Exhibit 10.1
AMENDED AND RESTATED
ALL AMERICAN SEMICONDUCTOR, INC.
EMPLOYEES', OFFICERS', DIRECTORS'
STOCK OPTION PLAN*
1. Purpose. The purpose of the Amended and Restated All American
Semiconductor, Inc. Employees', Officers', Directors' Stock Option Plan (the
"Plan") is to secure for All American Semiconductor, Inc. and its subsidiaries,
if any (hereinafter collectively the "Company") and its stockholders the
benefits of the additional incentive, inherent in the ownership of the Company's
common stock (the "Common Stock"), by selected key employees and non-employee
directors and independent contractors of the Company who are important to the
success and growth of the business of the Company and to help the Company secure
and retain the services of such employees, non-employee directors and
independent contractors. Options granted under the Plan will be either
"incentive stock options", intended to qualify as such under the provisions of
Section 422 of the Internal Revenue Code of 1986, as from time to time amended
(the "Code"), or "non-qualified stock options." For purposes of the Plan, the
terms "parent" and "subsidiary" shall mean "parent corporation" and "subsidiary
corporation", respectively, as such terms are defined in Sections 424(e) and (f)
of the Code.
2. Stock Option Committee.
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2.1 Administration. The Plan shall be administered by
the Compensation Committee of the Board of Directors (the "Committee"). The
Committee shall consist of not less than two members of the Board of Directors,
each of whom is a "non-employee director" as defined in Rule 16b-3 promulgated
under Section 16(b) of the Securities Exchange Act of 1934, as amended. Once
appointed, the Committee shall continue to serve until otherwise directed by the
Board of Directors. From time to time the Board of Directors may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause), and appoint new members in substitution therefor, and
fill vacancies however caused; provided, however, that at no time shall a
Committee of less than two members of the Board of Directors administer the
Plan, and provided, further, that all members of the Committee must be
"non-employee directors" as defined in Rule 16b-3.
2.2 Procedures. Subject to the provisions of this Plan,
the Committee shall adopt such rules and regulations as it shall deem
appropriate concerning the holding of its meetings and the administration of the
Plan. All determinations and actions of the Committee shall be made by not less
than a majority of its members.
2.3 Interpretation. The Committee shall have full power
and authority to interpret the provisions of the Plan, and its decisions shall
be final and binding on all interested parties.
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*As amended through November 2, 2005.
2.4 Liability. No member of the Board of Directors of the
Company or the Committee shall be liable for any action or determination made in
good faith with respect to the Plan or any option granted under it.
3. Shares Subject to Options.
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3.1 Number of Shares. Subject to the provisions of
Paragraph 12 and to any adjustments required upon changes in capitalization to
prevent dilution or enlargement of the shares issuable pursuant to the Plan by
reason of any stock split, stock dividend, combination of shares,
recapitalization, or other change in the capital structure of the Company, the
number of shares of Common Stock subject at any one time to options granted
under the Plan, plus the number of shares of Common Stock theretofore issued or
delivered pursuant to the exercise of options granted under the Plan, shall not
exceed 1,350,000 shares. If and to the extent that options granted under the
Plan terminate, expire or are cancelled without having been exercised, new
options may be granted under the Plan with respect to the shares of Common Stock
covered by such terminated, expired or cancelled options; provided that the
granting and terms of such new options shall in all respects comply with the
provisions of the Plan. In no event shall any options be granted under the Plan
after September 6, 2015.
3.2 Character of Shares. Shares of Common Stock delivered
upon the exercise of options granted under the Plan may be authorized and
unissued Common Stock, issued Common Stock held in the Company's treasury, or
both.
3.3 Reservation of Shares. There shall be reserved at all
times for sale under the Plan a number of shares of Common Stock (authorized and
unissued Common Stock, issued Common Stock held in the Company's treasury, or
both) equal to the maximum number of shares which may be purchased pursuant to
options granted or that may be granted under the Plan.
