Exhibit 10.1
Form SB-2
Cach Foods, Inc.
CACH FOODS, INC.
2001 LONG-TERM STOCK INCENTIVE PLAN
SECTION 1
GENERAL
1.1. Purpose. The Cach Foods, Inc., Long-Term Stock
Incentive Plan (the "Plan") has been established by Cach Foods,
Inc. (the "Company") to (i) attract and retain persons eligible
to participate in the Plan; (ii) motivate Participants, by means
of appropriate incentives, to achieve long-range goals; (iii)
provide incentive compensation opportunities that are competitive
with those of other similar companies; and (iv) further identify
Participants' interests with those of the Company's other
shareholders through compensation that is based on the Company's
common stock; and thereby promote the long-term financial
interest of the Company and the Subsidiaries, including the
growth in value of the Company's equity and enhancement of long-
term shareholder return.
1.2. Participation. Subject to the terms and conditions of
the Plan, the Committee shall determine and designate, from time
to time, from among the Eligible Persons (including transferees
of Eligible Persons to the extent the transfer is permitted by
the Plan and the applicable Award Agreement), those persons who
will be granted one or more Awards under the Plan, and thereby
become "Participants" in the Plan. In the discretion of the
Committee, a Participant may be granted any Award permitted under
the provisions of the Plan, and more than one Award may be
granted to a Participant. Awards may be granted as alternatives
to or replacement of awards outstanding under the Plan, or any
other plan or arrangement of the Company or a Subsidiary
(including a plan or arrangement of a business or entity, all or
a portion of which is acquired by the Company or a Subsidiary).
1.3. Operation, Administration, and Definitions. The
operation and administration of the Plan, including the Awards
made under the Plan, shall be subject to the provisions of
Section 4 (relating to operation and administration).
Capitalized terms in the Plan shall be defined as set forth in
the Plan (including the definition provisions of Section 6 of the
Plan).
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SECTION 2
OPTIONS AND SARS
2. 1. Definitions.
(a) The grant of an "Option" entitles the Participant to
purchase shares of Stock at an Exercise Price established by
the Committee. Options granted under this Section 2 may be
either Incentive Stock Options ("ISOs") or Non-Qualified
Options ("NQOs"), as determined in the discretion of the
Committee. An "ISO" is an Option that is intended to
satisfy the requirements applicable to an "incentive stock
option" described in section 422(b) of the Code. An "NQO"
is an Option that is not intended to be an "incentive stock
option" as that term is described in section 422(b) of the
Code.
(b) A stock appreciation right (an "SAR") entitles the
Participant to receive, in cash or Stock (as determined in
accordance with subsection 2.5), value equal to (or
otherwise based on) the excess of: (a) the Fair Market Value
of a specified number of shares of Stock at the time of
exercise; over (b) an Exercise Price established by the
Committee.
2.2. Exercise Price. The "Exercise Price" of each Option
and SAR granted under this Section 2 shall be established by the
Committee or shall be determined by a method established by the
Committee at the time the Option or SAR is granted; except that
the Exercise Price shall not be less than 100% of the Fair Market
Value of a share of Stock on the date of grant.
2.3. Exercise. An Option and an SAR shall be exercisable in
accordance with such terms and conditions and during such periods
as may be established by the Committee.
2.4. Payment of Option Exercise Price. The payment of the
Exercise Price of an Option granted under this Section 2 shall be
subject to the following:
(a) Subject to the following provisions of this subsection 2.4,
the full Exercise Price for shares of Stock purchased upon
the exercise of any Option shall be paid at the time of such
exercise (except that, in the case of an exercise
arrangement approved by the Committee and described in
paragraph 2.4(c), payment may be made as soon as practicable
after the exercise).
(b) The Exercise Price shall be payable in cash or by tendering,
by either actual delivery of shares or by attestation,
shares of Stock acceptable to the Committee (including
Shares deemed issued for purposes of exercising a conversion
right under an Award), and valued at Fair Market Value as of
the day of exercise, or in any combination thereof, as
determined by the Committee.
(c) The Committee may permit a Participant to elect to pay the
Exercise Price upon the exercise of an Option by irrevocably
authorizing a third party to sell shares of Stock (or a
sufficient portion of the shares) acquired upon exercise of
the Option and remit to the
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Company a sufficient portion of the sale proceeds to pay the
entire Exercise Price and any tax withholding resulting from
such exercise.
