Exhibit 10.1
ICOP DIGITAL, INC.
AMENDED AND RESTATED 2002 STOCK
OPTION PLAN
ARTICLE I
PURPOSE
The purpose of the ICOP Digital,
Inc. Stock Option Plan (the “Plan”) is to attract and
retain directors, officers, other employees and consultants of ICOP
Digital, Inc. and its subsidiaries (collectively the
“Company”) and to provide such persons with incentives
to continue in the long-term service of the Company and to create
in such persons a more direct interest in the future success of the
operations of the Company by relating incentive compensation to
increases in stockholder value.
ARTICLE II
STRUCTURE OF THE
PLAN
The Plan is divided into three
separate programs:
A. The Discretionary Stock Option
Grant Program under which eligible persons may, at the discretion
of the Committee or the Board, be granted Stock Options;
B. The Restricted Stock Program
under which eligible persons may, at the discretion of the
Committee or the Board, be granted rights to receive shares of
Common Stock, subject to certain restrictions; and
C. The Supplemental Bonus Program
under which eligible persons may, at the discretion of the
Committee or the Board, be granted a right to receive payment, in
cash, shares of Common Stock, or a combination thereof, of a
specified amount.
ARTICLE III
DEFINITIONS
As used in this Plan:
“10% Stockholder” shall
mean any owner of stock (as determined under Section 424(d) of
the Code) possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any
Subsidiary.
“Award” shall mean a
grant made under this Plan in the form of Stock Options, Restricted
Stock or Supplemental Bonuses.
“Board” shall mean the
Company’s Board of Directors.
“Change in Control”
shall mean a change in ownership or control of the Company effected
through any of the following transactions:
1. The acquisition, directly or
indirectly by any person or group (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act) other than a trustee or
other fiduciary holding securities under an employee benefit plan
of the Company, of beneficial ownership (within the meaning of Rule
13d-3 of the Exchange Act) of securities possessing more than
thirty percent (30%) of the total combined voting power of the
Company’s outstanding securities;
2. A change in the composition of
the Board over a period of eighteen (18) consecutive months or
less such that fifty percent (50%) or more of the Board
members cease to be directors who either (A) have been
directors continuously since the beginning of such period or
(B) have been unanimously elected or nominated by the Board
for election as directors during such period;
3. A stockholder-approved merger or
consolidation to which the Company is a party and in which
(A) the Company is not the surviving entity or
(B) securities possessing more than thirty percent
(30%) of the total combined voting power of the
Company’s outstanding securities are transferred to a person
or persons different from the persons holding those securities
immediately prior to such transaction; or
4. The sale, transfer or other
disposition of all or substantially all of the Company’s
assets in complete liquidation or dissolution of the
Company.
“Code” shall mean the
Internal Revenue Code of 1986, as amended from time to
time.
“Committee” shall mean
the Employee Committee and/or the Incentive Plan Committee, as
applicable.
“Common Stock” shall
mean the Company’s common stock, .01 par value.
“Company” shall mean
ICOP Digital, Inc., a Colorado corporation.
“Date of Grant” shall
mean the date specified by the Committee on which a grant of an
Award shall become effective, which shall not be earlier than the
date on which the Committee takes action with respect
thereto.
“Employee” shall mean an
individual who is in the employ of the Company or any
Subsidiary.
“Employee Committee”
shall mean a committee composed of at least one member of the Board
of Directors who may, but need not, be a Non-Employee Director. The
Employee Committee is empowered hereunder to grant Awards to
Eligible Employees who are not directors or “officers”
of the Company as that term is defined in Rule 16a-1(f) of the
Exchange Act nor “covered employees” under
Section 162(m) of the Code, and to establish the terms of such
Awards at the time of grant, but shall have no other authority with
respect to the Plan or outstanding Awards except as expressly
granted by the Plan.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.
“Fair Market Value” of a
share of Common Stock on any relevant date shall be determined in
accordance with the following provisions:
1. If the Common Stock is at the
time listed on any stock exchange, or traded on the NASDAQ National
Market, or any other securities trading market that reports daily
the closing selling price per share of Common Stock, the Fair
Market Value shall be deemed equal to the closing selling price per
share of Common Stock on the date in question on the stock exchange
or other securities trading market determined by the Committee to
be the primary market for the Common Stock, as such price is
officially quoted on such exchange or trading market.
