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EXHIBIT 4.6
ELITE LOGISTICS, INC.
2000 EQUITY INCENTIVE PLAN
1. PURPOSES OF THE PLAN.
The purposes of this 2000 Equity Incentive Plan are:
(a) To attract and retain the best available personnel for positions of
substantial responsibility,
(b) To provide additional incentive to Employees, Directors and Consultants, to
promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or Non-statutory
Stock Options, as determined by the Administrator at the time of grant. Stock
Purchases Rights may also be granted under the Plan.
2. DEFINITIONS.
The following definitions shall apply as used herein,:
ADMINISTRATOR Means the Board or any of its Committees as shall
be administering the Plan, in accordance with
Section 4 of the Plan.
APPLICABLE LAWS Means the requirements relating to the
administration of stock option plans under U.S.
state laws, U.S. federal and state securities laws,
the Code, and stock exchange or quotation system on
which the Common Stock is listed or quoted and the
applicable laws of any foreign country or
jurisdiction where Options or Stock Purchase Rights
are, or will be, granted under the Plan.
BOARD Means the Board of Directors of the Company.
CODE Means the Internal Revenue Code of 1986, as
amended.
COMMITTEE Means a committee of Directors appointed by the
Board in accordance with Section 4 of the Plan.
COMMON STOCK Means the common stock of the Company.
COMPANY Means Elite Logistics, Inc., an IDAHO corporation.
CONSULTANT Means any person, including an advisor, engaged by
the Company or a Parent Subsidiary to render
services to such entity.
DIRECTOR Means a member of the Board.
DISABILITY Means total and permanent disability as defined in
Section 22(e)(3) of the Code.
EMPLOYEE Means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary
of the Company. A Service Provider shall not cease
to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers
between locations of the Company or between the
Company, its Parent, any Subsidiary, or any
successor. For purposes of Incentive Stock Options,
no such leave may exceed ninety days, unless
reemployment upon expiration of such leave is
guaranteed by statute or contract. If reemployment
upon expiration of a leave of absence approved by
the Company is not so guaranteed, on the 181st day
of such leave any Incentive Stock Option held by
the Optionee shall cease to be treated as an
Incentive Stock
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Option and shall be treated for tax purposes as a
Non-statutory Stock Option. Neither service as a
Director nor payment of a director's fee by the
Company shall be sufficient to constitute
"employment" by the Company.
EXCHANGE ACT Means the Securities Exchange Act of 1934, as
amended.
FAIR MARKET VALUE Means, as of any date, the value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any
established stock exchange or a national
market system, including without
limitation the Nasdaq National Market or
The Nasdaq SmallCap Market of The Nasdaq
Stock Market, its Fair Market Value shall
be the closing sales price for such stock
(or the closing bid, if no sales were
reported) as quoted on such exchange or
system for the last market trading day
prior to the time of determination, as
reported in The Wall Street Journal or
such other source as the Administrator
deems reliable;
(ii) If the Common Stock is regularly quoted by
a recognized securities dealer but selling
prices are not reported, the Fair Market
Value of a Share of Common Stock shall be
the mean between the high bid and low
asked prices for the Common Stock on the
last market trading day prior to the day
of determination, as reported in The Wall
Street Journal or such other source as the
Administrator deems reliable; or
(iii) In the absence of an established market
for the Common Stock, the Fair Market
Value shall be determined in good faith by
the Administrator.
INCENTIVE STOCK OPTION Means an Option intended to qualify as an incentive
stock option within the meaning of Section 422 of
the Code and the regulations promulgated
thereunder.
NON-STATUTORY STOCK Means an Option not intended to qualify as an
OPTION Incentive Stock Option.
NOTICE OF GRANT Means a written or electronic notice evidencing
certain terms and conditions of an individual
Option or Stock Purchase Right grant. The Notice of
Grant is part of the Option Agreement.
OFFICER
Means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange
Act and the rules and regulations promulgated
thereunder.
OPTION Means a stock option granted pursuant to the Plan.
OPTION AGREEMENT Means an agreement between the Company and an
Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is
subject to the terms and conditions of the Plan.
OPTION EXCHANGE PROGRAM Means a program whereby outstanding Options are
surrendered in exchange for Options with a lower
exercise price.
OPTIONED STOCK Means the Common
Stock subject to an Option or Stock Purchase Right.
OPTIONEE Means the holder of an outstanding Option
or Stock Purchase Right granted under the Plan.
PARENT Means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of
the Code.
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PLAN Means this 2000 Equity Incentive Plan.
RESTRICTED STOCK Means shares of Common Stock acquired pursuant to a
grant of Stock Purchase Rights under Section 11 of
the Plan.
RESTRICTED STOCK PURCHASE Means a written agreement between the Company and
AGREEMENT the Optionee evidencing the terms and restrictions
applying to stock purchased under a Stock Purchase
Right. The Restricted Stock Purchase Agreement is
subject to the terms and conditions of the Plan and
the Notice of Grant.
RULE 16B-3 Means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when
discretion is being exercised with respect to the
Plan.
SECTION 16(b) Means Section 16(b) of the Exchange Act.
SERVICE PROVIDER Means an Employee, Director or Consultant.
SHARE Means a share of the Common Stock, as adjusted in
accordance with Section 13 of the Plan.
STOCK PURCHASE RIGHT Means the right to purchase Common
Stock pursuant to Section 11 of the Plan, as
evidenced by a Notice of Grant.
SUBSIDIARY Means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of
the Code.
3. STOCK SUBJECT TO THE PLAN
Subject to the provisions of Section 13 of the Plan, the maximum aggregate
number of Shares which may be optioned and sold under the Plan is 1,000,000
SHARES, plus an annual increase to be added on the first day of the Company's
fiscal year beginning in 2001 equal to the lesser of
(i) 200,000 SHARES,
(ii) 1.5% of the outstanding shares on such date or
(iii) A lesser amount determined by the Board. The Shares may be
authorized, but unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes unexercisable without
having been exercised in full, or is surrendered pursuant to an Option Exchange
Program, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated); provided, however, that Shares that have actually been issued under
the Plan, whether upon exercise of an Option or Right, shall not be returned to
the Plan and shall not become available for future distribution under the Plan,
except that if Shares of Restricted Stock are repurchased by the Company at
their original purchase price, such Shares shall become available for future
grant under the Plan.
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4. ADMINISTRATION OF THE PLAN
(a) Procedure.
(i) Multiple Administrative Bodies. The Plan may be administered by
different Committees with respect to different groups of Service
Providers.
(ii) Section 162(m). To the extent that the Administrator determines it
to be desirable to qualify Options granted hereunder as
"performance-based compensation" within the meaning of Section
162(m) of the Code, the Plan shall be administered by a Committee
of two or more "outside directors" within the meaning of Section
162(m) of the Code.
(iii) Rule 16b-3. To the extent desirable to qualify transactions
hereunder as exempt under Rule 16b-3, the transactions
contemplated hereunder shall be structured to satisfy the
requirements for exemption under Rule 16b-3.
