Exhibit 10.2
FINANCIAL PACIFIC COMPANY
2001 STOCK OPTION PLAN, AS AMENDED
Effective as of April 25, 2001, the Board of Directors of Financial
Pacific Company (the "COMPANY") adopted the following 2001 Stock Option Plan
(the "PLAN"). Capitalized terms are defined in Section 24 of the Plan.
1. PURPOSE
The purpose of the Plan is to provide selected employees and directors
with a proprietary interest in the Company through the granting of Nonqualified
Stock Options that will:
(a) increase the interest of the selected employees and directors
in the Company's welfare;
(b) furnish an incentive to the selected employees and directors
to continue their services for the Company; and
(c) provide a means through which the Company may attract able
persons to either enter its employ or serve as directors.
2. ADMINISTRATION
The Plan will be administered by the Board.
3. PARTICIPANTS
The Board shall, from time to time, select the particular employees or
directors of the Company and its Subsidiaries to whom options are to be granted,
and who will, upon such grant, become participants in the Plan.
4. WITHHOLDING OF TAXES
Notwithstanding anything to the contrary contained herein, if a
participant is entitled to receive shares of Common Stock upon exercise of an
option, the Company shall have the right to require such participant, prior to
the delivery of such shares and as a condition to such exercise, to pay to the
Company the amount of any federal, state or local income taxes and other amounts
which the Company is required by law to withhold. In its discretion (and to the
extent not prohibited by any agreements to which the Company is a party), the
Board may permit participants to satisfy withholding obligations by delivering
previously owned shares.
5. SHARES SUBJECT TO PLAN
The Board may grant options under the Plan for the purchase in the
aggregate of up to 678,000 shares of Common Stock (the "COMMON STOCK"),
consisting of:
(a) 339,000 shares of Common Stock, which shall be subject to the
vesting requirements set forth in Section 10(a) of this Plan (the "PERFORMANCE
OPTIONS");
(b) 169,500 shares of Common Stock, which shall be subject to the
vesting requirements set forth in Section 10(b) of this Plan (the "10%
TRANSACTION OPTIONS"); and
(c) 169,500 shares of Common Stock, which shall be subject to the
vesting requirements set forth in Section 10(c) of this Plan (the "15%
TRANSACTION OPTIONS");
provided that the preceding share amounts may be adjusted to reflect, if deemed
appropriate by the Board, any stock dividend, stock split, share combination,
recapitalization or the like, of or by the Company; provided further that,
except as otherwise specifically provided in any applicable stock option
agreement, the number of shares subject to any option shall always be rounded
down to the nearest whole number. Shares to be optioned and sold may be made
available from either authorized but unissued Common Stock or Common Stock now
held or subsequently acquired by the Company. Shares that by reason of the
expiration of an option or otherwise are no longer subject to purchase pursuant
to an option granted under the Plan may be re-offered under the Plan. The Board
may, in its sole discretion, allocate any unallocated Performance Options, 10%
Transaction Options or 15% Transaction Options to employees of the Company and
its subsidiaries.
6. ALLOTMENT OF SHARES
The Board shall determine the number of shares of Common Stock to be
offered from time to time by grant of options to employees and directors of the
Company and its Subsidiaries. The grant of an option to an employee or director
shall be deemed neither to entitle the employee or director to, nor to
disqualify the employee or director from, participation in any other grant of
options under the Plan.
7. GRANT OF OPTIONS
All options under the Plan shall be granted by the Board. The grant of
options shall be evidenced by stock option agreements containing such terms and
provisions as are approved by the Board, but which are not inconsistent with the
Plan. The Company shall execute stock option agreements upon instructions from
the Board.
8. OPTION PRICE
The exercise price for any option under the Plan shall be determined by
the Board.
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9. OPTION PERIOD
The Option Period will begin on the date the option is granted, which
will be the date the Board authorizes the option unless the Board specifies a
later date, and will terminate as provided herein and in the applicable option
agreement. No option may remain outstanding longer than 10 years from the date
the option is granted. In addition to the vesting requirements of Section 10
hereof, the Board may provide in the applicable option agreement for such other
terms, conditions and restrictions with respect to the exercise of options as it
may determine. The Board may provide for termination of the option in the case
of termination of employment, termination of directorship or any other reason.