2.5. Settlement of Award. Shares of Stock delivered
pursuant to the exercise of an option or SAR shall be subject to
such conditions, restrictions and contingencies as the Committee
may establish in the applicable Award Agreement. Settlement of
SARs may be made in shares of Stock (valued at their Fair Market
Value at the time of exercise), in cash, or in a combination
thereof, as determined in the discretion of the Committee. The
Committee, in its discretion, may impose such conditions,
restrictions and contingencies with respect to shares of Stock
acquired pursuant to the exercise of an Option or an SAR as the
Committee determines to be desirable.
SECTION 3
OTHER STOCK AWARDS
3.1. Definitions.
(a) A "Stock Unit" Award is the grant of a right to receive
shares of Stock in the future.
(b) A "Performance Share" Award is a grant of a right to receive
shares of Stock or Stock Units which is contingent on the
achievement of performance or other objectives during a
specified period.
(c) A "Restricted Stock" Award is a grant of shares of Stock,
and a "Restricted Stock Unit" Award is the grant of a right
to receive shares of Stock in the future, with such shares
of Stock or right to future delivery of such shares of Stock
subject to a risk of forfeiture or other restrictions that
will lapse upon the achievement of one or more goals
relating to completion of service by the Participant, or
achievement of performance or other objectives, as
determined by the Committee.
3.2. Restrictions on Stock Awards. Each Stock Unit Award,
Restricted Stock Award, Restricted Stock Unit Award and
Performance Share Award shall be subject to the following:
(a) Any such Award shall be subject to such conditions,
restrictions and contingencies as the Committee shall
determine. The Committee may designate whether any such
Award being granted to any Participant are intended to be "
performance-based compensation" as that term is used in
section 162(m) of the Code. Any such Awards designated as
intended to be "performance-based compensation" shall be
conditioned on the achievement of one or more Performance
Measures. For Awards intended to be "performance-based
compensation," the grant of the Awards and the establishment
of the Performance Measures shall be made during the period
required under Code section 162(m). The "performance
measures" that may be used by the Committee for such Awards
shall be based on one or more of the following, as selected
by the Committee:
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(i) operating profits (including EBITDA), net
profits, earnings per share, profit returns and margins,
revenues, shareholder return and/or value, stock price, or
working capital, which may be measured on a Company,
Subsidiary, or business unit basis; or
(ii) any one or more of the performance criteria
set forth in the next preceding paragraph (i) measured on
the basis of a relative comparison of entity performance to
the performance of a peer group of entities or other
external measure of the selected performance criteria;
provided, that profit, earnings, and revenues used for any
performance measure shall exclude: gains or losses on
operating asset sales or dispositions; litigation or claim
judgments or settlements; accruals for historic
environmental obligations; effect of changes in tax law or
rate on deferred tax liabilities; accruals for
reorganization and restructuring programs; uninsured
catastrophic property losses; the cumulative effect of
changes in accounting principles; and any extraordinary non-
recurring items as described in Accounting Principles Board
Opinion No. 30.
SECTION 4
OPERATION AND ADMINISTRATION
4.1. Effective Date. Subject to the approval of the
shareholders of the Company in the manner required by the laws of
the state of Nevada, the Plan shall be effective as of April 15,
2001 (the "Effective Date"); provided, however, that to the
extent that Awards are granted under the Plan prior to its
approval by shareholders, the Awards shall be contingent on
approval of the Plan by the shareholders of the Company. The
Plan shall be unlimited in duration and, in the event of Plan
termination, shall remain in effect as long as any Awards under
it are outstanding; provided, however, that, to the extent
required by the Code, no ISO may be granted under the Plan on a
date that is more than ten years from the date the Plan is
adopted or, if earlier, the date the Plan is approved by
shareholders.
4.2. Shares Subject to Plan. The shares of Stock for which
Awards may be granted under the Plan shall be subject to the
following:
(a) Subject to the following provisions of this subsection 4.2,
the maximum number of shares of Stock that may be delivered to
Participants and their beneficiaries under the Plan shall be
2,000,000.
(b) To the extent that any shares of Stock covered by an Award
are not delivered to a Participant or beneficiary because the
Award is forfeited or canceled, or the shares of Stock are not
delivered because the Award is settled in cash or used to satisfy
the applicable tax withholding obligation, such shares shall not
be deemed to have been delivered for purposes of determining the
maximum number of shares of Stock available for delivery under
the Plan.