(iv) Other Administration. Other than as provided above, the Plan shall
be administered by (A) the Board or (B) a Committee, which
committee shall be constituted to satisfy Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan, and
in the case of a Committee, subject to the specific duties delegated by
the Board to such Committee, the Administrator shall have the authority,
in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options and Stock Purchase
Rights may be granted hereunder;
(iii) to determine the number of shares of Common Stock to be covered by
each Option and Stock Purchase Right granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) To determine the terms and conditions, not inconsistent with the
terms of the Plan, of any Option or Stock Purchase Right granted
hereunder. Such terms and conditions include, but are not limited
to, the exercise price, the time or times when Options or Stock
Purchase Rights may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation
regarding any Option or Stock Purchase Right or the shares of
Common Stock relating thereto, based in each case on such factors
as the Administrator, in its sole discretion, shall determine;
(vi) to reduce the exercise price of any Option or Stock Purchase Right
to the then current Fair Market Value if the Fair Market Value of
the Common Stock covered by such Option or Stock Purchase Right
shall have declined since the date the Option or Stock Purchase
Right was granted;
(vii) to institute an Option Exchange Program;
(viii) to construe and interpret the terms of the Plan and awards granted
pursuant to the Plan;
(ix) to prescribe, amend and rescind rules and regulations relating to
the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax
treatment under foreign tax laws;
(x) to modify or amend each Option or Stock Purchase Right (subject to
Section 15(c) of the Plan), including the discretionary authority
to extend the post-termination exercisability period of Options
longer than is otherwise provided for in the Plan;
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(xi) to allow Optionees to satisfy withholding tax obligations by
electing to have the Company withhold from the Shares to be issued
upon exercise of an Option or Stock Purchase Right that number of
Shares having a Fair Market Value equal to the amount required to
be withheld. The Fair Market Value of the Shares to be withheld
shall be determined on the date that the amount of tax to be
withheld is to be determined. All elections by an Optionee to have
Shares withheld for this purpose shall be made in such form and
under such conditions as the Administrator may deem necessary or
advisable;
(xii) to authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option or Stock
Purchase Right previously granted by the Administrator;
(xiii) to make all other determinations deemed necessary or advisable for
administering the Plan
(c) Effect of Administrator's Decision. The Administrator's decisions,
determinations and interpretations shall be final and binding on all
Optionees and any other holders of Options or Stock Purchase Rights.
5. ELIGIBILITY
Non-statutory Stock Options and Stock Purchase Rights may be granted to Service
Providers. Incentive Stock Options may be granted only to Employees.
6. LIMITATIONS
(a) Each Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Non-statutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair
Market Value of the Shares with respect to which Incentive Stock Options
are exercisable for the first time by the Optionee during any calendar
year (under all plans of the Company and any Parent or Subsidiary)
exceeds $100,000, such Options shall be treated as Non-statutory Stock
Options. For purposes of this Section 6(a), Incentive Stock Options shall
be taken into account in the order in which they were granted. The Fair
Market Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted.
(b) Neither the Plan nor any Option or Stock Purchase Right shall confer upon
an Optionee any right with respect to continuing the Optionee's
relationship as a Service Provider with the Company, nor shall they
interfere in any way with the Optionee's right or the Company's right to
terminate such relationship at any time, with or without cause.
(c) The following limitations shall apply to grants of Options:
(i) No Service Provider shall be granted, in any fiscal year of the
Company, Options to purchase more than 50,000 SHARES.
(ii) In connection with his or her initial service, a Service Provider
may be granted Options to purchase up to an additional 25,000
SHARES, which shall not count against the limit set forth in
subsection (i) above.
(iii) The foregoing limitations shall be adjusted proportionately in
connection with any change in the Company's capitalization as
described in Section 13.
(iv) If an Option is cancelled in the same fiscal year of the Company
in which it was granted (other than in connection with a
transaction described in Section 13), the cancelled Option will be
counted against the limits set forth in subsections (i) and (ii)
above. For this purpose, if the exercise price of an Option is
reduced, the transaction will be treated as a cancellation of the
Option and the grant of a new Option.
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7. TERM OF THE PLAN
Subject to Section 19 of the Plan, the Plan shall become effective upon its
adoption by the Board. It shall continue in effect for a term of ten (10) years
unless terminated earlier under Section 15 of the Plan.
8. TERM OF OPTION
The term of each Option shall be stated in the Option Agreement. In the case of
an Incentive Stock Option granted to an Optionee who, at the time the Incentive
Stock Option is granted, owns stock representing more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company or any
Parent or Subsidiary, the term of the Incentive Stock Option shall be five (5)
years from the date of grant or such shorter term as may be provided in the
Option Agreement. Otherwise, in the case of an Incentive Stock Option, the term
shall be ten (10) years from the date of grant or such shorter term as may be
provided in the Option Agreement.
9. OPTION EXERCISE PRICE AND CONSIDERATION
(a) Exercise Price. The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) Granted to an Employee who, at the time of the Incentive
Stock Option grant, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock
of the Company or any Parent or Subsidiary, the exercise
price per Share shall be no less than 110% of the Fair
Market Value per Share on the date of grant.
(B) Granted to any Employee other than an Employee described in
paragraph (A) immediately above, the exercise price per
Share shall be no less than 100% of the Fair Market Value
per Share on the date of grant.
(ii) In the case of a Non-statutory Stock Option, the per Share
exercise price shall be determined by the Administrator. In the
case of a Non-statutory Stock Option intended to qualify as
"performance-based compensation" within the meaning of Section
162(m) of the Code, the per Share exercise price shall be no less
than 100% of the Fair Market Value per Share on the date of grant.
(iii) Notwithstanding the foregoing, Options may be granted with a per
Share exercise price of less than 100% of the Fair Market Value
per Share on the date of grant pursuant to a merger or other
corporate transaction.
(b) Waiting Period and Exercise Dates. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions that must be satisfied
before the Option may be exercised.
(c) Form of Consideration. The Administrator shall determine the acceptable
form of consideration for exercising an Option, including the method of
payment. In the case of an Incentive Stock Option, the Administrator
shall determine the acceptable form of consideration at the time of
grant. Such consideration may consist entirely of:
(i) cash;
(ii) check
(iii) promissory note;
(iv) other Shares which
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(A) in the case of Shares acquired upon exercise of an option,
have been owned by the Optionee for more than six months on
the date of surrender, and
(B) have a Fair Market Value on the date of surrender equal to
the aggregate exercise price of the Shares as to which said
Option shall be exercised;
(v) consideration received by the Company under a cash-less exercise
program implemented by the Company in connection with the Plan
(vi) a reduction in the amount of any Company liability to the
Optionee, including any liability attributable to the Optionee's
participation in any Company-sponsored deferred compensation
program or arrangement;
(vii) any combination of the foregoing methods of payment; or
(viii) Such other consideration and method of payment for the issuance of
Shares to the extent permitted by Applicable Laws.
10. EXERCISE OF OPTION
(a) Procedure for Exercise; Rights as a Shareholder. Any Option granted
hereunder shall be exercisable according to the terms of the Plan and at
such times and under such conditions as determined by the Administrator
and set forth in the Option Agreement. Unless the Administrator provides
otherwise, vesting of Options granted hereunder shall be tolled during
any unpaid leave of absence. An Option may not be exercised for a
fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised.
Full payment may consist of any consideration and method of payment
authorized by the Administrator and permitted by the Option Agreement and
the Plan. Shares issued upon exercise of an Option shall be issued in the
name of the Optionee or, if requested by the Optionee, in the name of the
Optionee and his or her spouse. Until the Shares are issued (as evidenced
by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect
to the Optioned Stock, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such Shares promptly after
the Option is exercised. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the Shares are
issued, except as provided in Section 13 of the Plan.
Exercising an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Relationship as a Service Provider. If an Optionee ceases
to be a Service Provider, other than upon the Optionee's death or
Disability, the Optionee may exercise his or her Option within such
period of time as is specified in the Option Agreement to the extent that
the Option is vested on the date of termination (but in no event later
than the expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the Option Agreement,
the Option shall remain exercisable for three (3) months following the
Optionee's termination. If, on the date of termination, the Optionee is
not vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the
time specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
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(c) Disability of Optionee. If an Optionee ceases to be a Service Provider as
a result of the Optionee's Disability, the Optionee may exercise his or
her Option within such period of time as is specified in the Option
Agreement to the extent the Option is vested on the date of termination
(but in no event later than the expiration of the term of such Option as
set forth in the Option Agreement). In the absence of a specified time in
the Option Agreement, the Option shall remain exercisable for twelve (12)
months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option,
the Shares covered by the unvested portion of the Option shall revert to
the Plan. If, after termination, the Optionee does not exercise his or
her Option within the time specified herein, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.
