Exhibit 4.1
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DOS LTD.
1993 STOCK OPTION PLAN
I. PURPOSE OF THE PLAN
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The DOS Ltd. 1993 STOCK OPTION PLAN (the "Plan") is intended to provide a means
whereby certain employees of DOS Ltd., a Bermuda corporation (hereinafter
referred to as "DOSL"), and its subsidiaries may develop a sense of
proprietorship and personal involvement in the development and financial success
of DOSL, and to encourage them to remain with and devote their best effort to
the business of DOSL, thereby advancing the interests of DOSL and its
stockholders. Accordingly, DOSL may grant to certain employees the option
("Option") to purchase shares of the Class A Common Stock, $.01 par value, of
DOSL ("Stock"), as hereinafter set forth. Options granted under the Plan may be
either incentive stock options within the meaning of section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code") ("Incentive Stock
Options") or options which do not constitute Incentive Stock Options (Non-
Statutory Options). This Plan is not intended to replace or terminate any plan
which currently exists with regard to the option to purchase shares in Dynamic
Industries, Ltd. Any options held under a plan to purchase shares of Dynamic
Industries, Ltd. stock will be enforceable under the terms of that agreement.
II. ADMINISTRATION
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The plan shall be administered by a committee (the "Committee") of three or more
individuals who shall be appointed by the Board of Directors of DOSL (the
"Board"). Members of the Committee shall not be eligible, and shall not have
been eligible at any time prior to one year prior to their appointment to the
Committee, to participate in the Plan or in any other stock, stock option or
stock appreciation rights plan of DOSL or any of its affiliates ("Company Stock
Plan"). The Committee shall have sole authority to select the individuals who
are to be granted Options from among those eligible hereunder and to establish
the number of shares which may be issued under each Option. The Committee has
the authority to designate whether all or a portion of the Options granted under
the Plan shall be Incentive Stock Options or nonqualified stock options. The
Committee is authorized to interpret the Plan and may from time to time adopt
such rules and regulations, consistent with the provisions of the Plan, as it
may deem advisable to carry out the Plan. All decisions made by the Committee
in selecting the individuals to whom Options shall be granted, in establishing
the number of shares which may be issued under each Option and in construing the
provisions of the Plan shall be final. If a Committee is not appointed by the
Board, the Board shall act as the Committee for purposes of the Plan, provided
that a majority of the members of the Board, and a majority of the Directors
acting in the matter, shall not be eligible, and shall not have been eligible at
any time within one year prior to their appointment to the Board, to participate
in the Stock Plan.
III. OPTION AGREEMENTS
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Each Option shall be evidenced by an Option Agreement and shall contain such
terms and conditions, and may be exercisable for such periods and upon such
events, as may be approved by the Committee. The terms and conditions of the
respective Option Agreements need not be identical. Specifically, an Option
agreement may provide for the surrender, in whole or in part, of the right to
purchase shares under the Option in return for a payment in cash or shares of
Stock or a combination of cash and shares of Stock equal in value to the excess
of the fair market value of the shares with respect to which the right to
purchase is surrendered over the option price therefor ("Stock Appreciation
Rights"), on such terms and conditions as the Committee in its sole discretion
may prescribe; provided that with respect to Stock Appreciation Rights granted
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to employees who are subject to Section 16 of the Securities Exchange Act of
1934 (the "1934 Act"), except as provided in Subparagraph VIII(e) hereof, the
Committee shall retain final authority (i) to determine whether an optionee
shall be permitted, or (ii) to approve an election by an optionee, to receive
cash in full or partial settlement of Stock Appreciation Rights. Stock
Appreciation Rights as provided herein may be granted at the time an Option is
granted or at any time or from time to time thereafter. Moreover, an Option
Agreement may provide for the payment of the option price, in whole or in part,
by the delivery of a number of shares of Stock (plus cash if necessary) having a
fair market value equal to such option price. For all purposes under the Plan,
the fair market value of a share of Stock on a particular date shall be equal to
the mean of the reported high and low sales prices of the Stock on the New York
Stock Exchange Composite Tape on that date, or if no prices are reported on that
date, on the last preceding date in which such prices of the Stock are so
reported. If the stock is traded over the counter at the time a determination
of its fair market value is required to be made hereunder, its fair market value
shall be deemed to be equal to the average between the reported high and low (or
if applicable, closing bid and asked) prices of Stock on the most recent date on
which Stock was publicly traded. In the event stock is not publicly traded at
the time a determination of its value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee in such
manner as it deems appropriate. Each Option and all rights granted thereunder
shall not be transferable other than by will or the laws of descent and
distribution, and shall be exercisable during the optionee's lifetime only by
the optionee or the optionee's guardian or legal representative.
