Exhibit 10.6
THE BUCK A DAY COMPANY, INC.
2002 OMNIBUS PLAN
1. Purposes of the Plan
The Buck A Day Company, Inc. 2002 Omnibus Plan ("Plan") maintained by The
Buck A Day Company, Inc. ("Company") is intended to promote the growth and
general prosperity of the Company by offering incentives to its key employees
who are primarily responsible for the growth of the Company and to attract and
retain qualified employees and thereby benefit its shareholders based on the
growth of the Company. Awards granted under the Plan may be (a) stock options
("Options") which may be designated as (i) Incentive Stock Options ("ISOs")
intended to qualify under Section 422 of the Internal Revenue Code of 1986, as
amended ("Code"), or (ii) Nonqualified Stock Options ("NQSOs") not intended to
so qualify; (b) stock appreciation rights ("SARs"); (c) restricted stock awards
("Restricted Stock"); (d) performance awards ("Performance Awards"); or (e)
other forms of stock-based incentive awards, as hereinafter defined
(collectively, "Awards").
2. Shares of Stock Subject to the Plan
The shares of stock with respect to which the Awards may be granted shall
be the no-par value common stock of the Company ("Common Stock"). Shares
delivered upon exercise of the Awards, at the election of the Board of Directors
of the Company, may be stock that is authorized but previously unissued or stock
reacquired by the Company or both. Subject to the provisions of Section 14, the
maximum number of shares with respect to which the Awards may be granted under
the Plan shall not exceed 3,500,000 shares of Common Stock; provided, however,
that such number of shares of Common Stock may also be subject to adjustment,
from time to time, at the discretion of the Board of Directors of the Company.
Any shares subject to an Award under the Plan, which Award for any reason
expires or is terminated unexercised as to such shares, shall again be available
for the grant of other Awards under the Plan provided, however, that forfeited
Common Stock or other securities shall not be available for further Awards if
the participant has realized any benefits of ownership from such Common Stock.
3. Administration
The Plan shall be administered by a designated Omnibus Committee:
("Committee") composed of not less than two members of the Board of Directors of
the Company, all of whom shall be ineligible to participate in the Plan and
shall otherwise qualify as disinterested persons for purposes of Rule 16b-3
promulgated by the Securities and Exchange Commission. Subject to the provisions
of the Plan the Committee shall have full discretion and the exclusive power (i)
to
1
determine the directors, employees, consultants and advisors to whom Options
shall be granted, the time when such Options shall be granted, the number of
Shares which shall be subject to each Option, the purchase price or exercise
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 in part), and the
other terms and provisions of the respective Options (which need not be
identical); (ii) to construe the Plan and Options granted hereunder; (iii) to
prescribe, amend and rescind rules and regulations relating to the Plan; and
(iv) to make all other determination necessary or advisable for administering
the Plan.
Without limiting the foregoing, the Committee also shall have the authority
to require, in its discretion, as a condition of the granting of any Option,
that the Participant agree (i) not to sell or otherwise dispose of Shares
acquired pursuant to the Option for a period of one (1) year (unless waived by
the Company) following the date of acquisition of such Shares and (ii) that in
the event of termination of directorship or employment (or in case of a
consultant or advisor, engagement by Company or any subsidiary corporation or
parent corporation of the Company) of participant, other than as a result of
dismissal without cause, such Participant will not, for a period to be fixed at
the time of the grant of the Option, enter into any employment or participate
directly or indirectly in any business or enterprise which is competitive with
the business of the Company or any subsidiary corporation or parent corporation
of the Company, or enter into any employment in which such employee will be
called to utilize special knowledge obtained through directorship or employment
(or in the case of a consultant or advisor, engagement) with or by the Company
or any subsidiary corporation or parent corporation thereof.
The interpretation of and application by the Committee of any provision of
the Plan shall be final and conclusive. The Committee may in its discretion
establish such rules and guidelines relating to the Plan, as it may deem
desirable.
