TESORO PETROLEUM CORPORATION
AMENDED AND RESTATED
EXECUTIVE LONG-TERM INCENTIVE PLAN
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION
1.1 ESTABLISHMENT OF THE PLAN. Tesoro Petroleum Corporation, a Delaware
corporation (hereinafter referred to as the "Company"), established an
incentive compensation plan to be known as the "Tesoro Petroleum
Corporation Executive Long-Term Incentive Plan" (hereinafter referred to as
the "Plan"), as set forth in this document. The Plan permits the grant of
Nonqualified Stock Options, Incentive Stock Options, SARs, Restricted
Stock, Performance Units, and Performance Shares.
The Plan became effective as of September 15, 1993 (the "Effective Date"),
and shall remain in effect as provided in Section 1.3 herein.
Effective May 4, 1995, the Plan was amended to limit the number of Shares
that can be granted in the form of an Option to any Participant during any
fiscal year of the Company to 500,000.
Effective June 6, 1996, the Plan was amended to (i) increase the total
number of Shares available for grant under the Plan and (ii) limit the
total amount of Restricted Stock that can be awarded under the Plan.
Effective July 29, 1998, the Plan was amended to (i) increase the total
number of Shares available for grant under the Plan and (ii) increase the
total amount of Restricted Stock that can be awarded under the Plan.
1.2 PURPOSE OF THE PLAN. The purpose of the Plan is to promote the success and
enhance the value of the Company by linking the personal interests of
Participants to those of Company shareholders, and by providing
Participants with an incentive for outstanding performance.
The Plan is further intended to provide flexibility to the Company in its
ability to motivate, attract, and retain the services of Participants upon
whose judgment, interest, and special effort the successful conduct of its
operation largely is dependent.
1.3 DURATION OF THE PLAN. The Plan shall commence on the Effective Date, as
described in Section 1.1 herein, and shall remain in effect, subject to the
right of the Board of Directors to terminate the Plan at any time pursuant
to Article 14 herein, until all Shares subject to it shall have been
purchased or acquired according to the Plan's provisions. However, in no
event may an Award be granted under the Plan on or after September 15,
2003.
ARTICLE 2. DEFINITIONS
Whenever used in the Plan, the following terms shall have the meanings set forth
below and, when the meaning is intended, the initial letter of the word is
capitalized:
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(a) "Affiliated SAR" means a SAR that is granted in connection with a related
Option, and which will be deemed to automatically be exercised
simultaneous with the exercise of the related Option.
(b) "Award" means, individually or collectively, a grant under this Plan of
Nonqualified Stock Options, Incentive Stock Options, SARs, Restricted
Stock, Performance Units, or Performance Shares.
(c) "Award Agreement" means an agreement entered into by each Participant and
the Company, setting forth the terms and provisions applicable to Awards
granted to Participants under this Plan.
(d) "Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the General Rules and Regulations under the Exchange Act.
(e) "Board" or "Board of Directors" means the Board of Directors of the
Company.
(f) "Cause" means: (i) willful misconduct on the part of a Participant that
is materially detrimental to the Company; or (ii) the commission by a
Participant of one or more acts which constitute an indictable crime under
United States Federal, state, or local law. "Cause" under either (i) or
(ii) shall be determined in good faith by the Committee.
(g) "Change in Control" of the Company shall be deemed to have occurred if:
(i) Any Person other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock or the
Company is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing fifty percent (50%) or more
of the combined voting power of the Company's then outstanding voting
securities;
(ii) A majority of the Board at any time shall cease to be made up of
Qualified Directors. For purposes hereof a Qualified Director is a
director who meets any of the following criteria: (1) Was a director
immediately after the effective date of the Reclassification (as
defined in the Company's Registration Statement on S-4, relating to
the 1993 Annual Meeting of Stockholders), including the three new
directors elected in connection therewith; (2) Was a director
immediately after the Company's 1994 Annual Meeting of Stockholders;
(3) Any director nominated for election as a director or elected to
the Board by the directors to fill a vacancy by a vote of directors,
and at the time of such nomination or election at least a majority of
the directors were Qualified Directors; or
(iii) The shareholders of the Company approve a merger or consolidation of
the Company, with any other corporation, other than a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior
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thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity) at
least fifty percent (50%) of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the shareholders
of the Company approve a plan of complete liquidation of the Company,
or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets.
However, in no event shall a "Change in Control" be deemed to have
occurred with respect to a Participant, if the Participant is part of a
purchasing group which consummates the Change in Control transaction. A
Participant shall be deemed "part of a purchasing group" for purposes of
the preceding sentence if the Participant is an equity participant in the
purchasing company or group (except for (i) passive ownership of less than
three percent (3%) of the stock of the purchasing company; or (ii)
ownership of equity participation in the purchasing company or group which
is otherwise not significant, as determined prior to the Change in Control
by a majority of the nonemployee continuing Directors).
