Exhibit 10.32
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TRIMARK HOLDINGS, INC. DIRECTORS' STOCK OPTION PLAN
I. PURPOSE.
The purposes of the Plan are to enable the Company to attract and retain
the services of non-employee, non-consultant members of the Board and to provide
them with increased motivation and incentive to exert their best efforts on
behalf of the Company by enlarging their personal stake in the Company.
II. DEFINITIONS.
A. As used in the Plan, the following definitions apply to the terms
indicated below:
"Board" means the Board of Directors of the Company or any committee
thereof authorized to exercise the powers of the Board of Directors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Company" means Trimark Holdings, Inc. a Delaware corporation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Fair Market Value" of a Share on a given day means, if Shares are
listed on an established stock exchange or exchanges or quoted on the NASDAQ
National Market System, the highest closing or last sales price of a Share as
reported on such stock exchange or exchanges or system; or if not so reported,
the average of the bid and asked prices, as reported on the NASDAQ. If the
price of a Share shall not be so quoted, the Fair Market Value shall be
determined by taking into account all relevant facts and circumstances.
"Option" means a non-qualified option to purchase Shares under the
terms and conditions of the Plan as evidenced by an option certificate in such
form not inconsistent with the Plan.
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"Participant" means a director, eligible to participate in the Plan
under Section 4 hereof, to whom an Option is granted under the Plan.
"Plan" means Trimark Holdings, Inc. Directors' Stock Option Plan,
including any amendments to the Plan.
"Shares" means shares of the Company's Common Stock, par value $0.001
per share, now or hereafter owned by the Company as treasury stock or authorized
but unissued shares of the Company's Common Stock, subject to adjustment as
provided in the Plan.
As used herein, the masculine includes the feminine, the plural
includes the singular, and the singular includes the plural.
III. PLAN ADOPTION AND TERM.
A. The Plan shall become effective following its adoption by the Board,
but no Option granted under the Plan shall be exercisable unless and until the
Plan has been approved by the shareholders of the Company.
B. Subject to the provisions hereinafter contained relating to amendment
or discontinuance, the Plan shall continue in effect through and including
January 14, 2003. No Option may be granted hereunder after such date.
IV. ELIGIBILITY; AUTOMATIC GRANT.
Each director of the Company, who is not an employee or consultant of the
Company or any of its subsidiaries, in office as of January 14, 1994 (the
"Effective Date") shall be eligible to participate in the Plan and shall
automatically receive, on the Effective Date, a non-qualified Option to purchase
2,000 Shares. In addition, each person who is a director of the Company on an
annual anniversary date of the Effective Date (including and terminating with
the anniversary date in the year 2003) and who is not an employee or consultant
of the Company or any of its subsidiaries, shall be eligible to participate in
the Plan and shall automatically receive, on such anniversary date, a non-
qualified Option to purchase 2,000 Shares. The price per share at which Shares
may be purchased pursuant to any Option
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granted under the Plan shall be the Fair Market Value of a Share on the date the
Option is granted (the "Date of Grant"). All Options granted under the Plan
shall be evidenced by an option certificate in such form not inconsistent with
the Plan.
V. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 10 hereof, Options may be
issued pursuant to the Plan with respect to a number of Shares that, in the
aggregate, does not exceed 40,000 Shares. If, prior to the termination of the
Plan, an Option shall expire or terminate for any reason without having been
exercised in full, the unpurchased Shares subject thereto shall again be
available for the purposes of the Plan.
VI. DURATION OF OPTIONS.
No Option granted hereunder shall be exercisable after the expiration
of ten years from the Date of Grant. All Options shall be subject to earlier
termination as provided elsewhere in the Plan.
VII. CONDITIONS RELATING TO EXERCISE OF OPTIONS.
A. Options granted to Participants shall become exercisable in full on the
Date of Grant. Once exercisable, an Option may be exercised at any time prior
to its expiration, cancellation or termination as provided in the Plan. Partial
exercise is permitted from time to time provided that no partial exercise of an
Option shall be for a number of Shares having a purchase price of less than
$1,000 or for a fractional number of Shares.
B. No Option shall be transferable by a Participant otherwise than by will
or the laws of descent and distribution and Options shall be exercisable during
the lifetime of a Participant only by such Participant.
C. An Option shall be exercised by the delivery to the Company of a
written notice signed by the Participant, which specifies the number of Shares
with respect to which the Option is being exercised and the date of the proposed
exercise. Such notice shall be delivered to the Company's principal office, to
the attention of its Secretary, no less than three business days in advance of
the date of the proposed exercise and shall be accompanied by the applicable
option certificate evidencing the
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Option. A Participant may withdraw such notice at any time prior to the close
of business on the proposed date of exercise, in which case the option
certificate evidencing the Option shall be returned to him or her.
D. Payment for Shares purchased upon exercise of an Option shall be made
at the time of exercise either in cash, by certified check or bank cashier's
check or, at the option of the Board, in Shares owned by the Participant and
valued at their Fair Market Value on the date of exercise, or partly in Shares
with the balance in cash or by certified check or bank cashier's check. Any
payment in Shares shall be effected by their delivery to the Secretary of the
Company, endorsed in blank or accompanied by stock powers executed in blank.
E. Certificates for Shares purchased upon exercise of Options shall be
issued and delivered as soon as practicable following the date the Option is
exercised. Certificates for Shares purchased upon exercise of Options shall be
issued in the name of the Participant.
