EXHIBIT 4.1
NAM CORPORATION AMENDED AND RESTATED
1996 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
Exhibit 4.1
NAM CORPORATION
AMENDED AND RESTATED
1996 INCENTIVE AND NONQUALIFIED
STOCK OPTION PLAN
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1. Purpose
The purpose of this Stock Option Plan (the "Plan") is to encourage and
enable key employees (which term, as used herein, shall include officers), and
directors, of NAM Corporation or a parent (if any) or subsidiary thereof
(collectively, unless the context otherwise requires, the "Corporation"),
consultants, and advisors to the Corporation, and other persons or entities
providing goods or services to the Corporation to acquire a proprietary interest
in the Corporation through the ownership of common stock of the Corporation. As
used herein, the term "parent" or "subsidiary" shall mean any present or future
corporation which is or would be a "parent corporation" or "subsidiary corpora-
tion" of the Corporation as the term is defined in section 424 of the Internal
Revenue Code of 1986, as amended (the "Code") (determined as if the Corporation
were the employer corporation). Such directors, consultants, advisors, and other
persons or entities providing goods or services to the Corporation and entitled
to receive options hereunder are hereinafter collectively referred to as the
"Associates," and the relationship of the Associates to the Corporation is
hereinafter referred to as "association with" the Corporation. An employee or
Associate to whom an option has been granted is referred to as a "Grantee". Such
ownership will provide such Grantees with a more direct stake in the future
welfare of the Corporation and encourage them to remain employed by or
associated with the Corporation. It is also expected that the Plan will
encourage qualified persons to seek and accept employment or association with
the Corporation.
2. Administration
(a) The Plan shall be administered by the Board of Directors
(the "Board").
(b) As it applies to the administration of the Plan, a
majority of the members of the Board shall constitute a quorum, and the action
of a majority of the members of the Board present at a meeting at which a quorum
is present, as well as actions taken pursuant to the unanimous written consent
of all of the members of the Board without holding a meeting, shall be deemed to
be actions of the Board. All actions of the Board and all interpretations and
decisions made by the Board with respect to any question arising under the Plan
shall be final and conclusive and shall be binding upon the Corporation and all
other interested parties.
(c) Subject to the terms and conditions of the Plan, the Board
shall be responsible for the overall management and administration of the Plan
and shall have such authority as shall be necessary or appropriate in order to
carry out its responsibilities, including, without limitation, the authority to
(i) interpret and construe the Plan and to determine the terms of all options
granted pursuant to the Plan, including, but not limited to, the persons to
whom, and the time or times at which grants shall be made, the number of options
to be included in the grants, the number of options which shall be treated as
incentive stock options (in the case of options granted to employees) as
described in section 422 of the Code, the number of options which do not qualify
as incentive stock options ("nonqualified options"), and the terms and
conditions thereof; (ii) to adopt rules and regulations and to prescribe forms
for the operation and administration of the Plan; and (iii) to take any other
action not inconsistent with the provisions of the Plan that it may deem
necessary or appropriate.
3. Eligibility and Participation
(a) Key employees and Associates are eligible to receive
options. Each option shall be granted, and the number of shares and the vesting
schedule of such shares subject thereto shall be determined by the Board.
(b) Directors who are not officers of the Corporation shall
receive, on an annual basis on the last trading day of each June starting June
1997, stock options for 1,000 shares of the Corporation's Common Stock, at an
exercise price equal to the fair market value of the stock on the date of grant,
and such options shall vest immediately upon grant. The fair market value shall
be determined in accordance with Section 8 hereof.
4. Shares Subject to the Plan
(a) Options shall be evidenced by written agreements which
shall, among other things (i) designate the option as either an incentive stock
option or a nonqualified stock option, (ii) specify the number of shares covered
by the option; (iii) specify the exercise price, determined in accordance with
paragraph 7 hereof, for the shares subject to the option; (iv) specify the
option period determined in accordance with paragraph 6 hereof; (v) set forth
specifically or incorporate by reference the applicable provisions of the Plan;
and (vi) contain such other terms and conditions consistent with the Plan as the
Board may, in its discretion, prescribe.