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(c) If the exercise price of any stock option granted under the
Plan or any Prior Plan is satisfied by tendering shares of Stock
to the Company (by either actual delivery or by attestation),
only the number of shares of Stock issued net of the shares of
Stock tendered shall be deemed delivered for purposes of
determining the maximum number of shares of Stock available for
delivery under the Plan.
(d) Subject to paragraph 4.2(e), the following additional
maximums are imposed under the Plan.
(i) The maximum number of shares of stock that may be
issued by Options intended to be ISOs shall be 2,000,000
shares.
(ii) The maximum number of shares of Stock that may be
issued in conjunction with Awards granted pursuant to
Section 3 (relating to Stock Awards) shall be 500,000
shares.
(iii) The maximum number of shares that may be covered
by Awards granted to any one individual pursuant to Section
2 (relating to Options and SARs) shall be 500,000 shares
during any one-calendar year period.
(iv) No more than 500,000 shares of Stock may be subject to
Stock Unit awards, Restricted Stock Awards, Restricted Stock
Unit Awards and Performance Share Awards that are intended
to be "performance-based compensation" (as that term is used
for purposes of Code section 162(m)) granted to any one
individual during any one-calendar-year period (regardless
of when such shares are deliverable).
(e) In the event of a corporate transaction involving the
Company (including, without limitation, any stock dividend,
stock split, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off,
combination or exchange of shares), the Committee may adjust
Awards to preserve the benefits or potential benefits of the
Awards. Action by the Committee may include: (i) adjustment
of the number and kind of shares which may be delivered
under the Plan; (ii) adjustment of the number and kind of
shares subject to outstanding Awards; (iii) adjustment of
the Exercise Price of outstanding Options and SARs; and (iv)
any other adjustments that the Committee determines to be
equitable.
4.3. General Restrictions. Delivery of shares of Stock or
other amounts under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company
shall have no liability to deliver any shares of Stock under
the Plan or make any other distribution of benefits under
the Plan unless such delivery or distribution would comply
with all applicable laws (including, without limitation, the
requirements of the Securities Act of 1933), and the
applicable requirements of any securities exchange or
similar entity.
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(b) To the extent that the Plan provides for issuance of stock
certificates to reflect the issuance of shares of Stock, the
issuance may be effected on a non-certificated basis, to the
extent not prohibited by applicable law or the applicable
rules of any stock exchange.
4.4. Tax Withholding. All distributions under the Plan are
subject to withholding of all applicable taxes, and the Committee
may condition the delivery of any shares or other benefits under
the Plan on satisfaction of the applicable withholding
obligations. The Committee, in its discretion, and subject to
such requirements as the Committee may impose prior to the
occurrence of such withholding, may permit such withholding
obligations to be satisfied through cash payment by the
Participant, through the surrender of shares of Stock which the
Participant already owns, or through the surrender of shares of
Stock to which the Participant is otherwise entitled under the
Plan.
4.5. Use of Shares. Subject to the overall limitation on
the number of shares of Stock that may be delivered under the
Plan, the Committee may use available shares of Stock as the form
of payment for compensation, grants or rights earned or due under
any other compensation plans or arrangements of the Company or a
Subsidiary, including the plans and arrangements of the Company
or a Subsidiary assumed in business combinations.
4.6. Dividends and Dividend Equivalents. An Award
(including without limitation an Option or SAR Award) may provide
the Participant with the right to receive dividend payments or
dividend equivalent payments with respect to Stock subject to the
Award (both before and after the Stock subject to the Award is
earned, vested, or acquired), which payments may be either made
currently or credited to an account for the Participant, and may
be settled in cash or Stock as determined by the Committee. Any
such settlements, and any such crediting of dividends or dividend
equivalents or reinvestment in shares of Stock, may be subject to
such conditions, restrictions and contingencies as the Committee
shall establish, including the reinvestment of such credited
amounts in Stock equivalents.
4.7. Payments. Awards may be settled through cash payments,
the delivery of shares of Stock, the granting of replacement
Awards or combination thereof as the Committee shall determine.
