Exhibit 10.11
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
2001 STOCK INCENTIVE PLAN
As Amended
1. PURPOSES
1.1. The purposes of the Integrated Business Systems and Services, Inc.
2001 Stock Incentive Plan are to (i) provide an incentive and reward to
directors and employees of the Company, and consultants and advisors to the
Company, who are and have been in a position to contribute materially to
improving the Company's profits, (ii) aid in the growth of the Company, and
(iii) encourage ownership of Shares by directors and employees.
2. DEFINITIONS
2.1. For purposes of this Plan the following terms shall have the
definition which are attributed to them below, unless another definition is
clearly indicated by a particular usage and context.
(a) "Agreement" means the written document issued by the Committee to a
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Participant whereby an Award is made to that Participant.
(b) "Award" means the issuance pursuant to this Plan of an Option, an SAR
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or Restricted Stock.
(c) "Awarded Shares" means Shares subject to outstanding Awards.
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(d) "Board" means the Company's Board of Directors.
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(e) "Cause" means theft or destruction of property of the Company, a
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Parent or Subsidiary, disregard of Company rules or policies, or
conduct evidencing willful or wanton disregard of the interest of the
Company. Such determination shall be made by the Committee based on
information presented by the Company and the Participant and shall be
final and binding on all parties to the Agreement.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
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(g) "Committee" means the Stock Incentive Plan Committee(s) appointed by
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the Board pursuant to Section 3.1.
(h) "Company" means Integrated Business Systems and Services, Inc., a
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corporation incorporated under the laws of the state of South
Carolina, and any successor thereto.
(i) "Consultant" means any person or entity that provides services to the
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Company as a consultant or advisor.
(j) "Director" means any individual appointed or elected to the Board.
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(k) "Effective Date of Grant" means the effective date on which the
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Committee makes an Award.
(l) "Employee" means any individual who performs services as a common law
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employee for the Company, a Parent or Subsidiary, and is included on
the regular payroll of the Company, a Parent or Subsidiary.
(m) "Fair Market Value" means the value established by the Committee based
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upon such factors as the Committee in its sole discretion shall
decide, including, but not limited to, a valuation prepared by an
independent third party appraiser selected or approved by the
Committee. If at any time the Shares are traded on an established
trading system, it means the last sale price reported on any stock
exchange or over-the counter trading system on which Shares are
trading on a specified date or, if not so trading, the average of the
closing bid and asked prices for a Share on a specified date. If no
sale has been made on the specified date, then prices on the last
preceding day on which any such sale shall have been made shall be
used in determining fair market value under either method prescribed
in the previous sentence.
(n) "Incentive Stock Option" means any option granted under this Plan
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which meets the requirements of Code (S) 422A and any regulations or
rulings promulgated thereunder and is designated by the Committee as
an Incentive Stock Option.
(o) "Nonqualified Stock Option" means any Option granted under this Plan
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which is not an Incentive Stock Option.
(p) "Option" means the right to purchase from the Company a stated number
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of Shares at a specified price.
(q) "Option Price" means the purchase price per Share subject to an Option
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and shall be fixed by the Committee.
(r) "Parent" means any corporation (other than the Company) in an unbroken
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chain of corporations ending with the Company if, at the time of the
granting of the Award, each of the corporations (other than the
Company) owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain within the meaning of Code (S) 425(e) and any
regulations or rulings promulgated thereunder.
(s) "Participant" means a Director, an Employee or a Consultant who has
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received an Award under this Plan.
(t) "Permanent and Total Disability" shall have the same meaning as given
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to that term by Code (S) 22(e)(3) and any regulations or rulings
promulgated thereunder.
(u) "Plan" means this Integrated Business Systems and Services, Inc. 2001
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Stock Incentive Plan, as evidenced herein and as amended from time to
time.
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(v) "Restricted Stock" means Shares issued to the Participant pursuant to
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Section which are subject to the restrictions of this Plan and the
Agreement.
(w) "Restriction Period" means a period commencing on the Effective Date
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of Grant and ending on such date or upon the achievement of such
performance or other criteria as the Committee shall determine. The
Restriction Period may, in the sole discretion of the Committee, be
structured to provide for a release of restrictions in installments.
(x) "SAR" means stock appreciation rights issued to a Participant pursuant
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to Section .
(y) "SAR Price" means the base value established by the Committee for an
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SAR on the Effective Date of Grant used in determining the amount of
benefit, if any, paid to a Participant.
(z) "Share" means one share of the common stock of the Company.