(d) Death of Optionee. If an Optionee dies while a Service Provider, the
Option may be exercised within such period of time as is specified in the
Option Agreement (but in no event later than the expiration of the term
of such Option as set forth in the Notice of Grant), by the Optionee's
estate or by a person who acquires the right to exercise the Option by
bequest or inheritance, but only to the extent that the Option is vested
on the date of death. In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for twelve (12) months
following the Optionee's termination. If, at the time of death, the
Optionee is not vested as to his or her entire Option, the Shares covered
by the unvested portion of the Option shall immediately revert to the
Plan. The Option may be exercised by the executor or administrator of the
Optionee's estate or, if none, by the person(s) entitled to exercise the
Option under the Optionee's will or the laws of descent or distribution.
If the Option is not so exercised within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer to buy out for
a payment in cash or Shares an Option previously granted based on such
terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time that such offer is made.
11. STOCK PURCHASE RIGHTS
(a) Rights to Purchase. Stock Purchase Rights may be issued either alone, in
addition to, or in tandem with other awards granted under the Plan and/or
cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall advise
the offeree in writing or electronically, by means of a Notice of Grant,
of the terms, conditions and restrictions related to the offer, including
the number of Shares that the offeree shall be entitled to purchase, the
price to be paid, and the time within which the offeree must accept such
offer. The offer shall be accepted by execution of a Restricted Stock
Purchase Agreement in the form determined by the Administrator.
(b) Repurchase Option. Unless the Administrator determines otherwise, the
Restricted Stock Purchase Agreement shall grant the Company a repurchase
option exercisable upon the voluntary or involuntary termination of the
purchaser's service with the Company for any reason (including death or
Disability). The purchase price for Shares repurchased pursuant to the
Restricted Stock Purchase Agreement shall be the original price paid by
the purchaser and may be paid by cancellation of any indebtedness of the
purchaser to the Company. The repurchase option shall lapse at a rate
determined by the Administrator.
(c) Other Provisions. The Restricted Stock Purchase Agreement shall contain
such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion.
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(d) Rights as a Shareholder. Once the Stock Purchase Right is exercised, the
purchaser shall have the rights equivalent to those of a shareholder, and
shall be a shareholder when his or her purchase is entered upon the
records of the duly authorized transfer agent of the Company. No
adjustment will be made for a dividend or other right for which the
record date is prior to the date the Stock Purchase Right is exercised,
except as provided in Section 13 of the Plan.
12. NON TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS
Unless determined otherwise by the Administrator, an Option or Stock Purchase
Right may not be sold, pledged, assigned, hypothecated, transferred, or disposed
of in any manner other than by will or by the laws of descent or distribution
and may be exercised, during the lifetime of the Optionee, only by the Optionee.
If the Administrator makes an Option or Stock Purchase Right transferable, such
Option or Stock Purchase Right shall contain such additional terms and
conditions as the Administrator deems appropriate.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION,
DISSOLUTION, MERGER OR ASSET SALE
(a) Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered
by each outstanding Option and Stock Purchase Right, and the number of
shares of Common Stock which have been authorized for issuance under the
Plan but as to which no Options or Stock Purchase Rights have yet been
granted or which have been returned to the Plan upon cancellation or
expiration of an Option or Stock Purchase Right, as well as the price per
share of Common Stock covered by each such outstanding Option or Stock
Purchase Right, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease
in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have
been "effected without receipt of consideration." Such adjustment shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance
by the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment by
reason thereof shall be made with respect to, the number or price of
shares of Common Stock subject to an Option or Stock Purchase Right.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each Optionee
as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an
Optionee to have the right to exercise his or her Option until fifteen
(15) days prior to such transaction as to all of the Optioned Stock
covered thereby, including Shares as to which the Option would not
otherwise be exercisable. In addition, the Administrator may provide that
any Company repurchase option applicable to any Shares purchased upon
exercise of an Option or Stock Purchase Right shall lapse as to all such
Shares, provided the proposed dissolution or liquidation takes place at
the time and in the manner contemplated. To the extent it has not been
previously exercised, an Option or Stock Purchase Right will terminate
immediately prior to the consummation of such proposed action.
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(c) Merger or Asset Sale. In the event of a merger of the Company with or
into another corporation, or the sale of substantially all of the assets
of the Company, each outstanding Option and Stock Purchase Right shall be
assumed or an equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute
for the Option or Stock Purchase Right, the Optionee shall fully vest in
and have the right to exercise the Option or Stock Purchase Right as to
all of the Optioned Stock, including Shares as to which it would not
otherwise be vested or exercisable. If an Option or Stock Purchase Right
becomes fully vested and exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that
the Option or Stock Purchase Right shall be fully vested and exercisable
for a period of fifteen (15) days from the date of such notice, and the
Option or Stock Purchase Right shall terminate upon the expiration of
such period. For the purposes of this paragraph, the Option or Stock
Purchase Right shall be considered assumed if, following the merger or
sale of assets, the option or right confers the right to purchase or
receive, for each Share of Optioned Stock subject to the Option or Stock
Purchase Right immediately prior to the merger or sale of assets, the
consideration (whether stock, cash, or other securities or property)
received in the merger or sale of assets by holders of Common Stock for
each Share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration chosen
by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale of
assets is not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor
corporation, provide for the consideration to be received upon the
exercise of the Option or Stock Purchase Right, for each Share of
Optioned Stock subject to the Option or Stock Purchase Right, to be
solely common stock of the successor corporation or its Parent equal in
fair market value to the per share consideration received by holders of
Common Stock in the merger or sale of assets.
14. DATE OF GRANT
The date of grant of an Option or Stock Purchase Right shall be, for all
purposes, the date on which the Administrator makes the determination granting
such Option or Stock Purchase Right, or such other later date as is determined
by the Administrator. Notice of the determination shall be provided to each
Optionee within a reasonable time after the date of such grant.
15. AMENDMENT AND TERMINATION OF THE PLAN
(a) Amendment and Termination. The Board may amend, alter, suspend or
terminate the Plan at any time.
(b) Shareholder Approval. The Company shall obtain shareholder approval of
any Plan amendment to the extent necessary and desirable to comply with
Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration, suspension
or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the
Administrator, which agreement must be in writing and signed by the
Optionee and the Company. Termination of the Plan shall not affect the
Administrator's ability to exercise the powers granted to it hereunder
with respect to Options granted under the Plan prior to the date of such
termination.
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16. CONDITIONS UPON ISSUANCE OF SHARES
(a) Legal Compliance. Shares shall not be issued pursuant to the exercise of
an Option or Stock Purchase Right unless the exercise of such Option or
Stock Purchase Right and the issuance and delivery of such Shares shall
comply with Applicable Laws and shall be further subject to the approval
of counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an Option
or Stock Purchase Right, the Company may require the person exercising
such Option or Stock Purchase Right to represent and warrant at the time
of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such
Shares if, in the opinion of counsel for the Company, such a
representation is required.
17. INABILITY TO OBTAIN AUTHORITY
The inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company's counsel to be necessary
to the lawful issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell such Shares
as to which such requisite authority shall not have been obtained.
18. RESERVATION OF SHARES
The Company, during the term of this Plan, will at all times reserve and keep
available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
19. SHAREHOLDER APPROVAL
The Plan shall be subject to approval by the shareholders of the Company within
twelve (12) months after the date the Plan is adopted. Such shareholder approval
shall be obtained in the manner and to the degree required under Applicable
Laws.
12
ELITE LOGISTICS, INC.
