Exhibit
METALLINE MINING COMPANY
2000 EQUITY INCENTIVE PLAN
Article I.
ESTABLISHMENT AND TERM
Section 1.01 ESTABLISHMENT; DEFINITIONS. This Plan was adopted by the Board on
December 22, 2000 to become effective on [JANUARY 1], 2000. All capitalized
terms used in this Plan are defined in Appendix A attached to the Plan.
Section 1.02 TERM. The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate on [JANUARY _____], 2010,
which shall be within ten (10) years from the date the Plan is adopted by the
Board or approved by the stockholders of the Company, whichever is earlier.
No Equity Awards may be granted under the Plan while the Plan is suspended or
after it is terminated. Rights and obligations under any Equity Award granted
while the Plan is in effect shall not be impaired by suspension or termination
of the Plan, except with the consent of the person to whom the Equity Award
was granted.
Article II.
STRUCTURE AND PURPOSE
Section 2.01 STRUCTURE OF PLAN. The Equity Awards issued under the Plan shall
be either, in the discretion of the Board, (a) Options granted pursuant to
Article VI of the Plan, including Incentive Stock Options and Non-statutory
Stock Options, or (b) Stock bonuses or restricted Stock awards granted
pursuant to Article VII of the Plan. All Options shall be designated as
Incentive Stock Options or Non-statutory Stock Options at the time of grant.
Section 2.02 PURPOSE. The purpose of the Plan is to promote the interests of
the Company by aligning the interests of selected eligible persons under the
Plan with the interests of the stockholders of the Company and by providing to
such persons an opportunity to obtain the benefits from ownership of the
Company's Stock through the granting to such persons of Equity Awards. The
Company, through the use of the Plan, seeks to attract and retain the services
of Employees, Directors and Consultants, and to provide incentives for such
persons to exert maximum efforts for the success of the Company and its
Affiliates.
Article III.
ADMINISTRATION
Section 3.01 BOARD; DELEGATION TO COMMITTEE. The Plan shall be administered by
the Board unless and until the Board delegates administration to a Committee.
The Board may delegate administration of the Plan to a Committee composed of
one or more members of the Board. In the discretion of the Board, the
Committee may consist solely of Outside Directors. If administration is
delegated to a Committee, the Committee shall have, in administering the Plan,
all of the powers that were possessed by the Board prior to such delegation,
subject, however, to such resolutions, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. If administration
is delegated to a Committee, all references in this Plan to the Board shall
thereafter be to the Committee. The Board may abolish the Committee at any
time and revest in the Board the administration of the Plan.
Section 3.02 ADMINISTRATION. The Board shall have the power, consistent with
the express provisions of the Plan:
(a) To determine from time to time which of the eligible persons under
the Plan shall be granted Equity Awards;
(b) To determine whether an Equity Award shall be an Incentive Stock
Option, a Non-statutory Stock Option, a Stock bonus, a right to purchase
restricted Stock, or a combination of the foregoing;
(c) To determine how and when each Equity Award shall be granted, the
provisions of each Equity Award granted, including the time or times
when a person shall be permitted to receive Stock pursuant to a Equity
Award, and the number of shares with respect to which a Equity Award
shall be granted to each such person;
(d) To construe and interpret the Plan and Equity Awards granted under
it, and to establish, amend and revoke rules and regulations for the
administration of such Plan and Equity Awards;
(e) To correct any defect, omission or inconsistency in the Plan or in
any Equity Award Agreement, in a manner and to the extent it shall deem
necessary or expedient to make the Plan fully effective;
(f) To amend the Plan or an Equity Award as provided in Article XI;
(g) Generally, to exercise such powers and to perform such acts as the
Board deems necessary or expedient to promote the best interests of the
Company that are not in conflict with the provisions of the Plan.
Article IV.
ELIGIBILITY
Section 4.01 PERSONS ELIGIBLE FOR EQUITY AWARDS. Incentive Stock Options may
be granted only to Employees. Equity Awards other than Incentive Stock
Options may be granted only to Employees, Directors or Consultants.
Section 4.02 OTHER LIMITATIONS. Subject to the provisions of Article VIII
relating to adjustments upon changes in Stock, no person shall be eligible to
be granted Equity Awards covering more than [ ] shares of Stock in any
calendar year.
Article V.
SHARES SUBJECT TO THE PLAN
Section 5.01 Subject to the provisions of Article VIII relating to adjustments
upon changes in Stock, no more than [ ] shares of Stock may be issued
pursuant to Equity Awards. If any Equity Award shall for any reason expire or
otherwise terminate, in whole or in part, without having been exercised in
full, the Stock not acquired under such Equity Award shall revert to and again
become available for issuance under the Plan. The Stock subject to the Plan
may be unissued shares or reacquired shares, bought on the market or
otherwise.
