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EXHIBIT 10.2
CONCRETE MEDIA, INC.
EMPLOYEE STOCK OPTION PLAN
1. PURPOSE
The purpose of the 1996 Employee Stock Option Plan (the "Plan") is to
provide a method whereby selected key employees of Concrete Media, Inc. (the
"Corporation"), may have the opportunity to invest in shares of Common Stock
(the "Stock") of the Corporation, thereby giving them a proprietary and vested
interest in the growth and performance of the Corporation, and in general,
generating an increased incentive to contribute to the Corporation's future
success and prosperity, thus enhancing the value of the Corporation for the
benefit of shareholders. Further, the Plan is designed to enhance the
Corporation's ability to attract and retain individuals of exceptional
managerial talent upon whom, in large measure, the sustained progress, growth,
and profitability of the Corporation depends.
2. ADMINISTRATION
The Plan shall be administered by the Corporation's Board of Directors
("the Board") or if so designated by resolution of the Board, by a Committee
composed of not less than three individuals ("Committee"). From time to time the
Board, or if so designated the Committee, may grant stock options ("Options") to
such eligible parties and for such number of shares as it in its sole discretion
may determine. A grant in any year to an eligible Employee, (as defined in
Section 3 below) shall neither guarantee nor preclude a grant to such Employee
in subsequent years. Subject to the provisions of the Plan, the Board, or if so
designated the Committee, shall be authorized to interpret the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, to
determine the terms and provisions of the Option Agreements described in Section
5(h) thereof to make all other determinations necessary or advisable for the
administration of the Plan. The Board, or if so designated the Committee, may
correct any defect, supply any omissions or reconcile any inconsistency in the
Plan or in any Option in the manner and to the extent it shall deem desirable.
The determinations of the Board, of if so designated the Committee, in the
administration of the Plan, as described herein, shall be final and conclusive.
The validity, construction, and effect of Plan and any rules and regulations
relating to the Plan shall be determined in accordance with the laws of the
State of Delaware.
3. ELIGIBILITY
The employees eligible to participate in the Plan (the "Employees")
shall consist of the Corporation's executive officers who may be hired by the
Corporation in the future, employees, directors, and consultants. Nothing in the
Plan or in any agreement thereunder shall confer any right on an Employee to
continue in the employ of the Corporation or shall interfere in any way with the
right of the Corporation or its subsidiaries, as the case may be, to terminate
his or her employment at any time.
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4. SHARES SUBJECT TO THE PLAN
The shares of Stock available for issuance under the Plan are subject
to adjustment as provided in Section 7. The shares of Stock deliverable upon the
exercise of Options may be made available from authorized but unissued shares or
shares reacquired by the Corporation, including shares purchased in the open
market or in private transactions. If any Option granted under the Plan shall
terminate for any reason without having been exercised or settled in stock or in
cash pursuant to related stock appreciation rights, the shares subject to, but
not delivered under, such Option shall be available for other Options.
5. GRANT TERM AND CONDITIONS OF OPTIONS
The Board or if so designated the Committee, may from time to time
after consultation with management select employees to whom Options shall be
granted. The Options granted shall be "Incentive Stock Options" within the
meaning of Section 422 of the Internal Revenue Code, as amended (the "Code"), or
nonstatutory stock options whichever the Board, or if so designated the
Committee, shall determine, subject to the following terms and conditions:
(a) Price. The purchase price per share of Stock deliverable upon
exercise of each Incentive Stock Option shall not be less than 100
percent of the Fair Market Value of the Stock on the date such the
Option is granted. Provided, however, that if an Incentive Stock Option
is issued to an individual who owns, at the time of grant, more than
ten percent (10%) of the total combined voting power of all classes of
the Corporation's Stock, the Exercise price of such Option shall be at
least 110% of the Fair Market Value of the Stock on the date of grant.
The Option price of shares subject to non-statutory Stock Options shall
be determined by the Board of Directors or Committee, in its absolute
discretion at the time of grant of such Option. For purposes of this
plan, Fair Market Value shall be: (i) the average of the closing Bid
and Ask prices for the Stock on the date in question or (ii) if the
stock is not publicly traded in accordance with applicable procedure
set forth in the Code.