10. VESTING OF OPTIONS
(a) VESTING REQUIREMENTS FOR PERFORMANCE OPTIONS
Except as otherwise expressly set forth herein or in an Option
Agreement between the Participant and the Company, the Performance Options shall
vest in four equal installments on December 31st of 2001, 2002, 2003 and 2004,
provided that vesting shall occur in each such year only if the Company achieves
pre-determined business plan goals with respect to pretax income for such year
and provided further, that the annual rate of return is satisfactory for such
year. The Board shall determine on an annual basis whether the foregoing goals
have been achieved for any given year. Except as otherwise expressly set forth
herein, in the event that the Performance Options do not vest in any given year,
the Performance Options that could have vested in such year under this Section
10(a) shall not vest (such options shall be referred to as "NONVESTED OPTIONS").
In the event of a Change of Control (as defined below) prior to
December 31st, 2004, 100% of all such outstanding options which have not vested
(including both Nonvested Options relating to previous periods and unvested
options relating to future periods) will vest if the Windward Group achieves,
after giving effect to such Change of Control transaction, a 15% compounded,
annual rate of return on its aggregate equity investment in the Company (the
"WINDWARD RETURN"); provided, however, that in the event of a sale of less than
all of the Windward Group's equity investment in the Company which results in
the achievement of the Windward Return regardless of any return which could be
achieved (and assuming for such purposes that the remainder of Windward's equity
investment is sold for zero), then such sale shall be deemed a "Change of
Control" in which the Windward Return has been achieved.
(b) VESTING REQUIREMENTS FOR 10% TRANSACTION OPTIONS
Except as otherwise expressly set forth herein, all outstanding 10%
Transaction Options shall vest in the event of a Change of Control in which the
Windward Group achieves, after giving effect to such Change of Control
transaction, a 10% compounded, annual rate of return on its aggregate equity
investment in the Company (the "10% WINDWARD RETURN"); provided, however, that
in the event of a sale of less than all of the Windward Group's equity
investment in the Company which results in the achievement of the Windward
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10% Return regardless of any return which could be achieved (and assuming for
such purposes that the remainder of Windward's equity investment is sold for
zero), then such sale shall be deemed a "Change of Control" in which the 10%
Windward Return has been achieved.
(c) VESTING REQUIREMENTS FOR 15% TRANSACTION OPTIONS
Except as otherwise expressly set forth herein, all outstanding 15%
Transaction Options shall vest in the event of a Change of Control in which the
Windward Group achieves, after giving effect to such Change of Control
transaction, a 15% compounded, annual rate of return in the Company (the "15%
WINDWARD RETURN"); provided, however, that in the event of a sale of less than
all of the Windward Group's equity investment in the Company which results in
the achievement of the 15% Windward Return regardless of any return which could
be achieved (and assuming for such purposes that the remainder of Windward's
equity investment is sold for zero), then such sale shall be deemed a "Change of
Control" in which the 15% Windward Return has been achieved.
(d) CHANGE OF CONTROL; WINDWARD RATE OF RETURN
(i) CHANGES OF CONTROL. Subject to the provisos contained
in the last paragraph of Section 10(a) and in Section 10(b) and Section 10(c)
hereof, a "Change of Control" is defined as any transaction or series of related
transactions in which all of the Company is sold to a third party unaffiliated
with the Company, the Windward Group or any of their Affiliates (whether by
merger, consolidation, sale of securities, sale of all or substantially all of
the assets or any similar business combination) or in which the Windward Group
and its Affiliates and their Permitted Transferees (as defined in the
Shareholders Agreement) sell or otherwise dispose of all of the Common Stock
held by such entities and persons (including, without limitation, pursuant to a
public offering). Notwithstanding the foregoing (including the provisos
contained in the last paragraph of Section 10(a) and in Section 10(b) and
Section 10(c) hereof), the term "Change of Control" shall not include any sale
or deemed sale or disposition of the Company to (A) any Affiliate of the
Windward Group, (B) any entity or successor entity in which the Windward Group
holds at least a majority of the total voting power of such entity or successor
entity (or retains the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the members of the Board of
Directors or other governing body of such entity or successor entity), (C) any
entity in which the Company, directly or indirectly, owns a majority of the
equity and voting interest (including a wholly owned subsidiary of the Company),
or (D) any entity formed at the direction of the Company in connection with
obtaining financing for the Company under an arrangement which provides the
Company with an option to reacquire its assets or other properties or other
similar financing arrangement.
