STOCK UP ON SUCCESS
THE GAP, INC.'S STOCK OPTION BONUS PROGRAM
THE GAP, INC., hereby adopts Stock Up On Success, The Gap, Inc.'s
Stock Option Bonus Program, effective as of January 1, 1999, as follows:
SECTION 1
BACKGROUND, PURPOSE AND DURATION
1.1 Background and Effective Date. The Plan is
effective as of January 1, 1999. The Plan is intended to increase incentive
and to encourage Share ownership on the part of eligible non-officer regular
employees of the Company and its Affiliates by providing limited grants of
nonqualified stock options to such employees. The Plan also is intended to
further the growth and profitability of the Company.
SECTION 2
DEFINITIONS
The following words and phrases shall have the following meanings unless
a different meaning is plainly required by the context:
2.1 Affiliate means any corporation or any other
entity (including, but not limited to, partnerships and joint ventures) that
the Committee (in its discretion) determines to be controlling, controlled by,
or under common control with the Company.
2.2 Board or Board of Directors means the
Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of
1986, as amended. Reference to a specific section of the Code or regulation
thereunder shall include such section or regulation, any valid regulation
promulgated under such section, and any comparable provision of any future
legislation or regulation amending, supplementing or superseding such section
or regulation.
2.4 "Company" means The Gap, Inc., a Delaware
corporation, or any successor thereto.
2.5 "Committee" means the committee appointed by
the Board (pursuant to Section 3.1) to administer the Plan. As of the
effective date of the Plan, the Plan shall be administered by the Compensation
and Stock Option Committee of the Board.
2.6 "Disability" means a permanent and total
disability as determined by the Committee in accordance with uniform and non-
discriminatory standards adopted by the Committee (in its discretion) from
time to time.
2.7 "Eligible Employee" means an Employee who, as
of the Grant Date, is not an Officer of the Company.
2.8 "Employee" means any regular full-time or
part-time employee of the Company or of any designated Affiliate. The
Committee, in its sole discretion, shall determine which Affiliates shall be
designated for purposes of this Section 2.8.
2.9 "Exercise Price" means the price at which a
Share may be purchased by a Participant pursuant to the exercise of an Option.
2.10 "Fair Market Value" means the fair market
value of a share on the relevant date, as determined by the Committee in good
faith. Notwithstanding the preceding, for federal, state, and local income
tax purposes, fair market value shall be determined by the Committee (or its
delegate) in accordance with uniform and nondiscriminatory standards adopted
from time to time.
2.11 "Grant Date" means, with respect to an
Option, the date that the Option is granted.
2.12 "Incentive Stock Option" means an Option to
purchase Shares which is designated as an Incentive Stock Option and is
intended to meet the requirements of section 422 of the Code.
2.13 "Nonqualified Stock Option" means an option
to purchase Shares which is not intended to be an Incentive Stock Option.
2.14 "Officer" means any Employee of the Company
who is at least one of the following: (a) an officer of the Corporation, (b)
an officer of an Affiliate, or (c) a member of the Board.
2.15 "Option" means a Nonqualified Stock Option.
2.16 "Option Agreement" means the written
agreement setting forth the terms and provisions applicable to each Option
granted under the Plan. The Committee, in its discretion, shall determine the
form of each Option Agreement and any conditions that must be satisfied in
order for each Option Agreement to be effective.
2.17 "Participant" means an Eligible Employee who
has an outstanding Option.
2.18 "Plan" means the Stock Up On Success, The
Gap, Inc.'s Stock Option Bonus Program, as set forth in this instrument and as
hereafter amended from time to time.
2.19 "Retirement" means a Termination of
Employment by reason of the Participant's retirement at or after his or her
normal retirement date under GapShare (the Company's "401(k)" plan), or any
successor plan.
2.20 "Shares" means the shares of the Company's
common stock, $0.05 par value.
2.21 "Termination of Employment" means a
cessation of the employee-employer relationship between a Participant and the
Company or an Affiliate for any reason, including, but not by way of
limitation, a termination by resignation, discharge, death, Disability,
Retirement, or the disaffiliation of an Affiliate, but excluding any such
termination where there is a simultaneous reemployment by the Company or an
Affiliate.
SECTION 3
ADMINISTRATION
3.1 The Committee. The Plan shall be administered
by the Committee. The members of the Committee shall be appointed from time
to time by, and shall serve at the pleasure of, the Board of Directors.
3.2 Authority of the Committee. It shall be the
duty of the Committee to administer the Plan in accordance with the Plan's
provisions. The Committee shall have all powers and discretion necessary or
appropriate to administer the Plan and to control its operation, including,
but not limited to, the power to (a) prescribe the terms and conditions of the
Options, (b) interpret the Plan and the Options, (c) adopt such sub-plans or
rules as may be necessary or appropriate to permit participation in the Plan
by Eligible Employees who are not United States citizens or residents,
(d) adopt rules for the administration, interpretation and application of the
Plan as are consistent therewith, and (e) interpret, amend or revoke any such
rules.
