Exhibit 99.1
UNAPIX ENTERTAINMENT, INC.
1993 Stock Option Plan
Section 1. Purpose; Definitions.
1.1 PURPOSE. The purpose of the Unapix Entertainment, Inc.
(the "Company") 1993 Stock Option Plan (the "Plan") is to enable the Company to
offer its key employees, officers, directors and consultants whose past, present
and/or potential contributions to the Company have been, are or will be
important to the success of the Company, an opportunity to acquire a proprietary
interest in the Company.
1.2 DEFINITIONS. For purposes of the Plan, the following terms
shall be defined as set forth below:
(a) "Agreement" means the agreement between the
Company and the Holder setting forth the terms and conditions of an award under
the Plan.
(b) "Board" means the Board of Directors of the
Company.
(c) "Code" means the Internal Revenue Code of 1986,
as amended from time to time, and any successor thereto and the regulations
promulgated thereunder.
(d) "Committee" means the Stock Option Committee of
the Board or any other committee of the Board which the Board may designate to
administer the Plan or any portion thereof. If no Committee is so designated,
then all references in this Plan to "Committee" shall mean the Board.
(e) "Common Stock" means the Common Stock of the
Company, par value $.01 per share.
(f) "Company" means Unapix Entertainment, Inc . , a
corporation organized under the laws of the State of Delaware.
(g) "Disability means disability as determined under
procedures established by the Committee for purposes of the Plan
(h) "Effective Date" means the date set forth in
Section 7.
(i) "Fair Market Value", unless otherwise required by
any applicable provision of the Code or any regulations issued thereunder,
means, as of any given date: (i) if the
Common Stock is listed on a national securities exchange, quoted on the NASDAQ
National Market System or quoted on the NASDAQ Small Cap Market, the last sale
price of the Common Stock on the last preceding day on which the Common Stock
was traded, as reported by the exchange or NASDAQ, as the case may be; (ii) if
the Common Stock is not listed an a national securities exchange or quoted on
the NASDAQ National Market System or NASDAQ Small Cap Market, but is traded in
the over-the-counter market, the average of the high bid and low asked prices
for the Common Stock on the last preceding day for which such quotations are
reported by a service providing such quotations (e.g. , National Quotation
Bureau, Inc. ) ; and (iii) if the fair market value of the Common Stock cannot
be determined ,pursuant to clause (i) or (ii) above, such price as the Committee
shall determine, in good faith.
(j) "Family Group Member" shall mean the spouse,
sibling or lineal descendant of the Holder or a trust established for any such
person.
(k) "Holder" means a person who has received an award
under the Plan.
(1) "Incentive Stock Option" means any Stock Option
intended to be and designated as an "incentive stock option" within the meaning
of Section 422 of the Code.
(m) "Non-Qualified Stock Option" means any Stock
Option that is not an Incentive Stock Option.
(n) "Normal Retirement" means retirement from active
employment with the Company or any Subsidiary on or after age 65.
(o) "Parent" means any present or future parent
corporation of the Company, as such term is defined in Section 424 (e) of the
Code.
(p) "Plan" means the Unapix Entertainment, Inc. 1993
Stock Option Plan, as hereinafter amended from time to time.
(q) "Stock,' means the Common Stock of the Company,
par value $.01 per share.
(r) "Stock Option" of "Option" means any option to
purchase shares of Stock which is granted pursuant to the Plan.
(s) "Subsidiary" means any present or future
subsidiary corporation of the Company, as such term is defined in Section 424(f)
of the Code.
SECTION 2. ADMINISTRATION.
2.1 COMMITTEE MEMBERSHIP. The Plan shall be administered by
the Board or a Committee. Committee members shall serve for such term as the
Board may in each case
determine, and shall be subject to removal at any time by the Board. It is the
intent of the Board that the Plan qualify under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934. To that end, unless otherwise determined by the
Board, each committee member shall be a disinterested person (i.e., a director
who is not, during the one year prior to service as an administrator of the
plan, or during such service, granted or awarded equity securities of the
Company pursuant to the Plan or any other plan of the Company or its affiliates
as provided by Rule 16b-3) .