Any Award settlement, including payment deferrals, may be subject
to such conditions, restrictions and contingencies, as the
Committee shall determine. The Committee may permit or require
the deferral of any Award payment, subject to such rules and
procedures as it may establish, which may include provisions for
the payment or crediting of interest, or dividend equivalents,
including converting such credits into deferred Stock
equivalents. Each Subsidiary shall be liable for payment of cash
due under the Plan with respect to any Participant to the extent
that such benefits are attributable to the services rendered for
that Subsidiary by the Participant. Any disputes relating to
liability of a Subsidiary for cash payments shall be resolved by
the Committee.
4.8 Transferability. Except as otherwise provided by the
Committee, Awards under the Plan are not transferable except as
designated by the Participant by will or by the laws of descent
and distribution.
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4.9 Form and Time of Elections. Unless otherwise specified
herein, each election required or permitted to be made by any
Participant or other person entitled to benefits under the Plan,
and any permitted modification, or revocation thereof, shall be
in writing filed with the Committee at such times, in such form,
and subject to such restrictions and limitations, not
inconsistent with the terms of the Plan, as the Committee shall
require.
4.10 Agreement With Company. An Award under the Plan shall
be subject to such terms and conditions, not inconsistent with
the Plan, as the Committee shall, in its sole discretion,
prescribe. The terms and conditions of any Award to any
Participant shall be reflected in such form of written document
as is determined by the Committee. A copy of such document shall
be provided to the Participant, and the Committee may, but need
not require that the Participant shall sign a copy of such
document. Such document is referred to in the Plan as an "Award
Agreement" regardless of whether any Participant signature is
required.
4.11 Action by Company or Subsidiary. Any action required
or permitted to be taken by the Company or any Subsidiary shall
be by resolution of its board of directors, or by action of one
or more members of the board (including a committee of the board)
who are duly authorized to act for the board, or (except to the
extent prohibited by applicable law or applicable rules of any
stock exchange) by a duly authorized officer of such company.
4.12. Gender and Number. Where the context admits, words in
any gender shall include any other gender, words in the singular
shall include the plural and the plural shall include the
singular.
4.13. Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall, by reason
of participation in the Plan, acquire any right in or title
to any assets, funds or property of the Company or any
Subsidiary whatsoever, including, without limitation, any
specific funds, assets, or other property which the Company
or any Subsidiary, in their sole discretion, may set aside
in anticipation of a liability under the Plan. A
Participant shall have only a contractual right to the Stock
or amounts, if any, payable under the Plan, unsecured by any
assets of the Company or any Subsidiary, and nothing
contained in the Plan shall constitute a guarantee that the
assets of the Company or any Subsidiary shall be sufficient
to pay any benefits to any person.
(b) The Plan does not constitute a contract of employment, and
selection as a Participant will not give any participating
person the right to be retained in the employ of the Company
or any Subsidiary, nor any right or claim to any benefit
under the Plan, unless such right or claim has specifically
accrued under the terms of the Plan. Except as otherwise
provided in the Plan, no Award under the Plan shall confer
upon the holder thereof any rights as a shareholder of the
Company prior to the date on which the individual fulfills
all conditions for receipt of such rights.
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4.14. Evidence. Evidence required of anyone under the Plan
may be by certificate, affidavit, document or other information,
which the person acting on it considers pertinent and reliable,
and signed, made or presented by the proper party or parties.
SECTION 5
COMMITTEE
5.1. Administration. The authority to control and manage
the operation and administration of the Plan shall be vested in a
committee (the "Committee") in accordance with this Section 5.
The Committee shall be selected by the Board, and shall consist
solely of one or more members of the Board who are not employees.
If the Committee does not exist, or for any other reason
determined by the Board, the Board may take any action under the
Plan that would otherwise be the responsibility of the Committee.
5.2. Powers of Committee. The Committee's administration of
the Plan shall be subject to the following:
(a) Subject to the provisions of the Plan, the Committee will
have the authority and discretion to select from among the
Eligible Persons those persons who shall receive Awards, to
determine the time or times of receipt, to determine the
types of Awards and the number of shares covered by the
Awards, to establish the terms, conditions, performance
criteria, restrictions, and other provisions of such Awards,
and (subject to the restrictions imposed by Section 6) to
cancel or suspend Awards.
