Exhibit 10.6
ADVANTAGE BUSINESS SERVICES HOLDINGS, INC.
MANAGEMENT AND SALES EMPLOYEES STOCK OPTION PLAN
ARTICLE I
Purpose of Plan
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The Management and Sales Employees Stock Option Plan (the "Plan") of
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Advantage Business Services Holdings, Inc. (the "Company"), approved by the
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Board of Directors of the Company (the "Board") on January 27, 2000, is intended
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to advance the best interests of the Company by providing persons who have a
significant responsibility for its management and growth with additional
incentives by allowing them to acquire an ownership interest in the Company and
thereby encouraging them to contribute to the success of the Company and to
remain in its employ. The availability and offering of stock options under the
Plan also increases the Company's ability to attract and retain individuals of
exceptional talent upon whom, in large measure, the sustained progress, growth
and profitability of the Company depends. The Plan became effective as of the
date of Board approval set forth above and, unless sooner terminated pursuant to
the terms hereof, the Plan shall terminate on December 31, 2009.
ARTICLE II
Definitions
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For purposes of the Plan, except where the context clearly indicates
otherwise, the following terms shall have the meanings set forth below:
"Board" shall mean the Board of Directors of the Company.
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"Code" shall mean the Internal Revenue Code of 1986, as amended, and any
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successor statute.
"Committee" shall mean the committee of the Board which may be designated
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by the Board to administer the Plan. The Committee shall be composed of two or
more directors as appointed from time to time to serve by the Board.
"Common Stock" shall mean the Company's common stock, par value $.01 per
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share.
"Company" shall mean Advantage Business Services Holdings, Inc., a Delaware
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corporation ("ABSI"), and (except to the extent the context requires otherwise)
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any subsidiary corporation of ABSI as such term is defined in Section 425(f) of
the Code.
"Fair Market Value" of the Common Stock shall be determined in good faith
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by the committee or, in the absence of the committee, by the Board.
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"Options" shall have the meaning set forth in Article IV.
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"Participant" shall mean any employee of the Company who is a manager or a
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sales representative and who has been selected to participate in the Plan by the
Committee or the Board.
"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof
ARTICLE III
Administration
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The Plan shall be administered by the Committee, provided that if for any
reason the Committee shall not have been appointed by the Board, all authority
and duties of the Committee under the Plan shall be vested in, and exercised by,
the Board. Subject to the limitations of the Plan, the Committee shall have the
sole and complete authority to: (i) select Participants, (ii) grant Options (as
defined in Article IV below) to Participants in such forms and amounts as it
shall determine, (iii) impose such limitations, restrictions and conditions upon
such Options as it shall deem appropriate, (iv) interpret the Plan and adopt,
amend and rescind administrative guidelines and other rules and regulations
relating to the Plan, (v) correct any defect or omission or reconcile any
inconsistency in the Plan or in any Option granted hereunder, (vi) interpret any
Option Agreement (as defined below) and make all determinations required
thereunder, and (vii) make all other determinations and take all other actions
necessary or advisable for the implementation and administration of the Plan.
The Committee's determinations on matters within its authority shall be
conclusive and binding upon the Participants, the Company and all other Persons.
All expenses associated with the administration of the Plan shall be borne by
the Company. The Committee may, as approved by the Board and to the extent
permissible by law, delegate any of its authority hereunder to such persons as
it deems appropriate.
ARTICLE IV
Limitation on Aggregate Shares
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The number of shares of Common Stock with respect to which options may be
granted under the Plan (the "Options") and which may be issued upon the exercise
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thereof shall not exceed, in the aggregate, 100,000 shares, provided that the
type and the aggregate number of shares which may be subject to Options shall be
subject to adjustment in accordance with the provisions of Section 6.8 below,
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and further provided that to the extent any Options expire unexercised or are
canceled, terminated or forfeited in any manner without the issuance of Common
Stock thereunder, or if any options are exercised and the Common Stock issued
thereunder is repurchased by the Company, such shares shall again be available
under the Plan. The 100,000 shares of Common Stock available under the Plan may
be either authorized and unissued shares, treasury shares or a combination
thereof, as the Committee shall determine.