IV. ELIGIBILITY OF THE OPTIONEE
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Options may be granted only to individuals who are full-time or part-time
employees (including officers and directors who are also full-time or part-time
employees) of DOSL or any parent, its wholly owned subsidiary and any majority
owned subsidiary corporation (as defined in Section 424 of the Code) of DOSL at
the time the Option is granted; provided, however, that members of the Committee
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shall not be eligible to be granted Options. Options may be granted to the same
individual on more than one occasion. No Incentive Stock Option shall be
granted to an individual if, at the time the Option is granted, such individual
owns stock possessing more than 10% of the total combined voting power of all
classes of stock of DOSL or of its parent, its wholly owned subsidiary and any
majority owned subsidiary corporation, within the parent, its wholly owned
subsidiary and any majority owned subsidiary corporation, within the meaning of
Section 422(b)(6) of the Code, unless (i) at the time such Option is granted the
option price is at least 110% of the fair market value of the Stock subject to
the Option and (ii) such Option
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by its terms is not exercisable after the expiration of five years from the date
of grant. To the extent that the aggregate fair market value (determined at the
time the respective Incentive Stock Option is granted) of stock within the
meaning of Section 422(d)(l) of the Code with respect to which Incentive Stock
Options granted after 1986 are exercisable for the first time by an individual
during any calendar year under all incentive stock option plans of DOSL and its
parent, its wholly owned subsidiary and any majority owned subsidiary
corporations exceeds $100,000, such Incentive Stock Options shall be treated as
options which do not constitute Incentive Stock Options. The Committee shall
determine, in accordance with applicable provisions of the Code, Treasury
Regulations and other administrative pronouncements, which of an optionee's
Incentive Stock Options will not constitute Incentive Stock Options because of
such limitation and shall notify the optionee of such determination as soon as
practicable after such determination.
V. SHARES SUBJECT TO THE PLAN
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The aggregate number of shares which may be issued under Options granted under
the Plan shall not exceed 2,000,000 shares of Stock. Such shares may consist of
authorized but unissued shares of Stock or previously issued shares of stock
acquired by DOSL. Any of such shares which remain unissued and which are not
subject to outstanding Options at the termination of the Plan shall cease to be
subject to the Plan, but, until termination of the Plan, DOSL shall at all times
make available a sufficient number of shares to meet the requirements of the
Plan. Should any Option hereunder expire or terminate prior to its exercise in
full, the shares theretofore subject to such Option may again be subject to an
Option granted under the Plan. The aggregate number of shares which may, to the
extent they have not been exercised, be issued under the Plan shall be subject
to adjustment in the same manner as provided in Paragraph VIII hereof with
respect to shares of Stock subject to Options then outstanding. Exercise of an
Option in any manner shall result in a decrease in the number of shares of Stock
which may thereafter be available, for purposes of the Plan and for sale to any
one individual, by the number of shares as to which the Option is exercised.
Separate stock certificates shall be issued by DOSL for those shares acquired
pursuant to the exercise of an Incentive Stock Option and for those shares
acquired pursuant to the exercise of any Option which does not constitute an
Incentive Stock Option.
VI. OPTION PRICE
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The purchase price of Stock issued under Option shall be determined by the
Committee on a semi-annual basis, but (i) in the case of an Incentive Stock
Option, such purchase price shall not be less than the fair market value of
Stock subject to the Option on the date the Option is granted, and (ii) the case
of an option that does not constitute an Incentive Stock Option, such purchase
price shall not be less than the par value of the Stock. The Committee shall
have the terms of this Agreement or the Employee's Shareholders' Agreement, and
all decisions made by the Committee in setting the value of each share of Stock
shall be final.
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VII. TERM OF PLAN
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The Plan shall be effective upon the date of its adoption by the Board, provided
the plan is approved by the stockholders of DOSL within twelve months
thereafter. Except with respect to Options then outstanding, if not sooner
terminated under the provisions of Paragraph IX, the Plan shall terminate upon
and no further Options shall be granted after the expiration of five years from
the date of its adoption by the Board.
