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EXHIBIT 10.1 North American Resorts, Inc.
2000 NONQUALIFYING STOCK OPTION PLAN
ARTICLE I
Purpose of Plan
This 2000 NONQUALIFYING STOCK OPTION PLAN (the "Plan") of
North American Resorts, Inc. (the "Company") for persons employed or
associated with the Company, including without limitation any
employee, director, general partner, officer, attorney, accountant,
consultant or advisor, is intended to advance the best interests of
the Company by providing additional incentive to those persons who
have a substantial responsibility for its management, affairs, and
growth by increasing their proprietary interest in the success of the
Company, thereby encouraging them to maintain their relationships
with the Company. Further, the availability and offering of Stock
Options under the Plan supports and increases the Company's ability
to attract, engage and retain individuals of exceptional talent upon
whom, in large measure, the sustained progress growth and
profitability of the Company for the shareholders depends.
ARTICLE II
Definitions
For Plan purposes, except where the context might clearly
indicate otherwise, the following terms shall have the meanings set
forth below:
"Board" shall mean the majority of the Board of Directors
of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
"Common Shares" shall mean the Company's Common Shares
$0.001 par value per share, or, in the event that the outstanding
Common Shares are hereafter changed into or exchanged for different
shares or securities of the Company, such other shares or securities.
"Company" shall mean North American Resorts, Inc., a
Colorado corporation, and any parent or subsidiary corporation of
North American Resorts, Inc., as such terms are defined in Section
425(e) and 425(f), respectively of the Code.
"Optionee" shall mean any person employed or associated
with the affairs of the Company who has been granted one or more
Stock Options under the Plan.
"Stock Option" or "NQSO" shall mean a stock option granted
pursuant to the terms of the Plan.
"Stock Option Agreement" shall mean the agreement between
the Company and the Optionee under which the Optionee may purchase
Common Shares hereunder.
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ARTICLE III
Administration of the Plan
1. The Board shall administer the plan and accordingly,
it shall have full power to grant Stock Options, construe and
interpret the Plan, establish rules and regulations and perform all
other acts, including the delegation of administrative
responsibilities, it believes reasonable and proper.
2. The determination of those eligible to receive Stock
Options, and the amount, price, type and timing of each Stock Option
and the terms and conditions of the respective stock option
agreements shall rest in the sole discretion of the Board, subject to
the provisions of the Plan.
3. The Board may cancel any Stock Options awarded under
the Plan if an Optionee conducts himself in a manner which the Board
determines to be inimical to the best interest of the Company and its
shareholders as set forth more fully in paragraph 8 of Article X of
the Plan.
4. The Board may correct any defect, supply any omission
or reconcile any inconsistency in the Plan or in any granted Stock
Option, in the manner and to the extent it shall deem necessary to
carry it into effect.
5. Any decision made, or action taken, by the Board
arising out of or in connection with the interpretation and
administration of the Plan shall be final and conclusive.
6. Meetings of the Board shall be held at such times and
places as shall be determined by the Board. A majority of the
members of the Board shall constitute a quorum for the transaction of
business, and the vote of a majority of those members present at any
meeting shall decide any question brought before that meeting. In
addition, the Board may take any action otherwise proper under the
Plan by the affirmative vote, taken without a meeting, of a majority
of its members.
7. No member of the Board shall be liable for any act or
omission of any other member of the Board or for any act or omission
on his/her own part, including, but not limited to, the exercise of
any power or discretion given to him/her under the Plan except those
resulting from his/her own gross negligence or willful misconduct.
8. The Company, through its management, shall supply full
and timely information to the Board on all matters relating to the
eligibility of Optionees, their duties and performance, and current
information on any Optionee's death, retirement, disability or other
termination of association with the Company, and such other pertinent
information as the Board may require. The Company shall furnish the
Board with such clerical and other assistance as is necessary in the
performance of its duties hereunder.
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ARTICLE IV
Shares Subject to the Plan
1. The total number of shares of the Company available
for grants of Stock Options under the Plan shall be 700,000 Common
Shares, subject to adjustment as herein provided, which shares may be
either authorized but unissued or reacquired Common Shares of the
Company.
2. If a Stock Option or portion thereof shall expire or
terminate for any reason without having been exercised in full, the
unpurchased shares covered by such NQSO shall be available for future
grants of Stock Options.
ARTICLE V
Stock Option Terms and Conditions
1. Consistent with the Plan's purpose, Stock Options may
be granted to any person who is performing or who has been engaged to
perform services of special importance to management in the
operation, development and growth of the Company.
