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Exhibit 10.05
UNICAPITAL CORPORATION
1997 EXECUTIVE NON-QUALIFIED STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
The purpose of the UniCapital Corporation 1997 Executive Non-Qualified
Stock Option Plan (the "Plan") is to promote the interests of UniCapital
Corporation (the "Company") and its stockholders by (i) attracting and retaining
employees, consultants and advisors of outstanding ability, (ii) motivating such
persons, by means of performance-related incentives, to achieve longer-range
performance goals, and (iii) enabling such persons to participate in the
long-term growth and financial success of the Company. Subject to approval of
the Plan by the stockholders of the Company, the effective date of the Plan (the
"Effective Date") shall be the date on which the Plan is adopted by the Board of
Directors of the Company (the "Board").
2. ADMINISTRATION.
(a) Subject to the following sentence, the Plan shall be administered
by the Board or by the Compensation Committee of the Board. Following the
registration by the Company of its common stock, par value $.001 per share
("Common Stock"), under Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Plan shall be administered by a Compensation
Committee, which shall consist of one or more persons approved by the Board, all
of whom shall be (i) "Non-Employee Directors" as defined under Rule 16b-3 under
the Exchange Act and (ii) "outside directors" as defined under Section 162(m) or
any successor provision of the Internal Revenue Code of 1986, as amended (the
"Code"), and applicable Treasury regulations thereunder, if such qualification
is deemed necessary in order for the grant or the exercise of awards made under
the Plan to qualify for any tax or other material benefit to participants or the
Company under applicable law.
(b) If the Board delegates to the Compensation Committee the authority
to administer the Plan, the Compensation Committee shall be empowered to take
all actions reserved to the Board under the Plan. The Board is authorized to
interpret the Plan, to prescribe, amend and rescind rules and regulations to
further the purposes of the Plan, and to make all other determinations necessary
for the administration of the Plan. All such actions by the Board shall be final
and binding.
3. NONQUALIFIED STOCK OPTIONS.
Awards under the Plan shall be in the form of options which do not and
are not intended to qualify as "incentive stock options" within the meaning of
Section 422 or any successor provision of the Code ("Nonqualified Options").
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4. SHARES SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 13, awards in respect of
an aggregate of up to 500,000 shares of Common Stock of the Company may be made
under the Plan. The Common Stock to be offered under the Plan shall be
authorized and unissued Common Stock, or issued Common Stock which shall have
been reacquired by the Company and held in its treasury. The Common Stock
covered by any unexercised portion of terminated stock options granted under the
Plan shall not again be subject to new awards under the Plan. If the purchase
price of a stock option is paid in whole or in part through the delivery of
Common Stock, then only the net number of shares of Common Stock issuable in
connection with the exercise of the option shall be counted against the number
of shares remaining available for the grant of awards under the Plan. At any
time following the registration by the Company of its Common Stock under Section
12 of the Exchange Act, no participant shall be granted awards in respect of
more than 100,000 shares of Common Stock in any calendar year (subject to
adjustment as provided in Section 13). Shares of Common Stock issuable upon the
exercise of any option granted under the plan may be subject to such further
restrictions, including but not limited to risk of forfeiture, as may be
determined by the Board and set forth in the stock option agreement evidencing
such option.
5. PARTICIPANTS.
The Board shall determine and designate from time to time those
employees, directors, consultants and advisors of the Company or its
subsidiaries who shall be awarded options under the Plan and the number of
shares of Common Stock to be covered by each such option, provided that any such
consultants or advisors render bona fide services which are not in connection
with the offer or sale of securities in a capital-raising transaction. In making
its determinations, the Board shall take into account the present and potential
contributions of the respective individuals to the success of the Company and
such other factors as the Board shall deem relevant in connection with
accomplishing the purposes of the Plan. Each option award shall be evidenced by
a written stock option agreement in such form as the Board shall approve from
time to time.