3.3 Delegation by the Committee. The Committee, in
its sole discretion and on such terms and conditions as it may provide, may
delegate all or any part of its authority and powers under the Plan to one or
more directors or Officers of the Company.
3.4 Decisions Binding. All determinations and
decisions made by the Committee, the Board, and any delegate of the Committee
pursuant to the provisions of the Plan shall be final, conclusive, and binding
on all persons, and shall be given the maximum deference permitted by law.
SECTION 4
SHARES SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to adjustment as
provided in Section 4.3, the total number of Shares available for grant under
the Plan shall not exceed 4,000,000. Shares granted under the Plan may be
either authorized but unissued Shares or treasury Shares.
4.2 Lapsed Options. If an Option terminates,
expires, or lapses for any reason, any Shares subject to such Option shall
again be available to be the subject of another Option.
4.3 Adjustments in Options and Authorized Shares.
In the event of any merger, reorganization, consolidation, recapitalization,
separation, liquidation, stock dividend, split-up, Share combination, or other
change in the corporate structure of the Company affecting the Shares, the
Committee shall adjust the number and class of Shares which may be delivered
under the Plan, the number, class, and price of Shares subject to outstanding
Options, and the maximum number of Shares which may be granted to an Eligible
Employee within one (1) fiscal year of the Company, in such manner as the
Committee (in its sole discretion) shall determine to be appropriate to
prevent the dilution or diminution of such Options. Notwithstanding the
preceding, the number of Shares subject to any Option always shall be a whole
number.
SECTION 5
STOCK OPTIONS
5.1 Grant of Options. Subject to the terms and
provisions of the Plan, Options may be granted to Eligible Employees. The
Committee, in its sole discretion shall determine which Eligible Employees, if
any, are granted Options under the Plan, and shall determine the number of
Shares subject to each such Option, provided that in any fiscal year of the
Company no Eligible Employee shall receive Options under the Plan for more
than 300 Shares. The Committee, in its sole discretion, shall determine the
Grant Date for each Option.
5.2 Option Agreement. Each Option shall be
evidenced by an Option Agreement that shall specify the Exercise Price, the
expiration date of the Option, the number of Shares to which the Option
pertains, any conditions to the exercise of the Option and such other terms
and conditions as the Committee, in its discretion, shall determine. The
Option Agreement shall specify that the Option is intended to be a
Nonqualified Stock Option.
5.3 Exercise Price. The Exercise Price for each
Option shall be not less than one hundred percent (100%) of the Fair Market
Value of a Share on the Grant Date.
5.4 Expiration of Options. Each Option shall
terminate no later than the first to occur of the following events:
(a) The date for termination of the Option set forth
in the written Option Agreement; or
(b) The expiration of ten (10) years from the Grant
Date; or
(c) The expiration of three (3) months from the date
of the Participant's Termination of Employment for a reason other than
the Participant's death or Retirement; or
(d) The expiration of one (1) year from the date of
the Participant's Termination of Employment by reason of Retirement or
death.
5.5 Exercisability of Options. Options granted
under the Plan shall be exercisable at such times and be subject to such
restrictions and conditions as the Committee shall determine in its sole
discretion.
5.6 Payment. Options shall be exercised by the
Participant's delivery of a notice of exercise to the Secretary of the Company
(or its designee) setting forth the number of Shares with respect to which the
Option is to be exercised, and accompanied by full payment for the Shares.
The form of the notice of exercise shall be determined in the discretion of
the Secretary of the Company (or its designee). Upon the exercise of any
Option, the Exercise Price shall be payable to the Company in full (in United
States dollars) in cash or its equivalent. The Secretary of the Company (or
its designee), in its sole discretion, also may permit exercise by a "same
day sale" using a broker or brokers approved in advance by the Secretary of
the Company (or its designee) for such an arrangement. As soon as practicable
after receipt of a written notification of exercise and full payment for the
Shares purchased, the Company shall deliver to the Participant (or the
Participant's designated broker), Share certificates (which may be in book
entry form) representing such Shares.
5.7 Restrictions on Share Transferability. The
Committee may impose such restrictions on any Shares acquired pursuant to the
exercise of an Option as it may deem advisable, including, but not limited to,
restrictions related to applicable federal securities laws, the requirements
of any national securities exchange or system upon which Shares are then
listed or traded, or any blue sky or state securities laws.
SECTION 6
MISCELLANEOUS
6.1 No Effect on Employment. Nothing in the Plan
shall interfere with or limit in any way the right of the Company to terminate
any Participant's employment or service at any time, with or without cause.