2. Determination of the option price per share for any
stock option issued hereunder shall rest in the sole and unfettered
discretion of the Board.
3. All Stock Options granted under the Plan shall be
evidenced by agreements which shall be subject to applicable
provisions of the Plan, and such other provisions as the Board may
adopt, including the provisions set forth in paragraphs 2 through 11
of this Article V.
4. All Stock Options granted hereunder must be granted
within ten years from the date this Plan is adopted.
5. No Stock Option granted hereunder shall be exercisable
after the expiration of ten years from the date such NQSO is granted.
The Board, in its discretion, may provide that an option shall be
exercisable during such ten year period or during any lesser period
of time. The Board may establish installment exercise terms for a
Stock Option such that the NQSO becomes fully exercisable in a series
of cumulating portions. If an Optionee shall not, in any given
installment period, purchase all the Common Shares which such
Optionee is entitled to purchase within such installment period, such
Optionee's right to purchase any Common Shares not purchased in such
installment period shall continue until the expiration or sooner
termination of such NQSO. The Board may also accelerate the exercise
of any NQSO.
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6. A Stock Option, or portion thereof, shall be exercised
by delivery of (i) a written notice of exercise to the Company
specifying the number of Common Shares to be purchased, and (ii)
payment of the full price of such Common Shares, as fully set forth
in paragraph 7 of this Article V. No NQSO or installment thereof
shall be reusable except with respect to whole shares, and fractional
share interests shall be disregarded. Not less than 100 Common
Shares may be purchased at one time unless the number purchased is
the total number at the time available for purchase under the NQSO.
Until the Common Shares represented by an exercised NQSO are issued
to an Optionee, he/she shall have none of the rights of a shareholder
with regards to the NQSO.
7. The exercise price of a Stock Option, or portion
thereof, may be paid:
A. In United States dollars, in cash or by cashier's
check, certified check, bank draft or money order, payable
to the order of the Company in an amount equal to the
option price; or,
B. At the discretion of the Board, through the
delivery of fully paid and nonassessable Common Shares,
with an aggregate fair market value (determined as the
average of the highest and lowest reported sales prices on
the Common Shares as of the date of exercise of the NQSO,
as reported by such responsible reporting service as the
Board may select, or if there were not transactions in the
Common Shares on such day, then the last preceding day on
which transactions took place), as of the date of the NQSO
exercise equal to the option price, provided such tendered
shares, or any derivative security resulting in the
issuance of Common Shares, have been owned by the Optionee
for at least thirty (30) days prior to such exercise; or,
C. By a combination of both A and B above.
The Board shall determine acceptable methods for
tendering Common Shares as payment upon exercise of a Stock Option
and may impose such limitations and prohibitions on the use of Common
Shares to exercise an NQSO as it deems appropriate.
8. With the Optionee's consent, the Board may cancel any
Stock Option issued under this Plan and issue a new NQSO to such
Optionee.
9. Except by will, the laws of descent and distribution,
or with the written consent of the Board, no right or interest in any
Stock Option granted under the Plan shall be assignable or
transferable, and no right or interest of any Optionee shall be
liable for, or subject to, any lien, obligation or liability of the
Optionee. Upon petition to, and thereafter with the written consent
of the Board, an Optionee may assign or transfer all or a portion of
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the Optionee's rights and interest in any stock option granted
hereunder. Stock Options shall be exercisable during the Optionee's
lifetime only by the Optionee or assignees, or the duly appointed
legal representative of an incompetent Optionee, including following
an assignment consented to by the Board herein.
10. No NQSO shall be exercisable while there is
outstanding any other NQSO which was granted to the Optionee before
the grant of such option under the Plan or any other plan which gives
the right to the Optionee to purchase stock in the Company or in a
corporation which is a parent corporation (as defined in Section
425(e) of the Code) of the Company, or any predecessor corporation of
any of such corporations at the time of the grant. An NQSO shall be
treated as outstanding until it is either exercised in full or
expires by reason of lapse of time.
11. Any Optionee who disposes of Common Shares acquired on
the exercise of a NQSO by sale or exchange either (i) within two
years after the date of the grant of the NQSO under which the stock
was acquired, or (ii) within one year after the acquisition of such
Shares, shall notify the Company of such disposition and of the
amount realized upon such disposition unless otherwise agreed to in
writing. The transfer of Common Shares may also be restricted by
applicable provisions of the Securities Act of 1933, as amended.