(ii) CALCULATING WINDWARD RATE OF RETURN. In calculating
the compounded, annual rate of return on the Windward Group's aggregate equity
investment in the Company (or any portion thereof) for purposes of Sections
10(a), 10(b) or 10(c), such
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amount shall be calculated based on the gross proceeds received by the Windward
Group relating to the relevant transaction(s) after any payment of, or
reasonable provision for, any costs or liabilities relating to such
transaction(s), including, without limitation, (A) any transaction costs,
including without limitation, any legal, investment banking, brokerage,
accounting, consulting and other similar fees and expenses, reasonably incurred
by the Windward Group and its Affiliates in connection with such transaction(s),
(B) any liabilities or other amounts reasonably expected to arise (as determined
prior to any such transaction by the Board in good faith) pursuant to any
purchase price adjustments or indemnification obligations associated with such
transaction(s) or pursuant to any pension or other post-employment benefit
obligations of the Company and its Subsidiaries, any environmental matters
relating to the Company and its Subsidiaries and any other similar liabilities
for which the Windward Group and its Affiliates remain contingently liable, (C)
any indebtedness incurred by the Windward Group in connection with its
acquisition of any part of its equity investment or required to be paid by the
Windward Group by reason of any such sale or disposition, and (D) the dilutive
effect of all options, warrants and similar securities, including, without
limitation, Nonvested Options, which vest as a result of the Change of Control.
To the extent the proceeds of any transaction(s) include any securities or other
property other than cash, the Board shall determine in good faith the fair
market value of such securities or property.
(e) AUTOMATIC VESTING
Unless otherwise provided in a stock option agreement and
notwithstanding any other provision contained in the Plan to the contrary
(including the failure to attain any applicable performance goal relating to the
vesting of any option granted hereunder), each option granted hereunder shall
automatically vest and become fully exercisable on the ninth anniversary of the
date of grant (or such other time less than nine years as specified in the
applicable stock option agreement), so long as the optionee remains continually
employed by the Company from the date of grant through such ninth anniversary.
11. RIGHTS IN THE EVENT OF TERMINATION OF EMPLOYMENT OR SERVICES
The Board shall establish and set forth in each stock option agreement
whether an option shall continue to be exercisable, and the terms and conditions
of such exercise, if a participant ceases to be employed by, or to provide
services to, the Company or a Subsidiary. If not so established in the stock
option agreement, the option shall be exercisable according to the following
terms and conditions, which may be waived or modified by the Board at any time:
(a) Any portion of an option that is not vested and exercisable on
the date of termination of employment or services shall automatically terminate
on such date.
(b) Any portion of an option that is vested and exercisable on the
date of termination of employment or services shall automatically terminate on
the earliest to occur of:
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(i) 180 days following the date the participant's
employment or services terminate by reason of death or disability (within the
meaning of Section 22(e)(3) of the Internal Revenue Code of 1986). Until its
expiration, the option may be exercised, by (i) the participant's estate or by
the person who acquired the right to exercise the option by bequest or
inheritance or by reason of the death of the participant in the event of the
participant's death or (ii) the participant or his or her personal
representative in the event of the participant's disability;
(ii) immediately if the participant's employment or
services is terminated for Cause or the participant terminates by reason of
Voluntary Termination without Good Reason;
(ii) 30 days following the date the participant's
employment or services terminate for any reason other than those under Section
11(b)(i) or (ii) hereof; and
(iv) the ten-year anniversary of the date of the option
grant.
12. PAYMENT
Full payment for shares purchased upon exercising an option shall be
made in cash or by check or by tendering previously owned shares of Common
Stock, provided such shares have been held by the optionee for a minimum of six
months, at the Fair Market Value per share at the time of exercise, or through
such other cashless or other exercise procedure approved by the Company. No
shares may be issued until full payment of the purchase price therefor has been
made, and a participant will have none of the rights of a shareholder until
shares are issued to him or her.
13. EXERCISE OF OPTION
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Options granted under the Plan may be exercised during the Option
Period, at such times, in such amounts, in accordance with such terms and
subject to such restrictions as are set forth in the applicable stock option
agreements. In no event may an option be exercised by, or may shares be issued
to, a participant or Qualifying Family Member pursuant to an option (x) if any
necessary listing of the shares on a stock exchange has not been accomplished or
(y) unless and until such participant enters into an agreement with the Company
pursuant to which such participant agrees, in accordance with the provisions of
the Shareholders Agreement, to be bound by the terms and conditions of the
Shareholders Agreement, including any requirements for shares issued upon
exercise of options to carry a restrictive legend. The Board may offer a
participant, upon such conditions and restrictions set forth on a schedule
attached to his or her stock option agreement and in lieu of receipt from him or
her of the exercise price and issuance of certificates for the shares of stock
exercised, the right to elect payment in cash, Common Stock, or a combination of
cash and Common Stock as the Board shall determine in an amount equal to the
excess of the Fair Market Value per share on the date of exercise or other
prescribed date over the per share exercise price under the option, multiplied
by the number of shares covered by the option thereof being exercised.