6. FAIR MARKET VALUE.
For all purposes under the Plan, the term "Fair Market Value" shall
mean, as of any applicable date: (i) if the principal securities market on which
the Common Stock is traded is a national securities exchange or the Nasdaq
National Market ("NNM"), the closing price of the Common Stock on such exchange
or NNM, as the case may be, or if no sale of the Common Stock shall have
occurred on such date, on the next preceding date on which there was a reported
sale; or (ii) if the Common Stock is not traded on a national securities
exchange or NNM but is traded in the Nasdaq SmallCap Market, the closing price
on such date as reported by the Nasdaq SmallCap Market, or if no sale of the
Common Stock shall have occurred on such date, on the next preceding date on
which there was a reported sale; or (iii) if the principal securities market on
which the Common Stock is traded is not a national securities exchange, NNM or
the Nasdaq SmallCap Market, the average of the bid and asked prices reported by
the National Quotation Bureau, Inc.; or (iv) if the price of the
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Common Stock is not so reported, the fair market value per share of the Common
Stock as determined in good faith by the Board.
7. EXERCISE PRICE.
Nonqualified Options shall be granted at an exercise price determined
in each case by the Board.
8. TERM AND TERMINATION.
(a) The Board shall determine the term within which each option may be
exercised, in whole or in part, provided that such term shall not exceed ten
years from the date of grant.
(b) Unless otherwise determined by the Board, all rights to exercise
options shall terminate on the first to occur of (i) the scheduled expiration
date as set forth in the applicable stock option agreement, (ii) 30 days
following the date of termination of employment for any reason other than the
death or permanent disability (as defined in the Code) of the participant, or
(iii) one year following the date of termination of employment by reason of the
participant's death or permanent disability; provided, however, that if an
employee ceases to be employed by the Company on account of a "termination for
cause" (as defined in Section 8(c)), then all rights to exercise options held by
such employee shall terminate immediately as of the date such employee ceases to
be employed by the Company.
(c) As used in this Plan, the term "termination for cause" shall mean a
finding by the Board that the employee has engaged in conduct that is
fraudulent, disloyal, criminal or injurious to the Company, including, without
limitation, embezzlement, theft, commission of a felony or proven dishonesty in
the course of his or her employment or service, or the disclosure of trade
secrets or confidential information of the Company to persons not entitled to
receive such information provided, however, that in the event of my
inconsistency between the foregoing definition and any corresponding definition
contained in a then-effective employment agreement between the Company and any
employee who holds unexercised options under this Plan, the definition set forth
in such employment agreement shall govern.
9. RIGHT OF FIRST REFUSAL; RIGHT TO REPURCHASE.
(a) At any time prior to the registration by the Company of its Common
Stock under Section 12 of the Exchange Act, the Company shall have a right of
first refusal with respect to any proposed sale or other disposition by
optionees (and their successors in interest by purchase, gift or other mode of
transfer) of any shares of Common Stock issued upon the exercise of options
granted under the Plan. Such right shall be exercisable by the Company in
accordance with the terms and conditions established by the Board and set forth
in the applicable stock option agreement.
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(b) If an employee is terminated for cause (as defined in Section 8(c))
at any time, then the Company shall have the right, exercisable in accordance
with the terms and conditions established by the Board and set forth in the
applicable stock option agreement, to repurchase any shares of Common Stock
issued to such terminated employee under the Plan.
10. CHANGE OF CONTROL.
As used herein, a "Change of Control" shall be deemed to have occurred:
(a) if, as a result of any transaction, any "person" (as such term is
used in Section 13(d) and 14(d) of the Exchange Act) other than an existing
stockholder as of the effective date of the Plan (or his beneficiary or estate)
is or becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly of securities of the Company representing more than
50% of the combined voting power of the then outstanding securities of the
Company;
(b) upon (i) the merger or consolidation of the Company with another
corporation where the stockholders of the Company, immediately prior to the
merger or consolidation, will not beneficially own, immediately after the merger
or consolidation, shares entitling such stockholders to 50% or more of the all
votes to which all stockholders of the surviving corporation would be entitled
in the election of directors (without consideration of the rights of any class
of stock to elect directors by a separate class vote), or where the members of
the Board, immediately prior to the merger or consolidation, would not,
immediately after the merger or consolidation, constitute a majority of the
board or directors of the surviving corporation, (ii) the sale, lease, exchange
or other transfer of all or substantially all of the assets of the Company,
(iii) a liquidation, dissolution or statutory exchange of the Company, or (iv)
the sale of more than 50% or more of the outstanding voting securities of the
Company in one or a series of transactions other than an initial public offering
of voting securities registered with the Securities and Exchange Commission.
