant to the terms of the Option Plan, the
Administrator shall have the power and authority, without limitation:
(i) to select those Eligible Recipients who shall be
Participants;
(ii) to determine whether and to what extent Options
are to be granted hereunder to Participants;
(iii) to determine the number of Shares to be covered
by each Option granted hereunder;
(iv) to determine the terms and conditions, not
inconsistent with the terms of the Option Plan, of each Option
granted hereunder;
(v) to determine the terms and conditions, not
inconsistent with the terms of the Option Plan, which shall
govern all written instruments evidencing Options granted
hereunder;
(vi) to adopt, alter and repeal such administrative
rules, guidelines and practices governing the Option Plan as it
shall from time to time deem advisable; and
(vii) to interpret the terms and provisions of the
Option Plan and any Option issued under the Option Plan (and any
Option Agreement relating thereto), and to otherwise supervise
the administration of the Option Plan.
(b) All decisions made by the Administrator pursuant to the
provisions of the Option Plan shall be final, conclusive and binding on
all persons, including the Company and the Participants. No member of the
Board or the Committee, nor any officer or employee of the Company acting
on behalf of the Board or the Committee, shall be personally liable for
any action, determination, or interpretation taken or made in good faith
with respect to the Option Plan, and all members of the Board or the
Committee and each and any officer or employee of the Company acting on
their behalf shall, to the extent permitted by law, be fully indemnified
and protected by the Company in respect of any such action, determination
or interpretation.
Section 4. SHARES SUBJECT TO THE OPTION PLAN.
(a) Shares Available for Issuance. The total number of shares of
Common Stock reserved and available for issuance under the Option Plan
shall be 500,000 Shares. Such Shares may consist, in whole or in part, of
authorized and unissued Shares or treasury shares.
(b) Reuse of Shares. To the extent that an Option expires or is
otherwise canceled or terminated without being exercised, such Shares
shall again be available for issuance in connection with future Options
granted under the Option Plan.
(c) Individual Limitation. To the extent required by Section
162(m) of the Code, the total number of Shares that may be subject to an
Option granted to any Eligible Recipient shall not exceed [150,000] Shares
in any calendar year (subject to adjustment as provided by Section 5
hereof).
Section 5. EQUITABLE ADJUSTMENTS
(a) In the event of any Change in Capitalization, an equitable
substitution or proportionate adjustment shall be made in (i) the
aggregate number and/or kind of shares of common stock reserved for
issuance under the Option Plan, and (ii) the kind, number and/or option
price of shares of stock or other property subject to outstanding Options
granted under the Option Plan, in each case as may be determined by the
Administrator, in its sole discretion. Such other equitable substitutions
or adjustments shall be made as may be determined by the Administrator, in
its sole discretion. Without limiting the generality of the foregoing, in
connection with a Change in Capitalization, the Administrator may provide,
in its sole discretion, for the cancellation of any outstanding Option in
exchange for payment in cash or other property of the Fair Market Value of
the Shares covered by such Options, reduced by the exercise price thereof.
Section 6. ELIGIBILITY.
The Participants under the Option Plan shall be selected from
time to time by the Administrator, in its sole discretion, from among
Eligible Recipients. The Administrator shall have the authority to grant
to any Eligible Recipient Incentive Stock Options or Nonqualified Stock
Options.
Section 7. OPTIONS.
(a) General. The Options granted under the Plan may be of two
types: (i) Incentive Stock Options and (ii) Nonqualified Stock Options.
The provisions of each Option need not be the same with respect to each
Participant. Participants who are granted Options shall enter into an
Option Agreement with the Company, in such form as the Administrator shall
determine, which Option Agreement shall set forth, among other things, the
Exercise Price of the Option, the term of the Option and provisions
regarding exercisability of the Option granted thereunder. To the extent
that any Option does not qualify as an Incentive Stock Option, it shall
constitute a separate Nonqualified Stock Option. More than one Option may
be granted to the same Participant and be outstanding concurrently
hereunder. Options granted under the Option Plan shall be subject to the
terms and conditions set forth in paragraphs (b)-(k) of this Section 7 and
shall contain such additional terms and conditions, not inconsistent with
the terms of the Option Plan, as the Administrator shall deem desirable.