The Committee may employ such legal counsel, consultants and agents as it
may deem desirable for the administration of the Plan and may rely upon any
opinion received from any such counsel or consultant and any computation
received from any such consultant or agent. The Committee shall keep minutes of
its actions under the Plan.
No member of the Board of Directors or the Committee shall be liable for
any action or determination made in good faith with respect to the Plan or any
Awards granted hereunder.
4. Eligibility
The individuals who shall be eligible to participate in the Plan shall be
directors, officers, employees, consultants and advisors of the Company, or any
subsidiary corporation or parent corporation of the Company now existing or
hereafter formed or acquired, as the Committee may from time to time determine.
An employee who has been granted an Award in one year shall not necessarily be
entitled to be granted Awards in subsequent years.
2
5. Stock Options
The Committee may grant Options, as follows, which may be designated as (i)
NQSOs or (ii) ISOs intended to qualify under Code Section 422:
(a) Nonqualified Stock Options. An NQSO is a right to purchase a
specified number of shares of Common Stock during such specified
time as the Committee may determine, not to exceed ten (10)
years, at a price determined by the Committee that, unless deemed
otherwise by the Committee, is not less than the fair market
value of the Common Stock on the date the option is granted.
(i) The purchase price of the Common Stock subject to the NQSO
may be paid in cash. At the discretion of the Committee, the
purchase price may also be paid by the tender of Common
Stock or through a combination of Common Stock and cash or
through such other means as the Committee determines are
consistent with the Plan's purpose and applicable law. No
fractional shares of Common Stock will be issued or
accepted.
(b) Incentive Stock Options. An ISO is an Award in the form of an
Option to purchase Common Stock that complies with the
requirements of Code Section 422 or any successor section.
(i) The aggregate fair market value (determined at the time of
the grant of the Award) of the shares of Common Stock
subject to ISOs which are exercisable by one person for the
first time during a particular calendar year shall not
exceed $100,000. To the extent that ISOs granted to an
employee exceed the limitation set forth in the preceding
sentence, ISOs granted last shall be treated as NQSOs.
(ii) No ISO may be granted under this Plan on or after the tenth
anniversary of the date this Plan is adopted or the date
stockholders approve this Plan, whichever is earlier.
(iii) No ISO may be exercisable more than:
(A) in the case of an employee who is not a Ten Percent
Stockholder, within the meaning of Code Section 422, on
the date the ISO is granted; ten (10) years after the
date the ISO is granted; and
(B) in the case of an employee who is a Ten Percent
Stockholder, within the meaning of Code Section 422, on
3
the date the ISO is granted, five (5) years after the
date the ISO is granted.
(iv) The exercise price of any ISO shall be determined by the
Committee and shall be no less than:
(A) in the case of an employee who is not a Ten Percent
Stockholder, on the date the ISO is granted, the fair
market value of the Common Stock subject to the ISO on
such date, and
(B) in the case of an employee who is a Ten Percent
Stockholder, on the date the ISO is granted, not less
than 110 percent of the fair market value of the Common
Stock subject to the ISO on such date.
(v) The Committee may provide that the option price under an ISO
may be paid by one or more of the methods available for
paying the option price of an NQSO.
6. Stock Appreciation Rights
An SAR is a right to receive, upon surrender of the right, but without
payment, an amount payable in cash.
(i) The amount payable with respect to each SAR shall be equal
in value to the applicable percentage of the excess, if any,
of the fair market value of a share of Common Stock on the
exercise date over the exercise price of the SAR. The
exercise price of the SAR shall be determined by the
Committee and shall not be less than the fair market value
of a share of Common Stock on the date the SAR is granted.
(ii) In the case of an SAR granted in tandem with an ISO to an
employee who is a Ten Percent Shareholder on the date of
such grant, the amount payable with respect to each SAR
shall be equal in value to the applicable percentage of the
excess, if any, of the fair market value of a share of
Common Stock on the exercise date over the exercise price of
the SAR, which exercise price shall not be less than 110% of
the fair market value of a share of Common Stock on the date
the SAR is granted.
