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EXHIBIT 10.1
HISPANIC EXPRESS, INC. 2000 STOCK OPTION PLAN
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2000 STOCK OPTION PLAN
OF
HISPANIC EXPRESS, INC.
1. Purpose. The purpose of this Stock Option Plan is to advance the
interests of the Corporation by encouraging and enabling the acquisition
of a larger personal proprietary interest in the Corporation by key
employees and directors of and consultants to, the Corporation, its
Parent and its Subsidiaries upon whose judgment and keen interest the
Corporation is largely dependent for the successful conduct of its
operations and by providing such key employees, directors and
consultants with incentives to put forth maximum efforts for the success
of the Corporation's business. It is anticipated that the acquisition of
such proprietary interest in the Corporation and such incentives will
stimulate the efforts of such key employees, directors and consultants
on behalf of the Corporation, its Parent and its Subsidiaries and
strengthen their desire to remain with the Corporation and its
Subsidiaries. It is also expected that such incentives and the
opportunity to acquire such proprietary interest will enable the
Corporation, its Parent and its Subsidiaries to attract desirable
personnel.
2. Definitions. When used in this Plan, unless the context otherwise
requires:
(a) "Board of Directors" or "Board" shall mean the Board of Directors
of the Corporation, as constituted at any time.
(b) "Chairman of the Board" shall mean the person who at the time
shall be Chairman of the Board of Directors.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Committee" shall mean the Committee hereinafter described in
Section 3.
(e) "Consummation Date" shall mean the date of the consummation of
the distribution of the Corporation's stock in the liquidation
and dissolution of Central Financial Acceptance Corporation, a
Delaware corporation.
(f) "Corporation" shall mean Hispanic Express, Inc., a Delaware
corporation.
(g) "Eligible Persons" shall mean those persons described in Section
4 who are potential recipients of Options.
(h) "Fair Market Value" on a specified date shall mean (i) the
average of the high and low sales prices at which a Share is
traded on the stock exchange, if any, on which Shares are
primarily traded on such specified date or, (ii) if the Shares
are not then traded on a stock exchange, the average of the high
and low sales prices of a Share as reported on Nasdaq Stock
Market's National Market on such specified date or, (iii) if the
Shares are not then traded on an exchange or the Nasdaq Stock
Market's National Market, the average of the high and low sales
prices at which a
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Share is traded on the over-the-counter market on such specified
date, but in the case of each of subparagraphs (i), (ii) and
(iii) if no Shares were traded on such date, then on the last
previous date on which a Share was so traded, or, if none of the
above are applicable, the value of a Share as established by the
Committee for such date using any reasonable method of valuation.
(i) "Listing Date" shall mean the first date upon which any security
of the Corporation listed (or approved for listing) upon notice
of issuance of any securities exchange or designated (or approved
for designation) upon notice of issuance as a national market
security on an interdealer quotation system if such securities
exchange or interdealer quotation system has been certified in
accordance with the provisions of Section 25100(o) of the
California Corporate Securities Law of 1968.
(j) "Options" shall mean the Stock Options granted pursuant to this
Plan.
(k) "Parent" shall mean a corporation (other than the Corporation)
owning 50% or more of stock having general voting power of the
Corporation.
(l) "Plan" shall mean this 2000 Stock Option Plan of Hispanic
Express, Inc., as adopted by the Board of Directors as of
September 6, 2000, and approved by stockholders as of September
29, 2000, as such Plan from time to time may be amended.
(m) "President" shall mean the person who at the time shall be the
President of the Corporation.
(n) "Share" shall mean a share of common stock of the Corporation
(o) "Subsidiary" shall mean any corporation 50% or more of whose
stock having general voting power is owned by the Corporation, or
by another Subsidiary, or by the Parent, as herein defined, of
the Corporation.
(p) "Ten Percent Stockholder" shall mean the meaning ascribed in
Section 9.
3. Committee. The Plan shall be administered by the Board of Directors or a
Committee appointed by the Board of Directors; provided, however, that
the Plan or a portion thereof shall be administered by a Committee which
shall consist of two or more directors of the Corporation, each of whom
shall be a "nonemployee director" within the meaning of Rule 16b-3(c)(2)
under the Securities Exchange Act of 1932, as amended from time to time
(the "Exchange Act"), and an "outside director" within the meaning of
Section 162(m) of the Code and the regulations promulgated thereunder.