(b) Exercise Price. The per share Exercise Price of Shares
purchasable under an Option shall be determined by the Administrator in
its sole discretion at the time of grant but shall not, in the case of
Incentive Stock Options, be less than 100% of the Fair Market Value per
Share on such date (110% of the Fair Market Value per Share on such date
if, on such date, the Eligible Recipient owns (or is deemed to own under
the Code) stock possessing more than ten percent (a "Ten Percent Owner")
of the total combined voting power of all classes of Common Stock).
(c) Option Term. The term of each Option shall be fixed by the
Administrator, but no Option shall be exercisable more than ten years
after the date such Option is granted. If the Eligible Participant is a
Ten Percent Owner, an Incentive Stock Option may not be exercisable after
the expiration of five years from the date such Incentive Stock Option is
granted.
(d) Exercisability. Options shall be exercisable at such time or
times and subject to such terms and conditions, including the attainment
of preestablished corporate performance goals, as shall be determined by
the Administrator in the Option Agreement. The Administrator may also
provide that any Option shall be exercisable only in installments, and the
Administrator may waive such installment exercise provisions at any time,
in whole or in part, based on such factors as the Administrator may
determine in its sole discretion.
(e) Method of Exercise. Options may be exercised in whole or in
part by giving written notice of exercise to the Company specifying the
number of Shares to be purchased, accompanied by payment in full of the
aggregate Exercise Price of the Shares so purchased in cash or its
equivalent, as determined by the Administrator. As determined by the
Administrator, in its sole discretion, payment in whole or in part may
also be made (i) by means of any cashless exercise procedure approved by
the Administrator (including the withholding of Shares otherwise issuable
upon exercise), (ii) in the form of unrestricted Shares already owned by
the Optionee which, (x) in the case of unrestricted Shares acquired upon
exercise of an option, have been owned by the Optionee for more than six
months on the date of surrender, and (y) has a Fair Market Value on the
date of surrender equal to the aggregate option price of the Shares as to
which such Option shall be exercised, provided that, in the case of an
Incentive Stock Option, the right to make payment in the form of already
owned Shares may be authorized only at the time of grant.
(f) Rights as Stockholder. An Optionee shall have no rights to
dividends or any other rights of a stockholder with respect to the Shares
subject to the Option until the Optionee has given written notice of
exercise, has paid in full for such Shares, has satisfied the requirements
of Section 10 hereof and, if requested, has given the representation
described in paragraph (b) of Section 11 hereof.
(g) Nontransferability of Options. The Optionee shall not be
permitted to sell, transfer, pledge or assign any Option other than by
will and the laws of descent and distribution and all Options shall be
exercisable during the Participant's lifetime only by the Participant, in
each case, except as set forth in the following two sentences. During an
Optionee's lifetime, the Administrator may, in its discretion, permit the
transfer of an outstanding Option if such Option is a Nonqualified Stock
Option or an Incentive Stock Option that the Administrator and the
Participant intend to change to a Nonqualified Stock Option. Subject to
the approval of the Administrator and to any conditions that the
Administrator may prescribe, an Optionee may, upon providing written
notice to the Company, elect to transfer any or all Options described in
the preceding sentence to members of his or her Immediate Family, provided
that no such transfer by any Participant may be made in exchange for
consideration.
(h) Termination of Employment. If an Optionee's employment with
the Company or Subsidiary terminates for any other reason than Cause,
Options granted to such Participant, to the extent that they are
exercisable at the time of such termination, shall remain exercisable
until the date set forth in the Option Agreement, or such later date as is
otherwise determined by the Administrator. Notwithstanding the foregoing,
no Option shall be exercisable after the expiration of its term. If an
Optionee's employment is terminated for Cause, no portion of the Option
may be exercised following the Termination Date. For purposes of this
Section, a Participant shall be considered to have terminated his or her
employment if the Participant is employment by a Subsidiary that ceases
for any reason to be a Subsidiary of the Company unless the Participant
becomes employed by the Company or a continuing Subsidiary immediately
following such event.