(iii) The Committee shall establish the applicable percentage and
exercise price at the time the SAR is granted.
4
7. Restricted Stock
Restricted Stock is Common Stock of the Company that is issued to a
participant at a price determined by the Committee, which price per share may
not be less than the par value of the Common Stock, and is subject to
restrictions on transfer and/or such other restrictions on incidents of
ownership as the Committee may determine.
8. Performance Awards
A Performance Award granted under the Plan (i) may be denominated or
payable in cash, Common Stock (including without limitation, Restricted Stock),
other securities or other Awards and (ii) shall confer on the holder thereof the
right to receive payments, in whole or in part, upon the achievement of such
performance goals during such performance periods as the Committee shall
establish. Subject to the terms of the Plan and any applicable Award agreement,
the performance goals to be achieved during any performance period, the length
of any performance period, the amount of any Performance Award granted and the
amount of any payment or transfer to be made pursuant to any Performance Award
shall be determined by the Committee.
9. Other Stock-Based Incentive Awards
The Committee may from time to time grant Awards under this Plan that
provide the participant with the right to purchase Common Stock or that are
valued by reference to the fair market value of the Common Stock (including, but
not limited to, phantom securities or dividend equivalents). Such Awards shall
be in a form determined by the Committee (and may include terms contingent upon
a change of control of the Company), provided that such Awards shall not be
inconsistent with the terms and purposes of the Plan. The Committee will
determine the price of any Award and may accept any lawful consideration.
10. Price and Payment
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 average of the high
and low quotations at which such Shares are sold on such national securities
exchange on such date. If 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, 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 United 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 a public market exists for the Shares on any date on which the fair
market value per Share is to be determined but the Shares are not listed on a
national securities exchange in the
5
United States, the fair market value per Share shall be deemed to be the mean
between the closing bid and asked quotations for the Shares on such date, the
fair market value per Share shall be deemed to be the mean between the closing
bid and asked quotations in the over-the-counter market for the Shares on the
closest date preceding such date for which such quotations are available.
If no public market exists for the Shares on any date on which the fair
market value per Share is to be determined, the Committee shall, in its sole
discretion and best judgment, determine the fair market value of a Share.
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, 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 or by certified check
11. Exercise of Options
Options granted under the Plan may be exercised by an optionee only while
the employee is and, continuously since the date the Option was granted, has
been an employee of the Company or one of its subsidiaries, except that (i) if
the optionee's termination of employment is other than for deliberate, willful
or gross misconduct, any Options held by the optionee may be exercised, to the
extent then exercisable, for a period of three months after the date of such
termination of employment; (ii) if such termination of employment is by reason
of retirement or disability, any Options held by the optionee at the time of
retirement or disability will be exercisable for a period of 12 months after the
date of such termination of employment; (iii) in the event of death after
termination of employment pursuant to (i) or (ii) above, the person or persons
to whom the optionee's rights are transferred by will or the laws of descent and
distribution shall have a period of three years from the date of termination of
the optionee's employment to exercise any Options which the optionee could have
exercised during such period; and (iv) in the event of the death of an optionee
while employed, any Options then held by the optionee shall become fully and
immediately exercisable and may be exercised by the person or persons to whom
the optionee's rights are transferred by will or the laws of descent and
distribution for a period of three years after the optionee's death. In no
event, however, shall any Option be exercisable after the date specified in
Section 5, as applicable.
An Option granted hereunder shall be exercisable, in whole or in part, only
by written notice delivered in person or by mail to the Secretary of the Company
at its principal office, specifying the number of shares of Common Stock to be
purchased and accompanied by payment thereof and otherwise in accordance with
the option agreement pursuant to which the Option was granted.