VIII. RECAPITALIZATION OR REORGANIZATION
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(a) The Existence of the Plan and the Options granted hereunder shall not
affect in anyway the right or power of the Board of the stockholders of
DOSL to make or authorize any adjustment, recapitalization, reorganization
or other change in DOSL's capital structure or its business, any merger or
consolidation of DOSL, any issue of debt or equality securities ahead of or
affecting Stock or the rights thereof, the dissolution or liquidation of
DOSL or any sale, lease, exchange or other disposition of all or any part
of its assets or business or any other corporate act or proceeding.
(b) The shares with respect to which Options may be granted are shares of Stock
as presently constituted, but if, and whenever, prior to the expiration of
an Option theretofore granted, DOSL shall effect a subdivision or
consolidation of shares of Stock or the payment of a stock dividend on
Stock without receipt of consideration by DOSL, the number of shares of
Stock with respect to which such Option may thereafter be exercised (i) in
the event of an increase in the number of outstanding shares shall be
proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the number
of outstanding shares shall be proportionately reduced, and the purchase
price per share shall be proportionately increased.
(c) If DOSL recapitalizes or otherwise changes its capital structure, including
an Initial Public Offering ("IPO") (a "Recapitalization"), thereafter upon
any exercise of an Option theretofore granted, the optionee shall be
entitled to purchase under such Option, in lieu of the number of shares of
Stock as to which such Option shall then be exercisable, the number and
class of shares of stock and securities to which the optionee would have
been entitled pursuant to the terms of the Recapitalization if, immediately
prior to such Recapitalization, the optionee had been the holder of record
of the number of shares of Stock as to which such Option is then
exercisable. If (i) DOSL shall not be the surviving entity in any merger
or consolidation ( or survives only as a subsidiary of an entity other than
a previously wholly owned subsidiary or majority owned subsidiary of DOSL),
(ii) DOSL sells, leases or exchanges (or agrees to sell, lease or exchange)
all or substantially all of its assets to any other person or entity (other
than a wholly owned or majority owned subsidiary of DOSL), (iii) DOSL is to
be dissolved and liquidated, (iv) any person or entity, including a "group"
as contemplated by Section 13(d)(3) of the 1934 Act, acquires or gains
ownership or control (including, without limitation, power to vote) of more
than 50% of the outstanding shares of Stock, or (v) as a result of or in
connection with a contested election of directors, the persons who were
directors of DOSL before such election shall cease to constitute a majority
of the Board (each such event is referred to herein as a "Corporate
Change"), then effective as of a date (selected by the Committee) within
(a) ten days after the approval by the stockholders of DOSL of such merger,
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consolidation, sale, lease or exchange of assets or dissolution or such
election of directors of (b) thirty days of such change of control referred
to in clause (iv) above, the Committee acting in its sole discretion
without the consent or approval of any optionee, shall effect one or more
of the following alternatives, which may vary among individual optionee(s):
(1) accelerate the time at which Options then outstanding may be exercised
in full for a limited period of time on or before a specified date (before
or after such Corporate Change) fixed by the Committee, after which
specified date all unexercised Options and all rights of optionee(s)
thereunder shall terminate, (2) require the mandatory surrender to DOSL by
selected optionee(s) of some or all of the outstanding Options held by such
optionee(s) (irrespective of whether such Options are then exercisable
under the provisions of the plan) as of a date, before or after such
Corporate Change, specified by the Committee, in which event the Committee
shall thereupon cancel such Options and cause DOSL to pay each optionee an
amount of cash per share equal to the excess of the amount calculated in
Subparagraph (d) below (the "Change of Control Value") of the shares
subject to such Option over the exercise price(s) under such Options for
such shares, (3) make such adjustments to Options then outstanding as the
Committee deems appropriate to reflect such Corporate Change (provided,
however, that the Committee may determine in its sole discretion that no
adjustment is necessary to Options then outstanding) or (4) provide that
thereafter upon any exercise of an Option theretofore granted the optionee
shall be entitled to purchase under such Option, in lieu of the number of
shares of stock as to which such Option shall then be exercisable, the
number and class of shares of stock or other securities or property to
which the optionee would have been entitled pursuant to the terms of the
agreement of merger, consolidation or sale of assets or dissolution if,
immediately prior to such merger, consolidation or sale of assets or
dissolution the optionee had been the holder of record of the number of
shares of Stock as to which such Option is then exercisable. For purposes
hereof, the parties to those certain Stockholders Agreement and Employee
Stockholders Agreement among DOSL and certain of its stockholders shall
not, merely because such parties are parties to such agreements, be deemed
to acquire or gain ownership or control (or be part of a group which
acquires or gains ownership or control) of more than 50% of the outstanding
shares of Stock.
