Exhibit 10.13
16
1990 STOCK OPTION AND STOCK APPRECIATION RIGHTS PLAN
OF
TRIMARK HOLDINGS, INC., AS AMENDED
1. PURPOSE.
The purpose of this 1990 Stock Option and Stock Appreciation Rights Plan
(the "Plan") of Trimark Holdings, Inc., a Delaware corporation (the "Company"),
is to secure for the Company and its stockholders the benefits arising from
stock ownership and participation in stock appreciation by selected employees of
the Company or its subsidiaries, Directors or consultants ("Participants") as a
committee of the Board of Directors constituted for the purpose, may from time
to time determine. This Plan will provide a means whereby (i) such employees
may purchase shares of the Common Stock of the Company pursuant to options that
will qualify as "incentive stock options" under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), (ii) such employees, Directors
and consultants may purchase shares of the Common Stock of the Company pursuant
to "nonqualified stock options" and (iii) such employees, Directors and
consultants may acquire the right to participate in the appreciation of the
Common Stock of the Company pursuant to "stock appreciation rights." Incentive
stock options and nonqualified stock options are sometimes referred to
collectively as "options."
2. ADMINISTRATION.
2.1. This Plan shall be administrated by a committee of the Board of
Directors consisting of two or more Directors of the Company (the "Committee")
who are "Non-Employee Directors" as that term is defined in Rule 16b-3(b)(3) of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). In the event that two or more members of the
Board are not Non-Employee Directors, the Committee shall be comprised of at
least two Directors, and in such case, any grants or awards hereunder to a
Participant subject to Section 16 of the Exchange Act shall also be approved by
the Board of Directors of the Company. If two or more members of the Board of
Directors of
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the Company are "Outside Directors" as defined herein, the Committee shall be
comprised of at least two Board members, all of whom are Outside Directors and
Non-Employee Directors. "Outside Director" shall mean any Director other than a
Director who is (i) a current employee of the Company or any Parent or
Subsidiary of the Company, (ii) a former employee of the Company or any Parent
or Subsidiary of the Company who is receiving compensation for prior services
(other than benefits under a tax-qualified pension plan), (iii) a current or
former officer of the Company or any Parent or Subsidiary of the Company or (iv)
currently receiving compensation, directly or indirectly, for personal services
in any capacity, other than as a director, from the Company or any Parent or
Subsidiary of the Company; provided, however, that at such time as the term
"Outside Director," as is used in Section 162(m) of the Code is defined under
regulations promulgated under such Code Section, "Outside Director" shall have
the meaning set forth in such regulations, as amended from time to time and as
interpreted by the Internal Revenue Service. "Parent" shall mean a parent
corporation, whether now or hereafter existing, as defined in Sections 425(e)
and (g) of the Code. "Subsidiary" shall mean a subsidiary corporation, whether
now or hereafter existing, as defined in Sections 425(e) and (g) of the Code.
Any action of the Committee with respect to administration of this Plan shall be
taken by a majority vote or written consent of its members.
2.2. Subject to the provisions of this Plan, the Committee shall have
authority (i) to construe and interpret this Plan, (ii) to define the terms used
therein, (iii) to prescribe, amend and rescind rules and regulations relating to
this Plan, (iv) to determine the individuals to whom and the time or times at
which options or stock appreciation rights shall be granted, whether any options
granted will be incentive stock options or nonqualified stock options, the
number of shares to be subject to each option or stock appreciation right, the
exercise price of an option or the Initial Value of a stock appreciation right,
(subject to the limitations set forth in Section 6 hereof) the number of
installments, if any, in which each option or stock appreciation right may be
exercised, and the duration of each option or stock appreciation right, (v) to
approve and determine the duration of leaves of absence which may be granted to
Participants without constituting a termination of their employment for the
purposes of this Plan, and (vi) to make all
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other determinations necessary or advisable for the administration of this Plan.
