EXHIBIT 10.1
1999 Stock Option Plan
CBQ, INC.
1999 STOCK OPTION PLAN
(August 30, 1999)
1. Purpose of the Plan. The purpose of the CBQ, Inc., 1999 Stock Option Plan
("Plan") is to advance the interests of CBQ, Inc., a Colorado corporation
("Company"), by providing an opportunity for ownership of the stock of the
Company by employees, agents and directors of, and consultants to, the Company
and its subsidiaries. By providing an opportunity for such stock ownership, the
Company seeks to attract and retain qualified personnel, and otherwise to
provide additional incentive to promote the success of its business.
2. Stock Subject to the Plan. (a) The total number of shares of the authorized
but unissued or treasury shares of the common stock of the Company ("Common
Stock") for which options may be granted under the Plan (individually, an
"Option" and, collectively, "Options") shall be 2,600,000 shares, subject to
adjustment as provided in Section 13 hereof. (b) If an Option expires or
terminates for any reason without having been exercised in full, the unpurchased
shares shall again be available for subsequent Option grants under the Plan. (c)
Common Stock issuable on exercise of an Option may be subject to such
restrictions on transfer, repurchase rights or other restrictions as shall be
determined by the Board of Directors of the Company ("Board").
3. Administration of the Plan. The Plan shall be administered by the Board,
unless it expressly establishes a committee for this purpose. No member of the
Board shall act on any matter exclusively affecting any Option granted or to be
granted to himself or herself under the Plan. A majority of the members of the
Board shall constitute a quorum, and any action may be taken by a majority of
those present and voting at any meeting. The decision of the Board as to all
questions of interpretation and application of the Plan shall be final, binding
and conclusive on all persons. The Board, in its sole discretion, may grant
Options to purchase shares of Common Stock, and the Board shall issue shares
upon exercise of Options as provided in the Plan. The Board shall have the
authority, subject to the express provisions of the Plan, to construe Option
agreements and the Plan, to prescribe, amend and rescind rules and regulations
relating to the Plan, to determine the terms and provisions of Option
agreements, which may but need not be identical, and to make all other
determinations in the judgment of the Board necessary or desirable for the
administration of the Plan. The Board may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in any Option agreement
in the manner and to the extent it shall deem expedient to implement the Plan,
and the Board shall be the sole and final judge of such expediency. No director
shall be liable for any action or determination made in good faith. The Board,
in its discretion, may delegate its powers, duties and responsibilities to a
committee, consisting of two or more members of the Board, all of whom shall be
"disinterested persons" (as hereinafter defined). If a committee is so
appointed, all references to the Board shall mean and relate to such committee,
unless the context otherwise requires. For the purposes of the Plan, a director
or member of this committee shall be deemed to be "disinterested" only if such
person qualified as a "disinterested person" within the meaning of paragraph (c)
(2) of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as such term is interpreted from time to time.
4. Type of Options. Options granted pursuant to the Plan shall be authorized by
action of the Board, and will be non-qualified options which do not meet the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code").
5. Eligibility. Options may be granted to (i) directors, officers and key
employees of the Company or any of its subsidiaries, or (ii) agents, directors
of and consultants or advisors to the Company or any of its subsidiaries,
whether or not otherwise employees of the Company or its subsidiaries. In
determining the eligibility of an individual to be granted an Option, as well as
in determining the number of shares to be optioned to any individual, the Board
shall take into account the position and responsibilities of the individual
being considered, the nature and value to the Company or its subsidiaries of his
or her service and accomplishments, his or her present and potential
contribution to the success of the Company or its subsidiaries, and such other
factors as the Board may deem relevant.
6. Restrictions on Options. The Board may implement such restrictions on Options
and the Common Stock underlying such as it deems reasonable and necessary under
the circumstances then prevailing.
7. Option Agreement. Each Option shall be evidenced by an Option agreement
("Option Agreement") duly executed on behalf of the Company and by the optionee
to whom such Option is granted, which Option Agreement shall comply with and be
subject to the terms and conditions of the Plan. The Option Agreement may
contain such other terms, provisions and conditions which are not inconsistent
with the Plan as may be determined by the Board. No Option shall be granted
within the meaning of the Plan and no purported grant of any Option shall be
effective until the Option Agreement shall have been duly executed on behalf of
the Company and the optionee. More than one Option may be granted to an
individual.