6
12. Award Agreements
Each Award granted under the Plan shall be evidenced by an Award agreement
between the employee to whom the Award is granted and the Company, setting forth
the number of shares of Common Stock, SARs, or units subject to the Award and
such other terms and conditions applicable to the Award not consistent with the
Plan as the Committee may deem appropriate.
13. Tax Withholding
The Committee may establish such rules and procedures as it considers
desirable in order to satisfy any obligation of the Company or any subsidiary to
withhold federal income taxes or other taxes with respect to any Award made
under the Plan. Such rules and procedures may provide (i) in the case of Awards
paid in shares of Common Stock, that the person receiving the Award may satisfy
the withholding obligation by instructing the Company to withhold shares of
Common Stock otherwise issuable upon exercise of such Award in order to satisfy
such withholding obligation and (ii) in the case of an Award paid in cash, that
the withholding obligation shall be satisfied by withholding the applicable
amount and paying the net amount in cash to the participant. The employer
corporation may, in its discretion, hold the stock certificate to which such
employee is entitled upon the exercise of an Option as security for the payment
of such withholding tax liability, until sufficient payment of that liability
has been accumulated.
14. Change of Control and Limited Rights
For the purpose of the Plan, a "Change of Control" affecting the Company
shall be deemed to have taken place upon (i) the acquisition by a third person,
including a "group" as defined in Section 13(d)(3) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended, of shares of the Company having 51%
or more of the total number of votes that may be cast for the election of
Directors of the Company; (ii) shareholder approval of a transaction for the
acquisition of the Company, or substantially all of its assets by another entity
or for a merger, reorganization, consolidation or other business combination to
which the Company is a part; or (iii) the election during any period of 24
months or less of 50% or more of the Directors of the Company where such
Directors were not in office immediately prior to such period provided, however,
that no "Change of Control" shall be deemed to have taken place if the Directors
of the Company in office on the date of adoption of the Plan, or their
successors in office nominated by such Directors, affirmatively approve a
resolution to such effect.
In the event of a Change of Control affecting the Company, then,
notwithstanding any provision of the Plan or of any provisions of any Award
agreements entered into between the Company and any participant to the contrary,
all Awards that have not expired and which are then held by any participant (or
the person or persons to whom any deceased participant's rights have been
transferred) shall, as of such Change of Control, become fully and immediately
vested and exercisable and may be exercised for the remaining term of such
Awards.
A limited right may be awarded by the Committee in connection with any
Option granted
7
under the Plan with respect to all or some of the shares of Common Stock covered
by such related Option. A limited right may be granted either at the time the
Option is granted or thereafter at any time prior to the cancellation, exercise,
forfeiture, termination or expiration of the Option. A limited right may be
exercised only during the 60-day period beginning on a Change of Control of the
Company. Notwithstanding the provisions of the immediately preceding sentences,
no limited right may be exercised by an employee who is subject to Section 16(b)
of the Securities Exchange Act of 1934, as amended, until the expiration of six
months from the date of grant of the limited right.
Upon the exercise of limited rights, the participant shall receive in cash
an amount equal to the product computed by multiplying (i) the excess of (a) the
highest fair market value per share of Common Stock during the 60-day period
ending on the date the limited right is exercised (or, if greater, the price
offered for a share of Common Stock pursuant to a tender offer pending during
such period) over (b) the Option price per share of Common Stock at which the
related Option is exercisable by (ii) the number of shares of Common Stock with
respect to which the limited right is being exercised. Notwithstanding the
foregoing, in case of a limited right granted in respect of an ISO, the holder
may not receive an amount in excess of such amount as will enable such Option to
qualify as an ISO.
Upon exercise of a limited right, such related Option and any related SAR
shall cease to be exercisable to the extent of the shares of Common Stock with
respect to which such limited right is exercised. Upon the exercise or
termination of a related Option, the limited right with respect to such related
Option shall terminate to the extent of the shares of Common Stock with respect
to which the related Option was exercised or terminated.