F. Notwithstanding any other provision in the Plan, no Option may be
exercised unless and until the Shares to be issued upon the exercise thereof
have been registered under the Securities Act of 1933 and applicable state
securities laws, or are, in the opinion of counsel to the Company, exempt from
such registration. The Company shall not be under any obligation to register
under applicable federal or state securities laws any Shares to be issued upon
the exercise of an Option granted hereunder, or to comply with an appropriate
exemption from registration under such laws in order to permit the exercise of
an Option and the issuance and sale of the Shares subject to such Option. If
the Company chooses to comply with such an exemption from registration, the
Shares issued under the Plan may bear an appropriate restrictive legend
restricting the transfer or pledge of the Shares represented thereby, and the
Company may also give appropriate stop-transfer instructions to the transfer
agent to the Company.
G. Any person exercising an Option or transferring or receiving Shares
shall comply with all regulations and requirements of any governmental authority
having jurisdiction over the issuance, transfer, or sale of capital stock of the
Company, and as a condition to receiving any Shares, shall
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execute all such instruments as the Company in its sole discretion may deem
necessary or advisable.
H. In the event that a Participant shall cease to be a director by reason
of such Participant's retirement, any outstanding Option held by such
Participant shall remain so exercisable but only for a period of three months
after commencement of such retirement, at the end of which time it shall
terminate (unless such Option expires earlier by its terms).
I. In the event that a Participant shall cease to be a director by reason
of such Participant's disability within the meaning of Section 22(e)(3) of the
Code, any outstanding Option held by such Participant shall remain so
exercisable but only for a period of one year after such date, at the end of
which time it shall terminate (unless such Option expires earlier by its terms).
J. In the event that a Participant shall cease to be a director by reason
of death (including death during an approved leave of absence or following a
Participant's retirement or disability), any Option then held by him or her
which shall not have lapsed or terminated prior to his or her death shall be or
immediately become fully exercisable by the executors, administrators, legatees,
or distributees of his or her estate, as may be appropriate, as to the total
number of Shares subject thereto and shall remain so exercisable but only for a
period of one year after death, at the end of which time it shall terminate
(unless such Option expires earlier by its terms).
K. In the event that a Participant shall cease to be a director otherwise
than as described in paragraphs (H), (I) and (J), any outstanding Option held by
such Participant shall terminate.
VIII. NO ELECTION RIGHTS.
Nothing contained in the Plan or any Option shall confer upon any
Participant any right with respect to the continuation of his or her tenure as a
director of the Company or interfere in any way with the right of the Company's
shareholders or the Board, at any time, to terminate such tenure or to fail to
elect such Participant to the Board.
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IX. RIGHTS OF A SHAREOWNER.
No person shall have any rights with respect to any Shares covered by
or relating to any grant hereunder of an Option until the date of issuance of a
certificate to him or her evidencing such Shares. Except as otherwise expressly
provided in the Plan, no adjustment to any Option shall be made for dividends or
other rights for which the record date occurs prior to the date such certificate
is issued.
X. ADJUSTMENT UPON CHANGES IN CAPITAL STOCK.
A. If the capital stock of the Company shall be subdivided or combined,
whether by reclassification, stock dividend, stock split, reverse stock split or
other similar transaction, then the number of Shares authorized under the Plan,
the number of Shares then subject to or relating to unexercised Options granted
hereunder and the exercise price per Share will be adjusted proportionately. A
stock dividend shall be treated as a subdivision of the whole number of Shares
outstanding immediately prior to such dividend into a number of Shares equal to
such whole number of Shares so outstanding plus the number of Shares issued as a
stock dividend.
B. In the case of any capital reorganization or any reclassification of
the capital stock of the Company (except pursuant to a transaction described in
Paragraph A of this Section 10) (a "Reorganization"), appropriate adjustment may
be made in the number and class of shares authorized to be issued under the Plan
and the number and class of shares subject to or relating to Options awarded
under the Plan and outstanding at the time of such Reorganization.
C. Each Participant will be notified of any adjustment made pursuant to
this Section 10 and any such adjustment, or the failure to make such adjustment,
shall be binding on the Participant.
D. Except as expressly set forth herein, the number and kind of Shares
subject to Options awarded under the Plan, and the exercise prices of any such
Options, shall not be affected by any transaction (including, without
limitation, any merger, recapitalization, stock split, stock dividend, issuance
of stock or similar transaction) affecting the capital stock of the
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Company and no Participant shall be entitled to any additional Options on
account thereof.
XI. WITHHOLDING TAXES.
A. Whenever Shares are to be issued upon the exercise of an Option, the
Company shall have the right to require the Participant to remit to the Company
in cash an amount sufficient to satisfy federal, state and local withholding tax
requirements, if any, prior to the delivery of any certificate or certificates
for such Shares.
B. Notwithstanding Paragraph A of this Section 11, at the election of a
Participant when Shares are to be issued upon the exercise of an Option, the
Participant may tender to the Company a number of Shares, or the Company shall
withhold a number of such Shares, the Fair Market Value of which is sufficient
to satisfy the federal, state and local tax requirements, if any, attributable
to such exercise or occurrence.
XII. AMENDMENT OF THE PLAN.
A. The Board may at any time and from time to time suspend, discontinue,
modify or amend the Plan in any respect whatsoever except that the Board may not
suspend, discontinue, modify or amend the Plan so as to adversely affect the
rights of a Participant with respect to any grants that have heretofore been
made to such Participant without such Participant's approval.
B. No amendment to or modification of the Plan which: (i) materially
increases the benefits accruing to Participants; (ii) except as provided in
Section 10 hereof, increases the number of Shares that may be issued under the
Plan; or (iii) modifies the requirements as to eligibility for participation
under the Plan, shall be effective without shareholder approval.
XIII. MISCELLANEOUS.
A. It is expressly understood that the Plan grants powers to the Board but
does not require their exercise; nor shall any rights be deemed to accrue under
the Plan except as Options may be granted hereunder.
B. All expenses of the Plan, including the cost of maintaining records,
shall be borne by the Company.
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