2000 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
- --------------------------
- --------------------------
- --------------------------
[Optionee's Name and Address]
You have been granted an option to purchase Common Stock of the Company, subject
to the terms and conditions of the Plan and this Option Agreement, as follows:
Grant Number
------------------------------
Date of Grant
------------------------------
Vesting Commencement Date
------------------
Exercise Price per Share $
------------------
Total Number of Shares Granted
-------------
Total Exercise Price $
--------------------
Type of Option (check applicable): Incentive Stock Option
---
Non-statutory Stock Option
---
Term/Expiration Date:
-----------------------
Vesting Schedule:
This Option may be exercised, in whole or in part, in accordance with the
following schedule:
VESTING: IN RESPECT OF EACH OPTION GRANT 1/3 OF THE OPTIONS VEST ON COMPLETION
OF ONE YEAR'S SERVICE (ON THE ANNIVERSARY OF THE DATE OF EMPLOYMENT) AND
THEREAFTER 1/24TH OF THE REMAINING BALANCE VESTS AT THE END OF EACH MONTH OF
COMPLETED SERVICE.
TERMINATION PERIOD:
This Option may be exercised for three (3) months after Optionee ceases to be a
Service Provider. Upon the death or Disability of the Optionee, this Option may
be exercised for one year after Optionee ceases to be a Service Provider. In no
event shall this Option be exercised later than the Term/Expiration Date as
provided above.
13
II. AGREEMENT
A. GRANT OF OPTION.
The Plan Administrator of the Company hereby grants to the Optionee named in the
Notice of Grant attached as Part I of this Agreement (the "Optionee") an option
(the "Option") to purchase the number of Shares, as set forth in the Notice of
Grant, at the exercise price per share set forth in the Notice of Grant (the
"Exercise Price"), subject to the terms and conditions of the Plan, which is
incorporated herein by reference. Subject to Section 15(c) of the Plan, in the
event of a conflict between the terms and conditions of the Plan and the terms
and conditions of this Option Agreement, the terms and conditions of the Plan
shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option ("ISO"), this
Option is intended to qualify as an Incentive Stock Option under Section 422 of
the Code. However, if this Option is intended to be an Incentive Stock Option,
to the extent that it exceeds the $100,000 rule of Code Section 422(d) it shall
be treated as a Non-statutory Stock Option ("NSO").
B. EXERCISE OF OPTION.
(a) Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and
the applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an exercise
notice, in the form attached as Exhibit A (the "Exercise Notice"), which
shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised (the "Exercised Shares"),
and such other representations and agreements as may be required by the
Company pursuant to the provisions of the Plan. The Exercise Notice shall
be completed by the Optionee and delivered to the SECRETARY of the
Company. The Exercise Notice shall be accompanied by payment of the
aggregate Exercise Price as to all Exercised Shares. This Option shall be
deemed to be exercised upon receipt by the Company of such fully executed
Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this Option unless
such issuance and exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Exercised Shares shall be
considered transferred to the Optionee on the date the Option is
exercised with respect to such Exercised Shares.
C. METHOD OF PAYMENT.
Payment of the aggregate Exercise Price shall be by any of the following,
or a combination thereof, at the election of the Optionee:
1. cash; or
2. check; or
3. consideration received by the Company under a cash-less exercise
program implemented by the Company in connection with the Plan; or
4. surrender of other Shares which (i) in the case of Shares acquired
upon exercise of an option, have been owned by the Optionee for
more than six (6) months on the date of surrender, and (ii) have a
Fair Market Value on the date of surrender equal to the aggregate
Exercise Price of the Exercised Shares; or
5. With the Administrator's consent, delivery of Optionee's
promissory note (the "Note") in the form attached hereto as
Exhibit C, in the amount of the aggregate Exercise Price of the
Exercised Shares together with the execution and delivery by the
Optionee of the Security Agreement attached hereto as Exhibit B.
The Note shall bear interest at the "applicable federal rate"
prescribed under the Code and its regulations at time of purchase,
and shall be secured by a pledge of the Shares purchased by the
Note pursuant to the Security Agreement.
14
D. NON-TRANSFERABILITY OF OPTION.
This Option may not be transferred in any manner otherwise than by will
or by the laws of descent or distribution and may be exercised during the
lifetime of Optionee only by the Optionee. The terms of the Plan and this
Option Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
E. TERM OF OPTION.
This Option may be exercised only within the term set out in the Notice
of Grant, and may be exercised during such term only in accordance with
the Plan and the terms of this Option Agreement.
F. TAX CONSEQUENCES.
Some of the federal tax consequences relating to this Option, as of the
date of this Option, are set forth below.
THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING
THIS OPTION OR DISPOSING OF THE SHARES.
G. EXERCISING THE OPTION.
1. Non-statutory Stock Option. The Optionee may incur regular federal income
tax liability upon exercise of a NSO. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax
rates) equal to the excess, if any, of the Fair Market Value of the
Exercised Shares on the date of exercise over their aggregate Exercise
Price. If the Optionee is an Employee or a former Employee, the Company
will be required to withhold from his or her compensation or collect from
Optionee and pay to the applicable taxing authorities an amount in cash
equal to a percentage of this compensation income at the time of
exercise, and may refuse to honor the exercise and refuse to deliver
Shares if such withholding amounts are not delivered at the time of
exercise.
2. Incentive Stock Option. If this Option qualifies as an ISO, the Optionee
will have no regular federal income tax liability upon its exercise,
although the excess, if any, of the Fair Market Value of the Exercised
Shares on the date of exercise over their aggregate Exercise Price will
be treated as an adjustment to alternative minimum taxable income for
federal tax purposes and may subject the Optionee to alternative minimum
tax in the year of exercise. In the event that the Optionee ceases to be
an Employee but remains a Service Provider, any Incentive Stock Option of
the Optionee that remains unexercised shall cease to qualify as an
Incentive Stock Option and will be treated for tax purposes as a
Non-statutory Stock Option on the date three (3) months and one (1) day
following such change of status.
3. Disposition of Shares.
(a) NSO. If the Optionee holds NSO Shares for at least one year, any gain
realized on disposition of the Shares will be treated as long-term
capital gain for federal income tax purposes.
(b) ISO. If the Optionee holds ISO Shares for at least one year after
exercise and two years after the grant date, any gain realized on
disposition of the Shares will be treated as long-term capital gain for
federal income tax purposes. If the Optionee disposes of ISO Shares
within one year after exercise or two years after the grant date, any
gain realized on such disposition will be treated as compensation income
(taxable at ordinary income rates) to the extent of the excess, if any,
of the lesser of (A) the difference between the Fair Market Value of the
Shares acquired on the date of exercise and the aggregate Exercise Price,
or (B) the difference between the sale price of such Shares and the
aggregate Exercise Price. Any additional gain will be taxed as capital
gain, short-term or long-term depending on the period that the ISO Shares
were held.
15
(c) Notice of Disqualifying Disposition of ISO Shares. If the Optionee sells
or otherwise disposes of any of the Shares acquired pursuant to an ISO on
or before the later of (i) two years after the grant date, or (ii) one
year after the exercise date, the Optionee shall immediately notify the
Company in writing of such disposition. The Optionee agrees that he or
she may be subject to income tax withholding by the Company on the
compensation income recognized from such early disposition of ISO Shares
by payment in cash or out of the current earnings paid to the Optionee.
H. ENTIRE AGREEMENT, GOVERNING LAW.
The Plan is incorporated herein by reference. The Plan and this Option Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee. This agreement is
governed by the internal substantive laws, but not the choice of law rules, of
Texas.
I. NO GUARANTEE OF CONTINUED SERVICE.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE
VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT
THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED
AN OPTION OR PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND
AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE
VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED
PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD,
FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE
COMPANY'S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT
ANY TIME, WITH OR WITHOUT CAUSE.
