EXHIBIT 10.100
TRIMARK HOLDINGS, INC. 1999 DIRECTORS' OPTION PLAN
1. PURPOSE.
The purposes of the Plan are to enable the Company to attract and retain the
services of non-employee members of the Board and to provide them with increased
motivation and incentive to exert their best efforts on behalf of the Company by
enlarging their personal stake in the Company.
2. DEFINITIONS.
A. As used in the Plan, the following definitions apply to the terms
indicated below:
"Board" means the Board of Directors of the Company or any committee
thereof authorized to exercise the powers of the Board of Directors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Company" means Trimark Holdings, Inc., a Delaware corporation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Fair Market Value" of a Share on a given day means, if Shares are listed
on an established stock exchange or exchanges or quoted on The NASDAQ Small Cap
Market, the highest closing or last sales price of a Share as reported on such
stock exchange or exchanges or system; or if not so reported, the average of the
bid and asked prices, as reported on the NASDAQ. If the price of a Share shall
not be so quoted, the Fair Market Value shall be determined by taking into
account all relevant facts and circumstances.
"Option" means a non-qualified option to purchase Shares under the terms
and conditions of the Plan as evidenced by an option certificate in such form
not inconsistent with the Plan.
"Participant" means a director, eligible to participate in the Plan under
Section 4 hereof, to whom an Option is granted under the Plan.
"Plan" means the Trimark Holdings, Inc. 1999 Directors' Option Plan,
including any amendments to the Plan.
"Shares" means shares of the Company's Common Stock, par value $0.001 per
share, now or hereafter owned by the Company as treasury stock or authorized but
unissued shares of the Company's Common Stock, subject to adjustment as provided
in the Plan.
As used herein, the masculine includes the feminine, the plural includes
the singular, and the singular includes the plural.
32
EXHIBIT 10.100 (CONTINUED)
3. PLAN ADOPTION AND TERM.
A. The Plan shall become effective following its adoption by the Board,
but no Option granted under the Plan shall be exercisable unless and until the
Plan has been approved by the shareholders of the Company.
B. Subject to the provisions hereinafter contained relating to amendment
or discontinuance, the Plan shall continue in effect through and including
January 8, 2008. No Option may be granted hereunder after such date.
4. ELIGIBILITY; AUTOMATIC GRANT.
Each director of the Company, who is not an employee of the Company or any of
its subsidiaries, in office as of January 8, 1999 (the "Effective Date") shall
be eligible to participate in the Plan and shall automatically receive, on the
Effective Date, a non-qualified Option to purchase 2,000 Shares. (Furthermore,
on the Effective Date, the directors of the Company identified in Schedule A,
shall also receive on a one-time basis only an additional non-qualified Option
to purchase Shares as set forth in Schedule A). In addition, each person who is
a director of the Company on an annual anniversary date of the Effective Date
(including and terminating with the anniversary date in the year 2008) and who
is not an employee of the Company or any of its subsidiaries, shall be eligible
to participate in the Plan and shall automatically receive, on such anniversary
date, a non-qualified Option to purchase 2,000 Shares. The price per share at
which Shares may be purchased pursuant to any Option granted under the Plan
shall be the Fair Market Value of a Share on the date the Option is granted (the
"Date of Grant"). All Options granted under the Plan shall be evidenced by an
option certificate in such form not inconsistent with the Plan.
5. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 10 hereof, Options may be issued
pursuant to the Plan with respect to a number of Shares that, in the aggregate,
does not exceed 106,000 Shares. If, prior to the termination of the Plan, an
Option shall expire or terminate for any reason without having been exercised in
full, the unpurchased Shares subject thereto shall again be available for the
purposes of the Plan.
6. DURATION OF OPTIONS.
No Option granted hereunder shall be exercisable after the expiration of
ten years from the Date of Grant. All Options shall be subject to earlier
termination as provided elsewhere in the Plan.