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ARTICLE V
Awards
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5.1 Options. The Committee may grant Options to Participants in accordance
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with this Article V.
5.2 Form of Option. All options granted under this Plan shall be
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nonqualified stock options, and no option shall be an "incentive stock option"
within the meaning of Section 422 of the Code.
5.3 Exercise Price. The option exercise price per share of Common Stock
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shall be fixed by the Committee at not less than 100% of the Fair Market Value
per share of Common Stock on the date of grant (or 110% of such Fair Market
Value if the holder of such Option owns shares of Common Stock possessing more
than ten percent (10%) of the combined voting power of all classes of stock of
the Company or any subsidiary determined with regard to the attribution rules of
Section 424(d) of the Code).
5.4 Exercisability. Options shall be exercisable at such time or times as
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the Committee shall determine at or subsequent to grant.
5.5 Payment of Exercise Price. Options shall be exercised in whole or in
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part by written notice to the Company (to the attention of the Company's
Secretary) accompanied by payment in full of the option exercise price. Payment
of the option exercise price shall be made in cash (including check, bank draft
or money order) or, in the discretion of the Committee, by (a) delivery of an
interest bearing promissory note or (b) the surrender to the Company of shares
of Common Stock having a Fair Market Value equal to the option exercise price.
5.6 Terms of Options. The Committee shall determine the term of each
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Option, which term shall in no event exceed ten years from the date of grant.
ARTICLE VI
General Provisions
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6.1 Conditions and Limitations on Exercise. Options may be made exercisable
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in one or more installments, upon the happening of certain events, upon the
passage of a specified period of time, upon the fulfillment of certain
conditions or upon the achievement by the Company of certain performance goals,
as the Committee shall decide in each case when the Options are granted.
6.2 Written Agreement. Each Option granted hereunder to a Participant shall
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be embodied in a written agreement (an "Option Agreement") which shall be signed
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by the Participant and by the Chairman or the President of the Company for and
in the name and on behalf of the Company and shall be subject to the terms and
conditions of the Plan prescribed therein.
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6.3 Listing, Registration and Compliance with Laws and Regulations. Options
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shall be subject to the requirement that if at any time the Committee shall
determine, in its discretion, that the listing, registration or qualification of
the shares subject to the Options upon any securities exchange or under any
state or federal securities or other law or regulation, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition to or in connection with the granting of the Options or the issuance
or purchase of shares thereunder, no Options may be granted or 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 Committee. The holders of such Options shall supply the
Company with such certificates, representations and information as the Company
shall request and shall otherwise cooperate with the Company in obtaining such
listing, registration, qualification, consent or approval. In the case of
officers and other Persons subject to Section 16(b) of the Securities Exchange
Act of 1934, as amended, the Committee may at any time impose any limitations
upon the exercise of an Option that, in the Committee's discretion, are
necessary or desirable in order to comply with such Section 16(b) and the rules
and regulations thereunder. If the Company, as part of an offering of securities
or otherwise, finds it desirable because of federal or state regulatory
requirements to reduce the period during which any Options may be exercised, the
Committee, may, in its discretion and without the Participant's consent, so
reduce such period on not less than 15 days' written notice to the holders
thereof.
6.4 Nontransferability. Options may not be transferred other than by will
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or the laws of descent and distribution and, during the lifetime of the
Participant, may be exercised only by such Participant (or his or her legal
guardian or legal representative). In the event of the death of a Participant,
exercise of Options granted hereunder shall be made only:
(i) by the executor or administrator of the estate of the deceased
Participant or the Person or Persons to whom the deceased Participant's
rights under the Option shall pass by will or the laws of descent and
distribution; and
(ii) to the extent that the deceased Participant was entitled thereto
at the date of his or her death, unless otherwise provided by the Committee
in such Participant's Option Agreement.