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(aa) "Subsidiary" means any corporation in an unbroken chain of
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corporations beginning with the Company if, at the time of the
granting of the Award, each of the corporations (other than the last
corporation) in the unbroken chain owns stock possessing 50% or more
of the total combined voting power of all classes of stock in one of
the other corporations in such chain, within the meaning of Code (S)
425(f) and any regulations or rulings promulgated thereunder.
(bb) "1933 Act" means the Securities Act of 1933, as amended.
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(cc) "1934 Act" means the Securities Exchange Act of 1934, as amended.
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3. ADMINISTRATION
3.1. This Plan shall be administered by a Committee, or by more than one
Committee if desired and deemed necessary by the Board in order to provide
separate Committee authority for the granting of Awards to separate categories
of eligible Participants. Any such Committee shall consist of not less than two
members. The members of the Committee shall be appointed by the Board. The Board
may from time to time remove members from or add members to the Committee.
Vacancies on the Committee, howsoever caused, shall be filled by the Board.
3.2. The action of a majority of the Committee at which a quorum is
present, or an action approved in writing by a majority of the Committee, shall
be the valid action of the Committee.
3.3. The Committee shall from time to time at its discretion designate the
Directors, Employees and Consultants who shall be Participants, determine all
the terms and conditions as set forth in Section 6.1 or otherwise, including the
type of Award to be made to each, the exercise period, expiration date and other
applicable time periods for each Award, the number of Shares subject to each
Award, with respect to each Option whether it is an Incentive Stock
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Option or Nonqualified Stock Option and, if applicable, the Option Price or SAR
Price and the general terms of the Award.
3.4. The interpretation and construction by the Committee of any provisions
of this Plan or of any Option granted under it and all actions of the Committee
shall be final and binding on all parties hereto. No member of the Board or the
Committee shall be liable for any action or determination made in good faith
with respect to this Plan or any Award granted under it.
4. ELIGIBILITY
4.1. Each Participant shall be a Director, an Employee or a Consultant of
the Company, a Parent or a Subsidiary as selected by the Committee in its sole
discretion from time to time.
4.2. A Participant may hold more than one Award, but only on the terms and
subject to the restrictions set forth in this Plan.
5. SHARES SUBJECT TO AWARD
5.1. The securities subject to the Awards shall be 1,200,000 Shares. Such
number shall be adjusted as appropriate in order to give effect to changes made
in the number of outstanding Shares as a result of a merger, consolidation,
recapitalization, reclassification, combination, stock dividend, stock split, or
other relevant change.
5.2. In the event that any outstanding Award under this Plan expires or is
terminated for any reason, the Awarded Shares subject to that Award may again be
the subject of an Award under this Plan.
6. TERMS AND CONDITIONS
6.1. Awards granted pursuant to this Plan shall be authorized by the
Committee under terms and conditions approved by the Committee and shall be
evidenced by Agreements in such form as the Committee shall from time to time
approve, which Agreements shall contain or shall be subject to the following
terms and conditions, whether or not such terms and conditions are specifically
included therein:
(a) Number of Shares. Each Award shall state the number of Shares to which
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it pertains.
(b) Date. Each Award shall state the Effective Date of Grant.
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(c) Price. With respect to each Award or portion thereof, which requires
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payment of an Option Price, it shall state the Option Price. With
respect to an SAR, it shall state the SAR Price.
(d) Method and Time of Payment. With respect to an Award, or portion
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thereof, which requires payment of an Option Price, the Option Price
shall be payable on the exercise of the Award and may be paid in or by
any one of the following
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means, or any combination thereof, to the extent not otherwise
designated by the Committee in the Agreement:
(1) Cash;
(2) Check (which clears in due course) payable to Integrated Business
Systems and Services, Inc.;
(3) Shares tendered to the Company, duly endorsed for transfer and
owned by Participant to be credited against the Option Price at
the Fair Market Value of such tendered Shares on the date of
exercise; provided however, that no fractional shares may be so
transferred, and the Company shall not be obligated to make any
cash payments in consideration of any amount by which the
aggregate Fair Market Value of the Shares so transferred exceeds
the aggregate Option Price; and
(4) A note payable executed and delivered by Participant to the
Company upon terms acceptable to the Company in an amount equal
to the aggregate Option Price or relevant portion thereof, such
note payable to be fully secured by the pledge to the Company of
any Shares whose Option Price is covered by such note and the
certificates representing such Shares shall be held in the
custody of the Company until such note is paid in full. The
Option shall be deemed exercised and the Shares purchased thereby
shall be deemed issued as of the date such payment (in one or
more of the alternative forms permitted herein) is received in
full by the Company.