Article VI.
TERMS OF OPTIONS.
Section 6.01 FORM OF OPTION. Subject to the provisions of the Plan, each
Option shall be in such form and shall contain such terms and conditions as
the Board shall determine. The provisions of separate Options need not be
identical.
Section 6.02 TERM. No Option shall be exercisable after the expiration of ten
(10) years from the date it was granted.
Section 6.03 EXERCISE PRICE. The exercise price of each Incentive Stock Option
shall be not less than one hundred percent (100%) of the Fair Market Value of
the Stock subject to the Option on the date the Option is granted. The
exercise price of each Non-statutory Stock Option shall be the exercise price
determined by the Board of Directors. Notwithstanding the foregoing, an Option
(whether an Incentive Stock Option or a Non-statutory Stock Option) may be
granted with an exercise price lower than that otherwise provided in this
Section 6.03 if such Option is granted pursuant to an assumption or
substitution for another option in a manner satisfying the provisions of
Section 424(a) of the Code.
Section 6.04 PAYMENT. The purchase price of Stock acquired pursuant to an
Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (a) in cash at the time the Option is exercised, or (b) at
the discretion of the Board or the Committee, determined at the time of the
grant of the Option, (1) by delivery to the Company of other equity securities
of the Company, (2) according to a deferred payment or other arrangement with
the person to whom the Option is granted or to whom the Option is transferred
pursuant to Section 6.05, (3) in any other form of legal consideration that
may be acceptable to the Board, or (4) any combination of the foregoing.
Section 6.05 TRANSFERABILITY. An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and distribution, and
shall be exercisable during the lifetime of the person to whom the Incentive
Stock Option is granted only by such person. Unless otherwise provided in the
Equity Award Agreement, a Non-statutory Stock Option shall not be transferable
except by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order.
Section 6.06 VESTING. The total number of shares of Stock subject to an Option
may, but need not, be allotted in periodic installments (which may, but need
not, be equal). The Option may be subject to such other terms and conditions
on the time or times when it may be exercised (which may be based on
performance or other criteria) as the Board may deem appropriate.
Section 6.07 TERMINATION OF EMPLOYMENT OR RELATIONSHIP AS A DIRECTOR OR
CONSULTANT. Unless otherwise provided in the Equity Award Agreement relating
to an Option, in the event of a Termination (other than upon the Optionee's
death or Disability), the Optionee may exercise his or her Option (to the
extent that the Optionee was entitled to exercise it at the date of
Termination) but only within such period of time ending on the earlier of (a)
the date that is [THIRTY (30) DAYS] after the date of Termination, or (b) the
expiration of the term of the Option as set forth in the Equity Award
Agreement.
Section 6.08 DISABILITY OF OPTIONEE. Unless otherwise provided in the Equity
Award Agreement relating to an Option, in the event of a Termination as a
result of the Optionee's Disability, the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it at the
date of Termination), but only within such period of time ending on the
earlier of (a) the date [SIX (6) MONTHS] after the date of Termination, or (b)
the expiration of the term of the Option as set forth in the Equity Award
Agreement.
Section 6.09 DEATH OF OPTIONEE. Unless otherwise provided in the Equity Award
Agreement relating to an Option, in the event of a Termination as a result of
the Optionee's death, the Option may be exercised (to the extent the Optionee
was entitled to exercise it at the date of Termination) by the Optionee's
estate or by a person who acquired the right to exercise the Option by bequest
or inheritance, but only within the period ending on the earlier of (a) the
date [TWELVE (12) MONTHS] after the date of Termination, or (b) the expiration
of the term of the Option as set forth in the Equity Award Agreement.
Section 6.10 INCENTIVE STOCK OPTION LIMITATIONS. The following limitations
shall apply to a grant of an Incentive Stock Option:
(a) If, at the time of the grant of an Incentive Stock Option, the
Optionee owns (or is deemed to own pursuant to Section 424(d) of the
Code) equity securities possessing more than ten percent (10%) of the
total combined voting power of all classes of equity securities of the
Company or of any of its Affiliates, the exercise price of such
Incentive Stock Option shall be at least one-hundred and ten percent
(110%) of the Fair Market Value of such Stock on the date of grant and
the Incentive Stock Option shall terminate on the date that is within
five (5) years after the date of grant.
