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EXHIBIT 10.1
MOTOR CARGO INDUSTRIES, INC.
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
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MOTOR CARGO INDUSTRIES, INC.
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
ARTICLE
I. PURPOSES........................................................................................1
II. AMOUNT OF STOCK SUBJECT TO THE PLAN.............................................................1
III. ADMINISTRATION..................................................................................1
IV. ELIGIBILITY.....................................................................................3
V. OPTION PRICE AND PAYMENT........................................................................3
VI. TERMS OF OPTIONS AND LIMITATIONS ON THE RIGHT
OF EXERCISE.....................................................................................4
VII. TERMINATION OF DIRECTORSHIP.....................................................................5
VIII. EXERCISE OF OPTIONS.............................................................................6
IX. USE OF PROCEEDS.................................................................................6
X. NON-TRANSFERABILITY OF OPTIONS..................................................................7
XI. ADJUSTMENT OF SHARES; EFFECT OF CERTAIN
TRANSACTIONS....................................................................................7
XII. RIGHT TO TERMINATE DIRECTORSHIP.................................................................8
XIII. PURCHASE FOR INVESTMENT.........................................................................8
XIV. ISSUANCE OF STOCK CERTIFICATES; LEGENDS;
PAYMENT OF EXPENSES.............................................................................9
XV. LISTING OF SHARES AND RELATED MATTERS..........................................................10
XVI. AMENDMENT OF THE PLAN..........................................................................10
XVII. TERMINATION OR SUSPENSION OF THE PLAN..........................................................10
XVIII. SAVINGS PROVISION..............................................................................10
XIX. GOVERNING LAW..................................................................................11
XX. PARTIAL INVALIDITY.............................................................................11
XXI. EFFECTIVE DATE.................................................................................11
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MOTOR CARGO INDUSTRIES, INC.
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
I. PURPOSES
Motor Cargo Industries, Inc. (the "Company") desires to afford certain
of the non-employee members of the Board of Directors of the Company an
opportunity to acquire a proprietary interest in the Company, and thus to create
in such directors an increased interest in and a greater concern for the welfare
of the Company and its subsidiaries and to increase their identification with
the interests of the stockholders of the Company.
The stock options ("Options") granted under the Plan are not intended
to be options that meet the requirements for incentive stock options within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
II. AMOUNT OF STOCK SUBJECT TO THE PLAN
The total number of Common Shares of the Company which either may be
purchased pursuant to the exercise of Options granted under the Plan shall not
exceed, in the aggregate, One Hundred Thousand (100,000) of the currently
authorized Common Shares, no par value, of the Company (the "Shares"), such
number to be subject to adjustment in accordance with Article XI of the Plan.
Shares that are the subject of Options shall be counted only once in determining
whether the maximum number of Shares that may be purchased or awarded under the
Plan has been exceeded.
Shares which may be acquired under the Plan may be either authorized
but unissued Shares, Shares of issued stock held in the Company's treasury, or
both, at the discretion of the Company. If and to the extent that Options
granted under the Plan expire or terminate without having been exercised, the
Shares covered by such expired or terminated Options may again be subject to an
Option under the Plan.
Subject to Article XXI hereof, the Company may, from time to time
during the period beginning on January 1, 1999 (the "Effective Date") and ending
on December 31, 2008 (the
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"Termination Date"), grant to non-employee directors of the Company Options
under the terms hereinafter set forth.
III. ADMINISTRATION
The board of directors of the Company (the "Board of Directors") shall
designate from among its members a committee (the "Committee") to administer the
Plan. The Committee shall consist of no fewer than two members of the Board of
Directors. A majority of the members of the Committee shall constitute a quorum,
and the act of a majority of the members of the Committee shall be the act of
the Committee. Any member of the Committee may be removed at any time either
with or without cause by resolution adopted by the Board of Directors, and any
vacancy on the Committee at any time may be filled by resolution adopted by the
Board of Directors.
Any or all powers and functions of the Committee may be exercised at
any time and from time to time by the Board of Directors or an executive
committee of the Board of Directors (the "Executive Committee"; references below
to the Committee shall be deemed to include references to the Board of Directors
and the Executive Committee, except as the context otherwise requires).