(e) Conversion of Option. Unless the Committee elects otherwise in the
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Agreement representing any Award, in lieu of the payment of all or any
or any portion of the Option Price in accordance with the preceding
subparagraph (d), a Participant may convert all or a portion of an
Option by the surrender of the Agreement and delivery of a Notice of
Conversion in the form attached to the Agreement, duly executed, at
the principal executive offices of the Company, into Shares as
provided in this subparagraph (e). Upon exercise of this conversion
right, the Participant shall be entitled to receive that number of
Shares equal to the quotient obtained by dividing [(A-B)(X)] by (A),
where:
A = the current Fair Market Value of one Share on the date of
conversion.
B = the Option Price for one Share under the Agreement.
X = the number of Shares with respect to which the Option is being
converted.
If the above calculation results in a negative number, then no Shares
shall be issued or be issuable upon conversion of the Option. By way
of illustration, if the Option Price is $10.00 per Share, the current
Fair Market Value is $20.00 per Share, and the Option is being
converted with respect to 100,000 Shares, then 50,000 Shares would be
issued on conversion [($20.00 -$10.00) x 100,000
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divided by $20.00 = 50,000] and the number of Shares issuable upon
exercise of the Option would be reduced by 100,000.
(f) Transfer of Option or Stock. No Award, Option, SAR, or Restricted
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Stock (prior to the expiration of the Restriction Period) shall be
transferable by the Participant, except by will or the laws of descent
and distribution upon the Participant's death and subject to any other
limitations of this Plan. In addition to any other restriction
hereunder or otherwise provided in the Agreement with the Participant,
no Shares acquired pursuant to an Award of any type may be sold,
transferred or otherwise disposed of prior to the end of the six (6)
month period which begins on the Effective Date of Grant of such
Award.
(g) Recapitalization. The Committee shall make appropriate adjustments in
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the number of Awarded Shares or in the Option Price or SAR Price in
order to give effect to changes made in the number of outstanding
Shares as a result of a merger, consolidation, recapitalization,
reclassification, combination, stock dividend, stock split, or other
relevant change.
(h) Investment Purpose.
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(1) The Company shall not be obligated to sell or issue any Shares
pursuant to any Award unless such Shares are at that time effectively
registered or exempt from registration under the 1933 Act. The
determination of whether a Share is exempt from registration shall be
made by the Company's legal counsel and its determination shall be
conclusive and binding on all parties to the Agreement.
(2) Notwithstanding anything in this Plan to the contrary, each Award
under this Plan shall be granted on the condition that the purchases
of Shares thereunder shall be for investment purposes and not with a
view for resale or distribution except that in the event the Shares
subject to such Award are registered under the 1933 Act, or in the
event of a resale of such Shares without such registration that would
otherwise be permissible, such condition shall be inoperative if in
the opinion of counsel for the Company such condition is not required
under the 1933 Act or any other applicable law, regulation, or rule of
any governmental agency.
(i) Other Provisions. Awards authorized under this Plan may contain any
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other provisions or restrictions as the Committee in its sole and
absolute discretion shall deem advisable including, but not limited
to:
(1) Offering Options in tandem with or reduced by other Options, SARs
or other employee benefits and reducing one Award by the exercise of
another Option, SAR or benefit; or
(2) Providing for the issuance to the Participant upon exercise of an
Option and payment of the exercise price thereof with previously owned
Shares, of an additional Award for the number of shares so delivered,
having such other terms and conditions not inconsistent with this Plan
as the Committee shall determine.
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(j) Duration of Award. Each Award shall be for a term of up to ten (10)
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years from the Effective Date of Grant as determined in the sole
discretion of the Committee.
6.2. The Company may place such legends on stock certificates representing
the Shares as the Company, in its sole discretion, deems necessary or
appropriate to reflect restrictions under this Plan, the Agreement, the Code,
the securities laws or otherwise.
6.3. Notwithstanding any provision herein to the contrary, employment shall
be at the pleasure of the Board, of its designees, of the Company, a Parent or
Subsidiary, as the case may be, at such compensation as the appropriate board or
designee shall determine. Nothing contained in this Plan or in any Award granted
pursuant to it shall confer upon any Participant any right to continue in the
employ of the Company, Parent or Subsidiary, as the case may be, or to interfere
in any way with the right of the Company, Parent or Subsidiary to terminate
employment at any time. So long as the Participant shall continue to be a
Director, an Employee or a Consultant, the Award shall not be affected by any
change of the Participant's duties or position except to the extent the
Agreement with the Participant provides otherwise.
6.4. Any person entitled to exercise an Option or an SAR may do so in whole
or in part by delivering to the Company at its principal office, attention
Corporate Secretary, a written notice of exercise. The written notice shall
specify the number of Shares for which an Option or SAR is being exercised.
(a) With respect to an Option, the notice shall be accompanied by full
payment of the Option Price for the Shares being purchased.