ARTICLE VI
Adjustments or Changes in Capitalization
1. In the event that the outstanding Common Shares of the
Company are hereafter changed into or exchanged for a different
number of kinds of shares or other securities of the Company by
reason of merger, consolidation, other reorganization,
recapitalization, reclassification, combination of shares, stock
split-up or stock dividend:
A. Prompt, proportionate, equitable, lawful and
adequate adjustment shall be made of the aggregate number
and kind of shares subject to Stock Options which may be
granted under the Plan, such that the Optionee shall have
the right to purchase such Common Shares as may be issued
in exchange for the Common Shares purchasable on exercise
of the NQSO had such merger, consolidation, other
reorganization, recapitalization, reclassification,
combination of shares, stock split-up or stock dividend not
taken place;
B. Rights under unexercised Stock Options or
portions thereof granted prior to any such change, both as
to the number or kind of shares and the exercise price per
share, shall be adjusted appropriately, provided that such
adjustments shall be made without change in the total
exercise price applicable to the unexercised portion of
such NQSO's but by an adjustment in the price for each
share covered by such NQSO's; or,
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C. Upon any dissolution or liquidation of the
Company or any merger or combination in which the Company
is not a surviving corporation, each outstanding Stock
Option granted hereunder shall terminate, but the Optionee
shall have the right, immediately prior to such
dissolution, liquidation, merger or combination, to
exercise his/her NQSO in whole or in part, to the extent
that it is exercisable, without regard to any installment
exercise provisions in such NQSO.
2. The foregoing adjustment and the manner of application
of the foregoing provisions shall be determined solely by the Board,
whose determination as to what adjustments shall be made and the
extent thereof, shall be final, binding and conclusive. No
fractional Shares shall be issued under the Plan on account of any
such adjustments.
ARTICLE VII
Merger, Consolidation or Tender Offer
If the Company shall be a party to a binding agreement to any
merger, consolidation or reorganization or sale of substantially all
the assets of the Company, each outstanding Stock Option shall
pertain and apply to the securities and/or property which a
shareholder of the number of Common Shares of the Company subject to
the NQSO would be entitled to receive pursuant to such merger,
consolidation or reorganization or sale of assets.
ARTICLE VIII
Amendment and Termination of Plan
1. The Board may at any time, and from time to time,
suspend or terminate the Plan in whole or in part or amend it from
time to time in such respects as the Board may deem appropriate and
in the best interest of the Company.
2. No amendment, suspension or termination of this Plan
shall, without the Optionee's consent, alter or impair any of the
rights or obligations under any Stock Option theretofore granted to
him/her under the Plan.
3. The Board may amend the Plan, subject to the
limitations cited above, in such manner as it deems necessary to
permit the granting of Stock Options meeting the requirements of
future amendments or issued regulations, if any, to the Code.
4. No NQSO may be granted during any suspension of the
Plan or after termination of the Plan.
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ARTICLE IX
Government and Other Regulations
The obligation of the Company to issue, transfer and
deliver Common Shares for Stock Options exercised under the Plan
shall be subject to all applicable laws, regulations, rules, orders
and approval which shall then be in effect and required by the
relevant stock exchanges on which the Common Shares are traded and by
government entities as set forth below or as the Board in its sole
discretion shall deem necessary or advisable. Specifically, in
connection with the Securities Act of 1933, as amended, upon exercise
of any Stock Option, the Company shall not be required to issue
Common Shares unless the Board has received evidence satisfactory to
it to the effect that the Optionee will not transfer such shares
except pursuant to a registration statement in effect under such Act
or unless an opinion of counsel satisfactory to the Company has been
received by the Company to the effect that such registration is not
required. Any determination in this connection by the Board shall be
final, binding and conclusive. The Company may, but shall in no
event be obligated to take any other affirmative action in order to
cause the exercise of a Stock Option or the issuance of Common Shares
purchased thereto to comply with any law or regulation of any
government authority.
ARTICLE X
Miscellaneous Provisions
1. No person shall have any claim or right to be granted
a Stock Option under the Plan, and the grant of an NQSO under the
Plan shall not be construed as giving an Optionee the right to be
retained by the Company. Furthermore, the Company expressly reserves
the right at any time to terminate its relationship with an Optionee
with or without cause, free from any liability, or any claim under
the Plan, except as provided herein, in an option agreement, or in
any agreement between the Company and the Optionee.
2. Any expenses of administering this Plan shall be borne
by the Company.
3. The payment received from Optionee from the exercise
of Stock Options under the Plan shall be used for the general
corporate purposes of the Company.