4. Grant of Options. The Committee shall determine, within the
limitations of the Plan, the employees and non-employee directors of the Company
and independent contractors to whom options are to be granted, the number of
shares that may be purchased under each option, the option price, the vesting
and exercise schedule and any conditions or terms of vesting and exercise of
each option, including, but not limited to, vesting and exercise upon a change
in control of the Company, events that may permit acceleration of vesting and
exercise and the period after termination of employment or directorship that an
Option may be exercised, and shall designate options at the time of grant as
either "incentive stock options" or "non-qualified options;" provided that the
"Fair Market Value" (as hereinafter defined) (determined as of the time the
option is granted) of the Common Stock with respect to which incentive stock
options are exercisable for the first time by any individual during any calendar
year (under all plans of the individual's employer corporation and its parent
and subsidiary corporations) shall not exceed $100,000; provided, further, that
non-employee directors and independent contractors may be granted only
non-qualified stock options. In determining the employees, non-employee
directors and independent contractors to whom options shall be granted, the
Committee shall take into consideration the employee's, non-employee director's
and independent contractor's present and potential contribution to the success
of the Company and other such factors as the Committee may deem proper and
relevant. Each option granted under the Plan shall be evidenced by a written
agreement between the Company and the Optionee (as defined in Paragraph 5) in
such
form, not inconsistent with the provisions of the Plan, or with Section 422 of
the Code for incentive stock options, as the Committee shall provide. Options
designated as incentive stock options that fail to continue to meet the
requirements of Section 422 of the Code shall be redesignated non-qualified
stock options automatically without further action by the Committee on the date
of such failure to continue to meet the requirements of Section 422 of the Code.
"Fair Market Value" on any day shall be the average of the market price
of a share of Common Stock for each of the seven (7) consecutive business days
preceding such day; the market price on each such day shall be (i) if the Common
Stock is listed on a securities exchange (including for purposes hereof The
Nasdaq Stock Market), the closing sales price on such exchange on such day or,
in the absence of reported sales on such day, the mean between the reported
closing bid and asked prices on such exchange on such day, or (ii) if the Common
Stock is not listed on a securities exchange, the mean between the closing bid
and asked prices as quoted by the National Association of Securities Dealers,
Inc. through NASDAQ for such day; provided, however, that, if there are no such
quotations, or if it is determined that the fair market value is not properly
reflected by such NASDAQ quotations or the Common Stock is not traded on an
exchange or over the counter, fair market value shall be determined by such
other method as the Committee determines to be reasonable, provided, however,
that in no event shall the fair market value be less than the Common Stock's par
value. Notwithstanding the foregoing, if on, or within ten (10) days prior to,
the date of grant of any options hereunder, a registration statement filed by
the Company with the Securities and Exchange Commission in connection with a
public offering of Common Stock becomes effective, the fair market value of a
share of such Common Stock for purposes hereof shall be the public offering
price per share of Common Stock being offered pursuant to such offering.
5. Persons Eligible. Options may be granted under the Plan to any
key employee or prospective key employee (conditioned upon, and effective not
earlier than, his or her becoming an employee) of the Company, including without
limitation by way of specification, the Chief Executive Officer, Chief Operating
Officer, President, Senior Vice Presidents, Chief Financial Officer and other
officers and non-employee directors or prospective non-employee directors
(conditioned upon, and effective not earlier than, an individual becoming a
director) and other employees of the Company as approved by the Committee, or
any person who is an independent contractor associated with and rendering
services to the Company and who, in the opinion of the Committee, is in a
position to materially contribute to the continued growth and development of the
Company and its future financial success. No incentive stock options may be
granted under the Plan to any person, who owns, directly or indirectly (within
the meaning of Sections 422(b)(6) and 424(d) of the Code), at the time the
incentive stock option is granted, stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or its parent, if
any, or its subsidiaries, if any, unless the option price is at least 110% of
the Fair Market Value of the shares subject to the option, determined on the
date of the grant, and the option by its terms is not exercisable after the
expiration of five years from the date such option is granted.
An individual receiving any option under the Plan is hereinafter
referred to as an "Optionee." Any reference herein to the employment of an
Optionee by the Company shall include his or her employment by the Company or
its subsidiaries, if any.
6. Option Price. Subject to Paragraph 12, the option price of
each share of Common Stock purchasable under any incentive stock option or
non-qualified stock option granted under the Plan shall be not less than the
Fair Market Value of such shares of Common Stock on the date the option is
granted. For purposes of this Paragraph, the time at which an option is granted,
in case of the grant of an option to a prospective key employee or prospective
non-employee director, shall be deemed to be the date of such grant. The option
price of any option issued in a transaction described in Section 424(a) of the
Code shall be an amount which conforms to the requirements of that section and
the regulations thereunder.