All determinations and interpretations made by the Committee shall be binding
and conclusive on all Participants in this Plan and their legal representatives
and beneficiaries.
3. SHARES SUBJECT TO THIS PLAN.
Subject to adjustment as provided in Paragraph 15 hereof, the shares to be
issued under this Plan shall consist of the Company's authorized but unissued
Common Stock, and the aggregate amount of such stock which may be issued upon
exercise of all options under the Plan shall not exceed 820,000 shares. If any
options granted under this Plan shall expire or terminate for any reason,
without having been exercised in full, the unpurchased shares subject thereto
shall again be available for options to be granted under this Plan. Subject to
adjustment as provided in Paragraph 15 hereof, the aggregate number of stock
appreciation rights that may be granted under this Plan shall not exceed 820,000
with a corresponding reduction for any options (other than Related Options as
defined in Paragraph 7.4 hereof) outstanding under this Plan. If any stock
appreciation rights granted under this Plan should expire or terminate for any
reason without having been exercised in full, the unexercised stock appreciation
rights shall again be available to be granted under this Plan. Notwithstanding
the foregoing, commencing July 1, 1994, during any fiscal year of the Company,
no Participant shall be granted options and stock appreciation rights that are
issuable for more than 200,000 shares of Common Stock, subject to adjustment as
provided in Paragraph 15 hereof.
4. ELIGIBILITY AND PARTICIPATION.
4.1. All regular salaried employees of the Company or any Subsidiary shall
be eligible to receive incentive stock options, nonqualified stock options and
stock appreciation rights. Directors of the Company or any Subsidiary are not
eligible to receive incentive stock options, but are eligible to receive
nonqualified stock options and stock appreciation rights.
4.2. No incentive stock options may be granted to any employee who, at the
time the incentive stock option is granted, owns shares possessing more than ten
percent of the total
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combined voting power of all classes of stock of the Company (or of its
Subsidiaries) unless the exercise price of such incentive stock option is at
least one hundred ten percent of the fair market value of the stock subject to
the incentive stock option and such incentive stock option by its terms is not
exercisable after the expiration of five years from the date such incentive
stock option is granted, determining fair market value as of the date each
respective option is granted.
4.3. The aggregate fair market value of the Common Stock for which
incentive stock options granted to any one employee under this Plan or any other
incentive stock option plan of the Company may by their terms first become
exercisable during any calendar year shall not exceed $100,000, determining fair
market value as of the date each respective option is granted.
4.4. All options and stock appreciation rights granted under this Plan
shall be granted within ten years from May 22, 1990.
5. DURATION OF OPTIONS AND STOCK APPRECIATION RIGHTS.
Each option and stock appreciation right and all rights associated
therewith shall expire on such date as the Board of Directors or the Committee
may determine, but in no event later than ten years from the date on which the
option or stock appreciation right is granted, and shall be subject to earlier
termination as provided herein.
6. PRICE AND EXERCISE OF OPTIONS.
6.1. The exercise price of the Common Stock covered by each option shall
be determined by the Committee, but in the case of an incentive stock option
shall not be less than one hundred percent of the fair market value of such
Common Stock on the date the incentive stock option is granted, provided,
however, that if the optionee owns at least 10% of the then outstanding shares
of the Common Stock, then the exercise price shall be at least one hundred ten
percent (110%) of the fair market value per share of the Common Stock on the
date such option is granted. The purchase price of the Common Stock upon
exercise of an option shall be paid in full at the time of exercise (i) in cash
or by certified or cashier's check payable to the order of the Company,
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(ii) by cancellation of indebtedness owed by the Company to the Participant,
(iii) by delivery of shares of Common Stock of the Company already owned by, and
in the possession of the Participant, (iv) if authorized by the Committee or if
specified in the option being exercised, by a promissory note made by the
Participant in favor of the Company, subject to terms and conditions determined
by the Committee, secured by the Common Stock issuable upon exercise, and in
compliance with applicable law (including, without limitation, state corporate
and federal margin requirements), (v) by any combination thereof, or (vi) in
such other manner as the Committee may specify in order to facilitate the
exercise of options by the holders thereof. Shares of Common Stock used to
satisfy the exercise price of an option shall be valued at their fair market
value determined in accordance with Paragraph 8 hereof.