During such time as the Plan or any portion thereof is administered by
the Board of Directors, all references herein to the Committee shall be
deemed to refer to the Board of Directors.
4. Participants. All key employees and directors of, and consultants to,
the Corporation, the Parent or a Subsidiary, as determined by the
Committee, shall be eligible to receive Options under the Plan. The
parties to whom Options are granted under this Plan, and the
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number of Shares subject to each such Option, shall be determined by the
Committee in its sole discretion, subject, however, to the terms and
conditions of this Plan. Except for key employees, parties to whom
Options are granted shall receive financial statements of the
Corporation at least annually.
5. Shares. Subject to the provisions of Section 15 hereof, the Committee
may grant Options with respect to an aggregate of up to 1,100,000
Shares, all of which Shares may be either Shares held in treasury or
authorized but unissued Shares. The maximum number of Shares which may
be the subject of Options granted to any individual in any calendar year
during the duration of the Plan shall not exceed 550,000 Shares. If the
Shares that would be issued or transferred pursuant to any Option are
not issued or transferred and cease to be issuable or transferable for
any reason, the number of Shares subject to such Option will no longer
be charged against the limitation provided for herein and may again be
made subject to Options; provided, that the counting of Shares subject
to Options granted under the Plan against the number of Shares available
for further Options shall in all cases conform to the requirements of
Rule 16b-3 under the Exchange Act; and provided, further, that with
respect to any Option granted to any Eligible Person who is a "covered
employee" as defined in Section 162(m) of the Code and the regulations
promulgated thereunder that is canceled or repriced, the number of
Shares subject to such Option shall continue to count against the
maximum number of Shares which may be the subject of Options granted to
such Eligible Person and such maximum number of Shares shall be
determined in accordance with Section 162(m) of the Code and the
regulations promulgated.
6. Grant of Options. The number of any Options to be granted to any
Eligible Person shall be determined by the Committee in its sole
discretion. At the time an Option is granted, the Committee may, in its
sole discretion, designate whether such Option (a) is to be considered
as an incentive stock option within the meaning of Section 422 of the
Code, or (b) is not to be treated as an incentive stock option for
purposes of this Plan and the Code. No Option which is intended to
qualify as an incentive stock option shall be granted under this Plan to
any individual who, at the time of such grant, is not an employee of the
Corporation, the Parent, or a Subsidiary.
Notwithstanding any other provision of this Plan to the contrary, to the
extent that the aggregate Fair Market Value (determined as of the date
an Option is granted) of the Shares with respect to which Options which
are designated as (or deemed to be) incentive stock options granted to
an employee (and any incentive stock options granted to such employee
under any other incentive stock option plan maintained by the
Corporation, the Parent or any Subsidiary that meets the requirements of
Section 422 of the Code) first become exercisable in any calendar year
exceeds $100,000, such Options shall be treated as Options which are not
incentive stock options. Options with respect to which no designation is
made by the Committee shall be deemed to be incentive stock options to
the extent that the $100,000 limitation described in the preceding
sentence is met. This paragraph shall be applied by taking Options into
account in the order in which they are granted. An employee may
designate in writing to the Committee whether the employee is exercising
an incentive stock option or a nonqualified stock option and, in the
absence
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of such written designation, the employee shall be deemed to exercise
the incentive stock options first to the extent thereof.
Nothing herein contained shall be construed to prohibit the issuance of
Options at different times to the same person.
The form of an Option shall be determined from time to time by the
Committee.
7. Purchase Price. The purchase price per Share for the Shares purchased
pursuant to the exercise of an Option shall be fixed by the Committee at
the time of grant of the Option; provided, however, that the purchase
price per Share for the Shares to be purchased pursuant to the exercise
of an incentive stock option shall not in any event be less than 100% of
the Fair Market Value of a Share on the date of grant of the Option. For
purposes of Treasury Regulations Section 1.162-27(e)(vi), the amount of
compensation an optionee can receive as a result of a grant of an option
is based solely on an increase in the value of Shares after the date of
the option grant. Notwithstanding the foregoing, an Option may be
granted with an exercise price lower than that set forth in the
preceding sentence if such Option is granted pursuant to an assumption
or substitution for another option in a manner satisfying the provisions
of Section 424(a) of the Code.