8. Option Price. (a) The Option price or price of shares of Common Stock shall
be as determined by the Board. (b) The Option price or prices for shares of
Common Stock shall be at least the fair market value of the Common Stock at the
time the Option is granted as determined by the Board in accordance with the
Regulations promulgated under Section 422 of the Code. (c) If such shares are
then listed on any national securities exchange, the fair market value shall be
the mean between the high and low sales prices, if any, on the largest such
exchange on the date of the grant of the Option or, if none, shall be determined
by taking a weighted average of the means between the highest and lowest sales
price on the nearest date before and the nearest date after the date of grant in
accordance with Section 25.2512-2 of the Regulations. If the shares are not then
listed on any such exchange, the fair market value of such shares shall be the
mean between the closing "Bid" and the closing "Ask" prices, if any, as reported
on the National Association of Securities Dealer Automated Quotation System
("NASDAQ") on the date of the grant of the Option, or, if none, shall be
determined by the Board after weighing the various criteria then thought
relevant for the purpose of providing a fair value therefor.
9. Manner of Payment; Manner of Exercise. (a) Options granted under the Plan may
provide for the payment of the exercise price by delivery of (i) cash or a check
payable to the order of the Company in an amount equal to the exercise price of
such Options, (ii) shares of Common Stock owned by the optionee having a fair
market value equal in amount to the exercise price of the Options being
exercised, (iii) services invoiced to the Company or any of its subsidiaries or
(iv) any combination of (i), (ii) and (iii); provided; however, that payment of
the exercise price by delivery of shares of Common Stock owned by such optionee
may be made only upon the condition that such payment does not result in a
charge to earnings for financial accounting purposes as determined by the Board,
unless such condition is waived by the Board. The fair market value of any
shares of Common Stock which may be delivered upon exercise of an Option shall
be determined by the Board in accordance with Section 8 hereof. (b) To the
extent that the right to purchase shares under an Option has accrued and is in
effect, Options may be exercised in full at one time or in part from time to
time by giving written notice, signed by the person or persons exercising the
Option, to the Company and stating the number of shares with respect to which
the Option is being exercised, accompanied by payment in full for such shares as
provided in subparagraph (a) above. Upon such exercise, delivery of a
certificate for paid-up non-assessable shares shall be made at the principal
office of the Company to the person or persons exercising the Option at such
time, during ordinary business hours, after five (5) but not more than ten (10)
days from the date of receipt of the notice by the Company, as shall be
designated in such notice, or at such time, place and manner as may be agreed
upon by the Company and the person or person exercising the Option.
10. Exercise of Options. Each Option granted under the Plan shall, subject to
Section 11(b) and Section 13 hereof, be exercisable at such time or times and
during such period as shall be set forth in the Agreement; provided, however,
that no Option granted under the Plan shall have a term in excess of ten (10)
years form the date of grant. To the extent that an Option to purchase shares is
not exercised by an optionee when it becomes initially exercisable, it shall not
expire but shall be carried forward and shall be exercisable, on a cumulative
basis, until the expiration of the exercise period.