(b) The stock to be offered and delivered under the Plan,
pursuant to the exercise of an option, shall be shares of the Corporation's
authorized common stock and may be unissued shares or reacquired shares, as the
Board may from time to time determine. Subject to adjustment as provided in
paragraph 13 hereof, the aggregate number of shares to be delivered under the
Plan shall
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not exceed seven hundred and fifty thousand (750,000) shares. If an option
expires or terminates for any reason during the term of the Plan prior to the
exercise thereof in full, the shares subject to but not delivered under such
option shall be available for options thereafter granted.
5. Incentive Stock options
(a) An option designated by the Board as an "incentive stock
option" is intended to qualify as an "incentive stock option" within the meaning
of section 422 of the Code. An incentive stock option shall be granted only to
an employee of the Corporation.
(b) No incentive stock option shall provide any person with a
right to purchase shares to the extent that such right first becomes exercisable
during a prescribed calendar year and the sum of (i) the fair market value
(determined as of the date of grant) of the shares subject to such incentive
stock option which first become available for purchase during such calendar
year, plus (ii) the fair market value (determined as of the date of grant) of
all shares subject to incentive stock options previously granted to such person
under all plans of the Corporation first become available for purchase during
such calendar year exceeds $100,000.
(c) Without prior written notice to the Board, a Grantee may
not dispose of shares acquired pursuant to the exercise of an incentive stock
option until after the later of (i) the second anniversary of the date on which
the incentive stock option was granted, or (ii) the first anniversary of the
date on which the shares were acquired; provided, however, that a transfer to a
trustee, receiver, or other fiduciary in any insolvency proceeding, as described
in section 422(c)(3) of the Code, shall not be deemed to be such a disposition.
The optionee shall make appropriate arrangements with the Corporation for any
taxes which the Corporation is obligated to collect in connection with any
disposition of shares acquired pursuant to the exercise of an incentive stock
option, including any Federal, state or local withholding taxes.
(d) Should Section 422 of the Code be amended during the term
of the Plan, the Board may modify the Plan consistently with such amendment.
6. Term of Option Period
The term during which options may be granted under the Plan shall
expire on April 1, 2006 and the option period during which each option may be
exercised shall, subject to the provisions of paragraph 12 hereof, be during
such period, expiring not later than the tenth anniversary (the fifth
anniversary in the case of incentive stock options granted to a person who owns
(within the meaning of section 424(d) of the Code) more than 10 percent of the
total combined voting power of all classes of stock of the Corporation at the
time such option is granted) of the date the option is granted, as may be
determined by the Board.
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7. Option Price
The price at which shares may be purchased upon exercise of a
particular option shall be such price as may be fixed by the Board but in no
event less than the minimum required in order to comply with any applicable law,
rule or regulation and, in the case of incentive stock options, shall not be
less than 100 percent, or in the case of incentive stock options granted to an
optionee who is a 10 percent stockholder (within the meaning of paragraph 6
hereof), shall not be less than 110 percent, of the fair market value (as
defined in paragraph 8) of such shares on the date such option is granted.
8. Stock as Form of Exercise Payment
At the discretion of the Board, a Grantee who owns shares of the
Corporation's common stock may elect to use such shares, with the value thereof
to be determined as the fair market value of such shares on the day prior to the
date of exercise of the option, to pay all or part of the option price required
under the Plan. As used herein, fair market value shall be deemed to be the
closing price on such day of the Corporation's common stock if the Corporation's
common stock is then traded on a national securities exchange or the closing bid
price on such day of the Corporation's common stock, if such stock is traded on
the NASDAQ National Market System or Small-Cap Market System or, if not so
traded, the average of the closing bid and asked prices thereof on such day.
9. Exercise of Options
(a) Each option granted shall be exercisable in whole or in
part at any time, or from time to time, during the option period as the Board
may provide in the terms of such option; provided that the election to exercise
an option shall be made in accordance with applicable federal and state laws and
regulations.