Subject to the express provisions of the Plan, the Committee shall have
authority in its discretion, to determine the persons to whom Options shall be
granted, the time when such persons shall be granted Options, the number of
Shares which shall be subject to each Option, the purchase price of each Share
which shall be subject to each Option, the period(s) during which such Options
shall be exercisable (whether in whole or part), and the other terms and
provisions thereof (which need not be identical).
Subject to the express provisions of the Plan, the Committee also shall
have authority to construe the Plan and the Options granted thereunder, to amend
the Plan and the Options granted thereunder, to prescribe, amend and rescind
rules and regulations relating to the Plan, to determine the terms and
provisions of the Options (which need not be identical) and to make all other
determinations necessary or advisable for administering the Plan. The Committee
also shall have the authority to require, in its discretion as a condition of
the
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granting of any such Option, that the director agree (a) not to sell or
otherwise dispose of Shares acquired pursuant to the exercise of such Option for
a period of six (6) months following the date of the acquisition of such Option.
In no event will a director who is subject to the reporting requirements of
Section 16(a) of the Exchange Act be entitled to sell or otherwise dispose of
any Shares acquired pursuant to exercise of any such Options for a period of six
(6) months from the date of the acquisition of such Options.
The determination of the Committee on matters referred to in this
Article III shall be conclusive.
The Committee may employ such legal or other counsel, consultants and
agents as it may deem desirable for the administration of the Plan and may rely
upon any opinion or computation received from any such counsel, consultant or
agent. Expenses incurred by the Committee in the engagement of such counsel,
consultant or agent shall be paid by the Company. No member or former member of
the Board of Directors, the Executive Committee or the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any award of Options granted hereunder.
IV. ELIGIBILITY
Options may be granted only to non-employee directors of the Company.
The Plan does not create a right in any person to participate in the Plan, nor
does it create a right in any person to have any Options granted to him or her.
V. OPTION PRICE AND PAYMENT
The price for each Share purchasable under any Option granted hereunder
shall be such amount as the Committee shall, in its best judgment, determine to
be not less than seventy-five percent (75%) of the fair market value per Share
at the date the Option is granted.
If the Shares are listed on a national securities exchange in the
United States on any date on which the fair market value per Share is to be
determined, the fair market value per Share shall be deemed to be the closing
quotation at which such Shares are sold on such national securities exchange on
the
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date such Option is granted. In the event that the Shares are listed on a
national securities exchange in the United States on such date but the Shares
are not traded on such date, or such national securities exchange is not open
for business on such date, the fair market value per Share shall be determined
as of the closest preceding date on which such exchange shall have been open for
business and the Shares were traded. If the Shares are listed on more than one
national securities exchange in the Untied States on the date any such Option is
granted, the Committee shall determine which national securities exchange shall
be used for the purpose of determining the fair market value per Share.
If on the date any Option is granted a public market exists for the
Shares but such Shares are not listed on a national securities exchange in the
United States, the fair market value per Share shall be deemed to be the average
of the closing bid and asked quotations in the over-the-counter market for such
Shares in the United States on the date such Option is granted. In the event
that there are no bid and asked quotations in the over-the-counter market in the
United States for such Shares on the date such Option is granted, the fair
market value per Share shall be deemed to be the average of the closing bid and
asked quotations in the over-the-counter market in the United States for such
shares on the closest date preceding the date such Option is granted for which
such quotations are available.
For purposes of this Plan, the determination by the Committee of the
fair market value of a Share shall be conclusive.
Upon the exercise of an Option granted hereunder, the Company shall
cause the purchased Shares to be issued only when it shall have received the
full purchase price for the Shares in cash; provided, however, that in lieu of
cash, the holder of an Option may, if the terms of such Option so provide and to
the extent permitted by applicable law, exercise an Option in whole or in part,
by delivering to the Company Common Shares of the Company (in proper form for
transfer and accompanied by all requisite stock transfer tax stamps or cash in
lieu thereof) owned by such holder having a fair market value equal to the cash
exercise price applicable to that portion of the Option being exercised by the
delivery of such shares, the fair market value of the Common Shares so delivered
to be determined as of the date
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immediately preceding the date on which the Option is exercised, or as may be
required in order to comply with or to conform to the requirements of any
applicable laws or regulations.