14. CAPITAL ADJUSTMENTS AND REORGANIZATIONS
The number of shares of Common Stock covered by each outstanding option
granted under the Plan and the option price shall be adjusted to reflect any
stock dividend, stock split, share combination, and, as deemed appropriate by
the Board, any exchange of shares, recapitalization, merger, consolidation,
separation, reorganization, liquidation or the like, of or by the Company.
15. NONASSIGNABILITY
Options may not be transferred other than to a Qualifying Family Member
or by will or by the laws of descent and distribution. During a participant's
lifetime, options granted to a participant may be exercised only by the
participant or by a Qualifying Family Member.
16. INTERPRETATION
The Board shall interpret the Plan and shall prescribe such rules and
regulations in connection with the operation of the Plan as it determines to be
advisable for the administration of the Plan. The Board may rescind and amend
its rules and regulations at any time.
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17. EFFECT OF PLAN
(a) Neither the adoption of the Plan nor any action of the Board
shall be deemed to give any director, officer or employee any right to be
granted an option to purchase Common Stock or any other rights except as may be
evidenced by a stock option agreement, or any amendment thereto, duly authorized
by the Board and executed on behalf of the Company and then only to the extent
and on the terms and conditions expressly set forth therein.
(b) Nothing in the Plan or any stock option agreement granted
under this Plan shall be deemed to constitute an employment contract or confer
or be deemed to confer on any participant any right to continue in the employ
of, or to continue any other relationship with, the Company or any Subsidiary or
limit in any way the right of the Company or a Subsidiary to terminate a
participant's employment or other relationship at any time, with or without
Cause.
(c) No option shall entitle the participant to any cash dividend,
voting or other right of a shareholder unless and until the date of issuance
under the Plan of any shares that are subject to an option.
18. ISSUANCE OF SHARES
Notwithstanding any other provision of this Plan, the Company shall
have no obligation to issue or deliver any shares of Common Stock under this
Plan or make any other distribution of benefits under this Plan unless, in the
opinion of the Company's counsel, such issuance, delivery or distribution would
comply with all applicable laws (including, without limitation, the requirements
of the Securities Act of 1933, as amended (the "SECURITIES ACT")), and the
applicable requirements of any securities exchange or similar entity.
The Company shall be under no obligation to any participant to register
for offering or resale or to qualify for exemption under the Securities Act, or
to register or qualify under state securities laws, any shares of Common Stock,
security or interest in a security paid or issued under, or created by, the
Plan, or to continue in effect any such registrations or qualifications if made.
To the extent this Plan or any instrument evidencing an option provides
for issuance of stock certificates to reflect the issuance of shares of Common
Stock, the issuance may be effected on a noncertificated basis, to the extent
not prohibited by applicable law or the applicable rules of any stock exchange.
As a condition to the exercise of an option or any other receipt of Common Stock
pursuant to an option under this Plan, the Company may require (a) the
participant to represent and warrant at the time of any such exercise or receipt
that such shares are being purchased or received only for the participant's own
account and without any present intention to sell or distribute such shares and
(b) such other action or agreement by the participant as may from time to time
be necessary to comply with the federal, state and other securities laws. At the
option of the Company, a stop-transfer order
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against any such shares may be placed on the official stock books and records of
the Company, and a legend indicating that such shares may not be pledged, sold
or otherwise transferred, unless an opinion of counsel is provided (concurred in
by counsel for the Company) stating that such transfer is not in violation of
any applicable law or regulation, may be stamped on stock certificates to ensure
exemption from registration. The Board may also require the participant to
execute and deliver to the Company a purchase agreement or such other agreement
as may be in use by the Company at such time that describes certain terms and
conditions applicable to the shares.
19. PARTICIPANTS IN OTHER COUNTRIES
The Board shall have the authority to adopt such modifications,
procedures and subplans as may be necessary or desirable to comply with
provisions of the laws of other countries in which the Company or any Subsidiary
may operate to assure the viability of the benefits from options granted to
participants employed in such countries and to meet the objectives of this Plan.