(c) on or after the Effective Date, during any period of two
consecutive years, individuals who constitute the Board at the beginning of such
period cease for any reason to constitute at least a majority of the Board,
unless the election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
11. CONSEQUENCES OF A CHANGE OF CONTROL.
(a) Subject to Section 11(b) and 11(d), upon a Change of Control, all
outstanding options granted under this Plan shall automatically accelerate so
that each such option shall, immediately prior to the specified effective date
of the Change of Control, become immediately exercisable and each holder of
outstanding options shall thereupon have the right to exercise in full any or
all of his or her outstanding stock options.
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(b) Notwithstanding Section 11(a), an outstanding option shall not
accelerate if and to the extent that such option is, in connection with the
Change of Control, either assumed by the Acquiring Corporation (as defined
below) or parent thereof or replaced with a comparable option to purchase shares
of the capital stock of the Acquiring Corporation or parent thereof (such
assumed and comparable options, together, the "Replacement Options"); provided,
however, that all Replacement Options held by an employee whose employment with
the Company or the Acquiring Corporation is terminated without cause (as defined
in Section 8(c)) or resigns for "good reason" (as defined in Section 11(e)) in
the period beginning upon the Change of Control and ending 12 months following
the Change of Control shall become immediately exercisable upon the date of such
termination or resignation of employment. The term "Acquiring Corporation" means
the surviving, continuing, successor or purchasing corporation, as the case may
be.
(c) Each outstanding option which is to be assumed in connection with
the Change of Control or is otherwise to continue in effect shall be
appropriately adjusted immediately following such Change of Control to apply and
pertain to the number and class of securities which would have been issuable in
consummation of such Change of Control to an actual holder of the same number of
shares of Common Stock as are subject to such option immediately prior to the
Change of Control. Appropriate adjustments shall also be made to the option
price payable per share, provided that the aggregate option price payable
remains the same.
(d) Notwithstanding anything in this Plan to the contrary, in the event
of a Change of Control, no action described in this Plan shall be taken
(including, without limitation, actions described in subsections (a) and (b)
above) that would make the Change of Control ineligible for "pooling of
interest" accounting treatment or that would make the Change of Control
ineligible for desired tax treatment if, in the absence of such action, the
Change of Control would qualify for such treatment and the Company intends to
use such treatment with respect to such Change of Control.
(e) As used in this Plan, "good reason" means (i) a demotion or
material inconsistency or reduction in the duties or responsibilities of an
individual's position or (ii) a material reduction in an individual's aggregate
compensation and benefits provided, however, that in the event of any
inconsistency between the foregoing definition contained in a then-effective
employment agreement between the Company and any employee who holds unexercised
options under this Plan, the definition set forth in such employment agreement
shall govern.
12. OTHER TERMS AND CONDITIONS.
The Board shall have the discretion to determine terms and conditions
consistent with the Plan that will be applicable to options. Options granted to
the same or different participants, or at the same or different times, need not
contain similar provisions.
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13. ADJUSTMENTS TO REFLECT CAPITAL CHANGES.
Subject to Section 11, the number and kind of shares subject to
outstanding options, the exercise price applicable thereto and the number and
kind of shares available for options subsequently granted under the Plan shall
be appropriately adjusted to reflect any stock dividend, stock split,
combination or exchange of shares or other change in capitalization with a
similar substantive effect upon the Plan or the awards granted under the Plan.
The Board shall have the power and sole discretion to determine the nature and
amount of the adjustment to be made in each case. The adjustment so made shall
be final and binding on all participants.
14. PAYMENT FOR STOCK.
Full payment for shares purchased upon exercise of options granted
under the Plan shall be made at the time the award is exercised in whole or in
part. Payment of the purchase price shall be made in cash or in such other form
as the Board may approve, including, without limitation, (i) by the delivery to
the Company by the participant of a promissory note containing such terms as the
Board may determine, or (ii) by the delivery to the Company by the participant
of shares of Common Stock that have been held by the participant for at least
six months prior to exercise of the award, valued at the Fair Market Value of
such shares on the date of exercise or (iii) if the Company's Common Stock is
publicly traded, pursuant to a cashless exercise arrangement with a broker on
such terms as the Board may determine; provided, however, that if payment is
made pursuant to clause (i), then an amount not less than the then par value of
the purchased shares shall be paid in cash. Until such payment has been made, no
shares of Common Stock shall be issued to the participant and a participant
shall have none of the rights of a stockholder with respect to options held by
such participant.