7. Expiration and Termination of the Plan.
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7.1 General. Options may be granted under the Plan at any
time and from time to time on or prior to September 6, 2015 (the "Expiration
Date"), which is ten years from the effective date of the last amendment to the
Plan extending the term to such date and on which date the Plan will expire
except as to options then outstanding under the Plan. Such outstanding options
shall remain in effect until they have been exercised, terminated or have
expired. The Plan may be terminated, modified or amended by the Board of
Directors at any time on or prior to the Expiration Date, except with respect to
any options then outstanding under the Plan; provided, however, that the
approval of the Company's shareholders will be required for any amendment which
would (i) change the class of persons eligible for the grant of options, as
specified in Paragraph 5 or otherwise materially modify the requirements as to
eligibility for participation in the Plan, (ii) increase the maximum number of
shares subject to options, as specified in Paragraph 3 (unless made pursuant to
the provisions of Paragraph 12) or (iii) materially increase the benefits
accruing to participants under the Plan, within the meaning of Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended ("1934 Act").
With respect to persons subject to Section 16 of the 1934 Act, transactions
under the Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the 1934 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.
Moreover, in the event the Plan does not include a provision required by Rule
16b-3 to be stated therein, such provision (other than one relating to
eligibility requirements, or the price and amount of awards) shall be deemed
automatically to be incorporated by reference into the Plan insofar as
participants subject to Section 16 are concerned.
7.2 Modifications. The Committee may make such
modifications, extensions, renewals or other changes in any option granted under
the Plan after the grant of such option, provided such modifications,
extensions, renewals or other changes are consistent with the provisions of the
Plan and do not disqualify an incentive stock option under the provisions of
Section 422 of the Code.
8. Exercisability and Duration of Options.
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8.1 Determination of Committee; Acceleration. Each option
granted under the Plan shall vest and be exercisable at such time or times, or
upon the occurrence of such event or events, and in such amounts, as the
Committee may provide upon the granting thereof.
Subsequent to the grant of an option which is not immediately
exercisable in full, the Committee, at any time before complete termination of
such option, may accelerate the time or times at which such option may be
exercised in whole or in part. Any option granted under the Plan shall be
exercisable upon the death of the Optionee or upon the termination of the
Optionee's employment by or Optionee's acting as a non-employee director of the
Company by reason of his illness or disability to the extent such option was
exercisable by the Optionee immediately prior to such event, unless otherwise
expressly provided in the option at the time it is granted. Each option granted
under the Plan shall be for a term not in excess of ten (10) years from the date
of its grant.
9. Exercise of Options; Certain Legal and Other Restrictions.
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9.1 Exercise. Subject to all of the provisions of the
Plan and the terms of the applicable option agreement, options granted under the
Plan shall be exercised by the Optionee (or by his or her personal
representatives, executors or administrators, as provided in Paragraph 10) as to
all or part of the shares covered thereby, by the giving of written notice of
exercise to the Company, specifying the number of shares to be purchased,
accompanied by payment of the full purchase price for the shares being
purchased. Payment of such purchase price shall be made (a) by check payable to
the Company, or (b) with the consent of the Committee or to the extent provided
in an applicable option agreement, by delivery of shares of Common Stock having
a Fair Market Value (determined as of the date such option is exercised) equal
to all or part of the purchase price, and, if applicable, of a check payable to
the Company for any remaining portion of the purchase price. Such notice of
exercise, accompanied by such payment, shall be delivered to the Company at its
principal business office or such other office as the Committee may from time to
time direct, and shall be in such form, containing such further provisions
consistent with the provisions of the Plan, as the Committee may from time to
time prescribe. The Company shall effect the transfer of the shares so purchased
to the Optionee (or such other person exercising the option pursuant to
Paragraph 10 hereof) as soon as practicable, and within a reasonable time
thereafter. Such transfer shall be evidenced on the books of the Company. No
Optionee or other person exercising an option shall have any of the rights of a
shareholder of the Company with respect to shares subject to an option granted
under the Plan until certificates for such shares shall have been issued
following the exercise of such option. No adjustment shall be made for cash
dividends or other rights for which the record date is prior to the date of such
issuance. In no event may any option granted hereunder be exercised for a
fraction of a share.
9.2 Withholding Tax. Whenever under the Plan shares of
stock are to be delivered upon exercise of a non-qualified stock option, the
Company shall be entitled to require as a condition of delivery that the
Optionee remit or, in appropriate cases, agree to remit when due an amount
sufficient to satisfy all federal, state and local withholding tax requirements
relating thereto.
