EXHIBIT 10.1
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
AMENDED RESTRICTED STOCK BONUS PLAN
1. PURPOSE
This plan's purpose is to keep Recipients and consultants of experience and
ability in the employ of ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and its Subsidiaries and to
compensate them for their contributions to the growth and profits of the
Company and its Subsidiaries and thereby induce them to continue to make
such contributions in the future.
2. DEFINITIONS
For purposes of this Plan, the following terms will have the definitions
set forth below:
1. "AGREEMENT." An agreement between the Company and the Recipient as to
vesting and other conditions restrictions as to the bonus stock award
for that Recipient.
2. "COMPANY." ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
3. "SUBSIDIARY" or "SUBSIDIARIES." A corporation or corporations of which
the Company owns, directly or indirectly, shares having a majority of
the ordinary voting power for the election of directors.
4. "BOARD." The Company's Board of Directors.
5. "DATE OF ISSUANCE." This term shall have the meaning supplied by
Section 6(c), below.
6. "PLAN." The ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Amended Restricted Stock Bonus Plan.
7. "BONUS SHARE." The shares of common stock of the Company reserved
pursuant to SECTION 3 hereof and any such shares issued to a Recipient
pursuant to this Plan.
8. "RECIPIENT." A Recipient or consultant of the Company or a Subsidiary
to whom shares are allocated under this Plan, or such individual's
designated beneficiary, surviving spouse, estate, or legal
representative. For this purpose, however, any such beneficiary,
spouse, estate, or legal representative shall be considered as one
person with the Recipient.
9. "RESTRICTED PERIOD." This phrase shall have the meaning supplied by
SECTION 7(c), below.
3. BONUS SHARE RESERVE
1. BONUS SHARE RESERVE. The Company will establish a Bonus Share reserve
to which will be credited 1,000,000 shares of the common stock of the
Company, no par value. Should the shares of the Company's common
stock, due to a stock split or stock dividend or combination of shares
or any other change, or exchange for other securities, by
reclassification, reorganization, merger, consolidation,
recapitalization or otherwise, be increased or decreased or changed
into, or exchanged for, a different number or kind of shares of stock
or other securities of the Company or of another corporation, the
number of shares then remaining in the Bonus Share reserve shall be
appropriately adjusted to reflect such action. If any such adjustment
results in a fractional share, the fraction shall be disregarded.
2. ADJUSTMENTS TO RESERVE. Upon the allocation of shares hereunder, the
reserve will be reduced by the number of shares so allocated and, upon
the failure to make the required payment on the issuance of any Bonus
Shares pursuant to SECTION 6(a) or upon the reacquisition thereof
pursuant to SECTION 7(d)(i) or (ii), SECTION 8 or SECTION 10 hereof,
the reserve shall be increased by such number of shares, and such
Bonus Shares may again be the subject of allocations hereunder.
3. DISTRIBUTIONS OF BONUS SHARES. Distributions of Bonus Shares, as the
Board shall in its sole discretion determine, may be made from
authorized but unissued shares or from treasury shares. All authorized
and unissued shares issued as Bonus Shares in accordance with the Plan
shall be fully paid and non-assessable shares and free from preemptive
rights.
4. ELIGIBILITY AND MAKING OF ALLOCATIONS
1. ELIGIBLE PARTICIPANTS. Any salaried executive Recipient or consultant
of the Company or any Subsidiary (including officers and directors,
except for
persons serving as directors only) shall be eligible to receive an
allocation of Bonus Shares pursuant to the Plan.
2. SELECTION BY BOARD. The Board will, in its discretion, allocate to the
Recipients or consultants the Board selects a number of Bonus Shares.
The date of such action by the Board shall be the "date of
allocation," as that term is used in this Plan.
3. PARTICIPATION IN OTHER STOCK OPTION PLANS. A person who has received
options to purchase stock under any stock option plan of the Company
or a Subsidiary may exercise the same in accordance with their terms,
and will not by reason thereof be ineligible to receive Bonus Shares
under this Plan. A person who has received Bonus Shares shall be
eligible to, and may, be granted any option or other rights to
purchase Common Stock pursuant to any stock option plan or stock
purchase plan of the Company presently in effect of hereafter adopted.
4. LIMIT ON NUMBER OF ALLOCABLE SHARES. The total number of Bonus Shares
which may be allocated pursuant to this Plan will not exceed the
amount available therefor in the Bonus Share reserve.
5. FORM OF ALLOCATIONS
1. NUMBER SPECIFIED. Each allocation shall specify the number of Bonus
Shares subject thereto, subject to the provisions of SECTION 4.
2. NOTICE. When an allocation is made, the Board shall advise the
Recipient and the Company thereof by delivery of written notice in the
form of Exhibit A hereto annexed.
6. AGREEMENT REQUIRED OF RECIPIENTS
1. ACCEPTANCE OF ALLOCATION. Within 15 days from the date of allocation,
the Recipient shall, if he desires to accept the allocation, execute
the Agreement applicable to the award.