8. Duration of Options. The duration of each Option shall be determined by
the Committee at the time of grant; provided, however, that the duration
of any Option shall not be more than ten (10) years from the date upon
which the Option is granted.
9. Ten Percent Stockholders. Notwithstanding any other provision of this
Plan to the contrary, no incentive stock option may be granted under
this Plan to an Eligible Person who, at the time the Option is granted,
owns stock possessing more than 10 percent of the total combined voting
power or value of all classes of stock of the Corporation or a Parent or
Subsidiary (a "Ten Percent Stockholder"), unless the exercise price
under such Option is at least 110% of the Fair Market Value of a Share
on the date such Option is granted and, if the Option is intended to
qualify as an incentive option, the duration of such Option is no more
than five years. Prior to the Listing Date, no Ten Percent Stockholder
shall be eligible for the grant of a nonqualified stock option unless
the exercise price of such option is at least one hundred ten percent
(110%) of the Fair Market Value of a Share at the date of grant.
10. Exercise of Options. Except as otherwise provided herein, Options, after
the grant thereof, shall be exercisable by the holder at such rate,
times and subject to such conditions as may be fixed by the Committee at
the time of grant, provided, however, that Options granted prior to the
Listing Date shall provide that the rate of exercise shall be at least
twenty percent (20%) per year over five (5) years from the date the
Options are granted, subject to reasonable conditions such as continued
employment. Notwithstanding the foregoing, all or any part of any
remaining unexercised Options granted to any person may be exercised in
the following circumstances (but in no event during the six-month period
commencing on the date granted): (a) subject to the provisions of
Section 13 hereof, immediately upon (but prior to the expiration of the
term of the Option) the holder's retirement from the Corporation, the
Parent and all
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Subsidiaries on or after his 65th birthday, (b) subject to the
provisions of Section 13 hereof, upon the disability (to the extent and
in a manner as shall be determined by the Committee in its sole
discretion) or death of the holder, (c) upon a Change of Control (as
hereinafter defined) while the holder is in the employ or service of the
Corporation, the Parent or Subsidiary or (d) upon the occurrence of such
special circumstance or event as in the opinion of the Committee merits
special consideration; provided, however, that the estate of the
deceased holder of an Option may exercise it prior to the expiration of
the six-month period described above.
For purposes of the Plan, a "Change of Control" shall be deemed to occur
if (x) both (i) any "person" or group of "persons" (as the term "person"
is used in Sections 13(d) and 14(d) of the Exchange Act) ("Persons"),
acquires (or has acquired during the twelve-month period ending on the
date of the most recent acquisition by such Person) direct or indirect
beneficial ownership of securities of the Corporation representing 40%
or more of the combined voting power of the then outstanding securities
of the Corporation and (ii) on the date of the most recent acquisition
by any Person referred to in the preceding clause (i), the direct and
indirect beneficial ownership by West Coast Private Equity Partners,
L.P. of the securities of the Corporation represents in the aggregate
less than 40% of the combined voting power of the then outstanding
securities of the Corporation or (y) a Person acquires (or has acquired
during the twelve-month period ending on the date of the most recent
acquisition by such Person) assets from the Corporation that have a
total fair market value equal to or more than one-third of the total
fair market value of all of the assets of the Corporation immediately
prior to such acquisition; provided, however, that in the case of both
subparagraphs (x) and (y) if any transaction or event or series of
transactions or events resulting in a Change in Control is approved by a
majority of the members of the Board of Directors holding office prior
to the transaction or event or series of transactions or events, then
the transaction or event or series of transactions or events shall not
be deemed to be a Change in Control.
Notwithstanding the foregoing, for purposes of subsection (x), a Change
of Control will not be deemed to have occurred if the power to control
(directly or indirectly) the management and policies of the Corporation
is not transferred from a Person to another Person; and, for purposes of
subsection (y), a Change in Control will not be deemed to occur if the
assets of the Corporation are transferred: (i) to a shareholder in
exchange for his stock (ii) to an entity in which the Corporation has
(directly or indirectly) 50% ownership, or (iii) to a Person that has
(directly or indirectly) at least 50% ownership of the Corporation with
respect to its stock outstanding, or to any entity in which such Person
possesses (directly or indirectly) 50% ownership.