4. Without amending the Plan, grants may be made to
persons who are foreign nationals or employed outside the United
States, or both, on such terms and conditions, consistent with the
Plan's purpose, different from those specified in the Plan as may, in
the judgment of the Board, be necessary or desirable to create
equitable opportunities given differences in tax laws in other
countries.
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5. In addition to such other rights of indemnification as
they may have as members of the Board, the members of the Board shall
be indemnified by the Company against all costs and expenses
reasonably incurred by them in connection with any action, suit or
proceeding to which they or any of them may be party by reason of any
action taken or failure to act under or in connection with the Plan
or any Stock Option granted thereunder, and against all amounts paid
by them in settlement thereof (provided such settlement is approved
by independent legal counsel selected by the Company) or paid by them
in satisfaction of a judgment in any such action, suit or proceeding,
except a judgment based upon a finding of bad faith; provided that
upon the institution of any such action, suit or proceeding a Board
member shall in writing, give the Company notice thereof and an
opportunity, at its own expense, to handle and defend the same before
such Board member undertakes to handle and defend it on his/her own
behalf.
6. Stock Options may be granted under this Plan from time
to time, in substitution for stock options held by employees of other
corporations who are about to become employees of the Company as the
result of a merger or consolidation of the employing corporation with
the Company or the acquisition by the Company of the assets of the
employing corporation or the acquisition by the Company of stock of
the employing corporation as a result of which it become a subsidiary
of the Company. The terms and conditions of such substitute stock
options so granted my vary from the terms and conditions set forth in
this Plan to such extent as the Board of Director of the Company at
the time of grant may deem appropriate to conform, in whole or in
part, to the provisions of the stock options in substitution for
which they are granted, but no such variations shall be such as to
affect the status of any such substitute stock options as a stock
option under Section 422A of the Code.
7. Notwithstanding anything to the contrary in the Plan,
if the Board finds by a majority vote, after full consideration of
the facts presented on behalf of both the Company the Optionee, that
the Optionee has been engaged in fraud, embezzlement, theft,
commission of a felony or proven dishonesty in the course of his/her
association with the Company or any subsidiary corporation which
damaged the Company or any subsidiary corporation, or for disclosing
trade secrets of the Company or any subsidiary corporation, the
Optionee shall forfeit all unexercised Stock Options and all
exercised NQSO's under which the Company has not yet delivered the
certificates and which have been earlier granted the Optionee by the
Board. The decision of the Board as to the case of an Optionee's
discharge and the damage done to the Company shall be final. No
decision of the Board, however, shall affect the finality of the
discharge of such Optionee by the Company or any subsidiary
corporation in any manner. Further, if Optionee voluntarily
terminates employment with the Company, the Optionee shall forfeit
all unexercised stock options.
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ARTICLE XI
Securities Regulations
The securities issued pursuant to this Plan are registered
on Form S-8.
ARTICLE XII
Written Agreement
Each Stock Option granted hereunder shall be embodied in a
written Stock Option Agreement which shall be subject to the terms
and conditions prescribed above and shall be signed by the Optionee
and by the President of the Company, for and in the name and on
behalf of the Company. Such Stock Option Agreement shall contain
such other provisions as the Board, in its discretion shall deem
advisable.
ARTICLE XIII
Effective Date
This Plan shall become unconditionally effective as of the
date of approval of the Plan by the Board of Directors of the
Company. No Stock Option may be granted later than ten (10) years
from the effective date of the Plan; provided, however, that the Plan
and all outstanding Stock Options shall remain in effect until such
NQSO's have expired or until such options are canceled.
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Number of Shares: ______________ Date of Grant: _____________
NONQUALIFYING STOCK OPTION AGREEMENT
AGREEMENT made this _____ day of ________________,20____,
between _________________________ (the "Optionee"), and North
American Resorts, Inc., a Colorado corporation (the "Company").
1. Grant of Option. The Company, pursuant to the
provisions of the North American Resorts, Inc. 2000 Nonqualifying
Stock Option Plan (the "2000 Plan"), set forth as Attachment A
hereto, hereby grants to the Optionee, subject to the terms and
conditions set forth or incorporated herein, an Option to purchase
from the Company all or any part of an aggregate of __________ Common
Shares, as such Common Shares are now constituted, at the purchase
price of $_______ per share. The provisions of the 2000 Plan
governing the terms and conditions of the Option granted hereby are
incorporated in full herein by reference.