(b) During the Participant's lifetime, an Option or SAR may be exercised
only by the Participant, or on the Participant's behalf by the
Participant's legal guardian.
7. INCENTIVE STOCK OPTIONS AND NONQUALIFIED STOCK OPTIONS
7.1. The Committee in its sole discretion may designate whether an Award to
an Employee is to be considered an Incentive Stock Option or a Nonqualified
Stock Option. An Award to a non-Employee Director or Consultant may be only a
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Nonqualified Stock Option. The Committee may grant both an Incentive Stock
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Option and a Nonqualified Stock Option to the same Employee. However, where both
an Incentive Stock Option and a Nonqualified Stock Option are awarded at one
time, such Awards shall be deemed to have been awarded in separate grants, shall
be clearly identified, and in no event will the exercise of one such Award
affect the right to exercise the other such Award except to the extent the
Agreement with the Participant provides otherwise.
7.2. Any Award to an Employee designated by the Committee as an Incentive
Stock Option will be subject to the general provisions applicable to all Awards
granted under this Plan. In addition, the aggregate Fair Market Value of Shares
(determined at the Effective Date of Grant) with respect to which Incentive
Stock Options granted under all Incentive Stock Option Plans of the Company, a
Parent or Subsidiary, are exercisable by the Employee for the first time during
any calendar year shall not exceed $100,000.
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7.3. The Option Price shall be established by the Committee in its sole
discretion. With respect to an Incentive Stock Option, the Option Price shall
not be less than 100% of the Fair Market Value of a Share on the Effective Date
of Grant. With respect to a Nonqualified Stock Option, the Option Price shall
not be less than 50% of the Fair Market Value of a Share on the Effective Date
of Grant.
7.4. Any Award to an Employee will be considered to be a Nonqualified Stock
Option to the extent that any or all of the grant is in conflict with Section or
with any requirement for Incentive Stock Options pursuant to Code (S) 422A and
the regulations issued thereunder.
7.5. An Option may be terminated as follows:
(a) During the period of continuous employment with the Company, Parent or
Subsidiary, an Option will be terminated only if it has been fully
exercised or it has expired by its terms.
(b) Upon termination of employment, the Option will terminate upon the
earliest of (i) the full exercise of the Option (ii) the expiration of
the Option by its terms, and (iii) not more than three (3) months
following the date of employment termination; provided, however,
should termination of employment (A) result from the death or
Permanent and Total Disability of the Participant, such period shall
be one (1) year or (B) be for Cause, the Option will terminate on the
date of employment termination. For purposes of this Plan, a leave of
absence approved by the Company shall not be deemed to be termination
of employment except with respect to an Incentive Stock Option as
required to comply with Code (S) 422A and the regulations issued
thereunder.
(c) Subject to the terms of the Agreement with the Participant, if a
Participant shall die or becomes subject to a Permanent and Total
Disability prior to the termination of employment with the Company,
Parent or Subsidiary and prior to the termination of an Option, such
Option may be exercised to the extent that the Participant shall have
been entitled to exercise it at the time of death or disability, as
the case may be, by the Participant, the estate of the Participant or
the person or persons to whom the Option may have been transferred by
will or by the laws of descent and distribution.
7.6. Except as otherwise expressly provided in the Agreement with the
Participant, in no event will the continuation of the term of an Option beyond
the date of termination of employment allow the Participant, or the
beneficiaries or heirs of the Participant, to accrue additional rights under
this Plan, or to purchase more Shares through the exercise of an Option than
could have been purchased on the day that employment was terminated.
7.7. A Participant shall have no rights as a stockholder with respect to
any Shares subject to an Option until the date of the issuance of a stock
certificate to such Participant for such Shares. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as provided in Section 6.1(g).
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7.8. The continuous employment of a Consultant will be deemed terminated
for purposes of this Plan upon receipt of written notice from the Company to the
effect that the Company will no longer transact business with the Consultant.
8. STOCK APPRECIATION RIGHTS
8.1. The Committee, in its sole discretion, may grant to a Participant an
SAR.
8.2. The SAR Price shall be established by the Committee in its sole
discretion. The SAR Price shall not be less than 100% of Fair Market Value of a
Share on the Effective Date of Grant for a SAR issued in tandem with an
Incentive Stock Option and for other SARs, shall not be less than 50% of Fair
Market Value of a Share on the Effective Date of Grant.
8.3. Upon exercise of an SAR, the Participant shall be entitled, subject to
the terms and conditions of this Plan and the Agreement, to receive the excess
for each Share being exercised under the SAR (a) the Fair Market Value of a
Share on the date of exercise over (b) the SAR Price for such Share.