By your signature and the signature of the Company's representative below, you
and the Company agree that this Option is granted under and governed by the
terms and conditions of the Plan and this Option Agreement. Optionee has
reviewed the Plan and this Option Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Option
Agreement and fully understands all provisions of the Plan and Option Agreement.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Administrator upon any questions relating to the Plan
and Option Agreement. Optionee further agrees to notify the Company upon any
change in the residence address indicated below.
OPTIONEE ELITE LOGISTICS, INC.
- ----------------------------- --------------------------------
Signature By
- -----------------------------
Print Name
--------------------------------
- ----------------------------- Title
Residence Address
- -----------------------------
16
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby approves the terms and
conditions of the Plan and this Option Agreement. In consideration of the
Company's granting his or her spouse the right to purchase Shares as set forth
in the Plan and this Option Agreement, the undersigned hereby agrees to be
irrevocably bound by the terms and conditions of the Plan and this Option
Agreement and further agrees that any community property interest shall be
similarly bound. The undersigned hereby appoints the undersigned's spouse as
attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Option Agreement.
- -----------------------------
Spouse of Optionee
17
EXHIBIT A
2000 EQUITY INCENTIVE PLAN
EXERCISE NOTICE
Elite Logistics, Inc.
Petro Chem Bldg.
1201 N. Avenue H
Freeport, TX 77541
Attention: [Title]
1. Exercise of Option. Effective as of today, ________________, _____, the
undersigned ("Purchaser") hereby elects to purchase ______________ shares
(the "Shares") of the Common Stock of Elite Logistics, Inc. (the
"Company") under and pursuant to the 2000 Equity Incentive Plan (the
"Plan") and the Stock Option Agreement dated ____________, _____ (the
"Option Agreement"). The purchase price for the Shares shall be $_______,
as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the full
purchase price for the Shares.
3. Representations of Purchaser. Purchaser acknowledges that Purchaser has
received, read and understood the Plan and the Option Agreement and
agrees to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the Shares, no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect
to the Optioned Stock, notwithstanding the exercise of the Option. The
Shares so acquired shall be issued to the Optionee as soon as practicable
after exercise of the Option. No adjustment will be made for a dividend
or other right for which the record date is prior to the date of
issuance, except as provided in Section 13 of the Plan.
5. Tax Consultation. Purchaser understands that Purchaser may suffer adverse
tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any
tax consultants Purchaser deems advisable in connection with the purchase
or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Purchaser with respect to
the subject matter hereof, and may not be modified adversely to the
Purchaser's interest except by means of a writing signed by the Company
and Purchaser. This agreement is governed by the internal substantive
laws, but not the choice of law rules, of Texas.
Submitted by: PURCHASER Accepted by: ELITE LOGISTICS, INC.
- -------------------------------- --------------------------------
Signature By
- -------------------------------- --------------------------------
Print Name: Title:
Address:
Address: Elite Logistics, Inc.
Petro Chem Bldg.
- -------------------------------- 1201 N. Avenue H
Freeport, TX 77541
- --------------------------------
--------------------------------
Date Received
18
EXHIBIT B
SECURITY AGREEMENT
This Security Agreement is made as of __________, _____ between Elite Logistics,
Inc., an Idaho corporation ("The Company"), and _________________________
("Pledgor").
RECITALS
Pursuant to Pledgor's election to purchase Shares under the Option Agreement
dated ________ (the "Option"), between Pledgor and The Company under The
Company's 2000 Equity Incentive Plan, and Pledgor's election under the terms of
the Option to pay for such shares with his promissory note (the "Note"), Pledgor
has purchased _________ shares of The Company's Common Stock (the "Shares") at a
price of $________ per share, for a total purchase price of $__________. The
Note and the obligations thereunder are as set forth in Exhibit C to the Option.
NOW, THEREFORE, it is agreed as follows:
1. Creation and Description of Security Interest. In consideration of the
transfer of the Shares to Pledgor under the Option Agreement, Pledgor,
pursuant to the Texas Commercial Code, hereby pledges all of such Shares
(herein sometimes referred to as the "Collateral") represented by
certificate number ______, duly endorsed in blank or with executed stock
powers, and herewith delivers said certificate to the Secretary of The
Company ("Pledgeholder"), who shall hold said certificate subject to the
terms and conditions of this Security Agreement.
The pledged stock (together with an executed blank stock assignment for
use in transferring all or a portion of the Shares to The Company if, as
and when required pursuant to this Security Agreement) shall be held by
the Pledgeholder as security for the repayment of the Note, and any
extensions or renewals thereof, to be executed by Pledgor pursuant to the
terms of the Option, and the Pledgeholder shall not encumber or dispose
of such Shares except in accordance with the provisions of this Security
Agreement.
2. Pledgor's Representations and Covenants. To induce The Company to enter
into this Security Agreement, Pledgor represents and covenants to The
Company, its successors and assigns, as follows:
(a) Payment of Indebtedness. Pledgor will pay the principal sum of the
Note secured hereby, together with interest thereon, at the time
and in the manner provided in the Note.
(b) Encumbrances. The Shares are free of all other encumbrances,
defenses and liens, and Pledgor will not further encumber the
Shares without the prior written consent of The Company.
(c) Margin Regulations. In the event that The Company's Common Stock
is now or later becomes margin-listed by the Federal Reserve Board
and The Company is classified as a "lender" within the meaning of
the regulations under Part 207 of Title 12 of the Code of Federal
Regulations ("Regulation G"), Pledgor agrees to cooperate with The
Company in making any amendments to the Note or providing any
additional collateral as may be necessary to comply with such
regulations.
3. Voting Rights. During the term of this pledge and so long as all payments
of principal and interest are made as they become due under the terms of
the Note, Pledgor shall have the right to vote all of the Shares pledged
hereunder.
19
4. Stock Adjustments. In the event that during the term of the pledge any
stock dividend, reclassification, readjustment or other changes are
declared or made in the capital structure of The Company, all new,
substituted and additional shares or other securities issued by reason of
any such change shall be delivered to and held by The Company under the
terms of this Security Agreement in the same manner as the Shares
originally pledged hereunder. In the event of substitution of such
securities, Pledgor, The Company and Pledgeholder shall cooperate and
execute such documents as are reasonable so as to provide for the
substitution of such Collateral and, upon such substitution, references
to "Shares" in this Security Agreement shall include the substituted
shares of capital stock of Pledgor as a result thereof.
5. Options and Rights. In the event that, during the term of this pledge,
subscription Options or other rights or options shall be issued in
connection with the pledged Shares, such rights, Options and options
shall be the property of Pledgor and, if exercised by Pledgor, all new
stock or other securities so acquired by Pledgor as it relates to the
pledged Shares then held by Pledgeholder shall be immediately delivered
to Pledgeholder, to be held under the terms of this Security Agreement in
the same manner as the Shares pledged.
6. Default. Pledgor shall be deemed to be in default of the Note and of this
Security Agreement in the event:
(a) Payment of principal or interest on the Note shall be delinquent
for a period of 10 days or more; or
(b) Pledgor fails to perform any of the covenants set forth in the
Option or contained in this Security Agreement for a period of 10
days after written notice thereof from The Company.
In the case of an event of Default, as set forth above, The Company shall
have the right to accelerate payment of the Note upon notice to Pledgor,
and The Company shall thereafter be entitled to pursue its remedies under
the Texas Commercial Code.
7. Release of Collateral. Subject to any applicable contrary rules under
Regulation G, there shall be released from this pledge a portion of the
pledged Shares held by Pledgeholder hereunder upon payments of the
principal of the Note. The number of the pledged Shares which shall be
released shall be that number of full Shares which bears the same
proportion to the initial number of Shares pledged hereunder as the
payment of principal bears to the initial full principal amount of the
Note.