6.2. No option granted under this Plan shall be exercisable if such
exercise would involve a violation of any applicable law or regulation
(including without limitation, federal and state securities laws and
regulations). Each option shall be exercisable in such installments during the
period prior to its expiration date as the Committee shall determine; provided,
however, that unless otherwise determined by the Committee, if the Participant
shall not in any given installment period purchase all of the shares which the
Participant is entitled to purchase in such installment period, then such
Participant's right to purchase any shares not purchased in such installment
period shall continue until the expiration date or sooner termination of the
Participant's option. No option may be exercised for a fraction of a share and
no partial exercise of any option may be for less than ten shares.
7. TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS.
All stock appreciation rights shall be evidenced by a Certificate of Grant
(sometimes referred to herein as the "Certificate") in such form as the
Committee shall from time to time approve. A grant of stock appreciation rights
shall be subject to the following terms and conditions:
7.1. Each stock appreciation right shall entitle a Participant to an
amount (the "Appreciation") equal to the excess of the Exercise Value of one
share of Common Stock over the
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Initial Value of one share of Common Stock. The Initial Value of each stock
appreciation right shall be specified in the Certificate of Grant. The Exercise
Value of each stock appreciation right shall be the fair market value of a share
of Common Stock on the date the stock appreciation right is exercised,
determined as set forth in Paragraph 8. The total Appreciation available to a
Participant from the exercise of any stock appreciation right shall be equal to
the number of stock appreciation rights exercised, multiplied by the amount of
Appreciation per stock appreciation right. Participants acknowledge that a
stock appreciation right is a method of incentive compensation for key
employees, Directors and consultants and does not constitute an offering or sale
of Common Stock to anyone.
7.2. The Appreciation available to a Participant upon exercise of the
Participant's stock appreciation rights shall be paid to the Participant in cash
or Common Stock as determined by the Committee. If payment is made in Common
Stock of the Company, then the fair market value of the Common Stock for
purposes of calculating the number of shares of Common Stock that shall be
issued to pay the Appreciation of a stock appreciation right shall be based upon
the fair market value of the Common Stock as determined in Paragraph 8 on the
date of exercise of the stock appreciation right. If the total Appreciation is
paid in Common Stock, the total Appreciation will be reduced to the largest
amount divisible by the fair market value of one share of Common Stock.
Appreciation shall be paid as compensation and without interest by the Company
as specified in the Certificate of Grant.
7.3. A maximum of 820,000 stock appreciation rights may be granted,
subject to a reduction for any options (other than Related Options as defined in
Paragraph 7.4) outstanding under this Plan. Such stock appreciation rights
shall have an Initial Value of no less than the fair market value of a share of
Common Stock as determined in Paragraph 8 as of the date of grant of the stock
appreciation right.
7.4. A stock appreciation right (a "Related Right") may be granted under
this Plan pursuant to a Certificate of Grant providing that the exercise of the
stock appreciation right affects the exercise of an option granted pursuant to
this Plan
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(the "Related Option"). Unless the Certificate of Grant pursuant to which the
Related Right is granted provides otherwise, the Related Right may be exercised
only to the extent to which the Related Option is exercisable. Upon the
exercise or termination of the Related Right, the Related Option shall cease to
be exercisable and shall be canceled to the extent of the number of shares with
respect to which the Related Right was exercised or terminated. Upon the
exercise or termination of the Related Option, the Related Right shall cease to
be exercisable and shall be canceled to the extent of the number of shares to
which the Related Option was exercised or terminated. In addition to the
foregoing, if the Related Option is an "incentive stock option" granted pursuant
to this Plan, then the Related Right must satisfy the following conditions.