8.4. At the sole discretion of the Committee, the payment of such excess
shall be made in (a) cash, (b) Shares, or (c) a combination of cash and Shares.
Shares used for this payment shall be valued at their Fair Market Value on the
date of exercise of the applicable SAR.
8.5. An Award of an SAR shall be considered an Award for purposes of the
number of Shares subject to an Award pursuant to Section , unless the Agreement
making the Award of the SAR provides that the exercise of an SAR results in the
termination of an unexercised Option for the same number of Shares.
8.6. An SAR may be terminated as follows:
(a) During the period of continuous employment with the Company, Parent or
Subsidiary, an SAR will be terminated only if it has been fully
exercised or it has expired by its terms.
(b) Upon termination of employment, the SAR will terminate upon the
earliest of (1) the full exercise of the SAR, (2) the expiration of
the SAR by its terms, and (3) not more than three months following the
date of employment termination; provided, however, should termination
of employment (A) result from the death or Permanent and Total
Disability of the Participant, such three month period shall be one
year, or (B) be for Cause, the SAR will terminate on the date of
employment termination. For purposes of this Plan, a leave of absence
approved by the Company shall not be deemed to be termination of
employment unless otherwise provided in the Agreement or by the
Company on the date of the leave of absence.
(c) Subject to the terms of the Agreement with the Participant if a
Participant shall die or becomes subject to a Permanent and Total
Disability prior to the termination of employment with the Company,
Parent or Subsidiary and prior to the termination of an SAR, such SAR
may be exercised to the extent that the Participant shall have been
entitled to exercise it at the time of death or disability, as the
case may be, by
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the Participant, the estate of the Participant or the person or
persons to whom the SAR may have been transferred by will or by the
laws of descent and distribution.
(d) Except as otherwise expressly provided in the Agreement with the
Participant, in no event will the continuation of the term of an SAR
beyond the date of termination of employment allow the Employee, or
his beneficiaries or heirs, to accrue additional rights under this
Plan, have additional SARs available for exercise or to receive a
higher benefit than the benefit payable as if the SAR was exercised on
the date of employment termination.
8.7. If an SAR which was considered an Award for purposes of Section is
terminated or unexercised for any reason, the number of Shares of such SAR that
were unexercised shall be again available for Award under this Plan.
8.8. The Participant shall have no rights as a stockholder with respect to
an SAR. In addition, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or rights except as provided in Section 6.1(g).
9. RESTRICTED STOCK
9.1. The Committee may award to a Participant Restricted Stock under such
terms or conditions as the Committee, in its sole discretion, shall determine
and as otherwise provided herein.
9.2. Restricted Stock shall be Shares which are subject to a Restriction
Period.
9.3. Should the Participant terminate employment for any reason, all
Restricted Stock which is still subject to the Restriction Period shall be
forfeited and returned to the Company for no payment.
9.4. Upon such forfeiture, shares representing such forfeited restricted
Stock shall obtain become available for Award under the Plan.
9.5. The Committee may require under such terms and conditions as it deems
appropriate or desirable that the certificates for Restricted Stock awarded
under this Plan may be held by the Company or its designee until the Restriction
Period expires. In addition, the Committee may place upon such certificate such
legend as the Committee deems necessary or appropriate and may require as a
condition of any receipt of Restricted Stock that the Participant shall deliver
a stock power endorsed in blank relating to the Restricted Stock.
10. AMENDMENT OR DISCONTINUANCE OF PLAN
10.1. The Board may at any time amend, suspend, or discontinue this Plan;
provided, however, that without further approval of the shareholders of the
Company no amendments by the Board shall:
(a) Change the class of Employees eligible to participate; or
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(b) Except as provided in Section 5, increase the number of Shares which
may be subject to Options granted under this Plan.
10.2. No amendment to this Plan shall alter or impair any Award granted
under this Plan without the consent of the holder of such Award.
11. INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
Directors or as members of the Committee, the members of the Committee shall be
indemnified by the Company against the reasonable expenses, including attorneys'
fees, actually incurred in connection with the defense of any pending,
threatened or possible action, suit or proceeding, or in connection with any
pending, threatened or possible appeal therein, to which they or any of them may
be a party by reason of any actual or alleged action taken or failure to act
under or in connection with this Plan or any option granted thereunder, and
against all amounts paid by them in settlement thereof (provided such settlement
is approved by the Company) or paid by them in satisfaction of a judgment in any
such action, suit or proceeding, except in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that such Committee member
is liable for gross negligence or willful misconduct in the performance of his
duties: provided that within sixty days after institution of any such action,
suit or proceeding a Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.