8. Withdrawal or Substitution of Collateral. Pledgor shall not sell,
withdraw, pledge, substitute or otherwise dispose of all or any part of
the Collateral without the prior written consent of The Company.
9. Term. The within pledge of Shares shall continue until the payment of all
indebtedness secured hereby, at which time the remaining pledged stock
shall be promptly delivered to Pledgor, subject to the provisions for
prior release of a portion of the Collateral as provided in paragraph 7
above.
10. Insolvency. Pledgor agrees that if a bankruptcy or insolvency proceeding
is instituted by or against it, or if a receiver is appointed for the
property of Pledgor, or if Pledgor makes an assignment for the benefit of
creditors, the entire amount unpaid on the Note shall become immediately
due and payable, and The Company may proceed as provided in the case of
default.
11. Pledgeholder Liability. In the absence of willful or gross negligence,
Pledgeholder shall not be liable to any party for any of his acts, or
omissions to act, as Pledgeholder.
12. Invalidity of Particular Provisions. Pledgor and The Company agree that
the enforceability or invalidity of any provision or provisions of this
Security Agreement shall not render any other provision or provisions
herein contained unenforceable or invalid.
20
13. Successors or Assigns. Pledgor and The Company agree that all of the
terms of this Security Agreement shall be binding on their respective
successors and assigns, and that the term "Pledgor" and the term "The
Company" as used herein shall be deemed to include, for all purposes, the
respective designees, successors, assigns, heirs, executors and
administrators.
14. Governing Law. This Security Agreement shall be interpreted and governed
under the internal substantive laws, but not the choice of law rules, of
Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
PLEDGOR
- --------------------------------
Signature
- --------------------------------
Print Name:
Address:
- --------------------------------
- --------------------------------
THE COMPANY: Elite Logistics, Inc. an Idaho Corporation
- -----------------------------------
By
- -----------------------------------
Print Name
- -----------------------------------
Title:
PLEDGEHOLDER
- ----------------------------------
Secretary of Elite Logistics, Inc.
21
EXHIBIT C
NOTE
$
- ----------------- --------------, -----
[City, State]
FOR VALUE RECEIVED, ______________________________ promises to pay to Elite
Logistics, Inc., an Idaho corporation (the "Company"), or order, the principal
sum of ___________________________________________ ___ ($_____________),
together with interest on the unpaid principal hereof from the date hereof at
the rate of _______________________ percent (____%) per annum, compounded
semiannually.
Principal and interest shall be due and payable on __________, _____.
Payment of principal and interest shall be made in lawful money of the United
States of America.
The undersigned may at any time prepay all or any portion of the principal or
interest owing hereunder.
This Note is subject to the terms of the Option, dated as of ________________.
This Note is secured in part by a pledge of the Company's Common Stock under the
terms of a Security Agreement of even date herewith and is subject to all the
provisions thereof.
The holder of this Note shall have full recourse against the undersigned, and
shall not be required to proceed against the collateral securing this Note in
the event of default.
In the event the undersigned shall cease to be an employee, director or
consultant of the Company for any reason, this Note shall, at the option of the
Company, be accelerated, and the whole unpaid balance on this Note of principal
and accrued interest shall be immediately due and payable.
Should any action be instituted for the collection of this Note, the reasonable
costs and attorneys' fees therein of the holder shall be paid by the
undersigned.
- --------------------------------
Signature
- --------------------------------
Print Name:
Address:
- --------------------------------
- --------------------------------
22
2000 EQUITY INCENTIVE PLAN
NOTICE OF GRANT OF STOCK PURCHASE RIGHT
Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings in this Notice of Grant.
- --------------------------------
- --------------------------------
- --------------------------------
[Grantee's Name and Address]
You have been granted the right to purchase Common Stock of the Company, subject
to the Company's Repurchase Option and your ongoing status as a Service Provider
(as described in the Plan and the attached Restricted Stock Purchase Agreement),
as follows:
Grant Number
-----------------
Date of Grant
-----------------
Price Per Share $
-----------------
Total Number of Shares Subject to This Stock Purchase Right
-----------------
Expiration Date:
-----------------
YOU MUST EXERCISE THIS STOCK PURCHASE RIGHT BEFORE THE EXPIRATION DATE OR IT
WILL TERMINATE AND YOU WILL HAVE NO FURTHER RIGHT TO PURCHASE THE SHARES.
By your signature and the signature of the Company's representative below, you
and the Company agree that this Stock Purchase Right is granted under and
governed by the terms and conditions of the 2000 Equity Incentive Plan and the
Restricted Stock Purchase Agreement, attached hereto as Exhibit A-1, both of
which are made a part of this document. You further agree to execute the
attached Restricted Stock Purchase Agreement as a condition to purchasing any
shares under this Stock Purchase Right.
GRANTEE: ELITE LOGISTICS, INC.
- -------------------------------- -----------------------------------
Signature By
- -------------------------------- -----------------------------------
Print Name: Title:
23
EXHIBIT A-1
ELITE LOGISTICS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings in this Restricted Stock Purchase Agreement.
WHEREAS the Purchaser named in the Notice of Grant, (the "Purchaser") is a
Service Provider, and the Purchaser's continued participation is considered by
the Company to be important for the Company's continued growth; and
WHEREAS in order to give the Purchaser an opportunity to acquire an equity
interest in the Company as an incentive for the Purchaser to participate in the
affairs of the Company, the Administrator has granted to the Purchaser a Stock
Purchase Right subject to the terms and conditions of the Plan and the Notice of
Grant, which are incorporated herein by reference, and pursuant to this
Restricted Stock Purchase Agreement (the "Agreement").
NOW THEREFORE, the parties agree as follows:
1. Sale of Stock. The Company hereby agrees to sell to the Purchaser and the
Purchaser hereby agrees to purchase shares of the Company's Common Stock
(the "Shares"), at the per Share purchase price and as otherwise
described in the Notice of Grant.
2. Payment of Purchase Price. The purchase price for the Shares may be paid
by delivery to the Company at the time of execution of this Agreement of
cash, a check, or some combination thereof.
3. Repurchase Option.
(a) In the event the Purchaser ceases to be a Service Provider for any
or no reason (including death or disability) before all of the
Shares are released from the Company's Repurchase Option (see
Section 4), the Company shall, upon the date of such termination
(as reasonably fixed and determined by the Company) have an
irrevocable, exclusive option (the "Repurchase Option") for a
period of sixty (60) days from such date to repurchase up to that
number of shares which constitute the Unreleased Shares (as
defined in Section 4) at the original purchase price per share
(the "Repurchase Price"). The Repurchase Option shall be exercised
by the Company by delivering written notice to the Purchaser or
the Purchaser's executor (with a copy to the Escrow Holder) AND,
at the Company's option, (i) by delivering to the Purchaser or the
Purchaser's executor a check in the amount of the aggregate
Repurchase Price, or (ii) by canceling an amount of the
Purchaser's indebtedness to the Company equal to the aggregate
Repurchase Price, or (iii) by a combination of (i) and (ii) so
that the combined payment and cancellation of indebtedness equals
the aggregate Repurchase Price. Upon delivery of such notice and
the payment of the aggregate Repurchase Price, the Company shall
become the legal and beneficial owner of the Shares being
repurchased and all rights and interests therein or relating
thereto, and the Company shall have the right to retain and
transfer to its own name the number of Shares being repurchased by
the Company.
(b) Whenever the Company shall have the right to repurchase Shares
hereunder, the Company may designate and assign one or more
employees, officers, directors or shareholders of the Company or
other persons or organizations to exercise all or a part of the
Company's purchase rights under this Agreement and purchase all or
a part of such Shares. If the Fair Market Value of the Shares to
be repurchased on the date of such designation or assignment (the
"Repurchase FMV") exceeds the aggregate Repurchase Price of such
Shares, then each such designee or assignee shall pay the Company
cash equal to the difference between the Repurchase FMV and the
aggregate Repurchase Price of such Shares.