2.2 POWERS OF COMMITTEE. The Committee shall have full
authority, subject to Section 4.1 hereof, to grant Stock Options pursuant to the
terms of the Plan. For purposes of illustration and not of limitation, the
Committee shall have the authority (subject to the express provisions of this
Plan).
(a) to select the officers, key employees, directors
and consultants of the Company or any Subsidiary to whom Stock Options may from
time to time be granted hereunder;
(b) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any Stock Option granted hereunder
(including, but not limited to, number of shares, share price, any restrictions
or limitations, and any vesting, exchange, surrender, cancellation,
acceleration, termination, exercise or forfeiture provisions, as the Committee
shall determine);
(c) to determine any specified performance goals or
such other factors or criteria which need to be attained for the vesting of an
award granted hereunder;
(d) to permit a Holder to elect to defer a payment
under the Plan under such rules and procedures as the Committee may establish,
including the crediting of interest on deferred amounts denominated in cash and
of dividend equivalents on deferred amounts denominated in Stock;
(e) to determine the extent and circumstances under
which Stock and other amounts payable with respect to an award hereunder shall
be deferred which may be either automatic or at the election of the Holder; and
(f) to substitute (i) new Stock Options for
previously granted Stock Options, which previously granted Stock Options have
higher option exercise prices and/or contain other less favorable terms.
2.3 INTERPRETATION OF PLAN.
(a) COMMITTEE AUTHORITY. Subject to Section 6 hereof,
the Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms
and provisions of the Plan and any award issued under the Plan (and to determine
the form and substance of all Agreements relating thereto) , and to otherwise
supervise the administration of the Plan. Subject to Section 10 hereof, all
decisions made by the Committee pursuant to the provisions of the Plan shall be
made in the Committee's sole discretion and shall be final and binding upon all
persons, including the Company, its Subsidiaries and Holders.
(b) INCENTIVE STOCK OPTIONS. Anything in the Plan to
the contrary notwithstanding, no term or provision of the Plan relating to
Incentive Stock Options or any Agreement providing for Incentive Stock Options
shall be interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be so exercised, so as to disqualify the Plan under
Section 422 of the Code, or, without the consent of the Holder(s) affected, to
disqualify any Incentive Stock Option under such Section 422.
SECTION 3. STOCK SUBJECT TO PLAN.
3.1 NUMBER OF SHARES. The total number of shares of Common
Stock reserved and available for distribution under the Plan shall be 1,600,000
shares. Shares of Stock under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares. If any shares of Stock that
have been optioned cease to be subject to a Stock Option granted hereunder are
forfeited or any such award otherwise terminates without a payment being made to
the Holder in the form of Stock, such shares shall again be available for
distribution in connection with future grants and awards under the Plan. Only
net shares issued upon a stock- for-stock exercise (including stock used for
withholding taxes) shall be counted against the number of shares available under
the Plan.
3.2 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. In the
event of any merger, reorganization, consolidation, recapitalization, dividend
(other than a cash dividend), stock split, reverse stock split, or other change
in corporate structure affecting the Stock, such substitution or adjustment
shall be made in the aggregate number of shares reserved for issuance under the
Plan and in the number and exercise price of shares subject to outstanding
Options granted under the Plan as may be determined to be appropriate by the
Committee in order to prevent dilution or enlargement of rights, provided that
the number of shares subject to any award shall always be a whole number.
SECTION 4. ELIGIBILITY.
4.1 GENERAL. Awards may be made or granted to key employees,
officers, directors and consultants who are deemed to have rendered or to be
able to render significant services to the Company or its Subsidiaries and who
are deemed to have contributed or to have the potential to contribute to the
success of the Company. No Incentive Stock Option shall be granted to any person
who is not an employee of the Company or a Subsidiary at the time of grant.
4.2 GRANT OF OPTIONS TO OFFICERS AND DIRECTORS. The granting
of options to officers and directors of the Company shall be determined by a
committee of two or more directors, of which all members shall be disinterested
persons, as described in Section 2.1 hereof.
SECTION 5. STOCK OPTIONS.