(i) The Related Right must be granted only at the time of grant of
the Related Option;
(ii) The Related Right must expire no later than the expiration of the
Related Option;
(iii)The Related Right must be granted for an amount of Appreciation
equal to or less than one hundred percent of the difference between the exercise
price of the Related Option and the market price of the Common Stock subject to
the Related Option at the time the Related Right is exercised;
(iv) The Related Right may be transferable only when the Related
Option is transferable, and only under the same conditions;
(v) The Related Right may be exercised only when the Related Option
is eligible to be exercised; and
(vi) The Related Right may be exercised only when the market price of
the Common Stock subject to the Related Option exceeds the exercise
price of the Related Option.
7.5. No stock appreciation right granted under this Plan shall be
exercisable if such exercise would involve a violation of any applicable law or
regulation (including without limitation, federal and state securities laws and
regulations). Each stock appreciation right shall be exercisable in such
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installments during the period prior to its expiration date as the Committee
shall determine; provided, however, that, unless otherwise determined by the
Committee, if the Participant shall not in any given installment period exercise
all of the stock appreciation rights which the Participant is entitled to
exercise in such installment period, then the Participant's right to exercise
any stock appreciation rights not exercised in such installment period shall
continue until the expiration date or sooner termination of the Participant's
stock appreciation right.
8. FAIR MARKET VALUE OF COMMON STOCK.
The fair market value of a share of Common Stock of the Company for
purposes of this Plan shall be the closing price or last trade price of a share
as supplied by the National Association of Securities Dealers through NASDAQ (or
its successor in function) or, if such shares are then traded on a principal
stock exchange, by reference to the closing price of a share on the principal
stock exchange on which such shares are traded, in each case as reported by The
Wall Street Journal for the business day immediately preceding the date on which
the fair market value is determined (or, if for any reason no such price is
available, in such other manner as the Committee may deem appropriate to reflect
the then fair market value thereof).
9. WITHHOLDING TAX.
Upon (i) the disposition by an employee of shares of Common Stock acquired
pursuant to the exercise of an incentive stock option granted pursuant to this
Plan within two years of the granting of the incentive stock option or within
one year after exercise of the incentive stock option, (ii) the exercise of a
nonqualified stock option, or (iii) the exercise of a stock appreciation right,
the Company shall have the right to require such employee, and such employee by
accepting the options or stock appreciation rights granted under this Plan
agrees, to pay the Company the amount of any taxes which the Company may be
required to withhold with respect thereto and the Company shall not be obligated
to issue certificates representing the shares of Common Stock to be acquired
through the exercise of such options if the optionee fails to provide the
Company with adequate assurance that such optionee will pay such amounts to the
Company as hereinabove required. In the event of (i) or (ii), or in the
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event of (iii) if the Appreciation is paid with Common Stock, then such employee
or other person may elect to pay the amount of any taxes which the Company may
be required to withhold by delivering to the Company shares of the Company's
Common Stock having a fair market value determined in accordance with Paragraph
8 hereof equal to the withholding tax obligation determined by the Company.
Such shares so delivered may be either shares withheld by the Company upon the
exercise of the option or stock appreciation right or other shares.
10. NONTRANSFERABILITY.
Except as otherwise provided by the Committee at the time of grant or
otherwise, an option or stock appreciation right granted under this Plan shall,
by its terms, be nontransferable by the holder either voluntarily or by
operation of law, other than by will or the laws of descent and distribution,
and shall be exercisable during the holder's lifetime only by the holder,
regardless of any community property interest therein of the spouse of the
holder, or such spouse's successors in interest. If the spouse of the holder
shall have acquired a community property interest in an option or stock
appreciation right, the holder, or the holder's permitted successors in
interest, may exercise the option or stock appreciation right on behalf of the
spouse of the holder or such spouse's successors in interest.