(h) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(i) "Committee" means the committee, as specified in Article 3, appointed by
the Board to administer the Plan with respect to grants of Awards.
(j) "Company" means Tesoro Petroleum Corporation, a Delaware corporation, or
any successor thereto as provided in Article 17 herein.
(k) "Director" means any individual who is a member of the Board of Directors
of the Company.
(l) "Disability" means a permanent and total disability, within the meaning of
Code Section 22(e)(3), as determined by the Committee in good faith, upon
receipt of sufficient competent medical advice from one or more
individuals, selected by the Committee, who are qualified to give
professional medical advice.
(m) "Employee" means any full-time, nonunion employee of the Company or of the
Company's Subsidiaries. Directors who are not otherwise employed by the
Company shall not be considered Employees under this Plan.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor Act thereto.
(o) "Fair Market Value" shall mean the average of the highest and lowest
quoted selling prices for Shares on the relevant date, or (if there were
no sales on such date) the weighted average of the means between the
highest and lowest quoted selling prices on the nearest day before and the
nearest day after the relevant date, as determined by the Committee.
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(p) "Freestanding SAR" means a SAR that is granted independently of any
Options.
(q) "Incentive Stock Option" or "ISO" means an option to purchase Shares,
granted under Article 6 herein, which is designated as an Incentive Stock
Option and is intended to meet the requirements of Section 422 of the
Code.
(r) "Insider" shall mean an Employee who is, on the relevant date, an officer,
director, or ten percent (10%) beneficial owner of the Company, as defined
under Section 16 of the Exchange Act.
(s) "Nonqualified Stock Option" or "NQSO" means an option to purchase Shares,
granted under Article 6 herein, which is not intended to be an Incentive
Stock Option.
(t) "Option" means an Incentive Stock Option or a Nonqualified Stock Option.
(u) "Option Price" means the price at which a Share may be purchased by a
Participant pursuant to an Option, as determined by the Committee.
(v) "Participant" means an Employee of the Company who has outstanding an
Award granted under the Plan.
(w) "Performance Unit" means an Award granted to an Employee, as described in
Article 9 herein.
(x) "Performance Share" means an Award granted to an Employee, as described in
Article 9 herein.
(y) "Period of Restriction" means the period during which the transfer of
Shares of Restricted Stock is limited in some way (based on the passage of
time, the achievement of performance goals, or upon the occurrence of
other events as determined by the Committee, at its discretion), and the
Shares are subject to a substantial risk of forfeiture, as provided in
Article 8 herein.
(z) "Person" shall have the meaning ascribed to such term in Section 3(a)(9)
of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d).
(aa) "Restricted Stock" means an Award granted to a Participant pursuant to
Article 8 herein.
(ab) "Retirement" shall have the meaning ascribed to it in the tax-qualified
pension plan of the Company.
(ac) "Shares" means the shares of common stock of the Company.
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(ad) "Subsidiary" means any corporation in which the Company owns directly, or
indirectly through subsidiaries, at least fifty percent (50%) of the total
combined voting power of all classes of stock, or any other entity
(including, but not limited to, partnerships and joint ventures) in which
the Company owns at least fifty percent (50%) of the combined equity
thereof.
(ae) "Stock Appreciation Right" or "SAR" means an Award, granted alone or in
connection with a related Option, designated as a SAR, pursuant to the
terms of Article 7 herein.
(af) "Tandem SAR" means a SAR that is granted in connection with a related
Option, the exercise of which shall require forfeiture of the right to
purchase a Share under the related Option (and when a Share is purchased
under the Option, the Tandem SAR shall similarly be canceled).
(ag) "Window Period" means the period beginning on the third business day
following the date of public release of the Company's quarterly sales and
earnings information, and ending on the twelfth business day following
such date.
ARTICLE 3. ADMINISTRATION
3.1 THE COMMITTEE. The Plan shall be administered by the Compensation
Committee of the Board, or by any other Committee appointed by the Board
consisting of all Directors who are not Employees (the "Committee"). The
members of the Committee shall be appointed from time to time by, and shall
serve at the discretion of, the Board of Directors.
The Committee shall be comprised solely of Directors who are eligible to
administer the Plan pursuant to Rule 16b-3(c)(2) under the Exchange Act.
However, if for any reason the Committee does not qualify to administer the
Plan, as contemplated by Rule 16b-3(c)(2) of the Exchange Act, the Board of
Directors may appoint a new Committee so as to comply with Rule
16b-3(c)(2).