24
4. Release of Shares From Repurchase Option.
(a) TWENTY FIVE PERCENT (28%) of the Shares shall be released from the
Company's Repurchase Option ONE YEAR after the Date of Grant and
TWO PERCENT (2%) of the Shares at the end of each month
thereafter; provided that the Purchaser does not cease to be a
Service Provider prior to the date of any such release.
(b) Any of the Shares that have not yet been released from the
Repurchase Option are referred to herein as "Unreleased Shares."
(c) The Shares that have been released from the Repurchase Option
shall be delivered to the Purchaser at the Purchaser's request
(see Section 6).
5. Restriction on Transfer. Except for the escrow described in Section 6 or
the transfer of the Shares to the Company or its assignees contemplated
by this Agreement, none of the Shares or any beneficial interest therein
shall be transferred, encumbered or otherwise disposed of in any way
until such Shares are released from the Company's Repurchase Option in
accordance with the provisions of this Agreement, other than by will or
the laws of descent and distribution.
6. Escrow of Shares.
(a) To ensure the availability for delivery of the Purchaser's
Unreleased Shares upon repurchase by the Company pursuant to the
Repurchase Option, the Purchaser shall, upon execution of this
Agreement, deliver and deposit with an escrow holder designated by
the Company (the "Escrow Holder") the share certificates
representing the Unreleased Shares, together with the stock
assignment duly endorsed in blank, attached hereto as Exhibit A-2.
The Unreleased Shares and stock assignment shall be held by the
Escrow Holder, pursuant to the Joint Escrow Instructions of the
Company and Purchaser attached hereto as Exhibit A-3, until such
time as the Company's Repurchase Option expires. As a further
condition to the Company's obligations under this Agreement, the
Company may require the spouse of Purchaser, if any, to execute
and deliver to the Company the Consent of Spouse attached hereto
as Exhibit A-4.
(b) The Escrow Holder shall not be liable for any act it may do or
omit to do with respect to holding the Unreleased Shares in escrow
while acting in good faith and in the exercise of its judgment.
(c) If the Company or any assignee exercises the Repurchase Option
hereunder, the Escrow Holder, upon receipt of written notice of
such exercise from the proposed transferee, shall take all steps
necessary to accomplish such transfer.
(d) When the Repurchase Option has been exercised or expires
unexercised or a portion of the Shares has been released from the
Repurchase Option, upon request the Escrow Holder shall promptly
cause a new certificate to be issued for the released Shares and
shall deliver the certificate to the Company or the Purchaser, as
the case may be.
(e) Subject to the terms hereof, the Purchaser shall have all the
rights of a shareholder with respect to the Shares while they are
held in escrow, including without limitation, the right to vote
the Shares and to receive any cash dividends declared thereon. If,
from time to time during the term of the Repurchase Option, there
is (i) any stock dividend, stock split or other change in the
Shares, or (ii) any merger or sale of all or substantially all of
the assets or other acquisition of the Company, any and all new,
substituted or additional securities to which the Purchaser is
entitled by reason of the Purchaser's ownership of the Shares
shall be immediately subject to this escrow, deposited with the
Escrow Holder and included thereafter as "Shares" for purposes of
this Agreement and the Repurchase Option.
25
7. Legends. The share certificate evidencing the Shares, if any, issued
hereunder shall be endorsed with the following legend (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON
FILE WITH THE SECRETARY OF THE COMPANY.
8. Adjustment for Stock Split. All references to the number of Shares and
the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in
the Shares that may be made by the Company after the date of this
Agreement.
9. Tax Consequences. The Purchaser has reviewed with the Purchaser's own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. The
Purchaser is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Purchaser
understands that the Purchaser (and not the Company) shall be responsible
for the Purchaser's own tax liability that may arise as a result of the
transactions contemplated by this Agreement. The Purchaser understands
that Section 83 of the Internal Revenue Code of 1986, as amended (the
"Code"), taxes as ordinary income the difference between the purchase
price for the Shares and the Fair Market Value of the Shares as of the
date any restrictions on the Shares lapse. In this context, "restriction"
includes the right of the Company to buy back the Shares pursuant to the
Repurchase Option. The Purchaser understands that the Purchaser may elect
to be taxed at the time the Shares are purchased rather than when and as
the Repurchase Option expires by filing an election under Section 83(b)
of the Code with the IRS within 30 days from the date of purchase. The
form for making this election is attached as Exhibit A-5 hereto.
THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER'S SOLE RESPONSIBILITY
AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b),
EVEN IF THE PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE
THIS FILING ON THE PURCHASER'S BEHALF.
10. General Provisions.
(a) This Agreement shall be governed by the internal substantive laws,
but not the choice of law rules of Texas. This Agreement, subject
to the terms and conditions of the Plan and the Notice of Grant,
represents the entire agreement between the parties with respect
to the purchase of the Shares by the Purchaser. Subject to Section
15(c) of the Plan, in the event of a conflict between the terms
and conditions of the Plan and the terms and conditions of this
Agreement, the terms and conditions of the Plan shall prevail.
Unless otherwise defined herein, the terms defined in the Plan
shall have the same defined meanings in this Agreement.
(b) Any notice, demand or request required or permitted to be given by
either the Company or the Purchaser pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when
delivered personally or deposited in the U.S. mail, First Class
with postage prepaid, and addressed to the parties at the
addresses of the parties set forth at the end of this Agreement or
such other address as a party may request by notifying the other
in writing.
Any notice to the Escrow Holder shall be sent to the Company's
address with a copy to the other party hereto.
26
(c) The rights of the Company under this Agreement shall be
transferable to any one or more persons or entities, and all
covenants and agreements hereunder shall inure to the benefit of,
and be enforceable by the Company's successors and assigns. The
rights and obligations of the Purchaser under this Agreement may
only be assigned with the prior written consent of the Company.
(d) Either party's failure to enforce any provision of this Agreement
shall not in any way be construed as a waiver of any such
provision, nor prevent that party from thereafter enforcing any
other provision of this Agreement. The rights granted both parties
hereunder are cumulative and shall not constitute a waiver of
either party's right to assert any other legal remedy available to
it.
(e) The Purchaser agrees upon request to execute any further documents
or instruments necessary or desirable to carry out the purposes or
intent of this Agreement.
(f) PURCHASER ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES
PURSUANT TO SECTION 4 HEREOF IS EARNED ONLY BY CONTINUING SERVICE
AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH
THE ACT OF BEING HIRED OR PURCHASING SHARES HEREUNDER). PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET
FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD,
FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH
PURCHASER'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE PURCHASER'S
RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.
By Purchaser's signature below, Purchaser represents that he or
she is familiar with the terms and provisions of the Plan, and
hereby accepts this Agreement subject to all of the terms and
provisions thereof. Purchaser has reviewed the Plan and this
Agreement in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Agreement and fully
understands all provisions of this Agreement. Purchaser agrees to
accept as binding, conclusive and final all decisions or
interpretations of the Administrator upon any questions arising
under the Plan or this Agreement. Purchaser further agrees to
notify the Company upon any change in the residence indicated in
the Notice of Grant.
DATED:
--------------------
PURCHASER ELITE LOGISTICS, INC.
- -------------------------------- ---------------------------------
Signature By
- --------------------------------
Print Name: ---------------------------------
Title:
- --------------------------------
Address:
- --------------------------------
27
EXHIBIT A-2
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, _________________________________________, hereby sell,
assign and transfer unto _________________________________________ (__________)
shares of the Common Stock of Elite Logistics, Inc. standing in my name of the
books of said corporation represented by Certificate No. _____ herewith and do
hereby irrevocably constitute and appoint _____________________ to transfer the
said stock on the books of the within named corporation with full power of
substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted Stock
Purchase Agreement (the "Agreement") between ________________________ and the
undersigned dated ______________, _____.