5.1. GRANT AND EXERCISE. Stock Options granted under the Plan
may be of two types: (i ) Incentive Stock Options and (ii) Non-Qualified Stock
Options. Any Stock Option granted under the Plan shall contain such terms, not
inconsistent with this Plan, or with respect to Incentive Stock Options, the
Code, as the Committee may from time to time approve. The Committee shall have
the authority to grant Incentive Stock Options, Non-Qualified Stock Options, or
both types of Stock Options and may be granted alone or in addition to other
awards granted under the Plan. To the extent that any Stock Option intended to
qualify as an Incentive Stock Option does not so qualify, it shall constitute a
separate Non-Qualified Stock option. An Incentive Stock Option may only be
granted within the ten year period commencing From the Effective Date and may
only be exercised within ten years of the date of grant (or five years in the
case of an Incentive Stock Option granted to an optionee ("10% Stockholder")
who, at the time of grant, owns Stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or a Parent or
Subsidiary.
5.2. TERMS AND CONDITIONS. Stock Options granted under the
Plan shall be subject to the following terms and conditions:
(a) EXERCISE PRICE. The exercise price per share of
Stock purchasable under a Stock Option shall be determined by the Committee at
the time of grant and may be less than 100% of the Fair Market Value of the
Stock at the time of grant; provided, however, that the exercise price of an
Incentive Stock Option shall not be less than 100% of the Fair Market Value of
the Stock at the time of grant (110%, in the case of 10% Holder) .
(b) OPTION TERM. Subject to the limitations contained
in Section 5.1, the term of each Stock option shall be fixed by the Committee.
(c) EXERCISABILITY. Stock Options shall be
exercisable at such time or times and subject to such terms and conditions as
shall be determined by the Committee. If the Committee provides, in its
discretion, that any Stock Option is exercisable only in installments, i.e.,
that it vests over time, the Committee may waive such installment exercise
provisions at any time at or after the time of grant in whole or in part, based
upon such factors as the Committee shall determine.
(d) METHOD OF EXERCISE. Subject to whatever
installment, exercise and waiting period provisions are applicable in a
particular case, Stock Options may be exercised in whole or in part at any time
during the term of the Option, by giving written notice of exercise to the
Company specifying the number of shares of Stock to be purchased. Such notice
shall be accompanied by payment in full of the purchase price, which shall be in
cash or, unless otherwise provided in the Agreement, in shares of Stock or,
partly in cash and partly in such
Stock, or such other means which the Committee determines are consistent with
the Plan's purpose and applicable law. Cash payments shall be made by wire
transfer, certified or bank check or personal check, in each case payable to the
order of the Company; provided, however, that the Company shall not be required
to deliver certificates for shares of Stock with respect to which an Option is
exercised until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof. Payments in the form of Stock
shall be valued at the Fair Market Value of a share of Stock on the date prior
to the date of exercise. Such payments shall be made by delivery of stock
certificates in negotiable form which are effective to transfer good and valid
title thereto to the Company, free of any liens or encumbrances. A Holder shall
have none of the rights of a stockholder with respect to the shares subject to
the Option until such shares shall be transferred to the Holder upon the
exercise of the Option.
(e) TRANSFERABILITY. No Stock Option shall be
transferable by the Holder, otherwise than by will or by the laws of descent and
distribution, and all Stock Options shall be exercisable, during the Holder's
lifetime, only by the Holder; provided however that, notwithstanding anything to
the contrary contained herein, the Committee may in its sole discretion allow a
Non-Incentive Stock Option to be transferred to a Family Group Member.
(f) TERMINATION BY REASON OF DEATH. If a Holder's
employment by the Company or a Subsidiary terminates by reason of death, any
Stock Option held by such Holder, unless otherwise determined by the Committee
at the time of grant and set forth in the Agreement, shall be fully vested and
may thereafter be exercised by the legal representative of the estate or by the
legatee of the Holder under the will of the Holder, for a period of one year (or
such other greater or lesser period as the Committee may specify at grant) from
the date of such death or until the expiration of the stated term of such Stock
Option, whichever period is the shorter.
(g) TERMINATION BY REASON OF DISABILITY. If a
Holder's employment by the Company or any Subsidiary terminates by reason of
Disability, any Stock Option held by such Holder, unless otherwise determined by
the Committee at the time of grant and set forth in the Agreement, shall be
fully vested and may thereafter be exercised by the Holder for a period of one
year (or such other lesser period as the Committee may specify at the time of
grant) from the date of such termination of employment or until the expiration
of the stated term of such Stock Option, whichever period is the shorter.