11. Term of Options; Exercisability. (a) Term. (i) Each Option shall expire on a
date determined by the Board which is not more than ten (10) years from the date
of the granting thereof; provided, however, except as otherwise provided in this
Section 11, an Option granted to any optionee whose employment with the Company
or any of its subsidiaries is terminated shall terminate on the earlier of (1)
ninety days after the date such optionee's employment by the Company or by any
such subsidiary is terminated, or (2) the date on which the Option expires by
its terms. (ii) If the employment of an optionee is terminated by the Company or
any of its subsidiaries for cause or because the optionee is in breach of any
employment agreement, such Option will terminate on the date the optionee's
employment is terminated by the Company or any such subsidiary. (iii) If the
employment of an optionee is terminated by the Company or any of its
subsidiaries because the optionee has become permanently disabled (within the
meaning of Section 22(e)(3) of the Code), such Option shall terminate on the
earlier of (1) one year after the date such optionee's employment by the Company
or by any such subsidiary is terminated, or (2) the date on which the Option
expires by its terms. (iv) In the event of the death of any optionee, any Option
granted to such optionee shall terminate one year after the date of death, or on
the date on which the Option expires by its terms, whichever occurs first. (b)
Exercisability. (i) Except as provided below, an Option granted to an optionee
whose employment with the Company or by any of its subsidiaries is terminated
shall be exercisable only to the extent that the right to purchase shares under
such Option has accrued and is in effect on the date such optionee's employment
with the Company or by any such subsidiary is terminated. (ii) An Option granted
to an optionee whose employment is terminated by the Company or by any of its
subsidiaries because he or she has become permanently disabled, as defined
above, shall be immediately exercisable as to the full number of shares covered
by such Option, whether or not under the provisions of Section 10 hereof such
Option was otherwise exercisable as of the date of disability. (iii) In the
event of the death of an optionee, the Option granted to such optionee may be
exercised as to the full number of shares covered thereby, whether or not under
the provisions of Section 10 hereof the optionee was entitled to do so at the
date of his or her death, by the executor, administrator or personal
representative of such optionee, or by any person or persons who acquired the
right to exercise such Option by bequest or inheritance or by reason of the
death of such optionee.
12. Options Not Transferable. The right of any optionee to exercise any Option
granted to him or her shall not be assignable or transferrable by such optionee
other than by will or the laws of descent and distribution, and any such Option
shall be exercisable during the lifetime of such optionee only by him or her.
Any Option granted under the Plan shall be null and void and without effect upon
the bankruptcy of the optionee to whom the Option is granted, or upon any
attempted assignment or transfer, except as herein provided, including without
limitation, any purported assignment, whether voluntary or by operation of law,
pledge, hypothecation or other disposition, attachment, trustee process or
similar process, whether legal or equitable, upon such Option.
13. Recapitalization, Reorganizations and the Like. In the event that the
outstanding shares of Common Stock are changed into or exchanged for a different
number or kind of shares or other securities of the Company or of another
corporation by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination of shares, or
dividends payable in capital stock, appropriate adjustment shall be made in the
number and kind of shares as to which Options may be granted under the Plan and
as to which outstanding Options or portions thereof then unexercised shall be
exercisable, to the end that the proportionate interest of the optionee shall be
maintained as before the occurrence of such event; such adjustment in
outstanding Options shall be made without change in the total price applicable
to the unexercised portion of such Options and with a corresponding adjustment
in the Option price per share.
In addition, unless otherwise determined by the Board in its sole discretion, in
the case of any (i) sale or conveyance to another entity of all or substantially
all of the property and assets of the Company or (ii) Change in Control (as
hereinafter defined) of the Company, the purchaser(s) of the Company's assets or
stock, in his, her or its sole discretion, may deliver to the optionee the same
kind of consideration that is delivered to the shareholders of the Company as a
result of such sale, conveyance or Change in Control, or the Board may cancel
all outstanding Options in exchange for consideration in cash or in kind, which
consideration in both cases shall be equal in value to the value of those shares
of stock or other securities the optionee would have received had the Option
been exercised (but only to the extent then exercisable) and had no disposition
of the shares acquired upon such exercise been made prior to such sale,
conveyance or Change in Control, less the Option price therefor. Upon receipt of
such consideration, all Options (whether or not then exercisable) shall
immediately terminate and be of no further force or effect. The value of the
stock or other securities the optionee would have received if the Option had
been exercised shall be determined in good faith by the Board, and in the case
of shares of Common Stock, in accordance with the provisions of Section 8
hereof. The Board shall also has the power and right to accelerate the
exercisability of any Options, notwithstanding any limitations in this Plan or
in the Agreement upon such a sale, conveyance or Change in Control.
A "Change in Control" shall be deemed to have occurred if any person, or any two
or more persons acting as a group, and all affiliates of such person or persons,
who prior to such time owned less than fifty percent (50%) of the then
outstanding Common Stock, shall acquire such additional shares of Common Stock
in one or more transactions, or series of transactions, such that following such
transaction or transactions, such person or group and affiliates beneficially
own fifty percent (50%) or more of the Common Stock outstanding.