11. HOLDING OF STOCK AFTER EXERCISE OF OPTION.
At the discretion of the Committee, any option or stock appreciation right
may provide that the Participant, by accepting such option or stock appreciation
right, represents and agrees, for the Participant and the Participant's
permitted transferees that none of the shares acquired upon exercise of an
option or stock appreciation right will be acquired with a view to any sale,
transfer or distribution of said shares in violation of the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
promulgated thereunder, and the person entitled to exercise the same shall
furnish evidence satisfactory to the Company (including a written and signed
representation) to that effect in form and substance satisfactory to the
Company, including an indemnification of the Company in the event of any
violation of the Securities Act by such person.
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12. TERMINATION OF EMPLOYMENT.
If a holder of an incentive stock option ceases to be employed by the
Company or a Subsidiary for any reason other than the holder's death or
permanent disability (within the meaning of Section 105(d)(4) of the Code), the
holder's incentive stock options shall immediately become void and of no further
force or effect; provided, however, that if such cessation of employment shall
be due to the holder's voluntary resignation with the consent of the Board of
Directors of the Company or the Committee, expressed in the form of a written
resolution, or shall be due to the holder's retirement under the provisions of
any pension or retirement plan of the Company or such Subsidiary then in effect,
then within three months after the date the holder ceases to be an employee of
the Company or such Subsidiary such incentive stock option may be exercised to
the extent exercisable on the date of such cessation of employment. A leave of
absence approved in writing by the Board of Directors or the Committee shall not
be deemed a termination of employment for the purposes of this Paragraph 12, but
no incentive stock option may be exercised during any such leave of absence,
except during the first three months thereof. Termination of employment or
other relationship with the Company that qualifies the optionee as a
Participant, by the holder of a nonqualified stock option or stock appreciation
right, will have the effect specified in the individual option agreement or
Certificate of Grant as determined by the Committee.
13. DEATH OR PERMANENT DISABILITY OF OPTION HOLDER.
If the holder of an incentive stock option dies or becomes permanently
disabled while the option holder is employed by the Company or a
Subsidiary, the holder's option shall expire one year after the date of
such death or permanent disability unless by its terms it expires sooner.
During such period after death, such incentive stock options may, to the
extent that they remained unexercised (but exercisable by the holder
according to such option's terms) on the date of such death, be exercised
by the person or persons to whom the option holder's rights under the
incentive stock option shall pass by the option holder's will or by the
laws of descent and distribution. The death or permanent disability of a
holder of a nonqualified stock
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option or stock appreciation right will have the effect specified in the
individual option agreement or Certificate of Grant as determined by the
Committee.
14. PRIVILEGES OF STOCK OWNERSHIP.
No person entitled to exercise any option or stock appreciation right
granted under this Plan shall have any of the rights or privileges of a
stockholder of the Company in respect of any shares of Common Stock
issuable upon exercise of such option or stock appreciation right until
certificates representing such shares shall have been issued and delivered.
No shares shall be issued and delivered upon exercise of any option or
stock appreciation right unless and until, in the opinion of counsel for
the Company, there shall have been full compliance with any applicable
registration requirements of the Securities Act, any applicable listing
requirements of any national securities exchange or automated quotation
system on which the Common Stock is then listed or quoted, and any other
requirements of law or of any regulatory bodies having jurisdiction over
such issuance and delivery.
15. ADJUSTMENTS.
15.1. If the outstanding shares of the Common Stock of the Company are
increased, decreased, changed into or exchanged for a different number or
kind of shares or securities of the Company through a reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse
stock split or other similar transaction, an appropriate and proportionate
adjustment shall be made in the maximum number and kind of stock appreciation
rights and shares as to which options may be granted under this Plan. A
corresponding adjustment changing the number or kind of stock appreciation
rights and shares allocated to unexercised options or portions thereof, which
shall have been granted prior to any such change, shall likewise be made.