3.2 AUTHORITY OF THE COMMITTEE. The Committee shall have full power except as
limited by law or by the Articles of Incorporation or Bylaws of the
Company, and subject to the provisions herein, to determine the size and
types of Awards; to determine the terms and conditions of such Awards in a
manner consistent with the Plan; to construe and interpret the Plan and any
agreement or instrument entered into under the Plan; to establish, amend,
or waive rules and regulations for the Plan's administration; and (subject
to the provisions of Article 14 herein) to amend the terms and conditions
of any outstanding Award to the extent such terms and conditions are within
the discretion of the Committee as provided in the Plan. Further, the
Committee shall make all other determinations which may be necessary or
advisable for the administration of the Plan. As permitted by law, the
Committee may delegate its authorities as identified hereunder.
3.3 DECISIONS BINDING. All determinations and decisions made by the Committee
pursuant to the provisions of the Plan and all related orders or
resolutions of the Board of Directors
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shall be final, conclusive, and binding on all persons, including the
Company, its stockholders, Employees, Participants, and their estates and
beneficiaries.
ARTICLE 4. SHARES SUBJECT TO THE PLAN
4.1 NUMBER OF SHARES. Subject to adjustment as provided in Section 4.3 herein,
the total number of Shares available for grant under the Plan may not
exceed 4,250,000. These Shares may be either authorized but unissued or
reacquired Shares.
The following rules will apply for purposes of the determination of the
number of Shares available for grant under the Plan:
(a) While an Award is outstanding, it shall be counted against the
authorized pool of Shares, regardless of its vested status.
(b) The grant of an Option or Restricted Stock shall reduce the Shares
available for grant under the Plan by the number of Shares subject to
such Award.
(c) The grant of a Tandem SAR shall reduce the number of Shares available
for grant by the number of Shares subject to the related Option (i.e.,
there is no double counting of Options and their related Tandem SARs).
(d) The grant of an Affiliated SAR shall reduce the number of Shares
available for grant by the number of Shares subject to the SAR, in
addition to the number of Shares subject to the related Option.
(e) The grant of a Freestanding SAR shall reduce the number of Shares
available for grant by the number of Freestanding SARs granted.
(f) The Committee shall in each case determine the appropriate number of
Shares to deduct from the authorized pool in connection with the grant
of Performance Units and/or Performance Shares.
4.2 LAPSED AWARDS. If any Award granted under this Plan is canceled,
terminates, expires, or lapses for any reason (with the exception of the
termination of a Tandem SAR upon exercise of the related Option or the
termination of a related Option upon exercise of the corresponding Tandem
SAR), any Shares subject to such Award again shall be available for the
grant of an Award under the Plan. However, in the event that prior to the
Award's cancellation, termination, expiration, or lapse, the holder of the
Award at any time received one or more "benefits of ownership" pursuant to
such Award (as defined by the Securities and Exchange Commission, pursuant
to any rule or interpretation promulgated under Section 16 of the Exchange
Act), the Shares subject to such Award shall not be made available for
regrant under the Plan.
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4.3 ADJUSTMENTS IN 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, such adjustment
shall be made in the number and class of Shares which may be delivered
under the Plan, and in the number and class of and/or price of Shares
subject to outstanding Awards granted under the Plan, as may be determined
to be appropriate and equitable by the Committee, in its sole discretion,
to prevent dilution or enlargement of rights; and provided that the number
of Shares subject to any Award shall always be a whole number.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 ELIGIBILITY. Persons eligible to participate in this Plan include all
full-time, active Employees of the Company and its Subsidiaries, as
determined by the Committee, including Employees who are members of the
Board, but excluding Directors who are not Employees.
5.2 ACTUAL PARTICIPATION. Subject to the provisions of the Plan, the Committee
may, from time to time, select from all eligible Employees, those to whom
Awards shall be granted and shall determine the nature and amount of each
Award.
ARTICLE 6. STOCK OPTIONS
6.1 GRANT OF OPTIONS. Subject to the terms and provisions of the Plan, Options
may be granted to Employees at any time and from time to time as shall be
determined by the Committee. The Committee shall have discretion in
determining the number of Shares subject to Options granted to each
Participant, but in no event shall the Committee be permitted to grant
Options to any Participant in excess of 500,000 Shares during any fiscal
year of the Company. The Committee may grant ISOs, NQSOs, or a combination
thereof.
6.2 AWARD AGREEMENT. Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the duration of the Option,
the number of Shares to which the Option pertains, and such other
provisions as the Committee shall determine. The Option Agreement also
shall specify whether the Option is intended to be an ISO within the
meaning of Section 422 of the Code, or a NQSO whose grant is intended not
to fall under the Code provisions of Section 422.
6.3 OPTION PRICE. The Option Price for each grant of an Option shall be
determined by the Committee; provided that the Option Price shall not be
less than the Fair Market Value of a Share on the date the Option is
granted unless such Option is granted in connection with a deferral
election pursuant to Article XI herein.
