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EXHIBIT 10.1
EQUITY MARKETING, INC.
STOCK OPTION PLAN
1. PURPOSE. The purpose of the Equity Marketing, Inc. Stock
Option Plan (the "Plan") is to enable Equity Marketing, Inc. (the "Company") and
its stockholders to secure the benefits of common stock ownership by key
personnel of the Company and its subsidiaries. The Board of Directors of the
Company (the "Board") believes that the granting of options under the Plan will
foster the Company's ability to attract, retain and motivate those individuals
who will be largely responsible for the profitability and long-term future
growth of the Company.
2. STOCK SUBJECT TO THE PLAN. The Company may issue and sell a
total of 2,240,000 shares of its common stock (the "Common Stock"), pursuant to
the Plan. Such shares may be either authorized and unissued or held by the
Company in its treasury. New options may be granted under the Plan with respect
to shares of Common Stock which are covered by the unexercised portion of an
option which has terminated or expired by its terms, by cancellation or
otherwise.
3. ADMINISTRATION. The Plan will be administered by the Board, or
at the discretion of the Board, a committee (the "Committee") consisting of at
least two directors appointed by and serving at the pleasure of the Board. If
the Plan is administered by the Board, references in the Plan to the "Committee"
shall mean the "Board". Subject to the provisions of the Plan, the Committee,
acting in its sole and absolute discretion, will have full power and authority
to grant options under the Plan, to interpret the provisions of the Plan, to fix
and interpret the provisions of option agreements made under the Plan, to
supervise the administration of the Plan, and to take such other action as may
be necessary or desirable in order to carry out the provisions of the Plan. A
majority of the members of the Committee will constitute a quorum. The Committee
may act by the vote of a majority of its members present at a meeting at which
there is a quorum or by unanimous written consent. The decision of the Committee
as to any disputed question, including questions of construction, interpretation
and administration, will be final and conclusive on all persons. The Committee
will keep a record of its proceedings and acts and will keep or cause to be kept
such books and records as may be necessary in connection with the proper
administration of the Plan.
4. ELIGIBILITY. Options may be granted under the Plan to present
or future key employees of the Company or a subsidiary of the Company (a
"Subsidiary") within the meaning of Section 424(f) of the Internal Revenue Code
of 1986 (the "Code"), and to consultants to the Company or a Subsidiary who are
not employees. Options may also be granted to directors of the Company who are
not employees of or consultants to the Company and/or a Subsidiary. (An option
may be granted to an employee, in connection with hiring, retention or
otherwise, prior to the date the employee first performs services for the
Company or a Subsidiary, provided that such options shall not become vested
prior to the date the employee first performs such services.) Subject to the
provisions of the Plan, the Committee may from time to time select the persons
to whom options will be granted,
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and will fix the number of shares covered by each such option and establish the
terms and conditions thereof (including, without limitation, the exercise price,
restrictions on exercisability of the option and/or on the disposition of the
shares of Common Stock issued upon exercise thereof, and whether or not the
option is to be treated as an incentive stock option within the meaning of
Section 422 of the Code (an "Incentive Stock Option")).
5. TERMS AND CONDITIONS OF OPTIONS. Each option granted under the
Plan will be evidenced by a written agreement in a form approved by the
Committee. Each such option will be subject to the terms and conditions set
forth in this paragraph and such additional terms and conditions not
inconsistent with the Plan as the Committee deems appropriate. No person may
receive options to purchase more than 500,000 shares of Common Stock under the
Plan.
(a) OPTION EXERCISE PRICE. In the case of an option which
is not treated as an Incentive Stock Option, the exercise price per share may
not be less than the par value of a share of Common Stock on the date the option
is granted; and, in the case of an Incentive Stock Option, the exercise price
per share may not be less than 100% of the fair market value of a share of
Common Stock on the date the option is granted (110% in the case of an optionee
who, at the time the option is granted, owns stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company or a
Subsidiary (a "ten percent shareholder")). For purposes hereof, the fair market
value of a share of Common Stock on any date will be equal to the closing sale
price per share as published by a national securities exchange on which shares
of the Common Stock are traded on such date or, if there is no sale of Common
Stock on such date, the average of the bid and asked prices on such exchange at
the closing of trading on such date or, if shares of the Common Stock are not
listed on a national securities exchange on such date, the closing price or, if
none, the average of the bid and asked prices in the over the counter market at
the close of trading on such date, or if the Common Stock is not traded on a
national securities exchange or the over the counter market, the fair market
value of a share of the Common Stock on such date as determined in good faith by
the Committee.