Any such adjustment in the outstanding options shall be made without change
to the aggregate purchase price applicable to the unexercised portion of the
option but with a corresponding adjustment in the purchase price for each
share covered by the option. Any such adjustment in the outstanding stock
appreciation rights shall be made without change in the aggregate Initial
Value applicable to the
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unexercised portion of the stock appreciation rights but with a corresponding
adjustment in the Initial Value for each share of Common Stock covered by the
stock appreciation right.
15.2. Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon the sale of substantially all the property or more than eighty percent
of the then outstanding stock of the Company to another corporation, this Plan
shall terminate, and any stock appreciation rights and options theretofore
granted hereunder shall terminate.
15.3. Notwithstanding the foregoing, the Board of Directors or the
Committee may provide in writing in connection with such transaction (or in the
individual option agreement or Certificate of Grant) for any or all of the
following alternatives (separately or in combinations): (i) for the stock
appreciation rights and options theretofore granted to become immediately
exercisable; (ii) for the assumption by the successor corporation of the stock
appreciation rights and options theretofore granted or the substitution by such
corporation for such stock appreciation rights and options of new stock
appreciation rights and options covering the stock of the successor corporation,
or a parent or subsidiary thereof, with appropriate adjustments as to the number
and kind of shares and prices; or (iii) for the continuance of this Plan by such
successor corporation in which event the Plan and the stock appreciation rights
and options theretofore granted shall continue in the manner and under the terms
so provided.
15.4. Adjustments under this Paragraph 15 shall be made by the Board of
Directors or the Committee, whose determination as to what adjustments shall be
made, and the extent thereof, shall be final, binding and conclusive. No
fractional shares of stock shall be issued under this Plan on any such
adjustment.
16. AMENDMENT AND TERMINATION OF PLAN.
16.1. The Board of Directors or the Committee may at any time suspend
or terminate this Plan. The Board of Directors or the Committee may also at any
time amend or revise the terms of this Plan, provided that no such amendment or
revision shall,
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unless appropriate stockholder approval of such amendment or revision is
obtained, (i) increase the maximum number of shares which may be acquired
pursuant to options, and the maximum number of stock appreciation rights,
granted under this Plan, except as permitted under the provisions of Paragraph
15 hereof, (ii) change the minimum purchase price set forth in Paragraph 6
hereof or the Initial Value set forth in Paragraph 7 hereof, (iii) increase the
maximum term of options or stock appreciation rights provided for in Paragraph 5
hereof, or (iv) change the designation of persons eligible to receive options or
stock appreciation rights as provided in Paragraph 4 hereof.
16.2. No amendment, suspension or termination of this Plan shall, without
the consent of the holder, alter or impair any rights or obligations under any
option or stock appreciation right theretofore granted under this Plan.
17. EFFECTIVE DATE OF PLAN.
No option or stock appreciation right may be granted under this Plan unless
and until (i) the options and underlying shares and stock appreciation rights
have been registered under the Securities Act of 1933 and qualified with the
appropriate state regulatory agencies, or (ii) the Company has been advised by
counsel that such options, shares and stock appreciation rights are exempt from
such registration and/or qualification. This Plan shall be submitted for
approval by the holders of the outstanding voting stock of the Company within
twelve months from the date this Plan is adopted by the Board of Directors.
This Plan shall be deemed approved by the holders of the outstanding voting
stock of the Company by (i) the affirmative vote of the holders of a majority of
the voting shares of the Company represented and voting at a duly held meeting
at which a quorum is present or (ii) the written consent of the holders of a
majority of the outstanding voting shares of the Company. Any options or stock
appreciation rights granted under this Plan prior to obtaining such stockholder
approval shall be granted under the conditions that the options or stock
appreciation rights so granted (i) shall not be exercisable prior to such
approval, and (ii) shall become null and void if such stockholder approval is
not obtained.
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