(i) Other Change in Employment Status. An Option shall be
affected, both with regard to vesting schedule and termination, by leaves
of absence, changes from full-time to part-time employment, partial
disability or other changes in the employment status of an Optionee, in
the discretion of the Administrator. The Administrator shall follow the
written policy of the Company (if any) as it may be in effect from time to
time, with regard to such matters.
(j) Acceleration Upon Change in Control. If, during the one-
year period following the occurrence of a Change in Control, the
employment or service of an Optionee is terminated by reason of a
Qualifying Termination, each Option held by such Optionee under the Option
Plan and outstanding at such time shall become fully and immediately
exercisable.
Section 8. AMENDMENT AND TERMINATION.
The Board may amend, alter or discontinue the Option Plan, but
no amendment, alteration, or discontinuation shall be made that would
impair the rights of a Participant under any Option theretofore granted
without such Participant's consent. Unless the Board determines otherwise,
the Board shall obtain approval of the Company's stockholders for any
amendment that would require such approval in order to satisfy the
requirements of section 162(m) of the Code, stock exchange rules or other
applicable law. The Administrator may amend the terms of any Option
theretofore granted, prospectively or retroactively, but, subject to
Section 4 of the Option Plan, no such amendment shall impair the rights of
any Participant without his or her consent.
Section 9. UNFUNDED STATUS OF OPTION PLAN.
The Option Plan is intended to constitute an "unfunded" plan for
incentive compensation. With respect to any payments not yet made to a
Participant by the Company, nothing contained herein shall give any such
Participant any rights that are greater than those of a general creditor
of the Company.
Section 10. WITHHOLDING TAXES.
Whenever cash is to be paid pursuant to an Option, the Company
shall have the right to deduct therefrom an amount sufficient to satisfy
any federal, state and local withholding tax requirements related thereto.
Whenever Shares are to be delivered pursuant to an Option, the Company
shall have the right to require the Participant to remit to the Company in
cash an amount sufficient to satisfy any federal, state and local
withholding tax requirements related thereto. With the approval of the
Administrator, a Participant may satisfy the foregoing requirement by
electing to have the Company withhold from delivery Shares or by
delivering already owned unrestricted Shares, in each case, having a value
equal to the minimum amount of tax required to be withheld. Such shares
shall be valued at their Fair Market Value on the date of which the amount
of tax to be withheld is determined. Fractional share amounts shall be
settled in cash. Such a election may be made with respect to all or any
portion of the shares to be delivered pursuant to an Option.
Section 11. GENERAL PROVISIONS.
(a) Shares shall not be issued pursuant to the exercise of any
Option granted hereunder unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with
all relevant provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act and the requirements
of any stock exchange upon which the Common Stock may then be listed, and
shall be further subject to the approval of counsel for the Company with
respect to such compliance.
(b) The Administrator may require each person acquiring Shares
to represent to and agree with the Company in writing that such person is
acquiring the Shares without a view to distribution thereof. The
certificates for such Shares may include any legend that the Administrator
deems appropriate to reflect any restrictions on transfer.
(c) All certificates for Shares delivered under the Option Plan
shall be subject to such stock-transfer orders and other restrictions as
the Administrator may deem advisable under the rules, regulations, and
other requirements of the Securities and Exchange Commission, any stock
exchange upon which the Common Stock may then be listed, and any
applicable federal or state securities law, and the Administrator may
cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions.
(d) The adoption of the Option Plan shall not confer upon any
Eligible Recipient any right to continued employment or service with the
Company or Subsidiary, as the case may be, nor shall it interfere in any
way with the right of the Company or Subsidiary to terminate the
employment or service of any of its Eligible Recipients at any time.
Section 12. EFFECTIVE DATE OF OPTION PLAN.
The effective date of this Option Plan shall be the Effective
Date.
Section 13. TERM OF OPTION PLAN.
No Option shall be granted pursuant to the Option Plan on or
after the tenth anniversary of the Effective Date, but Options theretofore
granted may extend beyond that date.