(b) No option may at any time be exercised with respect to a
fractional share.
(c) No shares shall be delivered pursuant to the exercise of
any option, in whole or in part, until qualified for delivery under such
securities laws and regulations as may be deemed by the Board to be applicable
thereto, until such shares are listed on each securities exchange on which the
Corporation's common stock may then be listed, until, in the case of the
exercise of an option, payment in full of the option price is received by the
Corporation in cash or stock as provided in paragraph 8 and until payment in
cash of any applicable withholding taxes is received by the Corporation. Unless
prior to the exercise of the option the shares of the Corporation's common stock
issuable upon such exercise have been registered with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, the notice of
exercise shall be accompanied by a representation or agreement of the individual
exercising the option to the Corporation to the effect that such shares are
being acquired for investment and not with a view to the resale or distribution
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thereof or such other documentation as may be required by the Corporation unless
in the opinion of counsel to the Corporation such representation, agreement, or
documentation is not necessary to comply with said Act. No holder of an option,
or such holder's legal representative, legatee, or distributee shall be or be
deemed to be a holder of any shares subject to such option unless and until a
certificate or certificates therefor is issued in his name.
Acceleration of Vesting
(a) An option shall automatically be vested and immediately
exercisable in full upon the occurrence of any of the following events:
(i) Any person within the meaning of Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, other than the
Corporation, has become the beneficial owner, within the
meaning of Rule 13d-3 under such Act, of 30 percent or more of
the combined voting power of the Corporation's then
outstanding voting securities, unless such ownership by such
person has been approved by the Board immediately prior to the
acquisition of such securities by such person;
(ii) The first day on which shares of the Corporation's
common stock are purchased pursuant to a tender offer or
exchange offer, unless such offer is made by the corporation
or unless such officer has been approved or not opposed by the
Board;
(iii) The stockholders of the Corporation have approved
an agreement to merge or consolidate with or into another
corporation (and the Corporation is not the survivor of such
merger or consolidation) or an agreement to sell or otherwise
dispose of all or substantially all of the Corporation's
assets (including a plan of liquidation), unless the Board has
resolved that options shall not automatically vest; or
(iv) During any period of two consecutive years,
individuals who at the beginning of such period constitute the
Board of the Corporation cease for any reason to constitute at
least a majority thereof, unless the election or the
nomination for the election by the Corporation's stockholders
of each new director was approved by a vote of at least a
majority of the directors then still in office who were
directors at the beginning of the period.
(b) Other than upon the occurrence of any of the events
described in paragraph 10(a), the Board shall have the authority at any time or
from time to time to accelerate the vesting of any individual option and to
permit any stock option not theretofore exercisable to become immediately
exercisable.
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11. Transfer of Options
Options granted under the Plan may not be transferred except
by will or the laws of descent and distribution and, during the lifetime of the
Grantee to whom granted, may be exercised only by such or by such Grantee's
guardian or legal representative.
12. Termination of Employment
(a) Except as specifically provided in this paragraph 12, if
the Grantee's employment or association with the Corporation shall terminate for
any reason before the Option has vested in full, then the unvested portion of
the Option shall automatically terminate on the date of termination of
employment or association and all rights and interests of the Grantee in and to
such unvested portion shall thereupon terminate.
(b) After the date on which an incentive stock option vests,
if the Grantee's employment by the Corporation is terminated for any reason, the
incentive stock option shall be exercisable for the lesser of (i) three (3)
months from the date of such termination of employment or (ii) the balance of
such incentive stock option's term; provided, however, that in the event that
the termination is as a result of the death or disability (within the meaning of
section 22(e)(3) of the Code) of the Grantee, the incentive stock options held
by such Grantee which were otherwise exercisable on the date of his termination
of employment shall expire unless exercised by such Grantee, or, in the case of
the death of a Grantee, by his heirs, legatees, or personal representatives,
within a period of twelve (12) months after the date of termination of
employment. In no event, however, shall any incentive stock option be
exercisable after ten years from the date it was granted. Nothing in the Plan or
in any option shall confer upon any Grantee the right to continue in the employ
of the Corporation or interfere in any way with the right of the Corporation to
terminate the employment of a Grantee at any time. The Board's determination
that a Grantee's employment has terminated and the date thereof shall be final
and conclusive on all persons affected thereby.