An Option shall be exercised by the delivery of a written notice duly
signed by the holder thereof to such effect ("Exercise Notice"),
together with the Option certificate and the full purchase price of the
Shares purchased pursuant to the exercise of the Option, to the Chairman
of the Board or an officer of the Corporation appointed by the Chairman
of the Board for the purpose of receiving the same. At the discretion of
the Committee, payment of the full purchase price shall be made as
follows: in cash or by check payable to the order of the Corporation; by
delivery to the Corporation of Shares which shall be valued at their
Fair Market Value on the date of exercise of the Option (provided, that
a
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holder may not use any Shares acquired pursuant to this Plan or any
other plan maintained by the Company or a Subsidiary unless the holder
has beneficially owned such Shares for at least six months); by a
combination of the methods of payment previously described; or by such
other method of payment as the Committee in its discretion may permit.
Within a reasonable time after the exercise of an Option, the
Corporation shall cause to be delivered to the person entitled thereto,
a certificate for the Shares purchased pursuant to the exercise of the
Option. If the Option shall have been exercised with respect to less
than all of the Shares subject to the Option, the Corporation shall also
cause to be delivered to the person entitled thereto a new Option
certificate in replacement of the certificate surrendered at the time of
the exercise of the Option, indicating the number of Shares with respect
to which the Option remains available for exercise, or the original
Option certificate shall be endorsed to give effect to the partial
exercise thereof.
Notwithstanding any other provision of the Plan or of any Option, no
Option granted pursuant to the Plan may be exercised at any time when
the Option or the granting or exercise thereof violates any law or
governmental order or regulation.
11. Consideration for Options. The Corporation shall obtain such
consideration for the grant of an Option as the Committee in its
discretion may determine.
12. Non-transferability of Options. Options and all other rights thereunder
shall be non-transferable or non-assignable by the holder thereof except
by will, the laws of descent and distribution, by instrument to an inter
vivos or testamentary trust in which the Options are to be passed to
beneficiaries upon the death of the trustor (settlor), or by gift to
"immediate family" as defined in 17 C.F.R 240.16a-1(e). Options may be
exercised or surrendered during the holder's lifetime only by the holder
thereof.
13. Termination of Employment or Service. All or any part of any Option, to
the extent unexercised, shall terminate immediately, upon the cessation
or termination for any reason of the holder's employment by, or service
with, the Corporation, the Parent or any Subsidiary, except that the
holder shall have until the end of the thirtieth day following the
cessation of his employment or service with the Corporation, the Parent
or its Subsidiaries, and no longer, to exercise any unexercised Option
that he could have exercised on the day on which such employment or
service terminated; provided, that such exercise must be accomplished
prior to expiration of the term of such Option. Notwithstanding the
foregoing, if the cessation of employment or service is due to
retirement on or after attaining the age of sixty-five (65) years, or to
disability within the meaning of Section 22(e)(3) of the Code (as shall
be determined in each case by the Committee in its sole discretion,
which determination shall be conclusive) or to death, the holder, a
permitted transferee or the representative of the estate of a deceased
holder shall have the privilege of exercising the Options which are
unexercised at the time of such retirement, or of such disability or
death; provided, however, that such exercise must be accomplished prior
to the expiration of the term of such Option and (a) within three months
of the holder's retirement or (b) within one year of the holder's
disability or death, as the case may be. If the employment or service of
any holder of an Option with
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the Corporation, the Parent or a Subsidiary shall be terminated because
of the holder's violation of the duties of such employment or service
with the Corporation, the Parent or a Subsidiary as he may from time to
time have, the existence of which violation shall be determined by the
Committee in its sole discretion (which determination by the Committee
shall be conclusive) all unexercised Options of such holder shall
terminate immediately upon such termination of the holder's employment
or service with the Corporation, the Parent and all Subsidiaries, and a
holder of Options whose employment or service with the Corporation, the
Parent and any Subsidiaries is so terminated, shall have no right after
such termination to exercise any unexercised Option he might have
exercised prior to the termination his employment or service with the
Corporation, the Parent and Subsidiaries.
14. Adjustment Provision. If prior to the complete exercise of any Option
there shall be declared and paid a stock dividend upon the Shares or if
the Shares shall be split up, combined, converted, exchanged,
reclassified, or in any way substituted for, then the Option, to the
extent that it has not been exercised, shall entitle the holder thereof
upon the future exercise of the Option to such number and kind of
securities or cash or other property subject to the terms of the Option
to which he would have been entitled had he actually owned the Shares
subject to the unexercised portion of the Option at the time of the
occurrence of such stock dividend, split up, combination, conversion,
exchange, reclassification or substitution and the aggregate purchase
price upon the future exercise of the Option shall be the same as if the
originally optioned Shares were being purchased thereunder.