Upon dissolution or liquidation of the Company, all Options granted under this
Plan shall terminate, but each optionee (if at such time in the employ of or
otherwise associated with the Company or any of its subsidiaries as a director,
agent or consultant) shall have the right, immediately prior to such dissolution
or liquidation, to exercise his or her Option to the extent then exercisable.
If by reason of a corporate merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation, the Board shall authorize the
issuance or assumption of a stock option or stock options in a transaction to
which Section 424(a) of the Code applies, then, notwithstanding any other
provision of the Plan, the Board may grant an option or options upon such terms
and conditions as it may deem appropriate for the purpose of assuming the old
Option, or substituting a new option for the old Option, in conformity with the
provisions of such Section 424(a) of the Code and the Regulations thereunder,
and any such option shall not reduce the number of shares otherwise available
for issuance under the Plan.
No fraction of a share shall be purchasable or deliverable upon the exercise of
any Option, but in the event any adjustment hereunder in the number of shares
covered by the Option shall cause such number to include a fraction of a share,
such fraction shall be adjusted to the nearest smaller whole number of shares.
14. No Special Employment Rights. Nothing contained in the Plan or in any Option
granted under the Plan shall confer upon any Option holder any right with
respect to the continuation of his or her employment by the Company or by any
subsidiary or interfere in any way with the right of the Company or any
subsidiary, subject to the terms of any separate employment agreement to the
contrary, at any time to terminate such employment or to increase or decrease
the compensation of the Option holder from the rate in existence at the time of
the grant of an Option. Whether an authorized leave of absence, or absence in
military or government service, shall constitute termination of employment shall
be determined by the Board at the time of such occurrence.
15. Withholding. The Company's obligation to deliver shares upon the exercise of
an Option shall be subject to the Option holder's satisfaction of all applicable
Federal, state and local income and employment tax withholding requirements. The
Company and optionee may agree to withhold shares of Common Stock purchased upon
exercise of an Option to satisfy the above-mentioned withholding requirements;
provided, however, no such agreement may be made by an optionee who is an
"officer" or "director" within the meaning of Section 16 of the Exchange Act,
except pursuant to a standing election to so withhold shares of Common Stock
purchased upon exercise of an Option, such election to be made not less than six
months prior to such exercise and which election may be revoked only upon six
months prior written notice.
16. Restrictions on Issuance of Shares. (a) Notwithstanding the provisions of
Section 9, the Company may delay the issuance of shares covered by the exercise
of an Option and the delivery of a certificate for such shares until one of the
following conditions shall be satisfied: (i) The shares with respect to which
such Option has been exercised are at the time of the issue of such shares
effectively registered or qualified under applicable Federal and state
securities acts now in force or as hereafter amended; or (ii) Counsel for the
Company shall have given an opinion, which opinion shall not be unreasonably
conditioned or withheld, that such shares are exempt from registration and
qualification under applicable Federal and state securities acts now in force or
as hereafter amended. (b) It is intended that all exercises of Options shall be
effective, and the Company shall use its best efforts to bring about compliance
with the above conditions within a reasonable time, except that the Company
shall be under no obligation to qualify shares or to cause a registration
statement or a post-effective amendment to any registration statement to be
prepared for the purpose of covering the issue of shares in respect of which any
Option may be exercised, except as otherwise agreed to by the Company in writing
in its sole discretion.
17. Purchase for Investment; Rights of Holder on Subsequent Registration. Unless
and until the shares to be issued upon exercise of an Option granted under the
Plan have been effectively registered under the 1933 Act, as now in force or
hereafter amended, the Company shall be under no obligation to issue any shares
covered by any Option unless the person who exercises such Option, in whole or
in part, shall give a written representation and undertaking to the Company
which is satisfactory in form and scope to counsel for the Company and upon
which, in the opinion of such counsel, the Company may reasonably rely, that he
or she is acquiring the shares issued pursuant to such exercise of the Option
for his or her own account as an investment and not with a view to, or for sale
in connection with, the distribution of any such shares, and that he or she will
make no transfer of the same except in compliance with any rules and regulations
in force at the time of such transfer under the 1933 Act, or any other
applicable law, and that if shares are issued without such registration, a
legend to this effect may be endorsed upon the securities so issued.