If an Optionee makes a "disposition" (within the meaning of Section
424(c) of the Code) of shares of Common Stock issued upon exercise of an
incentive stock option within two years from the date of grant or within one
year from the date the shares of Common Stock are transferred to the Optionee,
the Optionee shall, within ten days of disposition, notify the Committee and
deliver to it any withholding and employment taxes due. However, if the Optionee
is a person subject to Section 16(b) of the 1934 Act, delivery of any
withholding and
employment taxes due may be deferred until ten days after the date any income on
the disposition is recognized under Section 83 of the Code. The Company may
cause a legend to be affixed to certificates representing shares of Common Stock
issued upon exercise of incentive stock options to ensure that the Committee
receives notice of disqualifying dispositions.
9.3 Restrictions on Delivery of Shares. In and at the
discretion of the Committee, each award granted under the Plan may be subject to
the condition that, if at any time the listing, registration or qualification of
the shares covered by such award upon any securities exchange or under any state
or federal law is necessary as a condition of or in connection with the granting
of such option or the purchase or delivery of shares thereunder, the delivery of
any or all shares pursuant to exercise of the option may be withheld unless and
until such listing, registration or qualification shall have been effected;
provided, however, that the Committee, in its discretion, may agree on behalf of
the Company in connection with the granting of an award under the Plan that the
Company will use its best efforts to effect and continuously maintain any and
all such listings, registrations and qualifications. The Committee may require,
as a condition of exercise of any option, that the Optionee represent, in
writing, that the shares received upon exercise of the option are being acquired
for investment and not with a view to distribution and agree that the shares
will not be disposed of except pursuant to an effective registration statement
under the Securities Act of 1933, as amended, and only after any required
qualification under applicable state securities laws, unless the Company shall
have received an opinion of counsel satisfactory to the Company that such
disposition is exempt from such registration and qualification. The Committee
may require that there be affixed on certificates representing shares issued
upon the exercise of an option such legends referring to the foregoing
representations or any applicable restrictions on resale as the Committee, in
its discretion, shall deem reasonably appropriate as well as place such stop
transfer orders with its registrar and transfer agent as it deems reasonably
appropriate.
10. Non-Transferability of Options. No option granted under the
Plan or any right evidenced thereby shall be transferable by the Optionee other
than by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined by the Code or Title I of the
Employment Retirement Income Security Act, or the rules thereunder, and, except
with respect to a qualified domestic relations order as aforesaid, an option may
be exercised, during the lifetime of an Optionee, only by such Optionee.
11. Right to Terminate Employment. Nothing in the Plan or in any
option granted under the Plan shall confer upon any Optionee the right to
continue in the employment or as a director of the Company or affect the right
of the Company to terminate the Optionee's employment or directorship at any
time, subject, however, to the provisions of any agreement of employment between
the Optionee and the Company.
12. Adjustment Upon Changes in Capitalization, etc. In the event
of any stock split, stock dividend, combination of shares, reclassification or
recapitalization which changes the character or amount of the Company's
outstanding Common Stock while any portion of any option theretofore granted
under the Plan is outstanding but unexercised, the Committee shall make such
adjustments in the character and number of shares subject to such options and in
the option price, as shall be equitable and appropriate in order to make the
option, as nearly as may be practicable, equivalent to such option immediately
prior to such change; provided, however,
that no such adjustment shall give any Optionee any additional benefits under
his or her option; and provided further, that, with respect to any outstanding
incentive stock option, if any such adjustment is made by reason of a
transaction described in section 424(a) of the Code, it shall be made so as to
conform to the requirements of that section and the regulations thereunder.
If any transaction (other than a change specified in the preceding
paragraph) described in section 424(a) of the Code affects the Company's Common
Stock subject to any unexercised option theretofore granted under the Plan
(hereinafter for purposes of this Paragraph 12 referred to as the "old option"),
the Board of Directors of the Company or any surviving or acquiring corporation
may take such action as it deems appropriate, and in conformity with the
requirements of that section and the regulations thereunder, to substitute a new
option for the old option, in order to make the new option, as nearly as may be
practicable, equivalent to the old option, or to assume the old option.
If any such change or transaction shall occur, the number and kind of
shares for which options may thereafter be granted under the Plan shall be
adjusted to give effect thereto.
13. Application of Funds. The proceeds received by the Company
from the sale of the Common Stock may be commingled with any other corporate
funds and used for any corporate purpose.
14. Amendment of Plan. The Plan was last amended, by action taken
by the Board of Directors of the Company on September 6, 2005, which was
approved by the shareholders of the Company at the Company's annual meeting of
shareholders held on November 2, 2005, to extend the term and expiration date of
the Plan to September 6, 2015 and to increase the number of shares of common
stock reserved for issuance under the Plan to 1,350,000 shares.