(b) To the extent that the Committee determines that the
restrictions imposed by the Plan preclude the achievement of
the material purposes of the Awards in jurisdictions outside
the United States, the Committee will have the authority and
discretion to modify those restrictions as the Committee
determines to be necessary or appropriate to conform to
applicable requirements or practices of jurisdictions
outside of the United States.
(c) The Committee will have the authority and discretion to
interpret the Plan, to establish, amend, and rescind any
rules and regulations relating to the Plan, to determine the
terms and provisions of any Award Agreement made pursuant to
the Plan, and to make all other determinations that may be
necessary or advisable for the administration of the Plan.
(d) Any interpretation of the Plan by the Committee and any
decision made by it under the Plan is final and binding on
all persons.
(e) In controlling and managing the operation and administration
of the Plan, the Committee shall take action in a manner
that conforms to the articles and by-laws of the Company,
and applicable state corporate law.
5.3. Delegation by Committee. Except to the extent
prohibited by applicable law or the applicable rules of a stock
exchange, the Committee may allocate all or any portion of its
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responsibilities and powers to any one or more of its members and
may delegate all or any part of its responsibilities and powers
to any person or persons selected by it. Any such allocation or
delegation may be revoked by the Committee at any time.
5.4. Information to be Furnished to Committee. The Company
and Subsidiaries shall furnish the Committee with such data and
information as it determines may be required for it to discharge
its duties. The records of the Company and Subsidiaries as to a
Participant's employment, termination of employment, leave of
absence, reemployment and compensation shall be conclusive on all
persons unless determined to be incorrect. Participants and
other persons entitled to benefits under the Plan must furnish
the Committee such evidence, data or information as the Committee
considers desirable to carry out the terms of the Plan.
SECTION 6
AMENDMENT AND TERMINATION
The Board may, at any time, amend or terminate the Plan,
provided that no amendment or termination may, in the absence of
written consent to the change by the affected Participant (or, if
the Participant is not then living, the affected beneficiary),
adversely affect the rights of any Participant or beneficiary
under any Award granted under the Plan prior to the date such
amendment is adopted by the Board; provided that adjustments
pursuant to subject to subsection 4.2(e) shall not be subject to
the foregoing limitations of this Section 6.
SECTION 7
DEFINED TERMS
In addition to the other definitions contained herein, the
following definitions shall apply:
(a) Award. The term "Award" shall mean any award or benefit
granted under the Plan, including, without limitation, the
grant of Options, SARs, Stock Unit Awards, Restricted Stock
Awards, Restricted Stock Unit Awards and Performance Share
Awards.
(b) Board. The term "Board" shall mean the Board of Directors
of the Company.
(c) Code. The term "Code" means the Internal Revenue Code of
1986, as amended. A reference to any provision of the Code
shall include reference to any successor provision of the
Code.
(d) Eligible Person. The term "Eligible Person" shall mean any
director, officer, employee or consultant of the Company or
a Subsidiary. An Award may be granted to a person in
connection with hiring, retention or otherwise prior to the
date the person first performs services for the Company or
the Subsidiaries, provided that such Award shall not become
vested prior to the date the person first performs such
services.
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(e) Fair Market Value. For purposes of determining the "Fair
Market Value" of a share of Stock as of any date, the
following rules shall apply:
(i) If the principal market for the Stock is a national
securities exchange or the Nasdaq stock market, then the
"Fair Market Value" as of that date shall be the mean
between the lowest and highest reported sale prices of the
Stock on that date on the principal exchange which the Stock
is then listed or admitted to trading.
(ii) If sale prices are not available or if the principal
market for the Stock is not a national securities exchange
and the Stock is not quoted on the Nasdaq stock market, the
average between the highest bid and lowest asked prices for
the Stock on such day as reported on the NASDAQ OTC Bulletin
Board Service or by the National Quotation Bureau,
Incorporated or a comparable service.
(iii) If the day is not a business day, and as a result,
paragraphs (i) and (ii) next above are inapplicable, the
Fair Market Value of the Stock shall be determined as of the
last preceding business day. If paragraphs (i) and (ii)
next above are otherwise inapplicable, then the Fair Market
Value of the Stock shall be determined in good faith by the
Committee.
(f) Subsidiaries. The term "Subsidiary" means any company
during any period in which it is a "subsidiary corporation"
(as that term is defined in Code section 424(f)) with
respect to the Company.
(g) Stock. The term "Stock" shall mean shares of common stock
of the Company.
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