(b) Payment. Options may be exercised only upon payment of the purchase
price thereof in full. Such payment shall be made in such form of
consideration as the Board or Committee determines and may vary for
each Option. Payment may consist, subject to approval by the Board, of
cash, check, notes, delivery of shares of common stock having a fair
market value on the date of surrender equal to the aggregate exercise
price, or any combination of such methods or other means of payment
permitted under the Delaware General Corporation Law.
(c) Term of Options. The term during which each Option may be exercised
shall be determined by the Board, or if so designated the Committee,
provided that (i) a nonstatutory Option shall not be exercisable in
whole or in part more than 10 years from the date it is granted except
as provided in paragraph (e), below, with respect to the death of the
Employee, and (ii) an Incentive Stock Option shall not be exercisable
in whole or in part more than 5 years from the date it is granted. All
rights to purchase Stock pursuant to an Option shall, unless sooner
terminated, expire at the date designated by the Board or, if so
designated the Committee.
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The Board, or if so designated the Committee, shall determine
the date on which each Option shall become exercisable and may provide
that an Option shall become exercisable in installments. The shares
comprising each installment may be purchased in whole or in part at any
time after such installment becomes purchasable, except that the
exercise of Incentive Stock Options shall be further restricted as set
forth herein. The Board, or if so designated the Committee, may in its
sole discretion, accelerate the time at which any Option may be
exercised in whole or in part, provided that no Option shall be
exercisable until one year after grant.
(d) Limitations on Grants. For Incentive Stock Options, the aggregate
Fair Market Value (determined at the time the Option is granted) of the
stock with respect to which the Investment Stock Option is exercisable
for the first time by an Optionee during any calendar year (under all
plans of the Corporation and its parent or any subsidiary of the
Corporation) shall not exceed $100,000. The foregoing limitations shall
be modified from time to time to reflect any changes in Section 422 of
the Code and any regulations promulgated thereunder setting forth such
limitations. There shall be no limitations on nonstatutory stock
options.
(e) Termination of Employment. (i) If the employment of an Employee by
the Corporation or a subsidiary corporation of the Corporation shall be
terminated voluntarily by the Employee or for cause by the Corporation,
then his or her Option shall expire forthwith. Except as provided in
subparagraphs (ii) and (iii) of this Paragraph (e), if such employment
shall terminate for any other reason, then such Option may be exercised
at any time within one (1) month after such termination, subject to the
provisions of subparagraph (iv) of this Paragraph (e). For purposes of
this subparagraph, an employee who leaves the employ of the Corporation
to become an employee of a subsidiary corporation of the Corporation or
a corporation (or subsidiary or parent corporation of the corporation)
which has assumed the Option of the Corporation as a result of a
corporate reorganization, etc., shall not be considered to have
terminated his or her employment. The Board may, in its sole
discretion, extend the time period for exercise of any particular
option after termination or allow the employee who terminates their
employment voluntarily the right to exercise their option on terms and
conditions determined by the Board.
(ii) If the holder of an Option under the Plan dies (a) while employed
by, or while serving as a non-employee Director for, the Corporation or
a subsidiary corporation of the Corporation, or (b) within one (1)
month after the termination of his employment or services other than
voluntarily by the Employee, or for cause, then such Option may,
subject to the provisions of subparagraph (iv) of this Paragraph (e),
be exercised by the estate of the Employee or by a person who acquired
the right to exercise such Option by bequest or inheritance or by
reason of the death of such Employee at any time within six (6) months
(iii) If the holder of the Option under the Plan ceases employment
because of permanent or total disability (within the meaning of Section
22 (e) (3) of the Code) while employed by the Corporation or a
subsidiary corporation of the Corporation, then such Option may,
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subject to the provisions of subparagraph (iv) of this paragraph (e),
be exercised at any time within one year after his termination of
employment due to disability.
(iv) An Option may not be exercised pursuant to this Paragraph (e)
except to the extent that the holder was entitled to exercise the
Option at the time of termination of employment, or death, and in any
event may not be exercised after the expiration of the Option. For
purpose of this Paragraph (e), the employment relationship of an
employee of the Corporation or of a subsidiary corporation of the
company will be treated as continuing intact while he or she is on
military or sick leave or other bona fide leave of absence (such as
temporary employment by the Government) if such leave does not exceed
ninety (90) days, or, if longer, so long as his or her right to
reemployment is guaranteed either by statute or by contract.
