EXHIBIT 10.2
AGILITY CAPITAL, INC.
2001 STOCK OPTION PLAN
ARTICLE I
PURPOSE
1.1 This Agility Capital, Inc. 2001 Stock Option Plan is intended to
advance the interests of the Company and its stockholders and subsidiaries by
attracting, retaining and motivating the performance of selected directors,
officers and employees of the Company of high caliber and potential upon whose
judgment, initiative and effort the Company is largely dependent for the
successful conduct of its business, and to encourage and enable such directors,
officers and employees to acquire and retain a proprietary interest in the
Company by ownership of its common stock.
ARTICLE II
DEFINITIONS
2.1 "Board" means the Board of Directors of the Company.
2.2 "Code" means the Internal Revenue Code of 1986, as amended.
2.3 "Common Stock" means the Company's Common Stock, no par value.
2.4 "Committee" means the Compensation Committee appointed by the Board
or any successor committee appointed by the Board to administer the Plan
pursuant to Article IV hereof.
2.5 "Company" means AutoBond Acceptance Corporation, a Texas
Corporation.
2.6 "Date of Grant" means the date on which an Option becomes effective
in accordance with Section 6.1 hereof.
2.7 "Eligible Person" means any person who is a director, officer or
employee of the Company or any Subsidiary.
2.8 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.9 "Fair Market Value" means the last reported sales prices of the
Common Stock on the American Stock Exchange, Inc. on the date as of which fair
market value is to be determined or, in the absence of any reported sales of
Common Stock on such date, on the first preceding date on which any such sale
shall have been reported. If Common Stock is not listed on the American Stock
Exchange, Inc. on the date as of which fair market value is to be
determined, the Committee shall determine in good faith the fair market value in
whatever manner it considers appropriate.
2.10 "Incentive Stock Option" means a stock option granted under the
Plan that is intended to meet the requirements of Section 422 of the Code and
the regulations promulgated thereunder.
2.11 "Nonqualified Stock Option" means a stock option granted under the
Plan that is not an Incentive Stock Option.
2.12 "Option" means an Incentive Stock Option or a Nonqualified Stock
Option granted under the Plan.
2.13 "Optionee" means an Eligible Person to whom an Option has been
granted, which Option has not expired, under the Plan.
2.14 "Option Price" means the price at which each share of Common Stock
subject to an Option may be purchased, determined in accordance with Section 6.2
hereof.
2.15 "Plan" means this AutoBond Acceptance Corporation 2001 Stock
Option Plan.
2.16 "Stock Option Agreement" means an agreement between the Company
and an Optionee under which the Optionee may purchase Common Stock under the
Plan.
2.17 "Subsidiary" means a subsidiary corporation of the Company, within
the meaning of Section 424(f) of the Code.
2.18 "Ten-Percent Owner" means an Optionee who, at the time an
Incentive Stock Option is granted, owns stock possessing more than ten percent
of the total combined voting power of all classes of stock of the Company, its
parent, if any, or any Subsidiary, within the meaning of Sections 422(b)(6) and
424(d) of the Code.
ARTICLE III
ELIGIBILITY
All Eligible Persons are eligible to receive a grant of an Option under
the Plan. The Committee shall, in its sole discretion, determine and designate
from time to time those Eligible Persons who are to be granted an Option.
ARTICLE IV
ADMINISTRATION
4.1 Committee Members. The Plan shall be administered by a Committee
comprised of no fewer than two persons selected by the Board. Solely to the
extent necessary or advisable to satisfy the requirements of Rule 16b-3 under
the Exchange Act, each Committee
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member shall meet the definition of a "Non-Employee Director" for purposes of
such Rule 16b-3 provided that the mere fact that a Committee member shall fail
to qualify as a "Non-Employee Director" shall not invalidate any Option granted
by the Committee which Option is otherwise validly made under the Plan.