In the event that the Company shall, nevertheless, deem it necessary or
desirable to register under the 1933 Act or other applicable statutes any shares
with respect to which an Option shall have been exercised, or to qualify any
such shares for exemption from the 1933 Act or other applicable statues, then
the Company may take such action and may require from each Optionee such
information in writing for use in any registration statement, supplementary
registration statement, prospectus, preliminary prospectus or offering circular
as is reasonably necessary for such purpose and may require reasonable indemnity
to the Company and its officers and directors from such holder against all
losses, claims, damages and liabilities arising from such use of the information
so furnished and caused by any untrue statement of any material fact therein or
caused by the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made.
18. Loans. At the discretion of the Board, the Company may loan to the optionee
some or all of the purchase price of the shares acquired upon exercise of an
Option.
19. Modification of Outstanding Options. The Board may authorize the amendment
of any outstanding Option with the consent of the optionee when and subject to
such conditions as are deemed to be in the best interests of the Company and in
accordance with the purposes of the Plan.
20. Approval of Stockholders. The Plan shall not require presentation to or the
approval of the stockholders of the Company.
21. Termination and Amendment of Plan. Unless sooner terminated as herein
provided, the Plan shall terminate ten (10) years from the date upon which the
Plan was duly adopted by the Board of the Company. The Board may at any time
terminate the Plan or make such modification or amendment thereof as it deems
advisable.
22. Limitation of Rights in the Option Shares. An optionee shall not be deemed
for any purpose to be a stockholder of the Company with respect to any of the
Options except to the extent that the Option shall have been exercised with
respect thereto, and in addition, a certificate shall have been issued
theretofore and delivered to the optionee.
23. Notices. Any communication or notice required or permitted to be given under
the Plan shall be in writing, and mailed by registered or certified mail or
delivered by hand, if to the Company, to the attention of the President at the
Company's principal place of business; and, if to an optionee, to his or her
address as it appears on the records of the Company.
EXHIBIT A TO CBQ, INC.
1999 STOCK OPTION PLAN
(August 30, 1999)
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT has been made this ______ day of ______________________, 19__,
between ___________________________________ ("Employee"), and CBQ, Inc., a
Colorado corporation ("Company").
1. Grant of Option. The Company, pursuant to the provisions of the CBQ, Inc.
1999 Incentive Stock Option Plan ("Plan"), a copy of which was previously
received by the Employee, hereby grants to the Employee, subject to the terms
and conditions set forth or incorporated herein, an option to purchase from the
Company all or any part of an aggregate of ______________ common shares, as such
are now constituted, at the purchase price of $_____ per share. The provisions
of the Plan governing the terms and conditions of the Option granted hereby are
incorporated in full herein and made a part hereof by this reference. The
Employee, by his or her signature below, agrees to be bound by the terms and
conditions of the Plan.
2. Exercise. This Option shall be exercisable in whole or in part on or after
__________________ and on or before ____________________; provided, however,
that the cumulative number of common shares as to which this Option may be
exercised (except in the event of death, retirement, or disability, as provided
in paragraph 11(a) of the Plan) shall not exceed the following amounts:
Cumulative Number of Shares Prior To Date (Not Inclusive of)
This Option shall be exercisable by the delivery to and receipt by the Company
of (i) a written notice of election to exercise, in the form set forth in
Exhibit A hereto, specifying the number of Common Shares to be purchased; (ii)
accompanied by payment of the full purchase price thereof in cash or certified
check payable to the order of the Company, or by fully-paid and nonassessable
common shares of the Company properly endorsed over to the Company, or by a
combination thereof, and (iii) by return of this Agreement for endorsement of
exercise by the Company. In the event fully-paid and nonassessable common shares
are submitted as whole or partial payment for shares to be purchased hereunder,
such common shares will be valued at their Fair Market Value (as defined in the
Plan) on the date such shares received by the Company are applied to payment of
the exercise price.
3. Transferability. This Option is not assignable or transferable by the
Employee other than by the Employee's will or by the laws of descent and
distribution, as provided in paragraph 12 of the Plan. The Option shall be
exercisable only by the Employee during the Employee's lifetime.
