Exhibit 10.27
JAYCOR TACTICAL SYSTEMS,
INC.
2000 NONQUALIFEED STOCK OPTION
PLAN
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1.
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E STABLISHMENT , P URPOSE AND T ERM OF P LAN .
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1.1 Establishment. The Jaycor
Tactical Systems, Inc. 2000 Nonqualified Stock Option Plan (the
“Plan” ) is hereby established effective
as of December 15, 2000.
1.2 Purpose. The purpose of
the Plan is to advance the interests of the Participating Company
Group, the Jaycor Participating Group and their stockholders by
providing an incentive to attract, retain and reward persons
performing services for the Participating Company Group and the
Jaycor Participating Company Group by motivating such persons to
contribute to the growth and profitability of the Participating
Company Group and the Jaycor Participating Company
Group.
1.3 Term of Plan. The Plan
shall continue in effect until the earlier of its termination by
the Board or the date on which all of the shares of Stock available
for issuance under the Plan have been issued and all restrictions
on such shares under the terms of the Plan and the agreements
evidencing Options granted under the Plan have lapsed. However, all
Options shall be granted, if at all, within ten (10) years
from the earlier of the date the Plan is adopted by the Board or
the date the Plan is duly approved by the stockholders of the
Company.
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2.
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D EFINITIONS AND C ONSTRUCTION .
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2.1 Definitions. Whenever
used herein, the following terms shall have their respective
meanings set forth below:
(a)
“Board” means the Board of Directors of
the Company. If one or more Committees have been appointed by the
Board to administer the Plan, “Board”
means such Committee(s).
(b) “Code”
means the Internal Revenue Code of 1986, as amended, and any
applicable regulations promulgated thereunder.
(c)
“Committee” means the committee
consisting of the Chief Executive Officer of the Company and the
member of the Board of Directors of the Company that holders of
Series A Preferred Stock of the Company are entitled to elect. The
Committee shall have all of the powers under the Plan granted to
the Board herein, including, without limitation, the power to amend
or terminate the Plan at any time, subject to the terms of the Plan
and any applicable limitations imposed by law. Notwithstanding the
preceding sentence, the Committee shall have no authority to
increase the number of shares of Stock available for issuance under
the Plan.
(d)
“Company” means Jaycor Tactical Systems,
Inc., a Delaware corporation, or any successor corporation
thereto.
(e)
“Consultant” means a person engaged to
provide consulting or advisory services (other than as an Employee
or a Director) to Jaycor or a member of the Jaycor Participating
Group, provided that the identity of such person, the nature of
such services or the entity to which such services are provided
would not preclude the Company from offering or selling securities
to such person pursuant to the Plan in reliance on either the
exemption from registration provided by Rule 701 under the
Securities Act or, if the Company is required to file reports
pursuant to Section 13 or 15(d) of the Exchange Act,
registration on a Form S-8 Registration Statement under the
Securities Act.
(f)
“Director” means a member of the board of
directors of Jaycor or a member of the board of directors of any
Jaycor Participating Group.
(g)
“Disability” means the inability of the
Optionee, in the opinion of a qualified physician acceptable to the
Company, to perform the major duties of the Optionee’s
position with the Jaycor Participating Group or the Participating
Company Group because of the sickness or injury of the
Optionee.
(h)
“Distribution” means the distribution by
Jaycor, Inc. to the holders of its common stock, by means of a pro
rata distribution of all of the shares of the Company’s
common stock owned by Jaycor pursuant to the terms of the
Distribution Matters Agreement between Jaycor and the Company dated
October 27, 2000.
(i) “Distribution
Date” means the date on which Jaycor first ceases to
be a member of the Participating Company Group.
(j)
“Employee” means any person treated as an
employee (including an officer or a Director who is also treated as
an employee) in the records of Jaycor or a member of the Jaycor
Participating Group. The Company shall determine in good faith and
in exercise of its discretion whether an individual has become or
ceased to be an Employee and the effective date of such
individual’s employment or termination of employment, as the
case may be. For purposes of an individual’s rights, if any,
under the Plan as of the time of the Company’s determination,
all such determinations by the Company shall be final, binding and
conclusive, notwithstanding that the Company or any court of law or
governmental agency makes a contrary determination.