4.2 Committee Authority. Subject to the express provisions of the Plan,
the Committee shall have the authority, in its discretion, to (i) determine the
Eligible Persons to whom an Option shall be granted, (ii) determine the type of
Option to be granted, (iii) determine the time or times at which an Option shall
be granted, the number of shares of Common Stock subject to each Option, the
Option Price of the shares subject to each Option and the time or times when
each Option shall become exercisable and the duration of the exercise period,
and (iv) determine whether, to what extent, and under what circumstances options
may be settled or exercised in cash or Common Stock.
Subject to the express provisions of the Plan, the Committee shall also
have discretionary authority to (i) interpret the Plan, reconcile any
inconsistency, correct any default or supply any omission in the Plan or Stock
Option Agreement, (ii) prescribe, amend and rescind rules and regulations
relating to it, and (iii) determine the details and provisions of each Stock
Option Agreement, and to make all the determinations necessary or advisable in
the administration of the Plan. All such actions and determinations by the
Committee shall be conclusively binding for all purposes and upon all persons.
No Committee member shall be liable for any action or determination
made in good faith with respect to the Plan, any Option or any Stock Option
Agreement entered into hereunder.
4.3 Majority Rule. A majority of the members of the Committee (or, if
less than three, all of the members) shall constitute a quorum, and any action
taken by a majority present at a meeting at which a quorum is present or any
action taken without a meeting evidenced by a writing executed by a majority of
the whole Committee shall constitute the action of the Committee.
4.4 Company Assistance. The Company shall supply full and timely
information to the Committee on all matters relating to Eligible Persons, their
employment with or other service to the Company, their death, disability or
other termination of service, and such other pertinent facts as the Committee
may require. The Company shall furnish the Committee with such clerical and
other assistance as is necessary in the performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 Number of Shares. Subject to adjustment pursuant to the provisions
of Section 5.2 hereof, the maximum number of shares of Common Stock which may be
issued and sold hereunder to all Eligible Persons in the aggregate shall be
1,100,000 shares. Shares of Common Stock issued and sold under the Plan may be
either authorized but unissued shares or shares held in the Company's treasury.
Shares of Common Stock covered by an Option that
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shall have been exercised shall not again be available for an Option grant. If
an Option shall terminate for any reason (including, without limitation, the
cancellation of an Option pursuant to Section 6.6 hereof) without being wholly
exercised, the number of shares to which such Option termination relates shall
again be available for grant hereunder.
5.2 Antidilution. Subject to Article IX hereof, in the event of a
reorganization, recapitalization, stock split, stock dividend, combination of
shares, merger or consolidation, or the sale, conveyance, or other transfer by
the Company of all or substantially all of its property, or any other change in
the corporate structure or shares of the Company, pursuant to any of which
events the then outstanding shares of Common Stock are split up or combined, or
are changed into, become exchangeable at the holder's election for, or entitle
the holder thereof to, other shares of stock, or in the case of any other
transaction described in Section 424(a) of the Code, the Committee may change
the number and kind of shares (including by substitution of shares of another
corporation) subject to the Options and/or the Option Price of such shares in
the manner that it shall deem to be equitable and appropriate. In no event may
any such change be made to an Incentive Stock Option which would constitute a
"modification" within the meaning of Section 424(h)(3) of the Code.
ARTICLE VI
OPTIONS
6.1 Grant of Option. An Option may be granted to any Eligible Person
selected by the Committee. The grant of an Option shall first be effective upon
the date it is approved by the Committee, except to the extent the Committee
shall specify a later date upon which the grant of an Option shall first be
effective. Each Option shall be designated, at the discretion of the Committee,
as an Incentive Stock Option or a Nonqualified Stock Option, provided that
Incentive Stock Options may only be granted to Eligible Persons who are
considered employees of the Company or any Subsidiary for purposes of Section
422 of the Code. No Option shall be treated as an Incentive Stock Option unless
the Plan has been approved by the shareholders of the Company in a manner
intended to comply with the shareholder approval requirements of Section
422(b)(i) of the Code. The Company and the Optionee shall execute a Stock Option
Agreement which shall set forth such terms and conditions of the Option as may
be determined by the Committee to be consistent with the Plan, and which may
include additional provisions and restrictions that are not inconsistent with
the Plan.