15. Dilution or Other Adjustment
If the Company is a party to any merger or consolidation, or undergoes any
separation, reorganization or liquidation, the Board of Directors of the Company
shall have the power to make arrangements, which shall be binding upon the
holders of unexpired Awards, for the substitution of new Awards for, or the
assumption by another corporation of, any unexpired Awards then outstanding
hereunder. In the case of any ISO, such action shall be taken only in the manner
and to the extent permitted by Sections 422 and 424 of the Code. In addition, in
the event of a reclassification, stock split, combination of shares, separation
(including a spin-off), dividend on shares of the Common Stock payable in stock,
or other similar change in capitalization or in the corporate structure of
shares of the Common Stock of the Company, the Committee shall conclusively
determine the appropriate adjustment in the option prices of outstanding
Options, in the number and kind of shares or other securities as to which
outstanding Awards shall be exercisable, and in the aggregate number of shares
with respect to which Awards may be granted. In the case of any ISO, any such
adjustment in the shares or other securities subject to the ISO (including any
adjustment in the Option price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and only
to the extent permitted by Sections 422 and 424 of the Code.
8
16. Assignability
No Award granted under this Plan shall be sold, pledged, assigned or
transferred other than by will or the laws of descent and distribution, and
Awards shall be exercisable during the employee's lifetime only by the employee.
17. Amendment or Termination
The Board of Directors of the Company may at any time amend, suspend or
terminate the Plan provided, however, that (i) no change in any Awards
previously granted may be made without the consent of the holder thereof, (ii)
no amendment (other than an amendment authorized by Section 15) may be made
increasing the aggregate number of shares of the Common Stock with respect to
which Awards may be granted, reducing the minimum option price at which Options
may be granted, extending the maximum period during which Awards may be
exercised or changing the class of employees eligible to receive Awards
hereunder, without the approval of the holders of a majority of the outstanding
voting shares of the Company.
18. General Provisions
No Awards may be exercised by the holder thereof if such exercise, and the
receipt of cash or stock thereunder, would be, in the opinion of counsel
selected by the Company, contrary to law or the regulations of any duly
constituted authority having jurisdiction over the Plan.
Absence on leave approved by a duly constituted officer of the Company or
any of its subsidiaries shall not be considered interruption or termination of
service of any employee for any purposes of the Plan or Awards granted
thereunder, except that no Awards may be granted to an employee while he or she
is absent on leave.
No Award recipient shall have any rights as a shareholder with respect to
any shares subject to Awards granted to him or her under the Plan prior to the
date as of which he or she is actually recorded as the holder of such shares
upon the stock records of the Company.
Nothing contained in the Plan or in Awards granted thereunder shall confer
upon any employee any right to continue in the employ of the Company or any of
its subsidiaries or interfere in any way with the right of the Company or any of
its subsidiaries to terminate his or her employment at any time.
Any Award agreement may provide that stock issued upon exercise of any
Awards may be subject to such restrictions, including, without limitation,
restrictions as to transferability and restrictions constituting substantial
risks or forfeiture as the Committee may determine at the time such Award is
granted.
9
19. Effective Date
The Plan shall become effective on the date of its adoption by the Board of
Directors of the Company subject to approval of the Plan by the holders of a
majority of the outstanding voting shares of the Company within 12 months after
the date of the Plan's adoption by said Board of Directors. In the event of the
failure to obtain such shareholder approval, the Plan shall be null and void and
the Company shall have no liability thereunder. No Award granted under the Plan
shall be exercisable until such shareholder approval has been obtained.
20. Termination
No Award may be granted under the Plan on or after the date which is ten
(10) years following the effective date specified in Section 19, but Awards
previously granted may be exercised in accordance with their terms.
21. Governing Law
The Plan and such Options as may be granted thereunder and all related
matters shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York, from time to time obtaining, without giving
effect to conflict of law principles thereof.
10