(b) If the aggregate Fair Market Value (determined at the time of
grant) of Stock with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year
under all plans of the Company and its Affiliates exceeds one-hundred
thousand dollars ($100,000), the Options or portions thereof that exceed
such limit (according to the order in which they were granted) shall be
treated as Non-statutory Stock Options.
Section 6.11 RE-LOAD OPTIONS. The Board may, in its discretion, include as part
of any Equity Award Agreement relating to an Option a provision entitling the
Optionee to a further Option in the event the Optionee exercises the Option,
in whole or in part, by surrendering other shares of Stock in accordance with
this Plan and the terms and conditions of the Equity Award Agreement. Any
such Re-Load Option (a) shall be for a number of shares equal to the number of
shares surrendered as part or all of the exercise price of such Option, (b)
shall have the same expiration date as the original Option, and (c) shall have
an exercise price equal to one-hundred percent (100%) of the Fair Market Value
of the Stock subject to the Re-Load Option on the date of exercise of the
original Option. Any such Re-Load Option may be an Incentive Stock Option or a
Non-statutory Stock Option, as the Board or Committee may designate at the
time of the grant of the original Option, PROVIDED, HOWEVER, that if a Re-Load
Option is granted as an Incentive Stock Option, the terms of such Re-Load
Option shall be subject to the provisions of Section 6.10 hereof. There shall
be no Re-Load Options on a Re-Load Option. Any such Re-Load Option shall be
subject to the availability of sufficient shares under Article V and shall be
subject to such other terms and conditions as the Board may determine that are
not inconsistent with the express provisions of the Plan.
Section 6.12 CANCELLATION AND REGRANT. The Board shall have the authority to
effect, at any time and from time to time, (a) the repricing of any
outstanding Options under the Plan, or (b) with the consent of the affected
holders of Options, the cancellation of any outstanding Options under the Plan
and the grant in substitution therefor of new Options under the Plan covering
the same or different numbers of shares of Stock and having an exercise price
per share as determined by the Board. Stock subject to an Option canceled
under this Article VI, as well as Stock underlying a substitute Option that
was granted at a reduced exercise price, shall both be counted against the
maximum number of shares of Stock permitted to be granted as Equity Awards to
any person in a single calendar year pursuant to Section 4.02 hereof. The
provisions of this Section 6.12 shall be applicable only to the extent
required by Section 162(m) of the Code.
Article VII.
TERMS OF STOCK BONUSES AND RESTRICTED STOCK AWARDS
Section 7.01 FORM OF STOCK BONUS OR RESTRICTED STOCK AWARD. Subject to the
provisions of the Plan, each Stock bonus or restricted Stock award shall be in
such form and shall contain such terms and conditions as the Board shall
determine. The provisions of separate stock bonuses or restricted stock
awards need not be identical.
Section 7.02 PURCHASE PRICE. The purchase price, if any, for any Stock granted
as a Stock bonus or restricted Stock award shall be such amount as the Board
shall determine and designate in the Equity Award Agreement. Notwithstanding
the foregoing, the Board may determine that eligible participants in the Plan
may be awarded Stock in consideration for past services rendered to the
Company or an Affiliate thereof or for the benefit of the Company or an
Affiliate thereof.
Section 7.03 TRANSFERABILITY. Unless otherwise provided in the Equity Award
Agreement, Stock awarded or purchased pursuant to this Article VII may not be
transferred to any person, except by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order, until any
restrictions on transfer set forth in the Equity Award Agreement lapse.
Section 7.04 PAYMENT. The purchase price, if any, of Stock acquired pursuant to
a Stock bonus or restricted Stock award shall be paid, to the extent permitted
by applicable statutes and regulations, either (a) in cash, or (b) at the
discretion of the Board or the Committee, determined at the time of the grant
of the Stock award, (1) by delivery to the Company of other equity securities
of the Company, (2) according to a deferred payment or other arrangement with
the person to whom the Stock award is granted or to whom the Option is
transferred pursuant to Section 7.03, (3) by electing to receive the Stock in
lieu of other compensation payable to the person by the Company or an
Affiliate thereof or for the benefit of the Company or an Affiliate thereof,
(4) in consideration for past services rendered by the person to the Company
or for its benefit, (5) in any other form of legal consideration that may be
acceptable to the Board, or (6) any combination of the foregoing.
Section 7.05 VESTING. Shares of Stock sold or awarded under Article VII of the
Plan may, but need not, be subject to a repurchase option or right of first
refusal in favor of the Company.
Article VIII.
ADJUSTMENTS UPON CHANGES IN STOCK; CHANGE IN CONTROL.