12. NO OBLIGATION TO EXERCISE OPTION OR SAR
The granting of an Option or SAR shall impose no obligation upon the
Participant to exercise such Option.
13. EFFECTIVE DATE; DURATION OF PLAN
13.1. This Plan shall become effective as of February 23, 2001.
13.2. No Award may be made after the tenth anniversary of the effective
date of this Plan.
14. EFFECT OF PLAN
The making of an Award under this Plan shall not give the Participant any
right to similar grants in future years or any right to be retained in the
employ of the Company, the Parent or a Subsidiary, but a Participant shall
remain subject to discharge to the same extent as if this Plan were not in
effect.
15. CHANGE IN CONTROL
15.1. Treatment of Outstanding Awards. Upon the occurrence of a Change In
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Control, as defined below, unless otherwise specifically prohibited under
applicable laws, or by the rules and regulations of any governmental agencies or
national securities exchanges, or by the express provisions of any Agreement,
(a) each Option and each SAR then outstanding hereunder that is
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not otherwise exercisable shall become immediately and fully exercisable, and
shall remain exercisable throughout their entire term, notwithstanding any
provision in the Agreement relating to such Option or SAR for the exercise of
such Option or SAR in installments or otherwise pursuant to a vesting schedule,
and (b) any Restriction Period and restrictions imposed on Restricted Stock
shall lapse.
15.2. Change in Control Defined. For purposes of this Section, a Change In
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Control shall mean that any of the following events shall have occurred:
(a) A person, partnership, joint venture, corporation or other entity, or
two or more of any of the foregoing acting as a group (or a "person"
within the meaning of Section 13(d)(3) of the 1934 Act), other than
the Company, a majority-owned subsidiary of the Company, an employee
benefit plan (or related trust) of the Company or such subsidiary,
become(s) after the effective date of this Plan the "beneficial owner"
(as defined in Rule 13(d)(3) under the 1934 Act) of 25% or more of the
then outstanding voting stock of the Company;
(b) During any period of two consecutive years, individuals who at the
beginning of such period constitute the Company's Board of Directors
(together with any new director whose election by the Company's Board
of Directors or whose nomination for election by the Company's
shareholders, was approved by the vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the directors then in office;
(c) The Board determines that a tender offer for the Company's outstanding
Shares indicates a serious intention by the offeror to acquire control
of the Company; or
(d) The Shareholders of the Company approve (i) a plan of complete
liquidation of the Company; or (ii) an agreement for the sale or
disposition of all or substantially all of the Company's assets; or
(iii) a merger, consolidation, or reorganization of the Company with
or involving any other corporation, other than a merger,
consolidation, or reorganization that would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least
seventy-five percent (75%) of the combined voting power of the voting
securities of the Company (or such surviving entity) outstanding
immediately after such merger, consolidation or reorganization.
15.3. Termination, Amendment and Modifications of Change in Control
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Provisions. Notwithstanding any other provision of this Plan or any Agreement,
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the provisions of this Section may not be terminated, amended or modified on or
after the effective date of a Change in Control to affect adversely the
operation of any Award theretofore granted under the Plan without the prior
written consent of the Participant with respect to said Participant's
outstanding Awards.
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16. SUCCESSORS; CONSOLIDATION, MERGER AND OTHER EVENTS
16.1. All obligations of the Company under this Plan or any Agreement with
respect to any Award granted hereunder shall be binding on any successor to the
Company, whether the existence of such successor is the result of a direct or
indirect purchase of all or substantially all of the business and/or assets of
the Company, or a merger, consolidation or otherwise. Specifically, in case of
any capital reorganization of the Company, or of any reclassification of any
Shares (other than a change as a result of subdivision or combination), or in
case of the consolidation of the Company with or the merger of the Company with
any other corporation (other than a consolidation or merger in which (a) the
Company is the continuing corporation and (b) the holders of the Shares
immediately prior to such merger or consolidation continue as holders of Shares
after such merger or consolidation) or of the sale of the properties and assets
of the Company as, or substantially as, an entirety to any other corporation,
each Option and each SAR then outstanding shall after such reorganization,
reclassification, consolidation, merger or sale be exercisable, upon the terms
and conditions specified herein and in the Agreement relating to such Option or
SAR, for or with respect to the number of Shares or other securities or property
to which a holder of the number of Shares relating to such Option or SAR (at the
time of such reorganization, reclassification, consolidation, merger or sale)
upon exercise of such Option or SAR would have been entitled in connection with
such reorganization, reclassification, consolidation, merger or sale; and in any
such case, if necessary, the provisions set forth in this Section with respect
to the rights and interests thereafter of the holder of the Option or SAR shall
be appropriately adjusted so as to be applicable, as nearly as may reasonably
be, to any shares of stock or other securities or property thereafter
deliverable on the exercise of the Option or SAR.