6.2 Option Price. The Option Price shall be determined by the
Committee: provided, however, that the Option Price shall not be less than 100
percent of the Fair Market Value of a share of Common Stock on the Date of Grant
(subject to Section 7.1 hereof in the case of a Ten- Percent Owner).
6.3 Vesting and Term of Option. Unless otherwise specified by the
Committee in the Stock Option Agreement for an Optionee, an Option shall vest
and become exercisable in cumulative annual installments, each of which shall
relate to one-third of the number of shares of Common Stock originally covered
thereby (adjusted in accordance with Section 5.2 hereof), on the second, third
and fourth anniversaries of the Date of Grant
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respectively, provided that the Optionee is an Eligible Person on such
anniversary. Notwithstanding the foregoing, the Committee, in its sole
discretion, may accelerate the exercisability of any Option at any time. [An
Option may become 100 percent vested and exercisable upon an Optionee's death or
disability to the extent provided in Article VIII hereof.]1 The period during
which a vested Option may be exercised shall be ten years from the Date of Grant
(subject to Section 7.1 hereof in the case of a Ten-Percent Owner), unless a
shorter exercise period is specified by the Committee in the Stock Option
Agreement for an Optionee.
6.4 Option Exercise and Withholding. An Option may be exercised in
whole or in part at any time to the extent such Option is then exercisable and
vested, with respect to whole shares only, within the period permitted for the
exercise thereof, and shall be exercised by written notice of intent to exercise
the Option with respect to a specified number of shares delivered to the Company
at its principal office, and payment in full to the Company at said office of
the amount of the Option Price for the number of shares of the Common Stock with
respect to which the Option is then being exercised. Payment of the Option Price
shall be made (i) in cash, (ii) at the discretion of the Committee, in Common
Stock (not subject to limitations on transfer) valued at the Fair Market Value
of such shares on the trading date immediately preceding the date of exercise or
(iii) at the discretion of the Committee, by a combination of cash and such
Common Stock. In addition to and at the time of payment of the Option Price, the
Optionee shall pay to the Company in cash or, at the discretion of the
Committee, in Common Stock the full amount of all applicable withholding and
other employment taxes resulting from such exercise.
6.5 Nontransferability of Option. No Option shall be transferred by an
Optionee other than by will or the laws of descent and distribution. No transfer
of an Option by the Optionee by will or by laws of descent and distribution
shall be effective to bind the Company unless the Company shall have been
furnished with written notice thereof and an authenticated copy of the will
and/or such other evidence as the Committee may deem necessary to establish the
validity of the transfer. During the lifetime of an Optionee, the Option shall
be exercisable only by such Optionee, except that, in the case of an Optionee
who is legally incapacitated, the Option shall be exercisable by such Optionee's
guardian or legal representative.
6.6 Cancellation, Substitution and Amendment of Options. The Committee
shall have the authority to effect, at any time and from time to time, with the
consent of the affected Optionees, (i) the cancellation of any or all
outstanding Options and the grant in substitution therefor of new Options
covering the same or different numbers of shares of Common Stock and having an
Option Price which may be the same as or different than the Option Price of the
canceled Options or (ii) the amendment of the terms of any and all outstanding
Options.
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(1) Although 8.1 and 8.2 provide for accelerated vesting upon death/disability,
do you want to draw attention to it? You may not want to unless client generally
intends to accelerate.
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ARTICLE VII
INCENTIVE STOCK OPTIONS
7.1 Ten-Percent Owners. Notwithstanding any other provisions of this
Plan to the contrary, in the case of an Incentive Stock Option granted to a
Ten-Percent Owner, (i) the period during which any such Incentive Stock Option
may be exercised shall not be greater than five years from the Date of Grant and
(ii) the Option Price of such Incentive Stock Option shall not be less than 110
percent of the Fair Market Value of a share of Common Stock on the Date of
Grant.