(h) OTHER TERMINATION. Subject to the provisions of
Section 8 below and unless otherwise determined by the Committee at the time of
grant and set forth in the Agreement, if a Holder is an employee of the Company
or a Subsidiary at the time of grant and if such are Holder's employment by the
Company or any Subsidiary terminates for any reason other than death or
Disability, the Stock Option shall thereupon automatically terminate, except
that if the Holder's employment is terminated by the Company or a Subsidiary
without cause or due to Normal Retirement, then the portion of such Stock Option
which has vested on the date of the termination of employment may be exercised
for the lesser of three months after termination of employment or the balance of
such Stock Option's term.
(i) ADDITIONAL INCENTIVE STOCK OPTION LIMITATION. In
the case of an Incentive Stock Option, the amount of aggregate Fair Market Value
of Stock (determined at the time of grant of the Option) with respect to which
Incentive Stock Options are exercisable for the first time by a Holder during
any calendar year (under all such plans of the Company and its Parent and
Subsidiary) shall not exceed $100,000.
(j) BUYOUT AND SETTLEMENT PROVISIONS. The Committee
may at any time offer to buy out a Stock Option previously granted, based upon
such terms and conditions as the Committee shall establish and communicate to
the Holder at the time that such offer is made.
(k) STOCK OPTION AGREEMENT. Each grant of a Stock
Option shall be confirmed by, and shall be subject to the terms of, the
Agreement executed by the Company and the Holder.
(l) HOLDING PERIOD. All shares of Stock received by a
Holder upon exercise of an Option granted hereunder shall be non-transferable by
the Holder until at least six months has elapsed from the date of the granting
of such Option.
SECTION 6. AMENDMENTS AND TERMINATION.
The Board (but not the Committee) may at any time amend, alter, suspend
or discontinue the Plan, but no amendment, alteration, suspension or
discontinuance shall be made which would impair the rights of a Holder under any
Agreement theretofore entered into hereunder, without his consent.
SECTION 7. TERM OF PLAN.
7.1 EFFECTIVE DATE. The Plan shall be effective as of April
23, 1993 ("Effective Date") , subject to the approval of the Plan by the
stockholders of the Company within one year after the Effective Date. Any awards
granted under the Plan prior to such approval shall be effective when made
(unless otherwise specified by the Committee at the time of grant) , but shall
be conditioned upon, and subject to, such approval of the Plan by the Company's
stockholders. If the Plan shall not be so approved, all awards granted
thereunder shall be of no effect and any Stock received by a Holder upon the
exercise of an award shall be deemed forfeited and the Holder shall return the
Stock to the Company.
7.2 TERMINATION DATE. Unless terminated by the Board, this
Plan shall continue to remain effective until such time no further awards may be
granted and all awards granted under the Plan are no longer outstanding.
Notwithstanding the foregoing, grants of Incentive Stock Options may only be
made during the ten year, period following the Effective Date.
SECTION 8. GENERAL PROVISIONS.
8.1 WRITTEN AGREEMENTS. Each award granted under the Plan
shall be confirmed by, and shall be subject to the terms of the Agreement
executed by the Company and the Holder. The committee may terminate any award
made under the Plan if the Agreement relating thereto is not executed and
returned to the Company within 60 days after the Agreement has been delivered to
the Holder for his or her execution.
8.2 UNFUNDED STATUS OF PLAN. The Plan is intended to
constitute an "unfunded" plan for incentive and deferred compensation. With
respect to any payments not yet made to a Holder by the Company, nothing
contained herein shall (give any such Holder any rights that are greater than
those of a general creditor of the Company.
8.3 EMPLOYEES.
(a) ENGAGING IN COMPETITION WITH THE COMPANY. In the
event an employee Holder terminates his employment with the company or a
Subsidiary for any reason whatsoever, and within eighteen (18) months after the
date thereof accepts employment with any competitor of, or otherwise engages in
competition with, the Company, the Committee, in its sole discretion, may
require such Holder to return to the Company the economic value of any award
which was realized or obtained (measured at the date of exercise) by such Holder
at any time during the period beginning on that date which is six months prior
to the date of such Holder's termination of employment with the Company.