13
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
This Agreement, dated as of , implements the grant of an incentive
-------
stock option pursuant to action of the committee ("Committee") appointed by the
Board of Directors ("Board") of Integrated Business Systems and Services, Inc.
("Company") to ("Optionee") subject to the terms and conditions of the
Integrated Business Systems and Services, Inc. 2001 Stock Incentive Plan
("Plan") and the terms and conditions set forth below. Terms defined in the Plan
shall have the same meaning herein as in the Plan.
The Committee desires to afford the Optionee the opportunity to acquire
Shares of the Company's common stock so the Optionee has a proprietary interest
in the Company, and the Optionee desires the opportunity to acquire Shares.
Accordingly, the Company and the Optionee agree as follows:
1. Grant of Option and Purchase Price. The Company, pursuant to action of the
----------------------------------
Committee, grants to the Optionee an Option to purchase Shares at a
------------
price of $ per share ("Option Price"), which has been determined to
-----------
be not less than the Fair Market Value of a Share on the date of grant of this
option.
2. Expiration of the Option. This Option shall expire ("Expiration Date") on the
------------------------
earlier of (i) ( ) years from the date hereof; (ii)
-------------- ----------
three months after the Optionee ceases to be an Employee of the Company, a
Parent or a Subsidiary (twelve months if termination of employment is due to the
Optionee's death or the Optionee having incurred a Permanent and Total
Disability or the date of termination of employment, if termination of
employment is due to Cause); (iii) the date this Option is fully exercised; or
(iv) the date mutually agreed to by the Committee and the Optionee.
3. Exercise of Option
------------------
3.1. Subject to any other conditions herein, this Option shall vest on the
anniversary date of this Agreement. The Optionee's vested percentage
- ---------
of the total grant hereunder shall be fixed as of the date the Optionee is no
longer an Employee of the Company, a Subsidiary or a Parent and shall not
increase during the additional period, if any, during which this Option may be
exercised under Section hereof. Vested portions of this Option may be exercised
at any time, in whole or in part, before the Expiration Date.
3.2. This Option may be exercised by mailing or delivering to Integrated
Business Systems and Services, Inc., Attention: Corporate Secretary, 115 Atrium
Way, Suite 228, Columbia, South Carolina 29223, (i) a written signed notice of
such exercise which specifies the Effective Grant Date of this Option, and the
number of Shares being purchased, and (ii) payment for such Shares in accordance
with Section 6.1 of the Plan. The Option shall be deemed exercised and the
Shares purchased thereby shall be deemed issued as of the date such payment is
received by the Company.
4. Non-transferability of Option. This Option shall not be transferable by the
-----------------------------
Optionee other than by will or the laws of descent and distribution and shall be
exercisable during the Optionee's lifetime only by the Optionee.
14
5. Adjustment in Shares Subject to the Option. The Committee will make
------------------------------------------
appropriate adjustments in the number of Shares subject to this Option or the
Option Price in order to give effect to changes made in the number of
outstanding Shares as a result of a merger, consolidation, recapitalization,
reclassification, combination, stock dividend, stock split, or other relevant
change.
6. Rights as Shareholder or Employee.
---------------------------------
6.1. This Option shall not entitle the Optionee to any rights as a
shareholder of the Company with respect to any Shares subject to this Option
until it has been exercised and any such Shares issued.
6.2. This Option does not confer upon the Optionee any right with respect
to continuation of employment by the Company or a Subsidiary, nor does it in any
way interfere with or affect Optionee's right, the Company's right or a
Subsidiary's right to terminate such employment at any time.
7. Withholding. The Committee will make whatever arrangements the Company deems
-----------
necessary or appropriate to comply with all applicable tax withholding
requirements. The Committee and the Company shall have no obligation to deliver
a certificate evidencing the Shares purchased upon exercise of the Option unless
and until tax withholding arrangements satisfactory to the Company are made. The
Optionee's failure to comply with the required withholding arrangements shall
result in a forfeiture of any benefits hereunder.
8. Entire Agreement. This Agreement, together with the provisions of the Plan
----------------
which are incorporated herein by reference, constitutes the entire Agreement
between the Optionee and the Company with respect to the Option granted
hereunder.
9. Applicable Law. The Plan and this Agreement shall be governed by the laws of
--------------
the State of South Carolina.