VI. TERMS OF OPTIONS AND LIMITATIONS ON THE RIGHT OF EXERCISE
Any Option granted hereunder shall be exercisable at such times, in
such amounts and during such period or periods as the Committee shall determine
at the date of the grant of such Option. The Committee shall have the right to
accelerate, in whole or in part, from time to time, conditionally or
unconditionally, rights to exercise any Option granted hereunder.
To the extent that an Option is not exercised within the period of
exercisability specified therein, it shall expire as to the then unexercised
part.
In no event shall an Option granted hereunder be exercised for a
fraction of a Share.
A person entitled to receive Shares upon the exercise of an Option
shall not have the rights of a stockholder with respect to such Shares until the
date of issuance of a stock certificate to him for such Shares; provided,
however, that until such stock certificate is issued, any holder of an Option
using previously acquired Shares in payment of an option exercise price shall
continue to have the rights of a stockholder with respect to such previously
acquired Shares.
VII. TERMINATION OF DIRECTORSHIP
Upon termination of the directorship with the Company of any
non-employee director, any Option previously granted to the director, unless
otherwise specified by the Committee in the Option, shall, to the extent not
theretofore exercised, terminate and become null and void; provided, however,
that:
(a) if the director shall die while a director of the Company
or during either the three (3) month or one (1) year period, whichever
is applicable, specified in clause (b) below and at a time when such
director was entitled to exercise an Option as herein provided, the
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legal representative of such director, or such person who acquired such
Option by bequest or inheritance or by reason of the death of the
director, may, not later than one (1) year from the date of death,
exercise such Option, to the extent not theretofore exercised, in
respect of any or all of such number of Shares as specified by the
Committee in such Option; and
(b) if the directorship of any non-employee director to whom
such Option shall have been granted shall terminate for any reason
other than for cause, and while such director is entitled to exercise
such Option as herein provided, such director shall have the right to
exercise such Option so granted in respect of any or all of such number
of Shares as specified by the Committee in such Option, at any time up
to and including (i) three (3) months after the date of such
termination of directorship, and (ii) one (1) year after the date of
termination of directorship in the case of termination by reason of
disability.
In no event, however, shall any person be entitled to exercise any
Option after the expiration of the period of exercisability of such Option, as
specified therein.
If the directorship of a non-employee director is terminated for cause,
any Option granted hereunder shall, unless otherwise specified by the Committee
in the Option, forthwith terminate with respect to any unexercised portion
thereof.
If an Option granted hereunder shall be exercised by the legal
representative of a deceased grantee or by a person who acquired an Option
granted hereunder by bequest or inheritance or by reason of the death of any
director or former director, written notice of such exercise shall be
accompanied by a certified copy of letters testamentary or equivalent proof of
the right of such legal representative or other person to exercise such Option.
For the purposes of the Plan, the term "for cause" shall mean as
determined by the Committee or the Board of Directors, in its sole discretion,
(i) there has been a theft, embezzlement, or other criminal misappropriation of
funds by the director, whether from the Company or any other person; (ii)
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there has been an incident or occurrence of substance abuse by the director that
impaired or that impairs the director's ability to perform his duties and
responsibilities to the Company; (iii) director has been convicted of or has
entered a plea of guilty or nolo contendere to a felony or to any other crime,
which other crime is punishable by incarceration for a period of one (1) year or
longer, or which is a crime involving moral turpitude; or (iv) the director has
in a material way, engaged in conduct injurious to the Company.
VIII. EXERCISE OF OPTIONS
Options granted under the Plan shall be exercised by the optionee as to
all or part of the Shares covered thereby by the giving of written notice of the
exercise thereof to the Corporate Secretary of the Company at the principal
business office of the Company, specifying the number of Shares to be purchased
and accompanied by payment of the purchase price. Subject to the terms of
Articles XIII, XIV and XV hereof, the Company shall cause certificates for the
Shares so purchased to be delivered at the principal business office of the
Company, against payment of the full purchase price, on the date specified in
the notice of exercise.
IX. USE OF PROCEEDS
The cash proceeds of the sale of Shares subject to the Options granted
hereunder are to be added to the general funds of the Company and used for its
general corporate purposes as the Board of Directors shall determine.