2. INVESTMENT PURPOSE. The Company may require that, in acquiring any
Bonus Shares, the Recipient agree with, and represent to, the Company
that the Recipient is acquiring such Bonus Shares for the purpose of
investment and with no present intent to transfer, sell, or otherwise
dispose of such shares except for such distribution by a legal
representative as shall be required by will or the laws of any
jurisdiction in winding up the estate of any Recipient.
Such shares shall be transferable thereafter only if the proposed
transfer is permitted under the Plan and if, in the opinion of counsel
(who shall be satisfactory to the Company), such transfer at such time
complies with applicable securities laws.
3. WRITTEN AGREEMENT/DATE OF ISSUANCE. On delivery of the Agreement to
the Company, the Company will promptly acknowledge its receipt
thereof. The date of such delivery and receipt shall be deemed the
"Date of Issuance," as that phrase is used in this Plan, of the Bonus
Shares to which the shares relate. The failure to make such payment
and delivery within 15 days from the date of allocation shall
terminate the allocation of such shares to the Recipient.
7. RESTRICTIONS
1. TRANSFER/ISSUANCE. Bonus Shares after the execution of the Agreement
required by SECTION 6, will be promptly issued or transferred and a
certificate or certificates for such shares shall be issued in the
Recipient's name. The Recipient shall thereupon be a shareholder of
all the shares represented by the certificate or certificates. As
such, the Recipient will have all the rights of a shareholder with
respect to such shares, including the right to vote them and to
receive all dividends and other distributions (subject to SECTION
7(b)) paid with respect to them, provided, however, that the shares
shall be subject to the restrictions in SECTION 7(d) and the
Agreement. Stock certificates representing Bonus Shares will be
imprinted with a legend stating that the shares represented thereby
may not be sold, exchanged, transferred, pledged, hypothecated, or
otherwise disposed of except in accordance with this Plan's terms and
the terms of the Agreement between the Company and the Recipient.
2. STOCK SPLITS, DIVIDENDS, ETC. If, due to a stock split, stock
dividend, combination of shares, or any other change or exchange for
other securities by reclassification, reorganization, merger,
consolidation, recapitalization or otherwise, the Recipient, as the
owner of Bonus Shares subject to restrictions hereunder, shall be
entitled to new, additional, or different shares of stock or
securities, the certificate or certificates for, or other evidences
of, such new, additional, or different shares or securities also shall
be imprinted with a legend as provided in SECTION 7(a). When the
event(s) described in the preceding sentence occur, all Plan
provisions relating to restrictions and lapse of restrictions will
apply to such new, additional, or different shares or securities to
the extent applicable to the shares with respect to which they were
distributed.
3. RESTRICTED PERIOD. Subject to SECTION 10, the restrictions contained
in SECTION 7(d) hereof shall lapse as provided in the Agreement
between the Company and the Recipient.
4. RESTRICTIONS ON BONUS SHARES. The restrictions to which restricted
Bonus Shares shall be subjected are as provided in the Agreement
between the Company and the Recipient.
During the Restricted Period applicable to such shares and except as
otherwise specifically provided in the Plan or the Agreement, none of
such shares shall be sold, exchanged, transferred, pledged,
hypothecated, or otherwise disposed of.
8. FINALITY OF DETERMINATION
The Committee will administer this Plan and construe its provisions. Any
determination by the Committee carrying out, administering, or construing
this Plan will be final and binding for all purposes and upon all
interested persons and their heirs, successors, and personal
representatives.
9. LIMITATIONS
1. NO RIGHT TO ALLOCATION. No person will at any time have any right to
receive an allocation of Bonus Shares hereunder and no person will
have authority to enter into an agreement for the making of an
allocation or to make any representation or warranty with respect
thereto.
2. RIGHTS OF RECIPIENTS. Recipients of allocations will have no rights in
respect thereof other than those set forth in the Plan. Such rights
may not be assigned or transferred except by will or by the laws of
descent and distribution and if permitted under SECTION 6(b). If any
attempt is made to sell, exchange, transfer, pledge, hypothecate, or
otherwise dispose of any Bonus Shares held by the Recipient under
restrictions which have not yet lapsed, the shares that are the
subject of such attempted disposition will be deemed offered to the
Company for repurchase and the Company may, at its option, repurchase
the shares at the lower of the sale price to the third part or fair
market value as determined by an independent appraiser mutually
acceptable to the parties. If the Company and Recipient cannot agree
on a third party appraiser, each party shall appoint an appraiser and
the two appraisers shall appoint a third appraiser whose appraisal
shall be binding on all parties. Before issuance of Bonus Shares, no
such shares will be
earmarked for the Recipients' accounts nor will such Recipients have
any rights as stockholders with respect to such shares.
3. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Company's action in
establishing the Plan, nor any action taken by it or by the Board or
the Committee under the Plan, nor any provision of the Plan, will be
construed as giving to any person the right to be retained in the
employ of the Company or any Subsidiary.