15. TRANSFERABILITY.
Options granted under the Plan shall be transferable (i) by will or the
laws of descent and distribution and (ii) to the extent determined by the Board
and set forth in the applicable option agreement. Options granted under the Plan
may be exercised by the participant or by any permitted transfer.
16. WITHHOLDING.
The Company shall have the right to deduct from all amounts paid to a
participant in cash as salary, bonus or other compensation any taxes required by
law to be withheld in respect of awards granted under the Plan. In the Board's
discretion, a participant may be permitted to elect to have withheld from the
shares otherwise issuable to the participant, or to tender to the Company, the
number of shares of Common Stock whose Fair Market Value equals the amount
required to be withheld.
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17. CONSTRUCTION OF THE PLAN.
The validity, construction, interpretation, administration and effect
of the Plan and of its rules and regulations, and rights relating to the Plan,
shall be determined solely by the Board. Any determination by the Board shall be
final and binding on all participants. The Plan shall be governed in accordance
with the laws of the State of Delaware, without regard to any conflict of law
provisions of such laws that would compel the application of the substantive
laws of any other jurisdiction.
18. NO RIGHT TO AWARD; NO RIGHT TO EMPLOYMENT.
No person shall have any claim of right to be granted an option under
the Plan. Neither the Plan nor any action taken hereunder shall be construed as
giving any employee any right to be retained in the employ of the Company or any
of its subsidiaries or as giving any consultant, adviser or director any right
to continue to serve in such capacity.
19. AWARDS NOT INCLUDABLE FOR BENEFIT PURPOSES.
Income recognized by a participant pursuant to the provisions of the
Plan shall not be included in the determination of benefits under any employee
pension benefit plan (as such term is defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974) or group insurance or other benefit
plans applicable to the participant which are maintained by the Company or any
of its subsidiaries, except as may be provided under the terms of such plans or
determined by resolution of the Board.
20. NO STRICT CONSTRUCTION.
No rule of strict construction shall be implied against the Company,
the Board or any other person in the interpretation of any of the terms of the
Plan, any award granted under the Plan or any rule or procedure established by
the Board.
21. CAPTIONS.
All Section headings used in the Plan are for convenience only, do not
constitute a part of the Plan and shall not be deemed to limit, characterize or
affect in any way any provisions of the Plan, and all provisions of the Plan
shall be construed as if no captions have been used in the Plan.
22. SEVERABILITY.
Whenever possible, each provision in the Plan and every award at any
time granted under the Plan shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of the Plan or
any award at any time granted under the Plan shall be held to be prohibited by
or invalid under applicable law, then such provision shall be deemed amended to
accomplish the objectives of the provision as originally written to the fullest
extent permitted by law, and all other
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provisions of the Plan and every other award at any time granted under the Plan
shall remain in full force and effect.
23. LEGENDS.
All certificates for Common Stock delivered under the Plan shall be
subject to such transfer and other restrictions as the Board may deem advisable
under the rules, regulations and other requirements of the Securities and
Exchange Commission, any stock exchange or quotation system upon which the
Common Stock is then listed or quoted and any applicable federal or state
securities law, and the Board may cause a legend or legends to be put on any
such certificates to make appropriate references to such restrictions.
24. AMENDMENT.
The Board may, by resolution, amend or revise the Plan, except that
such action shall not be effective without stockholder approval if such
stockholder approval is required to maintain the compliance of the Plan and/or
awards granted to directors, executive officers or other persons with Rule 16b-3
promulgated under the Exchange Act or any successor rule. The Board may not
modify any options previously granted under the Plan in a manner adverse to the
holders thereof without the consent of such holders, except in accordance with
the provisions of Section 11 or Section 13.
25. EFFECTIVE DATE; TERMINATION OF PLAN.
Subject to approval of the Plan by the stockholders of the Company, the
Plan shall become effective on the date it is adopted by the Board. The Plan
shall terminate on the tenth anniversary of the Effective Date unless it is
earlier terminated by the Board. Termination of the Plan shall not affect awards
previously granted under the Plan.
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