X. NON-TRANSFERABILITY OF OPTIONS
An Option granted hereunder shall not be transferable, whether by
operation of law or otherwise, other than by will or the laws of descent and
distribution, and any Option granted hereunder shall be exercisable, during the
lifetime of the holder, only by such holder. Except to the extent provided
above, Options may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process.
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XI. ADJUSTMENT OF SHARES; EFFECT OF CERTAIN TRANSACTIONS
Notwithstanding any other provision contained herein, in the event of
any change in the Shares subject to the Plan or to any Option granted under the
Plan (through merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, split-up, split-off, spin-off, combination of shares,
exchange of shares, or other like change in capital structure of the Company),
the Committee shall make appropriate adjustments to the maximum number of Shares
which may be acquired under the Plan pursuant to the exercise of Options, the
maximum number of shares for which Options may be granted to any one director or
the non-employee directors of the Company as a group, and the number of Shares
and price per Share subject to outstanding Options as shall be equitable to
prevent dilution or enlargement of rights under such Options, and the
determination of the Committee as to these matters shall be conclusive.
In the event of a "change in control" of the Company, all then
outstanding Options shall immediately become exercisable. For purposes of the
Plan, a "change in control" of the Company occurs if (a) more than fifty percent
(50%) of the total combined voting power of all classes of stock of the Company
normally entitled to vote for the election of directors of the Company is
acquired by another person, firm or corporation or by a cooperating group of
such individuals or entities, or (b) the Board of Directors approves a
consolidation or merger of the Company with another corporation, the
consummation of which would result in the occurrence of an event described in
clause (a) above.
The Committee, in its sole discretion, may determine that, upon the
occurrence of a transaction described in the preceding paragraph, each Option
outstanding hereunder shall terminate within a specified number of days after
notice to the holder, and such holder shall receive, with respect to each Share
subject to such Option, an amount equal to the excess of the fair market value
of such Shares immediately prior to the occurrence of such transaction over the
exercise price per Share of such Option; such amount shall be payable in cash,
in one or more of the kinds of property payable in such transaction, or in a
combination thereof, as the Committee in its discretion shall determine. The
provisions contained in the preceding sentence shall be inapplicable to an
Option granted within six (6) months
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before the occurrence of a transaction described above if the holder of such
Option is subject to the reporting requirements of Section 16(a) of the Exchange
Act.
XII. RIGHT TO TERMINATE DIRECTORSHIP
Neither the Plan nor any Option shall confer upon the director any
right with respect to continuing his or her relationship as a director of the
Company, nor shall the Plan or any Option interfere in any way with the
director's right or the Company's right to terminate such relationship, with or
without cause.
XIII. PURCHASE FOR INVESTMENT
Except as hereinafter provided, the Committee may require the holder of
an Option granted hereunder, as a condition of exercise of such Option, to
execute and deliver to the Company a written statement in form satisfactory to
the Committee, in which such holder represents and warrants that such holder is
purchasing or acquiring the Shares acquired thereunder for such holder's own
account, for investment only and not with a view to the resale or distribution
thereof, and agrees that any subsequent resale or distribution of any of such
Shares shall be made only pursuant to either (i) a Registration Statement on an
appropriate form under the Securities Act of 1933, as amended (the "Securities
Act"), which Registration Statement has become effective and is current with
regard to the Shares being sold, or (ii) a specific exemption from the
registration requirements of the Securities Act, but in claiming such exemption
the holder shall, prior to any offer of sale or sale of such Shares, obtain a
prior favorable written opinion of counsel, in form and substance satisfactory
to counsel of the Company, as to the application of such exemption thereto. The
foregoing restriction shall not apply to (x) issuances by the Company so long as
the Shares being issued are registered under the Securities Act and a prospectus
in respect thereof is current or (y) reofferings of Shares by affiliates of the
Company (as defined in Rule 405 or any successor rule or regulation promulgated
under the Securities Act) if the Shares being reoffered are registered under the
Securities Act and a prospectus in respect thereof is current.