7. CONDITIONS RELATING TO EXERCISE OF OPTIONS.
33
EXHIBIT 10.100 (CONTINUED)
A. Subject to Section 3A hereof, options granted to Participants shall
become exercisable in full on the Date of Grant. Once exercisable, an Option
may be exercised at any time prior to its expiration, cancellation or
termination as provided in the Plan. Partial exercise is permitted from time to
time provided that no partial exercise of an Option shall be for a number of
Shares having a purchase price of less than $1,000 or for a fractional number of
Shares.
B. No Option shall be transferable by a Participant otherwise than by
will or the laws of descent and distribution and Options shall be exercisable
during the lifetime of a Participant only by such Participant.
C. An Option shall be exercised by the delivery to the Company of a
written notice signed by the Participant, which specifies the number of Shares
with respect to which the Option is being exercised and the date of the proposed
exercise. Such notice shall be delivered to the Company's principal office, to
the attention of its Secretary, no less than three business days in advance of
the date of the proposed exercise and shall be accompanied by the applicable
option certificate evidencing the Option. A Participant may withdraw such
notice at any time prior to the close of business on the proposed date of
exercise, in which case the option certificate evidencing the Option shall be
returned to him or her.
D. Payment for Shares purchased upon exercise of an Option shall be made
at the time of exercise either in cash, by certified check or bank cashier's
check or, at the option of the Board, in Shares owned by the Participant and
valued at their Fair Market Value on the date of exercise, or partly in Shares
with the balance in cash or by certified check or bank cashier's check. Any
payment in Shares shall be effected by their delivery to the Secretary of the
Company, endorsed in blank or accompanied by stock powers executed in blank.
E. Certificates for Shares purchased upon exercise of Options shall be
issued and delivered as soon as practicable following the date the Option is
exercised. Certificates for Shares purchased upon exercise of Options shall be
issued in the name of the Participant.
F. Notwithstanding any other provision in the Plan, no Option may be
exercised unless and until the Shares to be issued upon the exercise thereof
have been registered under the Securities Act of 1933 and applicable state
securities laws, or are, in the opinion of counsel to the Company, exempt from
such registration. The Company shall not be under any obligation to register
under applicable federal or state securities laws any Shares to be issued upon
the exercise of an Option granted hereunder, or to comply with an appropriate
exemption from registration under such laws in order to permit the exercise of
an Option and the issuance and sale of the Shares subject to such Option. If
the Company chooses to comply with such an exemption from registration, the
Shares issued under the Plan may bear an appropriate restrictive legend
34
EXHIBIT 10.100 (CONTINUED)
restricting the transfer or pledge of the Shares represented thereby, and the
Company may also give appropriate stop-transfer instructions to the transfer
agent to the Company.
G. Any person exercising an Option or transferring or receiving Shares
shall comply with all regulations and requirements of any governmental authority
having jurisdiction over the issuance, transfer, or sale of capital stock of the
Company, and as a condition to receiving any Shares, shall execute all such
instruments as the Company in its sole discretion may deem necessary or
advisable.
H. In the event that a Participant shall cease to be a director by reason
of such Participant's disability within the meaning of Section 22(e)(3) of the
Code, any outstanding Option held by such Participant shall remain so
exercisable but only for a period of one year after such date, at the end of
which time it shall terminate (unless such Option expires earlier by its terms).
I. In the event that a Participant shall cease to be a director by reason
of death (including death during an approved leave of absence or following a
Participant's disability), any Option then held by him or her which shall not
have lapsed or terminated prior to his or her death shall be or immediately
become fully exercisable by the executors, administrators, legatees, or
distributees of his or her estate, as may be appropriate, as to the total number
of Shares subject thereto and shall remain so exercisable but only for a period
of one year after death, at the end of which time it shall terminate (unless
such Option expires earlier by its terms).
J. In the event that a Participant shall cease to be a director otherwise
than as described in paragraphs (H) and (I), any outstanding Option held by such
Participant shall terminate.
8. NO ELECTION RIGHTS.
Nothing contained in the Plan or any Option shall confer upon any
Participant any right with respect to the continuation of his or her tenure as a
director of the Company or interfere in any way with the right of the Company's
shareholders or the Board, at any time, to terminate such tenure or to fail to
elect such Participant to the Board.