(c) The Board may, if it determines that to do so would be in
the Corporation's best interests, provide in a specific case or cases for the
exercise of options which would otherwise terminate upon termination of
employment with the Corporation for any reason, upon such terms and conditions
as the Board determines to be appropriate.
(d) In the case of a Grantee on an approved leave of absence,
the Board may, if it determines that to do so would be in the best interests of
the Corporation, provide in a specific case for continuation of options during
such leave of absence, such continuation to be on such terms and conditions as
the Board determines to be appropriate. Leaves of absence for such period and
purposes conforming to the personnel policy of the Corporation as may be
approved by the Board shall not be deemed terminations or interruptions of
employment.
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13. Adjustments Upon Changes in Capitalization
(a) If the Corporation's outstanding common stock is hereafter
changed by reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination, or exchange of shares or the
like, or dividends payable in shares of the Corporation's common stock, an
appropriate adjustment shall be made by the Board in the aggregate number of
shares available under the Plan and in the number of shares and price per share
subject to outstanding options. If the Corporation shall be reorganized,
consolidated, or merged with another corporation, or if all or substantially all
of the assets of the Corporation shall be sold or exchanged, the holder of an
option shall, after the occurrence of such a corporate event, be entitled to
receive upon the exercise of his option the same number and kind of shares of
stock or the same amount of property, cash, or securities as he would have been
entitled to receive upon the happening of any such corporate event as if he had
exercised such option and had been, immediately prior to such event, the holder
of the number of shares covered by such option. All adjustments made pursuant to
this paragraph to the terms or conditions of an incentive stock option shall be
subject to the requirements of section 424 of the Code.
(b) Any adjustment in the number of shares shall apply
proportionately to only the unexercised portion of any option granted hereunder.
If fractions of a share would result from any such adjustment, the adjustment
shall be revised to the next higher whole number of shares.
14. Termination, Modification, and Amendment
(a) The Plan shall terminate on April 1, 2006, which is 10
years from the earlier of the date of its adoption by the Board or the date on
which the Plan is approved by the stockholders of the Corporation and no option
shall be granted after termination of the Plan.
(b) The Plan may from time to time be terminated, modified, or
amended by the affirmative vote of a majority of the votes cast at a duly held
stockholders' meeting at which a quorum representing a majority of all
outstanding voting stock is, either in person or by proxy, present and voting on
the plan, or pursuant to any other procedure allowed under applicable state law.
(c) The Board may at any time terminate the Plan or from time
to time make such modifications or amendments of the Plan as it may deem
advisable including, without limitation, modifications to reflect changes in
applicable law; provided, however, that the Board of Directors shall not (i)
modify or amend the Plan in any way that would disqualify any incentive stock
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option issued pursuant to the Plan as an incentive stock option as defined in
section 422 of the Code or (ii) without approval by the affirmative vote of a
majority of the votes cast at a duly held stockholders' meeting at which a
quorum representing a majority of all outstanding voting stock is, either in
person or by proxy, present and voting on the plan, or pursuant to any other
procedure allowed under applicable state law, increase (except as provided by
paragraph 14) the maximum number of shares as to which options may be granted
under the Plan.
(d) No termination, modification, or amendment of the Plan,
may, without the consent of the Grantee, adversely affect the rights conferred
by such option.
15. Effective Date
The Plan became effective on April 1, 1996 upon the adoption
by the Board subject to the approval by the affirmative vote of the holders of a
majority of the outstanding shares of the Corporation which occurred on May 29,
1996. All options granted prior to the date of such stockholder approval shall
be subject to such approval.
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