4. LIMITATION ON ACTIONS. Every right of action by or on behalf of the
Company or by any shareholder against any past, present, or future
member of the Board, the Committee, or any officer or Recipient of the
Company arising out of or in connection with this Plan shall,
regardless of the place where the action may be brought and regardless
of the place of residence of any such director, committee member,
officer or Recipient, cease and be barred by the expiration of three
years from the later of:
(i) the date of the act or omission in respect of which such right of
action arises or
(ii) the first date upon which there has been made generally available
to shareholders an annual report of the Company and a proxy
statement for the annual meeting of shareholders following the
issuance of such annual report, which annual report and proxy
statement alone or together set forth, for the related period,
the amount of the allocations.
In addition, any and all right of action by any Recipient (past,
present or future) against the Company or any member of the Committee
arising out of or in connection with this Plan will, regardless of the
place where action may be brought and regardless of the place of
residence of any Committee member, cease and be barred by the
expiration of three years from the date of the act or omission in
respect of which such right of action arises.
10. AMENDMENT, SUSPENSION OR TERMINATION OF PLAN
The Board may amend, suspend or terminate the Plan in whole or in part at
any time; provided that such amendment will not affect adversely rights or
obligations with respect to allocations previously made; and provided
further, that no modification of the Plan by the Board without approval of
the stockholders will (i) increase the maximum number of Bonus Shares
reserved pursuant to SECTION 3; or (ii) change the provisions of SECTION 4
with respect to the total number of Bonus Shares that may be allocated
under the Plan.
11. GOVERNING LAW
The Plan will be governed by the laws of the State of Texas.
12. EXPENSES OF ADMINISTRATION
All costs and expenses incurred in the operation and administration of this
Plan will be borne by the Company.
EXHIBIT "A"
▇▇▇▇▇▇▇▇▇.▇▇▇, INC. AMENDED RESTRICTED STOCK BONUS PLAN
To: 1. _________, Recipient, and
2. Treasurer, ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
This is to advise you that ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.'s Board of Directors has on
the date of this notice allocated to the Recipient above named a total of six
thousand (6,000) Bonus Shares under and pursuant to the Amended Restricted Stock
Bonus Plan.
For these shares to be issued, you must execute and deliver to the
Treasurer of the Company an agreement in duplicate, in the form of Exhibit B
hereto, within 15 days from the date of this notice.
___________________________
For the Board
Date: August 3, 1999
EXHIBIT "B"
▇▇▇▇▇▇▇▇▇.▇▇▇, INC. AMENDED RESTRICTED STOCK BONUS PLAN
To: Treasurer, ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
I represent and agree that I am acquiring these Bonus Shares for investment
and that I have no present intention to transfer, sell or otherwise dispose of
such shares, except as permitted pursuant to the Plan and in compliance with
applicable securities laws. I agree further that I am acquiring these shares in
accordance with, and subject to, the terms, provisions and conditions of said
Plan, which I have read and to which I hereby expressly assent. These agreements
will bind and inure to the benefit of my heirs, legal representatives,
successors and assigns.
I agree to the following restriction as to the Bonus Shares: I shall not
sell, exchange, transfer, pledge, hypothecate or dispose of shares during the
Restricted Period. In the event of termination of my employment for any reason,
including death or disability, all shares subject to restrictions shall be
returned to or canceled by the Company and shall be deemed to have been
forfeited by the Recipient, unless and then only to the extent that the Board of
Directors shall, in its sole discretion, elect in writing to waive said return
and forfeiture.
The restrictions will lapse as to such shares in accordance with the
following times and number of shares. This period of time during which the
restrictions apply to a specific share of stock is the Restricted Period as to
that share of stock.
(i) Restrictions shall lapse with respect to one-twenty fourth (1/24) of
the restricted Bonus Shares awarded pursuant to a Restricted Stock
Award, on the first day of each month following the calendar month of
the Date of Issuance, but as to employees, only if on the date the
restrictions are to lapse the Recipient has been an employee of the
Company continuously from the Date of Issuance of the Restricted Stock
Award to such date of lapse. Temporary leaves of absence which are
approved by the Company shall not be considered a break in that
employee's continuous employment with the Company. The purpose of the
restriction is to provide an incentive to each employee who is a
Recipient to remain with the Company or one of its Subsidiaries and to
perform assigned tasks and responsibilities in a manner consistent
with the best interest of the Company and its stockholders. If
calculation of the lapse amount for any month would result
in a fractional share interest, the number of shares shall be rounded
down to the next lowest number of full shares for each of the lapse
dates, with the balance on the last lapse date.
(ii) The Compensation Committee may at any time in its sole discretion
accelerate or waive all or any portion of the restrictions remaining
in respect to the Bonus Shares. This right may be exercised for any or
all of the Recipients.
(iii) Notwithstanding any other provisions of this Agreement, the Recipient
agrees to execute an agreement not to sell his shares even though
otherwise vested for a period of up to twenty-four months if an
underwriter of an initial public offering of the Company's stock
requests such a restriction. This provision shall lapse as to the
Restricted Stock Award to a Recipient two years after the restrictions
as to all of the shares of a Restricted Stock Award have lapsed.
My address of record is:
My Social Security Number is:
___________________________
Receipt of the above, together with the payment referred to, is hereby
acknowledged.
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. By:_________________________
Date:________________________________________