Any fractional shares or securities issuable upon the exercise of the
Option as a result of such adjustment shall be payable in cash based
upon the Fair Market Value of such shares or securities at the time of
such exercise. If any such event should occur, the number of Shares with
respect to which Options remain to be issued, or with respect to which
Options may be reissued, shall be adjusted in a similar manner.
Notwithstanding any other provision of the Plan, in the event of a
recapitalization, merger, consolidation, rights offering, separation,
reorganization or liquidation, or any other change in the corporate
structure or outstanding shares, the Committee may make such equitable
adjustments to the number of Shares and the class of shares available
hereunder or to any outstanding Options as it shall deem appropriate to
prevent dilution or enlargement of rights.
15. Issuance of Shares and Compliance with Securities Act. The Corporation
may postpone the issuance and delivery of Shares pursuant to the grant
or exercise of any Option until (a) the admission of such Shares to
listing on any stock exchange on which Shares of the Corporation of the
same class are then listed, and (b) the completion of such registration
or other qualification of such Shares under any State or Federal law,
rule or regulation as the Corporation shall determine to be necessary or
advisable. Any holder of an Option shall make such representations and
furnish such information as may, in the opinion of counsel for the
Corporation, be appropriate to permit the Corporation, in the light of
the then existence or non-existence with respect to such Shares of an
effective Registration Statement under the Securities Act of 1933, as
from time to time amended (the
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"Securities Act"), to issue the Shares in compliance with the provisions
of the Securities Act or any comparable act. The Corporation shall have
the right, in its sole discretion, to legend any Shares which may be
issued pursuant to the grant or exercise of any Option, or may issue
stop transfer orders in respect thereof.
16. Income Tax Withholding. If the Corporation, the Parent or a Subsidiary
shall be required to withhold any amounts by reason of any federal,
State or local tax rules or regulations in respect of the issuance of
Shares pursuant to the exercise of any Option, the Corporation, the
Parent or the Subsidiary shall be entitled to deduct and withhold such
amounts from any cash payments to be made to the holder of such Option.
In any event, the holder shall make available to the Corporation, the
Parent or Subsidiary, promptly when requested by the Corporation, the
Parent or such Subsidiary, sufficient funds to meet the requirements of
such withholding; and the Corporation, the Parent or Subsidiary shall be
entitled to take and authorize such steps as it may deem advisable in
order to have such funds made available to the Corporation, the Parent
or Subsidiary out of any funds or property due or to become due to the
holder of such Option.
17. Administration and Amendment of the Plan. Subject to any stockholder
approval required by law, the Board of Directors or the Committee may at
any time withdraw or from time to time amend the Plan as it relates to,
and the terms and conditions of, any Option not theretofore granted, and
the Board of Directors or the Committee, with the consent of the
affected holder of an Option, may at any time withdraw or from time to
time amend the Plan as it relates to, and the terms and conditions of,
any outstanding Option.
Determination of the Committee as to any question which may arise with
respect to the interpretation of the provisions of the Plan and Options
shall be final. The Committee may authorize and establish such rules,
regulations and revisions thereof not inconsistent with the provisions
of the Plan, as it may deem advisable to make the Plan and Options
effective or provide for their administration, and may take such other
action with regard to the Plan and Options as it shall deem desirable to
effectuate their purpose.
The Plan is intended to comply with Rule 16b-3 under the Exchange Act.
Any provision inconsistent with such Rule shall be inoperative and shall
not affect the validity of the Plan.
18. No Right of Employment or Service. Nothing contained herein or in an
Option shall be construed to confer on any employee, consultant or
director any right to be continued in the employ or service of the
Corporation, the Parent or any Subsidiary or derogate from any right of
the Corporation, the Parent and any Subsidiary to retire, request the
resignation of or discharge or otherwise cease its service arrangement
with any employee, consultant or director (without or with pay), at any
time, with or without cause.
19. Final Issuance Date. No Option shall be granted under the Plan, and this
Plan shall terminate, on the earlier of ten years after the date of
adoption of the Plan by the Board or approval of the Plan by the
stockholders of the Corporation.