For purposes of the Plan, transfer of employment of a Participant between the
Company and any one of its Affiliates (or between Affiliates) shall not be
deemed a Termination of Employment. Employment with the Company and its
Affiliates is on an at-will basis only.
6.2 Indemnification. The Committee, its delegates
(if any) and each person who is or shall have been a member of the Board,
shall be indemnified and held harmless by the Company against and from (a) any
loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by him or her in connection with or resulting from any claim, action,
suit, or proceeding to which he or she may be a party or in which he or she
may be involved by reason of any action taken or failure to act under the Plan
or any Option Agreement, and (b) from any and all amounts paid by him or her
in settlement thereof, with the Company's approval, or paid by him or her in
satisfaction of any judgment in any such claim, action, suit, or proceeding
against him or her, provided he or she shall give the Company an opportunity,
at its own expense, to handle and defend the same before he or she undertakes
to handle and defend it on his or her own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification
to which such persons may be entitled under the Company's Certificate of
Incorporation or Bylaws, by contract, as a matter of law, or otherwise, or
under any power that the Company may have to indemnify them or hold them
harmless.
6.3 Successors. All obligations of the Company
under the Plan, with respect to Options granted hereunder, shall be binding on
any successor to the Company, whether the existence of such successor is the
result of a direct or indirect purchase, merger, consolidation, or otherwise,
of all or substantially all of the business or assets of the Company.
6.4 Beneficiary Designations. If permitted in the
discretion of the Secretary of the Company (or its designee), a Participant
under the Plan may name a beneficiary or beneficiaries to whom any vested but
unpaid Option shall be paid in the event of the Participant's death. Each
such designation shall revoke all prior designations by the Participant and
shall be effective only if given in a form and manner acceptable to the
Secretary of the Company (or its designee). In the absence of any such
designation, any vested benefits remaining unpaid at the Participant's death
shall be paid to the Participant's estate and, subject to the terms of the
Plan and of the applicable Option Agreement, any unexercised vested Option may
be exercised by the administrator or executor of the Participant's estate.
6.5 Nontransferability of Options. No Option
granted under the Plan may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, other than by will, by the laws of
descent and distribution, or to the limited extent provided in Section 6.4.
All rights with respect to an Option granted to a Participant shall be
available during his or her lifetime only to the Participant.
6.6 No Rights as Stockholder. No Participant (nor
any beneficiary) shall have any of the rights or privileges of a stockholder
of the Company with respect to any Shares issuable pursuant to an Option,
unless and until certificates representing such Shares shall have been issued,
recorded on the records of the Company or its transfer agents or registrars,
and delivered to the Participant (or beneficiary).
6.7 Withholding Requirements. Prior to the delivery
of any Shares pursuant to an Option, the Company shall have the power and the
right to deduct or withhold, or require a Participant to remit to the Company,
an amount sufficient to satisfy any taxes required to be withheld with respect
to such Option or its exercise, including (but not way of limitation) income
taxes and payroll taxes of any taxing authority whose laws or rules are
applicable to the Participant.
SECTION 7
AMENDMENT, TERMINATION, AND DURATION
7.1 Amendment, Suspension, or Termination. The
Board, in its sole discretion, may amend or terminate the Plan, or any part
thereof, at any time and for any reason. The amendment, suspension, or
termination of the Plan shall not, without the consent of the Participant,
alter or impair any rights or obligations under any Option theretofore granted
to such Participant. No Option may be granted during any period of suspension
or after termination of the Plan.
7.2 Duration of the Plan. The Plan shall commence
on the date specified herein, and subject to Section 7.1 (regarding the
Board's right to amend or terminate the Plan), shall remain in effect
thereafter.
SECTION 8
LEGAL CONSTRUCTION
8.1 Gender and Number. Except where otherwise
indicated by the context, any masculine term used herein also shall include
the feminine; the plural shall include the singular and the singular shall
include the plural.
8.2 Severability. In the event any provision of the
Plan shall be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and the Plan
shall be construed and enforced as if the illegal or invalid provision had not
been included.
8.3 Requirements of Law. The granting of Options
and the issuance of Shares under the Plan shall be subject to all applicable
laws, rules, and regulations, and to such approvals by any governmental
agencies or national securities exchanges, as may be required.
8.4 Governing Law. The Plan and all Option
Agreements shall be construed in accordance with and governed by the laws of
the State of California (with the exception of its conflict of laws
provisions).
8.5 Captions. Captions are provided herein for
convenience only, and shall not serve as a basis for interpretation or
construction of the Plan.
EXECUTION
IN WITNESS WHEREOF, The Gap, Inc., by its duly authorized Officer,
has executed the Plan as of the date indicated below.
THE GAP, INC.
Dated: October 28, 1998 By: /s/ ANNE B. GUST