9. RIGHTS OF A SHAREOWNER.
No person shall have any rights with respect to any Shares covered by or
relating to any grant hereunder of an Option until the date of issuance of a
certificate to him or her evidencing such Shares. Except as otherwise expressly
provided in the Plan, no adjustment to any Option shall be made for dividends or
other rights for which the record date occurs prior to the date such certificate
is issued.
10. ADJUSTMENT UPON CHANGES IN CAPITAL STOCK.
35
EXHIBIT 10.100 (CONTINUED)
A. If the capital stock of the Company shall be subdivided or combined,
whether by reclassification, stock dividend, stock split, reverse stock split or
other similar transaction, then the number of Shares authorized under the Plan,
the number of Shares then subject to or relating to unexercised Options granted
hereunder and the exercise price per Share will be adjusted proportionately. A
stock dividend shall be treated as a subdivision of the whole number of Shares
outstanding immediately prior to such dividend into a number of Shares equal to
such whole number of Shares so outstanding plus the number of Shares issued as a
stock dividend.
B. In the case of any capital reorganization or any reclassification of
the capital stock of the Company (except pursuant to a transaction described in
Paragraph A of this Section 10) (a "Reorganization"), appropriate adjustment may
be made in the number and class of shares authorized to be issued under the Plan
and the number and class of shares subject to or relating to Options awarded
under the Plan and outstanding at the time of such Reorganization.
C. Each Participant will be notified of any adjustment made pursuant to
this Section 10 and any such adjustment, or the failure to make such adjustment,
shall be binding on the Participant.
D. Except as expressly set forth herein, the number and kind of Shares
subject to Options awarded under the Plan, and the exercise prices of any such
Options, shall not be affected by any transaction (including, without
limitation, any merger, recapitalization, stock split, stock dividend, issuance
of stock or similar transaction) affecting the capital stock of the Company and
no Participant shall be entitled to any additional Options on account thereof.
11. WITHHOLDING TAXES.
A. Whenever Shares are to be issued upon the exercise of an Option, the
Company shall have the right to require the Participant to remit to the Company
in cash an amount sufficient to satisfy federal, state and local withholding tax
requirements, if any, prior to the delivery of any certificate or certificates
for such Shares.
B. Notwithstanding Paragraph A of this Section 11, at the election of a
Participant when Shares are to be issued upon the exercise of an Option, the
Participant may tender to the Company a number of Shares, or the Company shall
withhold a number of such Shares, the Fair Market Value of which is sufficient
to satisfy the federal, state and local tax requirements, if any, attributable
to such exercise or occurrence.
AMENDMENT OF THE PLAN.
C. The Board may at any time and from time to time suspend, discontinue,
modify or amend the Plan in any respect whatsoever
36
EXHIBIT 10.100 (CONTINUED)
except that the Board may not suspend, discontinue, modify or amend the Plan
so as to adversely affect the rights of a Participant with respect to any
grants that have heretofore been made to such Participant without such
Participant's approval.
D. No amendment to or modification of the Plan shall be made by the Board
without shareholder approval where the absence of such approval would cause the
Plan to fail to comply with any requirement of applicable law or regulation,
including the requirements of The NASDAQ Stock Market, if applicable.
12. MISCELLANEOUS.
A. It is expressly understood that the Plan grants powers to the Board
but does not require their exercise; nor shall any rights be deemed to accrue
under the Plan except as Options may be granted hereunder.
B. All expenses of the Plan, including the cost of maintaining records,
shall be borne by the Company.
C. SCHEDULE A
ONE TIME GRANT OF
NON-QUALIFIED
OPTION TO PURCHASE
THE FOLLOWING
NAME OF DIRECTOR NUMBER OF SHARES
---------------- ------------------
1. Gordon Stulberg 10,000
2. Matthew H. Saver 8,000
3. Tofigh Shirazi 8,000
37