Section 8.01 CHANGE IN STOCK. If any change is made in the Stock subject to
the Plan, through a merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or other transaction not involving the receipt of
consideration by the Company, the Plan will be appropriately adjusted in the
class(es) and maximum number of shares subject to the Plan pursuant to Article
V, and the outstanding Equity Awards will be appropriately adjusted in the
class(es) and number of shares subject to and the exercise price of such
outstanding Equity Awards. Such adjustments shall be made by the Board at the
time of the change in the Stock, whether or not specifically provided for in
any outstanding Equity Award. The Board's determination shall be final,
binding and conclusive.
Section 8.02 CHANGE IN CONTROL. The Board may, in its discretion, provide for
the acceleration of the time at which a Equity Award may first be exercised or
the time during which a Equity Award or any part thereof will vest upon a
change of control of the Company under terms and conditions set forth in the
Equity Award Agreement.
Article IX.
COVENANTS OF THE COMPANY
Section 9.01 RESERVATION OF STOCK. The Company shall reserve from its
authorized but unissued Stock the number of shares of Stock issuable pursuant
to outstanding Equity Awards.
Section 9.02 REGULATORY AUTHORITY. The Company shall seek to obtain from each
regulatory commission or agency having jurisdiction over the Plan such
authority as may be required to issue and sell shares of Stock upon the
exercise of outstanding Equity Awards, PROVIDED, HOWEVER, that this
undertaking shall not require the Company to register under the Securities Act
of 1933, as amended, either the Plan, any Equity Award or any Stock issued or
issuable pursuant to any such Equity Award. If, after reasonable efforts, the
Company is unable to obtain from any such regulatory commission or agency the
authority for the lawful issuance and sale of Stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell
Stock upon exercise of such Equity Awards unless and until such authority is
obtained.
Article X.
GENERAL PROVISIONS
Section 10.01 ACCELERATION OF VESTING. Notwithstanding any provision in
any Equity Award Agreement, the Board may, in its discretion, accelerate the
time at which an Equity Award may first be exercised or the time during which
a Equity Award or any part thereof will vest.
Section 10.02 STOCKHOLDER RIGHTS. Except as set forth in the Equity
Award Agreement, no holder of any Equity Award shall be deemed to be the
holder of, or to have any of the rights of a holder with respect to, any Stock
subject to such Equity Award unless and until such person has satisfied all
requirements for vesting or exercise of the Equity Award pursuant to its
terms.
Section 10.03 EMPLOYMENT OR OTHER SERVICES. Nothing in the Plan, any
Equity Award Agreement or any instrument executed pursuant thereto shall (a)
confer upon any Employee or other holder of an Equity Award any right to
continue in the employ of the Company or any Affiliate, (b) confer upon any
Director or Consultant or other holder of an Equity Award any right to
continue acting as a Director or Consultant, (c) affect the right of the
Company or any Affiliate to terminate the employment of any Employee with or
without cause, (d) affect the right of the Company's Board of Directors and/or
the Company's stockholders to remove any Director pursuant to the terms of the
Company's charter documents and the provisions of applicable law, or (e)
affect the right of the Company to terminate the relationship of any
Consultant pursuant to the terms of such Consultant's agreement with the
Company or Affiliate.
Section 10.04 SECURITIES REQUIREMENTS. The Company may require any
person to whom a Equity Award is granted, or any person to whom a Equity Award
is transferred, as a condition of exercising or acquiring Stock under any
Equity Award, to give written assurances satisfactory to the Company (a) as to
such person's knowledge and experience in financial and business matters, (b)
that he or she is capable of evaluating, alone or together with a purchaser
representative, the merits and risks of exercising the Equity Award, and (c)
that such person is acquiring the Stock subject to the Equity Award for such
person's own account and not with any view to a distribution of the Stock. The
Company may, upon advice of counsel to the Company, place legends on stock
certificates issued under the Plan as such counsel deems necessary or
appropriate in order to comply with applicable securities laws, including, but
not limited to, legends restricting the transfer of the Stock.
Section 10.05 TAX WITHHOLDING. If provided for in an Equity Award
Agreement, the holder of an Equity Award may satisfy any federal, state or
local tax withholding obligation relating to the exercise or acquisition of
Stock under a Equity Award by (a) tendering a cash payment, (b) authorizing
the Company to withhold shares from the shares of the Stock otherwise issuable
to such person as a result of the exercise or acquisition of Stock under the
Equity Award, (c) delivering to the Company unencumbered shares of equity
securities of the Company held by such person by, or (d) any combination of
the foregoing.
Article XI.