Dated:
-----------------, ----
Signature:
-------------------
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE THE COMPANY TO EXERCISE THE
REPURCHASE OPTION, AS SET FORTH IN THE AGREEMENT, WITHOUT REQUIRING ADDITIONAL
SIGNATURES ON THE PART OF THE PURCHASER.
28
EXHIBIT A-3
JOINT ESCROW INSTRUCTIONS
Dated:
-----------------, ----
Corporate Secretary
Elite Logistics, Inc.
Petro Chem Bldg.
1201 N. Avenue H
Freeport, TX 77541
Dear ________________________:
As Escrow Agent for both Elite Logistics, Inc., an Idaho corporation (the
"Company"), and the undersigned purchaser of stock of the Company (the
"Purchaser"), you are hereby authorized and directed to hold the documents
delivered to you pursuant to the terms of that certain Restricted Stock Purchase
Agreement ("Agreement") between the Company and the undersigned, in accordance
with the following instructions:
1. In the event the Company and/or any assignee of the Company (referred to
collectively as the "Company") exercises the Company's Repurchase Option
set forth in the Agreement, the Company shall give to Purchaser and you a
written notice specifying the number of shares of stock to be purchased,
the purchase price, and the time for a closing hereunder at the principal
office of the Company. Purchaser and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such
notice in accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of
shares being transferred, and (c) to deliver same, together with the
certificate evidencing the shares of stock to be transferred, to the
Company or its assignee, against the simultaneous delivery to you of the
purchase price (by cash, a check, or some combination thereof) for the
number of shares of stock being purchased pursuant to the exercise of the
Company's Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and
any additions and substitutions to said shares as defined in the
Agreement. Purchaser does hereby irrevocably constitute and appoint you
as Purchaser's attorney-in-fact and agent for the term of this escrow to
execute with respect to such securities all documents necessary or
appropriate to make such securities negotiable and to complete any
transaction herein contemplated, including but not limited to the filing
with any applicable state blue sky authority of any required applications
for consent to, or notice of transfer of, the securities.
Subject to the provisions of this paragraph 3, Purchaser shall exercise
all rights and privileges of a shareholder of the Company while you hold
the stock.
4. Upon written request of the Purchaser, but no more than once per calendar
year, unless the Company's Repurchase Option has been exercised, you
shall deliver to Purchaser a certificate or certificates representing so
many shares of stock as are not then subject to the Company's Repurchase
Option.
Within 90 days after Purchaser ceases to be a Service Provider, you shall
deliver to Purchaser a certificate or certificates representing the
aggregate number of shares held or issued pursuant to the Agreement and
not purchased by the Company or its assignees pursuant to exercise of the
Company's Repurchase Option.
29
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to
Purchaser, you shall deliver all of the same to Purchaser and shall be
discharged of all further obligations hereunder.
6. Your duties hereunder may only be altered, amended, modified or revoked
by an agreement in writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in
relying or refraining from acting on any instrument reasonably believed
by you to be genuine and to have been signed or presented by the proper
party or parties. You shall not be personally liable for any act you may
do or omit to do hereunder as Escrow Agent or as attorney-in-fact for
Purchaser while acting in good faith, and any act done or omitted by you
pursuant to the advice of your own attorneys shall be conclusive evidence
of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law, and are hereby
expressly authorized to comply with and obey orders, judgments or decrees
of any court. In case you obey or comply with any such order, judgment or
decree, you shall not be liable to any of the parties hereto or to any
other person, firm or corporation by reason of such compliance,
notwithstanding any such order, judgment or decree being subsequently
reversed, modified, annulled, set aside, vacated or found to have been
entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
10. You shall not be liable for the outlawing of any rights under the statute
of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel and other experts as
you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may
pay such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be an officer or agent of the Company or if you shall
resign by written notice to each party. In the event of any such
termination, the Company shall appoint a successor Escrow Agent.
13. If you reasonably require other or further instruments in connection with
these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with respect to
the delivery and/or ownership or right of possession of the securities
held by you hereunder, you are authorized and directed to retain in your
possession without liability to anyone all or any part of said securities
until such disputes shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or
judgment of a court of competent jurisdiction after the time for appeal
has expired and no appeal has been perfected, but you shall be under no
duty whatsoever to institute or defend any such proceedings.
15. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery or upon deposit
in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties
thereunto entitled at the following addresses or at such other addresses
as a party may designate by ten days' advance written notice to each of
the other parties hereto.
30
COMPANY:
Elite Logistics, Inc.
Petro Chem Bldg.
1201 N. Avenue H
Freeport, TX 77541
PURCHASER:
------------------------------
------------------------------
------------------------------
ESCROW AGENT:
Corporate Secretary
Elite Logistics, Inc.
Petro Chem Bldg.
1201 N. Avenue H
Freeport, TX 77541
16. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become
a party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
18. These Joint Escrow Instructions shall be governed by, and construed and
enforced in accordance with, the internal substantive laws, but not the
choice of law rules, of Texas.
Very truly yours,
ELITE LOGISTICS, INC.
- ----------------------------------------
By
- ----------------------------------------
Title
PURCHASER:
- ----------------------------------------
Signature
- ----------------------------------------
Print Name
ESCROW AGENT:
- ----------------------------------------
Corporate Secretary
31
EXHIBIT A-4
CONSENT OF SPOUSE
I, ____________________, spouse of ___________________, have read and approve
the foregoing Restricted Stock Purchase Agreement (the "Agreement"). In
consideration of the Company's grant to my spouse of the right to purchase
shares of Elite Logistics, Inc., as set forth in the Agreement, I hereby appoint
my spouse as my attorney-in-fact in respect to the exercise of any rights under
the Agreement and agree to be bound by the provisions of the Agreement insofar
as I may have any rights in said Agreement or any shares issued pursuant thereto
under the community property laws or similar laws relating to marital property
in effect in the state of our residence as of the date of the signing of the
foregoing Agreement.
Dated:
-----------------, ----
- -----------------------------------------
Signature of Spouse
32
EXHIBIT A-5
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income
for the current taxable year the amount of any compensation taxable to taxpayer
in connection with his or her receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER: SPOUSE:
--------------------------- --------------------
ADDRESS: :
--------------------------, -------------------------
TAX ID NO.: TAXPAYER: SPOUSE:
----------------------- -----------------------
TAXABLE YEAR:
------------------------
2. The property with respect to which the election is made is described as
follows: ________ shares (the "Shares") of the Common Stock of Elite
Logistics, Inc. (the "Company").
3. The property was transferred on (date): ________, ______.
4. The property is subject to the following restrictions:
(a) The Shares may be repurchased by the Company, or its assignee,
upon certain events. This right lapses with regard to a portion of
the Shares based on the continued performance of services by the
taxpayer over time.
(b)
-----------------------------------------------------------------
-----------------------------------------------------------------
5. The fair market value at the time of transfer, determined without regard
to any restriction other than a restriction which by its terms will never
lapse, of such property is: $_______________.
6. The amount (if any) paid for such property is: $_______________.
The undersigned has submitted a copy of this statement to the person for
whom the services were performed in connection with the undersigned's
receipt of the above-described property. The transferee of such property
is the person performing the services in connection with the transfer of
said property.
The undersigned understands that the foregoing election may not be revoked
except with the consent of the Commissioner.
Dated:
------------------------, -------
Taxpayer
--------------------------------------------
The undersigned spouse of taxpayer joins in this election
Dated:
------------------------, -------
Spouse of Taxpayer
--------------------------------------------