(b) TERMINATION FOR CAUSE. The Committee may, in the
event an employee is terminated for cause, annul any award granted under this
Plan to such employee and in such event the Committee, in its sole discretion,
may require such Holder to return to the Company the economic value of any award
which was realized or obtained (measured at the date of exercise) by such Holder
at any time during the period beginning on that date which is six months prior
to the date of such Holder's termination of employment with the Company.
(c) NO RIGHT OF EMPLOYMENT. Nothing contained in the
Plan or in any award hereunder shall be deemed to confer upon any employee of
the Company or any Subsidiary any right to continued employment with the Company
or any Subsidiary, nor shall it interfere in any way with the right of the
Company or any Subsidiary to terminate the employment of any of its employees at
any time.
8.4 INVESTMENT REPRESENTATIONS. The Committee may require each
person acquiring shares of Stock pursuant to a Stock Option or other award under
the Plan to represent to and agree with the Company in writing that the Holder
is acquiring the shares for investment without a view to distribution thereof.
8.5 ADDITIONAL INCENTIVE ARRANGEMENTS. Nothing contained in
the Plan shall prevent the Board from adopting such other or additional
incentive arrangements as it may deem desirable, including, but not limited to,
the granting of stock options and the awarding of stock
and cash otherwise than under the Plan; and such arrangements may be either
generally applicable or applicable only in specific cases.
8.6 WITHHOLDING TAXES. Not later than the date as of which an
amount first becomes includible in the gross income of the Holder for Federal
income tax purposes with respect to any option or other award under the Plan,
the Holder shall pay to the Company, or make arrangements satisfactory to the
Committee regarding the payment of, any Federal, state and local taxes of any
kind required by law to be withheld or paid with respect to such amount. If
Permitted by the Committee, tax withholding or payment obligations may be
settled with Common Stock, including Common Stock that is part of the award that
gives rise to the withholding requirement. The obligations of the Company under
the Plan shall be conditional upon such payment or arrangements and the Company
or the Holder's employer (if not the Company) shall, to the extent permitted by
law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the Holder from the Company or any Subsidiary.
8.7 GOVERNING LAW. The Plan and all awards made and actions
taken thereunder shall be governed by and construed in accordance with the laws
of the State of Delaware (without regard to choice of law provisions)
8.8 OTHER BENEFIT PLANS. Any award granted under the Plan
shall not be deemed compensation for purposes of computing benefits under any
retirement plan of the Company or any Subsidiary and shall not affect any
benefits under any other benefit plan now or subsequently in effect under which
the availability or amount of benefits is related to the level of compensation
(unless required by specific reference in any such other plan to awards under
this Plan).
8.9 NON-TRANSFERABILITY. Except as otherwise expressly
provided in the Plan, no right or benefit under the Plan may be alienated, sold,
assigned, hypothecated, pledged, exchanged, transferred, encumbranced or
charged, and any attempt to alienate, sell, assign, hypothecate, pledge,
exchange, transfer, encumber or charge the same shall be void.
8.10 APPLICABLE LAWS. The obligations of the Company with
respect to all Stock Options and awards under the Plan shall be subject to (i)
all applicable laws, rules and regulations and such approvals by any
governmental agencies as may be required, including, without limitation, the
effectiveness of a registration statement under the Securities Act of 1933, as
amended, and (ii) the rules and regulations of any securities exchange an which
the Stock may be listed.
8. 11 CONFLICTS. If any of the terms or provisions of the Plan
conflict with the requirements of with respect to Incentive Stock Options,
Section 422A of the Code, then such terms or provisions shall be deemed
inoperative to the extent they so conflict with the requirements of said Section
422A of the Code. Additionally, if this Plan does not contain any provision
required to be included herein under Section 422A of the Code, such provision
shall be deemed to be incorporated herein with the same force and effect as if
such provision had been set out at length herein.
8.12 NON-REGISTERED STOCK. The shares of Stock being
distributed under this Plan have not been registered under the Securities Act of
1933, as amended (the "1933 Act") , or any applicable state or foreign
securities laws and the Company has no obligation to any Holder to register the
Stock or to assist the Holder in obtaining an exemption from the various
registration requirements, or to list the Stock on a national securities
exchange.