7.2 Annual Limits. No Incentive Stock Option shall be granted to an
Optionee as a result of which the aggregate fair market value (determined as of
the date of grant) of the stock with respect to which incentive stock options
are exercisable for the first time in any calendar year under the Plan, and any
other stock option plans of the Company, any Subsidiary or any parent
corporation, would exceed $100,000, determined in accordance with Section 422(d)
of the Code. This limitation shall be applied by taking options into account in
the order in which granted.
7.3 Disqualifying Dispositions. If shares of Common Stock acquired by
exercise of an Incentive Stock Option are disposed of within two years following
the Date of Grant or one year following the transfer of such shares to the
Optionee upon exercise, the Optionee shall, within 10 days after such
disposition, notify the Company in writing of the date and terms of such
disposition and provide such other information regarding the disposition as the
Committee may reasonably require.
7.4 Other Terms and Conditions. Any Incentive Stock Option granted
hereunder shall contain such additional terms and conditions, not inconsistent
with the terms of this Plan, as are deemed necessary or desirable by the
Committee, which terms, together with the terms of this Plan, shall be intended
and interpreted to cause such Incentive Stock Option to qualify as an "incentive
stock option" under Section 422 of the Code.
ARTICLE VIII
TERMINATION OF SERVICE
8.1 Death. If an Optionee shall die at any time after the Date of Grant
and while he or she is an Eligible Person, the executor or administrator of the
estate of the decedent, or the person or persons to whom an Option shall have
been validly transferred in accordance with Section 6.5 hereof pursuant to will
or the laws of descent and distribution, shall have the right, during the period
ending one year after the date of the Optionee's death (subject to Sections 6.3
and 7.1 hereof concerning the maximum term of an Option), to exercise the
Optionee's Option to the extent that it was exercisable at the date of the
Optionee's death and shall not have been previously exercised. The Committee may
determine at or after grant to make any portion of an Option that is not
exercisable at the date of the Optionee's death immediately vested and
exercisable.
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8.2 Disability. If an Optionee's employment or other service with the
Company or any Subsidiary shall be terminated as a result of his or her
permanent and total disability (within the meaning of Section 22(e)(3) of the
Code) at any time after the Date of Grant and while he or she is an Eligible
Person, the Optionee (or in the case of an Optionee who is legally
incapacitated, his or her guardian or legal representative) shall have the
right, during a period ending one year after the date of his disability (subject
to Sections 6.3 and 7.1 hereof concerning the maximum term of an Option), to
exercise such Option to the extent that it was exercisable at the date of such
termination of employment or other service and shall not have been exercised.
The Committee may determine at or after grant to make any portion of his or her
Option that is not exercisable at the date of termination of employment or other
service due to disability immediately vested and exercisable.
8.3 Termination for Cause. If an Optionee's employment or other service
with the Company or any Subsidiary shall be terminated for cause, the Optionee's
right to exercise any unexercised portion of his or her Option shall immediately
terminate and all rights thereunder shall cease. For purposes of this Section
8.3, termination for "cause" shall include unless otherwise defined in any
existing employment agreement, but not be limited to, embezzlement or
misappropriation of corporate funds, any acts of dishonesty resulting in
conviction for a felony, misconduct resulting in material injury to the Company
or any Subsidiary, significant activities harmful to the reputation of the
Company or any Subsidiary, a significant violation of Company or Subsidiary
policy, willful refusal to perform, or substantial disregard of, the duties
properly assigned to the Optionee, or a significant violation of any
contractual, statutory or common law duty of loyalty to the Company or any
Subsidiary. The Committee shall have the power to determine in its sole
discretion whether the Optionee has been terminated for cause and the date upon
which such termination for cause occurs. Any such determination shall be final,
conclusive and binding upon the Optionee.
8.4 Other Termination of Service. If an Optionee's employment or other
service with the Company or any Subsidiary shall be terminated for any reason
other than death, permanent and total disability or termination for cause, the
Optionee shall have the right, during the period ending 90 days after such
termination (subject to Sections 6.3 and 7.1 hereof concerning the maximum term
of an Option), to exercise such Option to the extent that it was exercisable at
the date of such termination and shall not have been exercised, while any
unvested portion of the Option shall immediately terminate and all rights
thereunder shall cease as of the date of the Optionee's termination of service.