(b) OPTION PERIOD. The period during which an option may
be exercised will be fixed by the Committee and will not exceed ten years from
the date the option is granted (five years in the case of an Incentive Stock
Option granted to a "ten percent shareholder").
(c) EXERCISE OF OPTIONS. No option will become exercisable
unless the person to whom the option is granted remains in the continuous employ
or service of the Company or a Subsidiary for at least one year (or for such
other period as the Committee may designate) from the date the option is
granted. The Committee will determine and will set forth in the option agreement
any vesting or other restrictions on the exercisability of the option, subject
to any earlier termination of the option required hereunder. All or part of the
exercisable portion of an option may be exercised at any time during the option
period. An option may be exercised by transmitting to the Company (1) a written
notice specifying the number of shares to be purchased, and (2) payment of the
exercise price, together with the amount, if any, deemed necessary by the
Committee to
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enable the Company to satisfy its income tax withholding obligations with
respect to such exercise (unless other arrangements acceptable to the Company
are made with respect to the satisfaction of such withholding obligations).
(d) PAYMENT OF EXERCISE PRICE. Options are exercised by
payment of the full amount of the purchase price to the Company. The payment
shall be in the form of cash or such other forms of consideration as the
Committee shall deem acceptable or such other methods of payment as the
Committee shall deem acceptable.
(e) RIGHTS AS A STOCKHOLDER. No shares of Common Stock
will be issued in respect of the exercise of an option granted under the Plan
until full payment therefor has been made. The holder of an option will have no
rights as a stockholder with respect to any shares covered by an option until
the date a stock certificate for such shares is issued to him or her. Except as
otherwise provided herein, no adjustments shall be made for dividends or
distributions of other rights for which the record date is prior to the date
such stock certificate is issued.
(f) NONTRANSFERABILITY OF OPTIONS. Unless otherwise
determined by the Committee, no option shall be assignable or transferable
except upon the optionee's death to a beneficiary designated by the optionee in
accordance with procedures established by the Committee or, if no designated
beneficiary shall survive the optionee, pursuant to the optionee's will or by
the laws of descent and distribution. Unless otherwise determined by the
Committee, during an optionee's lifetime, options may be exercised only by the
optionee or, in the event of the optionee's disability (as defined below), the
optionee's guardian or legal representative.
(g) TERMINATION OF EMPLOYMENT OR OTHER SERVICE. Unless
otherwise determined by the Committee, if an optionee ceases to be employed by
or to perform services for the Company or any Subsidiary for any reason other
than death or disability (as defined below), then each outstanding option
granted to him or her under the Plan will terminate six months after the date of
such termination of employment or service. If an optionee's employment or
service is terminated by reason of the optionee's death or disability, then each
outstanding option granted to the optionee under the Plan will terminate on the
date one year after the date of such termination of employment or service. For
purposes hereof, the term "disability" means a determination to that effect
under the group long-term disability plan of the Company; provided, however,
that in no event will an optionee be considered to be disabled for purposes of
this Plan if, at the sole discretion of the Committee, the optionee's disability
is a result of intentionally self-inflicted injuries (while sane or insane),
alcohol or drug abuse, or a criminal act for which the optionee is convicted or
to which the optionee pleads guilty or nolo contendere.
(h) OTHER PROVISIONS. The Committee may impose such other
conditions with respect to the exercise of options, including, without
limitation, any conditions relating to the application of federal or state
securities laws, as it may deem necessary or advisable.
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6. CAPITAL CHANGES, REORGANIZATION, SALE.
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the
event of a stock split, stock dividend, recapitalization, merger, consolidation,
split-up, combination, exchange of shares, or similar change affecting Common
Stock, the Committee shall authorize such adjustments as it may deem appropriate
with respect to the following: (1) the number and/or kind of shares covered by
each outstanding option; (2) the aggregate number and/or kind of shares for
which options may be granted under this Plan; and (3) the exercise price per
share in respect of each outstanding option. The Committee may also make such
adjustments in the event of a spinoff (or other distribution) of Company assets
to stockholders, other than normal cash dividends. Except as set forth above in
this section 6(a), no issuance by the Company of shares of stock of any class,
or securities convertible into, or options or warrants to purchase shares of any
class of stock, 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 any
option.