2. Exercise. The Option evidenced hereby shall be
exercisable in whole or in part (but only in multiples of 100 Shares
unless such exercise is as to the remaining balance of this Option)
on or after ________________________ and on or before
_________________________, provided that the cumulative number of
Common Shares as to which this Option may be exercised (except as
provided in paragraph 1 of Article VI of this 2000 Plan) shall not
exceed the following amounts:
Cumulative Number Prior to Date
of Shares (Not Inclusive of)
The Option evidenced hereby shall be exercisable by the delivery to
and receipt by the Company of (i) a written notice of election to
exercise, in the form set forth in Attachment B hereto, specifying
the number of shares to be purchased; (ii) accompanied by payment of
the full purchase price thereof in case or certified check payable to
the order of the Company, or by fully-paid and nonassessable Common
Shares of the Company properly endorsed over to the Company, or by a
combination thereof; and, (iii) by return of this Stock Option
Agreement for endorsement of exercise by the Company on Schedule I
hereof. In the event fully paid and nonassessable Common Shares are
submitted as whole or partial payment for Shares to be purchased
hereunder, such Common Shares will be valued at their Fair Market
Value (as defined in the 2000 Plan) on the date such Shares are
received by the Company and applied to payment of the exercise price.
3. Transferability. The Option evidenced hereby is NOT
assignable or transferable by the Optionee other than by the
Optionee's will, by the laws of descent and distribution, as provided
in paragraph 9 of Article V of the 2000 Plan. The Option shall be
exercisable only by the Optionee during his/her lifetime.
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4. Securities Regulations. The securities issued
pursuant to this Plan are registered under Form S8.
North American Resorts, Inc.
BY: ________________________________
_______________________, President
ATTEST:
____________________________
Secretary
Optionee hereby acknowledges receipt of a copy of the 2000
Plan, attached hereto and accepts this Option subject to each and
every term and provision of such Plan. Optionee hereby agrees to
accept as binding, conclusive and final, all decisions or
interpretations of the Board administering the 2000 Plan on any
questions arising under such Plan. Optionee recognizes that if
Optionee's employment with the Company or any subsidiary thereof
shall be terminated with cause, or by the Optionee, all of the
Optionee's rights hereunder shall thereupon terminate; and that,
pursuant to paragraph 10 of Article V of the 2000 Plan, this Option
may not be exercised while there is outstanding to Optionee any
unexercised Stock Option, granted to Optionee before the date of
grant of this Option, to purchase Common Shares of the Company or any
parent or subsidiary thereof.
Dated: ________________________
______________________________________
Optionee
______________________________________
Type or Print Name
______________________________________
Address
______________________________________
______________________________________
Social Security No. __________________
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Attachment B
(Suggested form of letter to be used for notification of election to
exercise.)
Date:
Secretary,
North American Resorts, Inc.
Dear Sir/Madame:
In accordance with paragraph 2 of the Nonqualifying Stock Option
Agreement evidencing the Option granted to me on ____________________
under the North American Resorts, Inc. 2000 Nonqualifying Stock
Option Plan, I hereby elect to exercise this Option to the extent of
_______________ Common Shares.
Enclosed are (i) Certificate(s) No.(s) __________ representing
fully-paid Common Shares of North American Resorts, Inc. endorsed to
the Company with signature guaranteed, and/or a certified check
payable to the order of North American Resorts, Inc. in
the amount of $___________ as the balance of the purchase price of
$__________ for the Shares which I have elected to purchase and (ii)
the original Stock Option Agreement for endorsement by the Company as
to exercise on Schedule I thereof. I acknowledge that the Common
Shares (if any) submitted as part payment for the exercise price due
hereunder will be valued by the Company at their Fair Market Value
(as defined in the 2000 Plan) on the date this Option exercise is
effected by the Company. In the event I hereafter sell any Common
Shares issued pursuant to this option exercise within one year from
the date of exercise or within two years after the date of grant of
this Option, I agree to notify the Company promptly of the amount of
taxable compensation realized by me by reason of such sale for
federal income tax purposes.
When the certificate for Common Shares which I have elected to
purchase has been issued, please deliver it to me, along with my
endorsed Stock Option Agreement in the event there remains an
unexercised balance of Shares under the Option, at the following
address:
____________________________________________
____________________________________________
____________________________________________
_______________________________________
Signature of Optionee
_______________________________________
Type or Print Name
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Optionee __________________ Date of Grant ____________________
SCHEDULE I
Unexercised Issuing
Shares Payment Shares Officer
Date Purchased Received Remaining Initials