(f) Nontransferability of Options. No Option shall be transferable by a
Holder otherwise than by will or the laws of descent and distribution,
and during the lifetime of the Employee to whom an Option is granted,
it may be exercised only by the employee, his guardian or legal
representative if permitted by Section 422 and related sections of the
Code and any regulations promulgated thereunder.
(g) Listing and Registration. Each Option shall be subject to the
requirement that if at any time the Board, or if so designated the
Committee, shall determine, in its discretion, the listing,
registration or qualification of the Stock subject to such Option upon
any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the granting of
such Option or the issue or purchase of shares thereunder, no such
Option may be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Board, or if so designated the Committee.
(h) Option Agreement. Each Employee to whom an Option is granted shall
enter into an agreement with the Corporation which shall contain such
provisions, consistent with the provisions of the Plan, as may be
established by the Board, or if so designated the Committee.
(i) Withholding. Prior to the delivery of certificates for shares of
Stock, the Corporation or a subsidiary shall have the right to require
a payment from an Employee to cover any applicable withholding or other
employment taxes due upon the exercise of an Option.
6. STOCK APPRECIATION RIGHTS
The Board or Committee may grant stock appreciation rights (SARs) in
connection with all or any part of an Option granted under the Plan, either
concurrently with the grant of the Option or at any time thereafter, and may
also grant SARs independently of Options.
(a) SARs Granted in Connection with an Option. An SAR granted in
connection with an Option entitles the Optionee to exercise the SAR by
surrendering to the Corporation, unexercised, the underlying Option. The
Optionee receives in exchange from the Corporation an
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amount equal to the excess of (x) the Fair Market Value on the date of surrender
of the underlying Option over (y) the exercise price of the Common Stock covered
by the surrendered portion of the Option.
When an SAR is exercised, the underlying Option, to the extent
surrendered, ceases to be exercisable, and the number of shares available for
issuance under the Plan is reduced correspondingly.
An SAR is exercisable only when and to the extent the underlying Option
is exercisable and expires no later than the date on which the underlying Option
expires. Notwithstanding the foregoing, neither an SAR nor a related Option may
be exercised during the first six (6) months of its respective term: provided,
however, that this limitation will not apply if the Optionee dies or is disabled
within such six (6) month period.
(b) Independent SARs. The Board or the Committee may grant SARs without
related Options. Such an SAR will entitle the Optionee to receive from the
Corporation on exercise of the SAR an amount equal to the excess of (x) the fair
market value of the Common Stock covered by the exercised portion of the SAR, as
of the date of such exercise, over (y) the fair market value of the Common Stock
covered by the exercised portion of the SAR as of the date on which the SAR was
granted.
SARs shall be exercisable in whole or in part at such times as the
Board or the Committee shall specify in the Optionee's SAR grant or agreement.
Notwithstanding the foregoing, an SAR may not be exercised during the first six
(6) months of its term: provided, however, that this limitation will not apply
if the Optionee dies or is disabled within such six (6) month period.
(c) Payment on Exercise. The Corporation's obligations arising upon the
exercise of an SAR may be paid in cash or Common Stock, or any combination of
the same, as the Board or the Committee may determine. Shares issued on the
exercise of an SAR are valued at their Fair Market Value as of the date of
exercise.
(d) Limitation on Amount paid on SAR Exercise. The Board or the
Committee may in its discretion impose a limit on the amount to be paid on
exercise of an SAR. In the event such a limit is imposed on an SAR granted in
connection with an Option, the limit will not restrict the exercisability of the
underlying Option.
(e) Persons Subject to 16(b). An Optionee subject to Section 16(b) of
the Securities Exchange Act of 1934, as amended, may only exercise an SAR during
the period beginning on the third and ending on the twelfth business day
following the Corporation's public release of quarterly or annual summary
statements of sales and earnings and in accordance with all other provisions of
Section 16(b).
(f) Non-Transferability of SARs. An SAR is non-transferable by the
Optionee other than by will or the laws of descent and distribution, and is
exercisable during the Optionee's lifetime only by the Optionee, or, in the
event of death, by the Optionee's estate or by a person who acquires the right
to exercise the Option by bequest or inheritance.
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(g) Effect on Shares in Plan. When an SAR is exercised, the aggregate
number of shares of Common Stock available for issuance under the Plan will be
reduced by the number of underlying shares of Common Stock as to which the SAR
is exercised.