2. If there is no closing selling
price for the Common Stock on the date in question, or if the
Common Stock is neither listed on a stock exchange or traded on a
securities trading market that reports daily the closing selling
price per share of the Common
Stock, then the Fair Market Value shall be
deemed to be the average of the representative closing bid and
asked prices on the date on question as reported by the NASDAQ
Stock Market or other reporting entity selected by the
Committee.
3. In the event the Common Stock is
not traded publicly, the Fair Market Value of a share of Common
Stock shall be determined, in good faith, by the Committee after
such consultation with outside legal, accounting and other experts
as the Committee may deem advisable, and the Committee shall
maintain a written record of its method of determining such
value.
“Incentive Plan
Committee” shall mean a committee consisting entirely of
Non-Employee Directors of the Board, who are empowered hereunder to
take all action required in the administration of the Plan and the
grant and administration of Awards hereunder. The Incentive Plan
Committee shall be so constituted at all times as to permit the
Plan to comply with Rule 16(a) 3 or any successor rule promulgated
under the Exchange Act. Members of the Incentive Plan Committee
shall be appointed from time to time by the Board, shall serve at
the pleasure of the Board and may resign at any time upon written
notice to the Board. Notwithstanding the foregoing, at any time
that there are fewer than two Non-Employee Directors on the Board
or when no Incentive Plan Committee has been appointed by the
Board, all powers of the Incentive Plan Committee shall be vested
in the Board.
“Incentive Stock Option”
shall mean a Stock Option that (i) qualifies as an
“incentive stock option” under Section 422 of the
Code or any successor provision; and (ii) is intended to be an
incentive stock option.
“Non-Employee Director”
shall mean a director of the Company who meets the definition of
(i) a “non-employee director” set forth in Rule
16b-3 under the Exchange Act, as amended, or any successor rule;
and (ii) an “outside director” set forth in
Treasury Regulation 1. 162-27, as amended, or any successor
rule.
“Non-Statutory Option”
shall mean a Stock Option that (i) does not qualify as an
“incentive stock option” under Section 422 of the
Code or any successor provision; or (ii) is not intended to be
an incentive stock option.
“Optionee” shall mean
the person so designated in an agreement evidencing an outstanding
Stock Option.
“Option Price” shall
mean the purchase price payable by a Participant upon the exercise
of a Stock Option.
“Participant” shall mean
a person who is selected by the Committee to receive benefits under
this Plan and (i) is at that time a director, officer or other
Employee of the Company or any Subsidiary; (ii) is at that
time a consultant or other independent advisor who provides
services to the Company or a Subsidiary; or (iii) has agreed
to commence serving in any capacity set forth in (i) or
(ii) of this definition.
“Plan” shall mean the
Company’s Stock Option Plan as set forth herein.
“Plan Effective Date”
shall mean June 19, 2002, the date on which this Plan was
approved by the Company’s Board of Directors.
“Redemption Value” shall
mean the amount, if any, by which the Fair Market Value of one
share of Common Stock on the date on which the Stock Option is
exercised exceeds the Option Price for such share.
“Restricted Stock” shall
mean shares of Common Stock granted under Article VII that are
subject to restrictions imposed pursuant to said
Article.
“Retirement” shall mean
the voluntary termination of employment due to attainment of the
age of sixty-five (65) years.
“SEC” shall mean the
U.S. Securities and Exchange Commission and any successor
thereto.
“Stock Option” shall
mean a right granted under the Plan to a Participant to purchase
Common Stock at a stated price for a specified period of
time.
“Subsidiary” shall mean
a corporation, partnership, joint venture, unincorporated
association or other entity in which the Company has a direct or
indirect ownership or other equity interest; provided, however, for
purposes of determining whether any person may be a Participant for
purposes of any grant of Incentive Stock Options,
“Subsidiary” means any
subsidiary corporation of the Company as defined in
Section 424(f) of the Code.
“Supplemental Bonus”
shall mean the right to receive payment in cash of an amount
determined pursuant to Article IX of this Plan.
“Term” shall mean the
length of time during which a Stock Option may be
exercised.
ARTICLE IV
ADMINISTRATION OF THE
PLAN
A. Delegation to the
Committee. This Plan shall be administered by the Incentive
Plan Committee. References herein to the “Committee”
shall mean the Employee Committee and/or the Incentive Plan
Committee, as applicable. References herein to the Incentive Plan
Committee refer solely to the Incentive Plan Committee.