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Nothing herein shall be construed as requiring the Company to register
Shares subject to any Option under the Securities Act. In addition, if at any
time the Committee shall determine that the listing or qualification of the
Shares subject to such Option on any securities exchange or under any applicable
law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the granting of
an Option, or the issuance of Shares thereunder, such Option may not be
exercised in whole or in part unless such listing, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Committee.
XIV. ISSUANCE OF STOCK CERTIFICATES; LEGENDS; PAYMENT OF EXPENSES
Upon any exercise of an Option which may be granted hereunder and, in
the case of an Option, payment of the purchase price, a certificate or
certificates for the Shares shall be issued by the Company in the name of the
person exercising the Option and shall be delivered to or upon the order of such
person.
The Company may endorse such legend or legends upon the certificates
for Shares issued pursuant to the Plan and may issue such "stop transfer"
instructions to its transfer agent in respect of such Shares as the Committee,
in its discretion, determines to be necessary or appropriate to (a) prevent a
violation of, or to perfect an exemption from, the registration requirements of
the Securities Act, or (b) implement the provisions of the Plan and any
agreement between the Company and the optionee or grantee with respect to such
Shares.
The Company shall pay all issue or transfer taxes with respect to the
issuance or transfer of Shares, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of a
Registration Statement under the Securities Act, which fees and expenses shall
be borne by the recipient of the Shares unless such Registration Statement has
been filed by the Company for its own corporate purposes (and the Company so
states) in which event the recipient of the Shares shall bear only such fees and
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expenses as are attributable solely to the inclusion of the Shares he or she
receives in the Registration Statement.
All Shares issued as provided herein shall be fully paid and
nonassessable to the extent permitted by law.
XV. LISTING OF SHARES AND RELATED MATTERS
The Board of Directors may delay any issuance or delivery of Shares if
it determines that listing, registration or qualification of Shares covered by
the Plan upon any national securities exchange or under any state or federal
law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the sale or
purchase of Shares under the Plan, until such listing, registration,
qualification, consent or approval shall have been effected or obtained, or
otherwise provided for, free of any conditions not acceptable to the Board of
Directors.
XVI. AMENDMENT OF THE PLAN
The Board of Directors may, from time to time, amend the Plan, provided
that no amendment shall be made, without the approval of the stockholders of the
Company, that will (a) increase the total number of Shares reserved for Options
under the Plan (other than an increase resulting from an adjustment provided for
in Article XI hereof), (b) modify the provisions of the Plan relating to
eligibility, or (c) materially increase the benefits accruing to participants
under the Plan, unless permitted by applicable law. The rights and obligations
under any Option granted before amendment of the Plan or any unexercised portion
of such Option shall not be adversely affected by amendment of the Plan or the
Option without the consent of the holder of such Option.
XVII. TERMINATION OR SUSPENSION OF THE PLAN
The Board of Directors may at any time suspend or terminate the Plan.
The Plan, unless sooner terminated by action of the Board of Directors, shall
terminate at the close of business on the Termination Date. Options may not be
granted while the Plan is suspended or after it is terminated. Rights and
obligations under any Option granted while the Plan is in
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effect shall not be altered or impaired by suspension or termination of the
Plan, except upon the consent of the person to whom the Option was granted. The
power of the Committee to construe and administer any Options granted prior to
the termination or suspension of the Plan under Article III nevertheless shall
continue after such termination or during such suspension.
XVIII. SAVINGS PROVISION
With respect to persons subject to Section 16 of the Exchange Act,
transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
any provision of the Plan or action by the Committee fails to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
XIX. GOVERNING LAW
The Plan and Options as may be granted hereunder and all related
matters shall be governed by, and construed and enforced in accordance with, the
domestic substantive laws of the State of Utah, without giving effect to any
choice or conflict of law provision or rule that would cause the application of
the laws of any other jurisdiction.
XX. PARTIAL INVALIDITY
The invalidity or illegality of any provision herein shall not be
deemed to affect the validity of any other provision.
XXI. EFFECTIVE DATE
The Plan shall become effective at 9:00 a.m., Salt Lake City time, on
the Effective Date; provided, however, that if the Plan is not approved by a
vote of the stockholders of the Company at an annual meeting or any special
meeting or by unanimous written consent within twelve (12) months after the
Effective Date, the Plan and any Options granted thereunder shall terminate.
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