6.5 Expiration of Options. In no event shall any part of any Option be
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exercisable after the date of expiration thereof (the "Expiration Date"), as
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determined by the Committee pursuant to Section 5.6 above.
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6.6 Withholding of Taxes. The Company shall be entitled, if necessary or
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desirable, to withhold from any Participant from any amounts due and payable by
the Company to such Participant (or secure payment from such Participant in lieu
of withholding) the amount of any withholding or other tax due from the Company
with respect to any shares issuable under the Options, and the Company may defer
such issuance unless indemnified to its satisfaction.
6.7 Adjustments. In the event of a reorganization, recapitalization, stock
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dividend or stock split, or combination or other change in the shares of Common
Stock, the Board or the Committee may, in order to prevent the dilution or
enlargement of rights under outstanding Options, make such adjustments in the
number and type of shares authorized by the Plan, the
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number and type of shares covered by outstanding Options and the exercise prices
specified therein as may be determined to be appropriate and equitable. The
issuance by the Company of shares of stock of any class, or options or
securities exercisable or convertible into shares of stock of any class, for
cash or property, or for labor or services either upon direct sale, or upon the
exercise of rights or warrants to subscribe therefor, or upon exercise or
conversion of other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Common
Stock then subject to outstanding Options.
6.8 Rights of Participants. Nothing in this Plan or in any Option Agreement
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shall interfere with or limit in any way the right of the Company to terminate
any Participant's employment at any time for any reason, nor confer upon any
Participant any right to continue in the employ of the Company for any period
of time or to continue his or her present (or any other) rate of compensation,
and, except as otherwise provided under this Plan or by the Committee in the
Option Agreement, in the event of any Participant's termination of employment,
any portion of such Participant's Option that was not previously vested and
exercisable shall expire and be forfeited as of the date of such termination. No
employee shall have a right to be selected as a Participant or, having been so
selected, to be selected again as a Participant.
6.9 Amendment, Suspension and Termination of Plan. The Board or the
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Committee may suspend or terminate the Plan or any portion thereof at any time
and may amend it from time to time in such respects as the Board or the
Committee may deem advisable, provided that no such amendment shall be made
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without stockholder approval to the extent such approval is required by law,
agreement or the rules of any exchange upon which the shares of Common Stock are
listed, and no such amendment, suspension or termination shall impair the rights
of Participants under outstanding Options without the consent of the
Participants affected thereby. No Options shall be granted hereunder after the
tenth anniversary of the adoption of the Plan
6.10 Amendment, Modification and Cancellation of Outstanding Options. The
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Committee may amend or modify an Option in any manner to the extent that the
Committee would have had the authority under the Plan initially to grant such
Option, provided that no such amendment or modification shall impair the rights
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of any Participant under any Option without the consent of such Participant.
With the Participant's consent, the Committee may cancel any Option and issue a
new Option to such Participant.
6.11 Indemnification. In addition to such other rights of indemnification
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as they may have as members of the Board or the Committee, the members of the
Committee shall be indemnified by the Company against all costs and expenses
reasonably incurred by them in connection with any action, suit or proceeding to
which they or any of them may be party by reason of any action taken or failure
to act under or in connection with the Plan or any Option granted thereunder,
and against all amounts paid by them in settlement thereof (provided such
settlement is approved by independent legal counsel selected by the Company) or
paid by them in satisfaction of a judgment in any such action, suit or
proceeding; provided that any such Committee member shall be entitled to the
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indemnification rights set forth in this Section 6.11 only if such member has
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acted in good faith and in a manner that such member reasonably believed to be
in or not opposed to the best interests of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that such
conduct was unlawful, and further provided that upon the institution of any such
action, suit or proceeding, a
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Committee member shall give the Company written notice thereof and an
opportunity, at its own expense, to handle and defend the same before such
Committee member undertakes to handle and defend it on his or her own behalf.
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