(k) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
(l) “Fair Market
Value” means, as of any date, the value of a share of
Stock or other property as determined by the Board, in its
discretion, or by the Company, in its discretion, if such
determination is expressly allocated to the Company herein, subject
to the following:
(i) If, on such date, the Stock is
listed on a national or regional securities exchange or market
system, the Fair Market Value of a share of Stock shall be the
closing price of a share of Stock (or the mean of the closing bid
and asked prices of a share of Stock if the Stock is so quoted
instead) as quoted on the Nasdaq National Market, The Nasdaq
SmallCap Market or such other national or regional securities
exchange or market system
constituting the primary market for the Stock,
as reported in The Wall Street Journal or such other source
as the Company deems reliable. If the relevant date does not fall
on a day on which the Stock has traded on such securities exchange
or market system, the date on which the Fair Market Value shall be
established shall be the last day on which the Stock was so traded
prior to the relevant date, or such other appropriate day as shall
be determined by the Board, in its discretion.
(ii) If, on such date, the Stock is
not listed on a national or regional securities exchange or market
system, the Fair Market Value of a share of Stock shall be as
determined by the Board in good faith without regard to any
restriction other than a restriction which, by its terms, will
never lapse.
(m) “Incentive Stock
Option” means an Option intended to be (as set forth
in the Option Agreement) and which qualifies as an incentive stock
option within the meaning of Section 422(b) of the
Code.
(n)
“Insider” means an officer (including any
person designated by the Board as an officer) or a Director of the
Company or any other person whose transactions in Stock are subject
to Section 16 of the Exchange Act.
(o)
“Jaycor” means Jaycor, Inc., a California
corporation or any successor corporation thereto.
(p) “Jaycor
Participating Group” means at any point in time, all
corporations which are, at that time, a parent corporation as
defined by Section 424(e) of the Code or a subsidiary
corporation as defined by Section 424(f) of the Code of
Jaycor.
(q) “Nonstatutory Stock
Option” means an Option not intended to be (as set
forth in the Option Agreement) or which does not qualify as an
incentive Stock Option All of the Options granted under the Plan
shall be Nonstatutory Stock Options.
(r)
“Option” means a right to purchase Stock
(subject to adjustment as provided in Section 4.2) pursuant to
the terms and conditions of the Plan.
(s) “Option
Agreement” means a written agreement between the
Company and an Optionee setting forth the terms, conditions and
restrictions of the Option granted to the Optionee and any shares
acquired upon the exercise thereof An Option Agreement may consist
of a form of “Notice of Grant of Stock Option” and a
form of “Stock Option Agreement” incorporated therein
by reference, or such other form or forms as the Board may approve
from time to time.
(t)
“Optionee” means a person who has been
granted one or more Options.
(u) “Parent
Corporation” means any present or future
“parent corporation” of the Company, as defined in
Section 424(e) of the Code.
(v) “Participating
Company” means the Company or any Parent Corporation
or Subsidiary Corporation.
(w) “Participating
Company Group” means, at any point in time, all
corporations collectively which are then Participating
Companies.
(x) “Rule
16b-3” means Rule 16b-3 under the Exchange Act, as
amended from time to time, or any successor rule or
regulation.
(y) “Securities
Act” means the Securities Act of 1933, as
amended.
(z)
“Service” means an Optionee’s
employment or service with Jaycor or a member of the Jaycor
Participating Group, whether in the capacity of an Employee, a
Director or a Consultant. An Optionee’s Service shall not be
deemed to have terminated merely because of a change in the
capacity in which the Optionee renders Service or a change in the
company for which the Optionee renders such Service, provided that
there is no interruption or termination of the Optionee’s
Service. Furthermore, an Optionee’s Service shall not be
deemed to have terminated if the Optionee takes any military leave,
sick leave, or other bona fide leave of absence approved by the
Company; provided, however, that if any such leave exceeds ninety
(90) days, on the ninety-first (91st) day of such leave
the Optionee’s Service shall be deemed to have terminated
unless the Optionee’s right to return to Service is
guaranteed by statute or contract. Notwithstanding the foregoing,
unless otherwise designated by Jaycor or required by law, a leave
of absence shall not be treated as Service for purposes of
determining vesting under the Optionee’s Option Agreement.
The Optionee’s Service shall be deemed to have terminated
either upon an actual termination of Service or upon the
corporation for which the Optionee performs Service ceasing to be a
member of the Jaycor Participating Group. Subject to the foregoing,
Jaycor, in its discretion, shall determine whether the
Optionee’s Service has terminated and the effective date of
such termination. Notwithstanding any other provision of this
Section, during the period that the Company and Jaycor are both
majority owned subsidiaries of a common parent entity, Service
shall also include the Optionee’s Service with the
Participating Company Group (determined as if such Service was
performed for a member of the Jaycor Participating
Group).
(aa)
“Stock” means the common stock of the
Company, as adjusted from time to time in accordance with
Section 4.2.
(bb) “Subsidiary
Corporation” means any present or future
“subsidiary corporation” of the Company, as defined in
Section 424(f) of the Code.