AMENDMENT OF THE PLAN AND EQUITY AWARDS
Section 11.01 AMENDMENT OF PLAN; STOCKHOLDER APPROVAL. The Board may, in
its discretion, amend the Plan. Such amendment shall be effective on the date
the Board determines, except for amendments that require the approval of the
Company's stockholders, in which case such amendments shall be effective on
the date the Company's stockholders approve the amendment. No such amendment
shall adversely affect any outstanding Equity Award without the holder's
written consent. The Board may, in its discretion, submit any amendment to
the Plan for stockholder approval.
Section 11.02 CHANGES IN LAW. The Board may amend the Plan as it deems
necessary or advisable to provide eligible Employees, Director or Consultants
with the maximum benefits provided or to be provided under the provisions of
the Plan relating to Incentive Stock Options and to bring the Plan or
Incentive Stock Options granted under the Plan into compliance therewith. The
Board may also, in its discretion, amend the Plan to take into account changes
in law and tax and accounting rules (including any pooling-of-interest rules),
as well as other developments, and to grant Equity Awards that qualify for
beneficial treatment under such rules.
APPENDIX A
DEFINITIONS
"AFFILIATE" means any parent corporation or subsidiary corporation,
whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f) respectively, of the Code.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
"COMMITTEE" means a Committee appointed by the Board in accordance with
Section 3.01 of the Plan.
"COMPANY" means Trend Mining Company, a Montana corporation.
"CONSULTANT" means any person, including an advisor, engaged by the
Company or an Affiliate to render bona fide consulting services (other than
services in connection with the offer or sale of securities in a capital-
raising transaction) and who is compensated for such services, provided,
however, that the term "Consultant" shall not include Directors who are paid
only a director's fee by the Company or who are not compensated by the Company
for their services as Directors.
"DIRECTOR" means a member of the Board.
"DISABILITY" means the physical inability, as determined in good faith
by the Board, to serve in the person's capacity as an Employee, Director or
Consultant, for a period of at least six (6) months.
"EMPLOYEE" means any person, including officers and Directors, employed
by the Company or any Affiliate of the Company. Neither service as a Director
nor payment of a director's fee by the Company shall be sufficient to
constitute "employment" by the Company.
"EQUITY AWARD" means any right granted under the Plan, including any
Option, any Stock bonus or any right to purchase restricted Stock.
"EQUITY AWARD AGREEMENT" means a written agreement between the Company
and a holder of a Equity Award evidencing the terms and conditions of an
individual Equity Award grant. Each Equity Award Agreement shall be subject
to the terms and conditions of the Plan.
"FAIR MARKET VALUE" means, as of any date, the value of the Stock
determined as follows:
* [If the Stock is listed on any established stock exchange or a
national market system, including without limitation the Nasdaq National
Market or Nasdaq Small Cap Market, the Fair Market Value of a share of Stock
shall be the last sales price for the Stock (or the closing bid, if no sales
were reported) as quoted on such system or exchange, as reported in the WALL
STREET JOURNAL or such other source as the Board deems reliable.]
* In the absence of an established market for the Stock, the Fair Market
Value shall be determined in good faith by the Board.
"INCENTIVE STOCK OPTION" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
"NON-STATUTORY STOCK OPTION" means an Option not intended to qualify as
an Incentive Stock Option.
"OPTION" means a stock option granted pursuant to the Plan.
"OPTIONEE" means an Employee, Director or Consultant who holds an
outstanding Option.
"OUTSIDE DIRECTOR" means a Director who either (a) is not a current
Employee of the Company or an "affiliated corporation" (within the meaning of
Treasury regulations promulgated under Section 162(m) of the Code), is not a
former Employee of the Company or an "affiliated corporation" receiving
compensation for prior services (other than benefits under a tax qualified
pension plan), was not an officer of the Company or an "affiliated
corporation" at any time, and is not currently receiving direct or indirect
remuneration from the Company or an "affiliated corporation" for services in
any capacity other than as a Director, or (b) is otherwise considered an
"outside director" for purposes of Section 162(m) of the Code.
"PLAN" means this Equity Incentive Plan.
"RE-LOAD OPTION" means an Option, granted in the event the Optionee
exercises another Option by surrendering other shares of Stock, to purchase
the number of shares of Stock so surrendered.
"STOCK" means the Company's Common Stock, [_____] par value.
"TERMINATION" means the termination or interruption of an Employee's,
Director's or Consultant's employment or relationship with the Company. The
Board, in its sole discretion, may determine whether a Termination has
occurred in the case of: any leave of absence approved by the Board, including
sick leave, military leave, or any other personal leave.