(b) CASH, STOCK OR OTHER PROPERTY FOR STOCK. In the event
of an Exchange Transaction (as defined below), all optionees will be permitted
to exercise their outstanding options in whole or in part (whether or not
otherwise exercisable) immediately prior to such Exchange Transaction, and any
outstanding options which are not exercised before the Exchange Transaction will
thereupon terminate.
(c) DEFINITION OF EXCHANGE TRANSACTION. For purposes
hereof, the term "Exchange Transaction" means a sale of substantially all of the
assets of the Company, a liquidation or dissolution of the Company, or a merger,
consolidation or similar transaction in which the Company is not the Surviving
Corporation. The determination as to which party to a merger or consolidation is
the "Surviving Corporation" shall be made on the basis of the relative equity
interests of the shareholders in the corporation existing after the transaction,
as follows: if immediately following any merger or consolidation the holders of
outstanding voting securities of the Company immediately prior to the merger or
consolidation own equity securities possessing more than 50% of the voting power
of the corporation existing following the merger or consolidation, then for
purposes of this Plan, the Company shall be the Surviving Corporation. In all
other cases, the Company shall not be the Surviving Corporation. In making the
determination of ownership by the shareholders of a corporation immediately
after the merger or consolidation, equity securities which the shareholders
owned immediately before the merger or consolidation as shareholders of another
party to the transaction shall be disregarded. Further, for purposes of this
section 6(c) only, outstanding voting securities of a corporation shall be
calculated by assuming the conversion of all equity securities convertible
(immediately or at some future time) into shares entitled to vote.
(d) FRACTIONAL SHARES. In the event of any adjustment in
the number of shares covered by any option pursuant to the provisions hereof,
any fractional shares resulting from such adjustment will be disregarded, and
each such option will cover only the number of full shares resulting from the
adjustment.
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7. AMENDMENT AND TERMINATION OF THE PLAN. The Board may amend or
terminate the Plan. Except as otherwise provided in the Plan with respect to
equity changes, any amendment which would increase the aggregate number of
shares of Common Stock as to which options may be granted under the Plan,
materially increase the benefits under the Plan, or modify the class of persons
eligible to receive options under the Plan shall be subject to the approval of
the Company's stockholders. No amendment or termination may affect adversely any
outstanding option without the written consent of the optionee.
8. NO RIGHTS CONFERRED. Neither the adoption of this Plan nor the
granting of any option shall affect or restrict in any way the power of the
Company to undertake any corporate action otherwise permitted under applicable
law or confer upon any optionee the right to continue performing services for
the Company or a Subsidiary, nor shall it interfere in any way with the right of
the Company or a Subsidiary to terminate the services of any optionee at any
time, with or without cause. No optionee shall have any rights as a stockholder
with respect to any shares covered by an option until the date a certificate for
such shares has been issued to the optionee following the exercise of an option.
9. GOVERNING LAW. The Plan and each option agreement granted
thereunder shall be governed by the laws of the State of Delaware, without
regard to the conflict of law provisions of any state.
10. DECISIONS AND DETERMINATIONS OF COMMITTEE TO BE FINAL. Except
to the extent rights or powers under this Plan are reserved specifically to the
discretion of the Board, all decisions and determinations of the Committee are
final and binding.
11. TERM OF THE PLAN. The Plan shall be effective as of January
1, 1992, the date on which it was adopted by the Board and approved by the
stockholders of the Company. The Plan will terminate on December 31, 2001, the
date ten years after the date of adoption, unless sooner terminated by the
Board. The rights of optionees under options outstanding at the time of the
termination of the Plan shall not be affected solely by reason of the
termination and shall continue in accordance with the terms of the option (as
then in effect or thereafter amended).
12. INDEMNIFICATION. To the maximum extent permitted by law, the
Company shall indemnify each member of the Committee and of the Board, as well
as any other employee of the Company with duties under this Plan, against
expenses (including any amount paid in settlement) reasonably incurred by the
individual in connection with any claims against the individual by reason of the
performance of the individual's duties under this Plan, unless the losses are
due to the individual's gross negligence or lack of good faith. The Company will
have the right to select counsel and to control the prosecution or defense of
the suit. The Company will not be required to indemnify any person for any
amount incurred through any settlement unless the Company consents in writing to
the settlement.
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