7. ADJUSTMENT OF AND CHANGES IN STOCK
In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of shares, merger, consolidation, or distribution of
substantially all or all of the assets of the Corporation, the Board, or if so
designated the Committee, shall make such adjustments as it deems appropriate in
the number and kind of shares and SARs authorized by the Plan, in the number and
kind of shares covered by the Options granted and in the exercise price of
outstanding Options and SARs.
8. MERGERS, SALES AND CHANGE OF CONTROL
In the case of (i) any merger, consolidation or combination of the
Corporation with or into another corporation (other than a merger, consolidation
or combination in which the Corporation is the continuing corporation and which
does not result in its outstanding stock being converted into or exchanged for
different securities, cash or other property, or any combination thereof or a
sale of all or substantially all of the business or assets of the Corporation or
(ii) a Change in Control (as defined below) of the Corporation, each Option or
SAR then outstanding for one year or more shall (unless the Board, or if so
designated the Committee, determines otherwise), receive upon exercise of such
Option or SAR an amount equal to the excess of the Fair Market Value on the date
of such exercise of (a) the securities, cash or other property, or combination
thereof, receivable upon such merger, consolidation or combination in respect of
a share of Stock, in the cases covered by clause (i) above, or (b) the final
tender offer price in the case of a tender offer resulting in a Change in
Control or (c) the value of the Stock covered by the Option or SAR as determined
by the Board, or if so designated the Committee, in the case of a Change in
Control by reason of any other event, over the exercise price of such Option,
multiplied by the number of shares of Stock with respect to which such Option or
SAR shall have been exercised provided that, in each event the amount payable in
the case of an incentive stock Option shall be limited to the maximum
permissible amount necessary to preserve the Option incentive stock Option
status. Such amount may be payable fully in cash, fully in one or more of the
kind or kinds or property payable in such merger, consolidation or combination,
or partly in cash and partly in one or more such kind or kinds of property, all
in the discretion of the Board or if so designated the Committee.
Any determination by the Board, or if so designated the Committee, made
pursuant to this Section 7 may be made as to all outstanding Options and SARs or
only as to certain Options and SARs specified by the Board, or if so designated
the Committee and any such determination shall be made (a) in cases covered by
clause (i) above, prior to the occurrence of such event, (b) in the event of a
tender or exchange offer, prior to the purchase of any Stock pursuant thereto by
the offeror and (c) in the case of a Change in Control by reason of any other
event, just prior to or as soon as practicable after such Change in Control.
A "Change in Control" shall be deemed to have occurred if (a) any
person, or any two or more persons acting as a group, and all affiliates of such
person or persons, shall own
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beneficially 40% or more of the Stock outstanding, or (b) if following (i) a
tender or exchange offer for voting securities of the Corporation, or (ii) a
proxy contest for the election of directors of the Corporation, the persons who
were directors of the Corporation immediately before the initiation of such
event cease to constitute a majority of the Board of Directors of the
Corporation upon the completion of such tender or exchange offer or proxy
contest or within one year after such completion. Notwithstanding the provisions
of this Agreement, (i) the Board shall have the right to amend or modify this
definition of a "Change in Control" and (ii) a "Change in Control" shall not be
deemed to occur in the event BEn sells, assigns, transfers, pledges,
hypothecates, or otherwise encumbers or disposes of in any way, all or any part
of or any interest in the its shares now or hereafter owned or held to any
subsidiary or affiliate of BEn or to Freemont Group Inc.
9. NO RIGHTS OF SHAREHOLDERS
Neither an Employee nor the Employee's legal representative shall be,
or have any of the rights and privileges of, a shareholder of the Corporation in
respect of any shares purchasable upon the exercise of any Option, in whole or
in part, unless and until certificates for such shares shall have been issued.
10. PLAN AMENDMENTS
The plan may be amended by the Board, as it shall deem advisable or to
conform, to any change in any law or regulation applicable thereto; provided,
that the Board may not, without the authorization and approval of shareholders:
(i) increase the aggregate number of shares available for Options except as
permitted by Section 7, (ii) change the requirement of Section 5(a) that Option
grants be priced at Fair Market value, (iii) extend the maximum period during
which an Option may be exercised, or (iv) change the Plan's eligibility
requirements.
11. TERM OF PLAN
The Plan shall become effective upon its approval by a majority of the
Corporation's shareholders. No Options or SARs shall be granted under the Plan
after January 10, 2000.
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