For purposes of this Section 8.4, an Optionee shall not be considered to have
terminated employment or other service with the Company or any Subsidiary until
the expiration of the period of any military, sick leave or other bona fide
leave of absence, up to a maximum period of 90 days (or such greater period
during which the Optionee is guaranteed reemployment either by statute or
contract).
ARTICLE IX
CHANGE IN CONTROL
9.1 Change in Control. Upon a "change in control" of the Company (as
defined below), each outstanding Option, to the extent that it shall not
otherwise have become vested, shall become fully and immediately vested (without
regard to any otherwise applicable
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vesting requirement under Section 6.3 hereof) and an Optionee shall surrender
his or her Option and receive with respect to each share of Common Stock
issuable under such Option outstanding at such time, a payment in cash equal to
the excess of the Fair Market Value of the Common Stock at the time of the
change in control over the Option Price of the Common Stock; provided, however,
that no such vesting and cash payment shall occur if (i) the change in control
has been approved by at least two-thirds of the members of the Board who were
serving as such immediately prior to such transaction and (ii) provision has
been made in connection with such transaction for (a) the continuation of the
Plan and/or the assumption of such Options by a successor corporation (or a
parent or subsidiary thereof) or (b) the substitution for such Options of new
options covering the stock of a successor corporation (or a parent or subsidiary
thereof), with appropriate adjustments as to the number and kinds of shares and
exercise prices. In the event of any such continuation, assumption or
substitution, the Plan and/or such Options shall continue in the manner and
under the terms so provided.
9.2 Definition. For purposes of Section 9.1 hereof, a "change in
control" of the Company shall mean (i) a merger, consolidation, or
reorganization of the Company with one or more other corporations in which the
Company is not the surviving corporation; (ii) a sale or other transfer of
substantially all of the assets of the Company to another corporation; (iii) any
transaction or series of transactions (including, without limitation, a
transaction in which the Company is the surviving corporation) that results in
any person or entity (other than any Subsidiary) becoming owner of more than 50
percent of the combined voting power of all classes of stock of the Company;
(iv) a change or series of changes in the composition of the Board such that a
majority of its members shall cease to consist of "Continuing Directors"
(meaning directors of the Company who either were directors on the date this
Plan is approved by the Board or who subsequently became directors and whose
election, or nomination for election by the Company's stockholders, was approved
by a vote of at least two-thirds of the then existing directors); or (v) a
dissolution or liquidation of the Company.
ARTICLE X
STOCK CERTIFICATES
10.1 Issuance of Certificates. Subject to Section 10.2 hereof, the
Company shall issue a stock certificate in the name of the Optionee (or other
person exercising the Option in accordance with the provisions of the Plan) for
the shares of Common Stock purchased by exercise of an Option as soon as
practicable after due exercise and payment of the aggregate Option Price for
such shares. A separate stock certificate or separate stock certificates shall
be issued for any shares of Common Stock purchased pursuant to the exercise of
an Option that is an Incentive Stock Option, which certificate or certificates
shall not include any shares of Common Stock that were purchased pursuant to the
exercise of an Option that is a Nonqualified Stock Option.
10.2 Conditions. The Company shall not be required to issue or deliver
any certificate for shares of Common Stock purchased upon the exercise of any
Option granted hereunder or any portion thereof prior to fulfillment of all of
the following conditions:
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(a) The completion of any registration or other qualification of such
shares, under any federal or state law or under the rulings or regulations of
the Securities and Exchange Commission or any other governmental regulatory
body, that the Committee shall in its sole discretion deem necessary or
advisable;
(b) The obtaining of any approval or other clearance from any federal
or state governmental agency which the Committee shall in its sole discretion
determine to be necessary or advisable;
(c) The lapse of such reasonable period of time following the exercise
of the Option as the Committee from time to time may establish for reasons of
administrative convenience;
(d) Satisfaction by the Optionee of all applicable withholding taxes or
other withholding liabilities as provided in Section 6.4 hereof; and
(e) If required by the Committee, in its sole discretion, the receipt
by the Company from an Optionee of (i) a representation in writing that the
shares of Common Stock received upon exercise of an Option are being acquired
for investment and not with a view to distribution and (ii) such other
representations and warranties as are deemed necessary by counsel to the
Company.