Members of the Incentive Plan
Committee and the Employee Committee shall serve for such period of
time as the Board may determine and may be removed by the Board at
any time. The action of a majority of the members of the Incentive
Plan Committee and the Employee Committee present at any meeting,
or acts unanimously approved in writing, shall be the acts of the
Incentive Plan Committee and the Employee Committee,
respectively.
B. Powers of the Committee .
The Incentive Plan Committee shall have full power and authority,
subject to the provisions of this Plan, to establish such rules and
regulations as it may deem appropriate for proper administration of
this Plan and to make such determinations under, and issue
interpretations of, the provisions of this Plan and any outstanding
Awards as it may deem necessary or advisable. In addition, the
Incentive Plan Committee shall have full power and authority to
administer and interpret the Plan and make modifications as it may
deem appropriate to conform the Plan and all actions pursuant to
the Plan to any regulation or to any change in any law or
regulation applicable to this Plan.
C. Actions of the Committee .
All actions taken and all interpretations and determinations made
by the Committee in good faith (including determinations of Fair
Market Value) shall be final and binding upon all Participants, the
Company and all other interested persons. No director or member of
the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to
the Plan, and all directors and members of the Committee shall, in
addition to their rights as directors, be fully protected by the
Company with respect to any such action, determination or
interpretation.
D. Awards to Officers and
Directors .
1. All Awards to officers shall be
determined by the Incentive Plan Committee. If the Incentive Plan
Committee is not composed as prescribed in the definition of
Incentive Plan Committee in Article III, the Board shall have the
right to take such action with respect to any Award to an officer
as it deems necessary or advisable to comply with Rule 16b-3 of the
Exchange Act and any related rules, including but not limited to
seeking stockholder ratification of such Award or restricting the
sale of the Award or any shares of Common Stock underlying the
Award for a period of six months.
2. Discretionary awards to
Non-Employee Directors, if any, shall be determined by the
Board.
E. Code Section 409A .
Notwithstanding any other provision of the Plan, it is intended
that the Plan and any Awards issued thereunder will comply with
Code Section 409A to the extent the Awards are subject
thereto, and the Plan and such Awards shall be interpreted on a
basis consistent with such intent. Any Awards that are considered
“deferred compensation” within the meaning of Code
Section 409A shall be made in compliance with the requirements
of Code Section 409A. Any provision of the Plan and any Awards
issued thereunder, which are determined not to be in compliance
therewith is hereby reformed to the least extent necessary to
comply with the requirements of Code Section 409A.
ARTICLE V
ELIGIBILITY
A. Discretionary Stock Option
Grant Program, Restricted Stock Program and Supplemental Bonus
Program. The persons eligible to participate in the
Discretionary Stock Option Grant Program, the Restricted Stock
Program and the Supplemental Bonus Program are as
follows:
1. Employees of the Company or a
Subsidiary;
2. Members of the Board;
and
3. Consultants and other independent
advisors who provide services to the Company or a
Subsidiary.
B. Selection of Participants
. The Committee shall from time to time determine the Participants
to whom Awards shall be granted pursuant to the Discretionary Stock
Option Grant Program, the Restricted Stock Program and the
Supplemental Bonus Program.
ARTICLE VI
SHARES AVAILABLE UNDER THE
PLAN
A. Maximum Number . The
number of shares of Common Stock issued or transferred and covered
by outstanding awards granted under this Plan shall not in the
aggregate exceed 2,073,661 shares of Common Stock, which may be
Common Stock of original issuance or Common Stock held in treasury,
or a combination thereof. This authorization shall be increased
automatically on each succeeding annual anniversary of the Plan
Effective Date by an amount equal to that number of shares equal to
one-half of one percent of the Company’s then issued and
outstanding shares of Common Stock. The shares may be divided among
the various Plan components as the Incentive Plan Committee shall
determine, except that no more than 1,200,000 shares shall be
issued in connection with the exercise of Incentive Stock Options
under the Plan. Any portion of the shares added on each succeeding
anniversary of the Plan Effective Date which are unused during the
Plan year beginning on such anniversary date shall be carried
forward and be available for grant and issuance in subsequent Plan
years, while up to 100% of the shares to be added in the next
succeeding Plan year
(calculated on the basis of the current Plan
year’s allocation) may be borrowed for use in the current
Plan year. Shares of Common Stock that may be issued upon the
exercise of Stock Options shall be applied to reduce the maximum
number of shares remaining available for use under the Plan. The
Company shall at all times during the term of the Plan, and while
any Stock Options are outstanding, retain as authorized and
unissued Common Stock or as treasury Common Stock, at least the
number of shares of Common Stock required