20. NO TRUST OR FUND
This Plan is intended to constitute an "unfunded" plan. Nothing
contained herein shall require the Company to segregate any monies or other
property, or shares of Common Stock, or to create any trusts, or to make any
special deposits for any immediate or deferred amounts payable to any
participant, and no participant shall have any rights that are greater than
those of a general unsecured creditor of the Company.
21. SEVERABILITY
If any provision of this Plan or any option is determined to be
invalid, illegal or unenforceable in any jurisdiction, or as to any person, or
would disqualify this Plan or any option under any law deemed applicable by the
Board, such provision shall be construed or deemed amended to conform to
applicable laws, or, if it cannot be so construed or deemed amended without, in
the Board's determination, materially altering the intent of this Plan or the
option, such provision shall be stricken as to such jurisdiction, person or
option, and the remainder of this Plan and any such option shall remain in full
force and effect.
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22. AMENDMENT OR DISCONTINUANCE
The Board at any time and from time to time may suspend, terminate,
modify or amend the Plan; provided that no suspension, termination, modification
or amendment of the Plan may adversely affect in any material respect (i) any
option previously granted, unless the written consent of the participant to whom
the option has been granted has been obtained, or (ii) any unallocated option,
unless the written consent of the Chief Executive Officer of the Company or the
holder of such option has been obtained.
23. TERM
Unless terminated by action of the Board, this Plan shall have no fixed
expiration date. Any options granted before or as of the date of any suspension
or termination of this Plan will continue to be effective in accordance with
their terms.
24. DEFINITIONS
For the purpose of this Plan, unless the context requires otherwise,
the following terms shall have the meanings indicated:
(a) "AFFILIATE" shall have the same meaning as set forth in the
Shareholders Agreement.
(b) "BOARD" means the board of directors of the Company or a
committee appointed by the board of directors to administer the Plan or any
portion of the Plan.
(c) "CAUSE" shall (i) with respect to the termination of
employment of any employee of the Company or any of its Subsidiaries, have the
same meaning as set forth in Section 1.1(f) of the Shareholders Agreement, and
(ii) with respect to the circumstances surrounding the removal of any director
of the Company, have the same meaning as set forth in Section 2.6 of the
Shareholders Agreement.
(d) "COMMON STOCK" means the Class A Common Stock, par value $1.00
per share, of the Company, and any and all shares of capital stock or other
securities of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise), which may be issued in
respect of, in exchange for, or in substitution for such shares of Common Stock.
(e) "COMPANY" means Financial Pacific Company, a Washington
corporation, and the successors and assigns hereof.
(f) "FAIR MARKET VALUE" shall have the meaning assigned to it in
the Shareholders Agreement.
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(g) "GOOD REASON" shall have the meaning ascribed to it in the
Shareholders Agreement.
(h) "INCENTIVE STOCK OPTION" means an option within the meaning of
Section 422 of the Internal Revenue Code.
(i) "INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended.
(j) "NONQUALIFIED STOCK OPTION" means an option that is not an
Incentive Stock Option.
(k) "OPTION PERIOD" means the period during which an option may be
exercised pursuant to the terms of this Plan and the applicable option
agreement.
(l) "PLAN" means this 2001 Stock Option Plan as amended from time
to time.
(m) "QUALIFYING FAMILY MEMBER" shall mean (i) the participant's
spouse or children (including adopted children and step children) or (ii) a
trust established for the exclusive benefit of such spouse and/or children who
has been transferred options under the Plan pursuant to Section 15 hereof.
(n) "SHAREHOLDERS AGREEMENT" means the Shareholders Agreement
dated as of January 23, 1998, by and among the Company, the members of the
Windward Group, the Majority Roll-Over Shareholders listed in the schedule
attached thereto and the members of the Company's management listed in the
Schedule of Other Shareholders attached thereto, and such other persons or
entities who or which become parties to the Shareholders Agreement pursuant to
the terms and conditions of the Shareholders Agreement.
(o) "SUBSIDIARY" shall have the same meaning as set forth in the
Shareholders Agreement.
(p) "VOLUNTARY TERMINATION" shall have the meaning ascribed to it
in the Shareholders Agreement.
(q) "WINDWARD GROUP" means Windward Capital Associates, LP,
Windward/Merban, LP, Windward/Merchant, LP, Windward/Badger FPC, LLC, and
Windward/Kecalp FPC, LLC, together with their Permitted Transferees (as defined
in the Shareholders Agreement).
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