CBQ, INC. ATTEST:
By: _____________________________ By: ______________________________
President Secretary
Employee hereby acknowledges receipt of the copy of the Plan, and accepts this
Option subject to each and every term and provision of the Plan. Employee hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Compensation Committee of the Board of Directors
administering the Plan on any questions arising under the Plan. Employee
recognizes that if his or her employment with the Company or any subsidiary
thereof shall be terminated for any reason whatsoever, all of Employee's rights
hereunder shall thereupon terminate as provided in the Plan.
Date: _____________________________
Employee: _________________________
Print Name: _______________________
Address: __________________________
Social Security No.: ______________
EXHIBIT A TO OPTION AGREEMENT
(Suggested form of letter to be used for notification of election to exercise.
Please do not use this page, but follow this form in a separately typed letter.)
Date:
Treasurer
CBQ, Inc.
4851 Keller Springs, Ste. 228
Addison TX
Dear Sir:
In accordance with paragraph 8 of the Stock Option Agreement evidencing the
Option granted to me on _____________ under the CBQ, Inc. 1999 Incentive Stock
Option Plan, I hereby elect to exercise this Option to the extent of
_____________ Common Shares.
Enclosed are (i) Certificate(s) No.(s) ________________________ representing
fully-paid common shares of CBQ, Inc. endorsed to the Company with signature
guaranteed; (ii) and/or a certified check payable to the order of "CBQ, Inc." in
the amount of $ ___________ as the balance of the purchase price of $
________________ for the shares which I have elected to purchase; and (iii) the
original Incentive Stock Option Agreement for endorsement by the Company as to
exercise. I acknowledge that the common shares (if any) submitted as part
payment of the exercise price due hereunder will be valued by the Company at
their Fair Market Value (as defined in the Plan) on the date this exercise is
effected by the Company. In the event I hereafter sell any common shares issued
pursuant to this option within two years from the date of exercise or within
five years after the date of grant of this Option, I agree to notify the Company
promptly of the amount of taxable compensation realized by me by reason of such
for federal income tax purposes.
When the certificate for common shares which I have elected to purchase has been
issued, please deliver it to me, along with my endorsed Incentive Stock Option
Agreement in the event there remains an unexercised balance of shares under the
Option, at the following address:
_____________________________
_____________________________
Very Truly Yours,
_____________________________
Signature of Employee
_____________________________
Print Name
EXHIBIT B TO OPTION AGREEMENT
VESTING OPTION GRANT
THIS AGREEMENT has been made this _________________ day of __________________,
19__, between ("Employee"), and CBQ, Inc., a Colorado corporation ("Company").
1. Grant of Option. The Company, pursuant to the provisions of the CBQ, Inc.,
1999 Stock Option Plan ("Plan"), a copy of which was previously received by
Employee, hereby grants to Employee, subject to the terms and conditions set
forth or incorporated herein, an option to acquire ______________ common shares.
The provisions of the Plan governing the terms and conditions of the Stock
granted hereby are incorporated in full herein and made a part hereof by this
reference.
2. Vesting. This Option shall be issuable as follows:
Cumulative Number of Shares Issuance Date
3. Transferability. This Option grant is not assignable or transferable by
Employee other than by Employee's will or by the laws of descent and
distribution, as provided in paragraph 12 of the Plan. The shares shall be
issuable only to the Employee during the Employee's lifetime.
CBQ, INC. ATTEST:
By: ____________________________ By: _____________________________
President Secretary
Employee hereby acknowledges receipt of the copy of the Plan, and accepts this
grant subject to each and every term and provision of the Plan. Employee hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Compensation Committee of the Board of Directors
administering the Plan on any questions arising under the Plan. Employee
recognizes that if Employee's employment with the Company or any subsidiary
thereof shall be terminated for any reason whatsoever (except as otherwise
provided in paragraph 11(a) of the Plan), all of the Employee's rights hereunder
shall thereupon terminate as provided in the Plan.
Date: _____________________________
Employee: _________________________
Print Name: _______________________
Address: __________________________
Social Security No.: ______________