(d) For the purposes of clause (2) in Subparagraph (c) above, the "Change of
Control Value" shall equal the amount determined in clause (i), (ii) or
(iii), whichever is applicable, as follows: (i) the per share price
offered to stockholders of DOSL in any such merger, consolidation, sale of
assets or dissolution transaction, (ii) the per share price offered to
stockholders of DOSL in any tender offer or exchange offer whereby a
Corporate Change takes place, or (iii) if such Corporate Change occurs
other than pursuant to a tender or exchange offer, the fair market value
per share of the shares into which such Options being surrendered are
exercisable,, as determined by the Committee to be the date determined by
the Committee to be the date of cancellation and surrender of such Options.
In the event that the consideration offered to stockholders of DOSL in any
transaction described in this Subparagraph or Subparagraph (c) above
consists of anything other than cash, the Committee shall determine the
fair cash equivalent of the portion of the consideration offered which is
other than cash.
(e) Any adjustment provided for in Subparagraph (b) or (c) above shall be
subject to any required stockholder action.
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(f) Except as hereinbefore expressly provided, (i) the issuance by DOSL of
shares of stock of any class or securities convertible into shares of stock
of any class, for cash, property, labor or services, upon direct sale, upon
the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of DOSL convertible into such shares or
other securities, (ii) the payment of a dividend in property other than
Stock or (iii) the occurrence of any similar transaction, and in any case
whether or not for fair value, shall not affect, and no adjustment by
reason hereof shall be made with respect to, the number of shares of stock
subject to Options theretofore granted or the purchase once per share,
unless otherwise determined by the Board in its sole discretion.
IX. AMENDMENT OR TERMINATION OF THE PLAN
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The Board in its discretion may terminate the Plan at any time with respect to
any shares for which Options have not heretofore been granted. The Board shall
have the right to later or amend the Plan or any part thereof from time to time;
provided, that no change in any Option theretofore granted may be made which
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would impair the rights of options without the consent of such optionee; and
provided, further, that the Board may not make any alteration or amendment which
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would materially increase the benefits accruing to participants under the Plan,
increase the aggregate number of shares which may be issued pursuant to the
provisions of the Plan, change the class of individuals eligible to receive
Options under the Plan or extent the terms of the Plan, without the approval of
the stockholders of DOSL.
X. SECURITIES LAWS
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DOSL shall not be obligated to issue any Stock pursuant to any Option granted
under the Plan at any time when the shares covered by such Option have not been
registered under the Securities Act of 1933 and such other state and federal
laws, rules or regulations as DOSL or the Committee deems applicable and, in the
opinion of legal counsel for DOSL, there is no exemption from the registration
requirements of such law, rules or regulations available for the issuance and
sale of such shares.
XI. WITHHOLDING AND CASH BONUSES
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The Committee may permit an optionee to elect (which election shall be subject
to the Committee's sole discretion to consent to or disapprove of, shall be
irrevocable and, if the optionee is subject to Section 16 of the 1934 Act, shall
be subject to such administrative rules as the Committee shall determine to
assure compliance with Rule 16b-3 under the 1934 Act) to deliver to DOSL (or
have DOSL withholder upon exercise of the option) such shares of Stock as DOSL
may require to meet is obligation under applicable tax laws and regulations to
the extent the exercise of an Option or the disposition of shares of Stock
acquired by exercise of an Option results in compensation income to the optionee
for federal or state income tax purposes. The Committee may, at any time and in
its discretion, grant to any optionee whose option is not an Incentive Stock
Option (or whose incentive Stock Option fails to qualify for the favorable tax
treatment afforded to Incentive Stock Options) the right to receive, at such
time an din such amounts as determined by the Committee, a cash amount ("Cash
Award") which is intended to reimburse the optionee for (i) all or a portion of
the federal, state and local income taxes imposed upon such optionee as a
consequence of the exercise for Stock of such Option, or as
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a consequence of a disqualifying disposition of Stock obtained upon exercise of
an Incentive Stock Option or of the Committee's taking any action permitted
under this Plan (including the receipt of the Cash Award) and/or (ii) all or a
portion of an assumed interest cost for borrowing the amount of such taxes not
reimbursed by DOSL during the period prior to the sale of the Stock received
upon exercise of the Option.
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