2.2 Construction. Captions
and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of the Plan.
Except when otherwise indicated by the context, the singular shall
include the plural and the plural shall include the singular. Use
of the term “or” is not intended to be exclusive,
unless the context clearly requires otherwise.
3.1 Administration by the
Committee. The Plan shall be administered by the Committee. All
questions of interpretation of the Plan or of any Option shall be
determined by the Committee, and such determinations shall be final
and binding upon all persons having an interest in the Plan or such
Option.
3.2 Authority of Officers.
Any officer of a Participating Company or of a member of the Jaycor
Participating Group shall have the authority to act on behalf of
the Company or Jaycor, as applicable, with respect to any matter,
right, obligation, determination or election which is the
responsibility of or which is allocated to the Company (or Jaycor)
herein, provided the officer has apparent authority with respect to
such matter, right, obligation, determination or
election.
3.3 Powers of the Committee.
In addition to any other powers set forth in the Plan and subject
to the provisions of the Plan, the Committee shall have the full
and final power and authority, in its discretion:
(a) to determine the persons to
whom, and the time or times at which, Options shall be granted and
the number of shares of Stock to be subject to each
Option;
(b) to determine the Fair Market
Value of shares of Stock or other property;
(c) to determine the terms,
conditions and restrictions applicable to each Option (which need
not be identical) and any shares acquired upon the exercise
thereof, including, without limitation, (i) the exercise price
of the Option, (ii) the method of payment for shares purchased
upon the exercise of the Option, (iii) the method for satisfaction
of any tax withholding obligation arising in connection with the
Option or such shares, including by the withholding or delivery of
shares of stock, (iv) the timing, terms and conditions of the
exercisability of the Option or the vesting of any shares acquired
upon the exercise thereof, (v) the time of the expiration of
the Option, (vi) the effect of the Optionee’s
termination of Service on any of the foregoing, and (vi) all other
terms, conditions and restrictions applicable to the Option or such
shares not inconsistent with the terms of the Plan;
(d) to approve one or more forms of
Option Agreement;
(e) to amend, modify, extend, cancel
or renew any Option or to waive any restrictions or conditions
applicable to any Option or any shares acquired upon the exercise
thereof;
(f) to accelerate, continue, extend
or defer the exercisability of any Option or the vesting of any
shares acquired upon the exercise thereof, including with respect
to the period following an Optionee’s termination of
Service;
(g) to prescribe, amend or rescind
rules, guidelines and policies relating to the Plan, or to adopt
supplements to, or alternative versions of, the Plan, including,
without limitation, as the Committee deems necessary or desirable
to comply with the laws of, or to accommodate the tax policy or
custom of, foreign jurisdictions whose citizens may be granted
Options; and
(h) to correct any defect, supply
any omission or reconcile any inconsistency in the Plan or any
Option Agreement and to make all other determinations and take such
other actions with respect to the Plan or any Option as the
Committee may deem advisable to the extent not inconsistent with
the provisions of the Plan or applicable law.
3.4 Administration with Respect
to Insiders. With respect to participation by Insiders in the
Plan, at any time that any class of equity security of the Company
is registered pursuant to Section 12 of the Exchange Act, the
Plan shall be administered in compliance with the requirements, if
any, of Rule 16b-3.
3.5 Indemnification. In
addition to such other rights of indemnification as they may have
as members of the Board or officers or employees of the
Participating Company Group, members of the Board, the Committee
and any officers or employees of the Participating Company Group to
whom authority to act for the Committee or the Company is delegated
shall be indemnified by the Company against all reasonable
expenses, including attorneys’ fees, actually and necessarily
incurred in connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to which they
or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan, or any right
granted hereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by
independent legal counsel selected by the Company) or paid by them
in satisfaction of a judgment in any such action, suit or
proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such person is
liable for gross negligence, bad faith or intentional misconduct in
duties, provided, however, that within sixty (60) days after
the institution of such action, suit or proceeding, such person
shall offer to the Company, in writing, the opportunity at its own
expense to handle and defend the same.
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4.
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S HARES S UBJECT TO P LAN .
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4.1 Maximum Number of Shares
Issuable. Subject to adjustment as provided in
Section 4.2, the maximum aggregate number of shares of Stock
that may be issued under the Plan shall be One Hundred
Seventy-Three Thousand Seven Hundred Ten (173,710) and shall
consist of authorized but unissued or reacquired shares of Stock or
any combination thereof. If an outstanding Option for any reason
expires or is terminated or canceled or if shares of Stock are
acquired upon the exercise of an Option subject to a Company
repurchase option and are repurchased by the Company at the
Optionee’s exerc