10.3 Legends. The Company reserves the right to legend any certificate
for shares of Common Stock, conditioning sales of such shares upon compliance
with applicable federal and state securities laws and regulations.
ARTICLE XI
EFFECTIVE DATE, TERMINATION AND AMENDMENT
11.1 Effective Date. The Plan shall become effective on the date of its
adoption by the Board (the "Effective Date"); provided, however, that no Option
shall be exercisable by an Optionee unless and until the Plan shall have been
approved by the stockholders of the Company, which approval shall be obtained
within 12 months before or after the adoption of the Plan by the Board. If the
stockholders fail to approve the Plan within one year from the Effective Date,
any Options granted hereunder shall be null and void and of no effect.
11.2 Termination. The Plan shall terminate on the date immediately
preceding the tenth anniversary of the earlier of the date the Plan is adopted
by the Board or the date the Plan is approved by the Company's stockholders. The
Board may, in its sole discretion and at any earlier date, terminate the Plan.
Notwithstanding the foregoing, no termination of the Plan shall in any manner
affect any Option theretofore granted without the consent of the Optionee or the
permitted transferee of the Option.
11.3 Amendment. The Board may at any time and from time to time and in
any respect, amend or modify the Plan. Notwithstanding the foregoing, no
amendment or modification of the Plan shall in any manner affect any Option
theretofore granted without the consent of the Optionee or the permitted
transferee of the Option.
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ARTICLE XII
MISCELLANEOUS
12.1 Employment or other Service. Nothing in the Plan, in the grant of
any Option or in any Stock Option Agreement shall confer upon any Eligible
Person the right to continue in the capacity in which he or she is employed by
or otherwise provides services to the Company or any Subsidiary. Notwithstanding
anything contained in the Plan to the contrary, unless otherwise provided in a
Stock Option Agreement, no Option shall be affected by any change of duties or
position of the Optionee (including a transfer to or from the Company or any
Subsidiary), so long as such Optionee continues to be an Eligible Person.
12.2 Rights as Shareholder. An Optionee shall have no rights as a
shareholder with respect to any shares subject to such Option prior to the
purchase of such shares by exercise of such Option as provided herein. Nothing
contained herein or in the Stock Option Agreement relating to any Option shall
create an obligation on the part of the Company to repurchase any shares of
Common Stock purchased hereunder.
12.3 Other Compensation and Benefit Plans. The adoption of the Plan
shall not affect any other stock option or incentive or other compensation plans
in effect for the Company or any Subsidiary, nor shall the Plan preclude the
Company from establishing any other forms of incentive or other compensation for
employees of the Company or any Subsidiary. The amount of any compensation
deemed to be received by an Optionee as a result of the exercise of an Option or
the sale of shares received upon such exercise shall not constitute compensation
with respect to which any other employee benefits of such Optionee are
determined, including, without limitation, benefits under any bonus, pension,
profit sharing, life insurance or salary continuation plan, except as otherwise
specifically determined by the Board or the Committee or provided by the terms
of such plan.
12.4 Governing Law. The Plan shall be governed by and construed in
accordance with the internal laws of the state of Texas without regard to the
principles of conflicts of law thereof, or principals of conflicts of laws of
any other jurisdiction which could cause the application of the laws of any
jurisdiction other than the state of Texas.
12.5 If any provision of the Plan or any Option is or becomes or is
deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any
Person or Option, or would disqualify the Plan or any Option under any law
deemed applicable by the Committee, such provision shall be construed or deemed
amended to conform to the applicable laws, or if it cannot be construed or
deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Option, such provision shall be stricken
as to such jurisdiction, Person or Option and the remainder of the Plan and any
such Option shall remain in full force and effect.
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