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
By:
-------------------------------------------
Its:
------------------------------------------
-----------------------------------------------
Optionee (Signature)
-----------------------------------------------
Optionee (Please print name)
15
NONQUALIFIED STOCK OPTION AGREEMENT
-----------------------------------
This Agreement, dated as of , implements the grant of a
------------
nonqualified stock option pursuant to action of the committee ("Committee")
appointed by the Board of Directors ("Board") of Integrated Business Systems and
Services, Inc. ("Company") to ("Optionee") subject to the terms and conditions
of the Integrated Business Systems and Services, Inc. 2001 Stock Incentive Plan
("Plan") and the terms and conditions set forth below. Terms defined in the Plan
shall have the same meaning herein as in the Plan.
The Committee desires to afford the Optionee the opportunity to acquire
Shares of the Company's common stock so the Optionee has a proprietary interest
in the Company, and the Optionee desires the opportunity to acquire Shares.
Accordingly, the Company and the Optionee agree as follows:
1. Grant of Option and Purchase Price. The Company, pursuant to action of the
----------------------------------
Committee, grants to the Optionee an Option to purchase Shares at a
------------
price of $ per share ("Option Price"), which has been determined to
-------------
be not less than the Fair Market Value of a Share on the date of grant of this
option.
2. Expiration of the Option. This Option shall expire ("Expiration Date") on the
------------------------
earlier of (i) ( ) years from the date hereof; (ii) three
------------ ------
months after the Optionee ceases to be a Director, an Employee or a Consultant
of the Company, a Parent or a Subsidiary (twelve months if termination of
employment is due to the Optionee's death or the Optionee having incurred a
Permanent and Total Disability or the date of termination of employment, if
termination of employment is due to Cause); (iii) the date this Option is fully
exercised; or (iv) the date mutually agreed to by the Committee and the
Optionee.
3. Exercise of Option
------------------
3.1. Subject to any other conditions herein, this Option shall vest on the
anniversary date of this Agreement. The Optionee's vested percentage
- ---------
of the total grant hereunder shall be fixed as of the date the Optionee is no
longer a Director, an Employee or a Consultant of the Company, a Subsidiary or a
Parent and shall not increase during the additional period, if any, during which
this Option may be exercised under Section hereof. Vested portions of this
Option may be exercised at any time, in whole or in part, before the Expiration
Date.
3.2. This Option may be exercised by mailing or delivering to Integrated
Business Systems and Services, Inc., Attention: Corporate Secretary, 115 Atrium
Way, Suite 228, Columbia, South Carolina 29223, (i) a written signed notice of
such exercise which specifies the Grant Effective Date of this Option, and the
number of Shares being purchased, and (ii) payment for such Shares by check
(which clears in due course) payable to Integrated Business Systems and
Services, Inc. and/or by surrender of Shares previously owned by the Optionee
valued at the Fair Market Value thereof on the date received by the Company. The
Option shall be deemed exercised and the Shares purchased thereby shall be
deemed issued as of the date such payment is received by the Company.
16
4. Non-transferability of Option. This Option shall not be transferable by the
-----------------------------
Optionee other than by will or the laws of descent and distribution and shall b
exercisable during the Optionee's lifetime only by the Optionee.
5. Adjustment in Shares Subject to the Option. The Committee will make
------------------------------------------
appropriate adjustments in the number of Shares subject to this Option or the
Option Price in order to give effect to changes made in the number of
outstanding Shares as a result of a merger, consolidation, recapitalization,
reclassification, combination, stock dividend, stock split, or other relevant
change.
6. Rights as Shareholder or Employee.
---------------------------------
6.1. This Option shall not entitle the Optionee to any rights as a
shareholder of the Company with respect to any Shares subject to this Option
until it has been exercised and any such Shares issued.
6.2. This Option does not confer upon the Optionee any right with respect
to continuation of employment by the Company or a Subsidiary, nor does it in any
way interfere with or affect Optionee's right, the Company's right or a
Subsidiary's right to terminate such employment at any time.
7. Withholding. The Committee will make whatever arrangements the Company deems
-----------
necessary or appropriate to comply with all applicable tax withholding
requirements. The Committee and the Company shall have no obligation to deliver
a certificate evidencing the Shares purchased upon exercise of the Option unless
and until tax withholding arrangements satisfactory to the Company are made. The
Optionee's failure to comply with the required tax withholding arrangements
shall result in a forfeiture of any benefits hereunder.
8. Entire Agreement. This Agreement, together with the provisions of the Plan
----------------
which are incorporated herein by reference, constitutes the entire Agreement
between the Optionee and the Company with respect to the Option granted
hereunder.
9. Applicable Law. The Plan and this Agreement shall be governed by the laws of
--------------
the State of South Carolina.
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
By:
-------------------------------------------
Its:
------------------------------------------
-----------------------------------------------
Optionee (Signature)
-----------------------------------------------
Optionee (Please print name)
17