6.4 DURATION OF OPTIONS. Each Option shall expire at such time as the
Committee shall determine at the time of grant; provided, however, that no
Option shall be exercisable later than the tenth (10th) anniversary date of
its grant.
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6.5 EXERCISE 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 in each instance approve, which need not be the same for
each grant or for each Participant. However, in no event may any Option
granted under this Plan become exercisable prior to six (6) months
following the date of its grant.
6.6 PAYMENT. Options shall be exercised by the delivery of a written notice of
exercise to the Company, setting forth the number of Shares with respect to
which the Option is to be exercised, accompanied by full payment for the
Shares.
The Option Price upon exercise of any Option shall be payable to the
Company in full either: (a) in cash or its equivalent, or (b) by tendering
previously acquired Shares having an aggregate Fair Market Value at the
time of exercise equal to the total Option Price (provided that the Shares
which are tendered must have been held by the Participant for at least six
(6) months prior to their tender to satisfy the Option Price), or (c) by a
combination of (a) and (b).
The Committee also may allow cashless exercise as permitted under Federal
Reserve Board's Regulation T, subject to applicable securities law
restrictions, or by any other means which the Committee determines to be
consistent with the Plan's purpose and applicable law.
As soon as practicable after receipt of a written notification of exercise
and full payment, the Company shall deliver to the Participant, in the
Participant's name, Share certificates in an appropriate amount based upon
the number of Shares purchased under the Option(s).
6.7 RESTRICTIONS ON SHARE TRANSFERABILITY. The Committee may impose such
restrictions on any Shares acquired pursuant to the exercise of an Option
under the Plan as it may deem advisable, including, without limitation,
restrictions under applicable Federal securities laws, under the
requirements of any stock exchange or market upon which such Shares are
then listed and/or traded, and under any blue sky or state securities laws
applicable to such Shares.
6.8 TERMINATION OF EMPLOYMENT DUE TO DEATH, DISABILITY, OR RETIREMENT.
(a) TERMINATION BY DEATH. In the event the employment of a Participant is
terminated by reason of death, all outstanding Options which are
exercisable as of the date of death shall remain exercisable at any
time prior to their expiration date, or for one (1) year after the
date of death, whichever period is shorter, by such person or persons
as shall have been named as the Participant's beneficiary, or by such
persons that have acquired the Participant's rights under the Option
by will or by the laws of descent and distribution.
Options which are not exercisable as of the date of death shall be
forfeited and returned to the Company; provided, however, that the
Committee may, at its sole
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discretion, provide for accelerated vesting of unvested Options upon
such terms as the Committee deems advisable.
(b) TERMINATION BY DISABILITY. In the event the employment of a
Participant is terminated by reason of Disability, all outstanding
Options which are exercisable as of the date the Committee determines
the definition of Disability to have been satisfied shall remain
exercisable at any time prior to their expiration date, or for one (1)
year after the date that the Committee determines the definition of
Disability to have been satisfied, whichever period is shorter.
Options which are not exercisable as of the date the Committee
determines the definition of Disability to have been satisfied shall
be forfeited and returned to the Company; provided, however, that the
Committee may, at its sole discretion, provide for accelerated vesting
of unvested Options upon such terms as the Committee deems advisable.
(c) TERMINATION BY RETIREMENT. In the event the employment of a
Participant is terminated by reason of Retirement, all outstanding
Options which are exercisable as of the date of Retirement shall
remain exercisable at any time prior to their expiration date, or for
three (3) years after the effective date of Retirement, whichever
period is shorter. Options which are not exercisable as of the date
of Retirement shall be forfeited and return to the Company; provided,
however, that the Committee may, at its sole discretion, provide for
accelerated vesting of unvested Options upon such terms as the
Committee deems advisable.
(d) EMPLOYMENT TERMINATION FOLLOWED BY DEATH. In the event that a
Participant's employment terminates by reason of Disability or
Retirement, and within the exercise period following such termination
the Participant dies, then the remaining exercise period under
outstanding vested Options shall equal the longer of (i) one (1) year
following death; or (ii) the remaining portion of the exercise period
which was triggered by the employment termination. Such Options shall
be exercisable by such person or persons who shall have been named as
the Participant's beneficiary, or by such persons who have acquired
the Participant's rights under the Option by will or by the laws of
descent and distribution.
(e) EXERCISE LIMITATIONS ON ISOS. In the case of ISOs, the tax treatment
prescribed under Section 422 of the Internal Revenue Code of 1986, as
amended, may not be available if the Options are not exercised within
the Section 422 prescribed time periods after each of the various
types of employment termination.
6.9 TERMINATION OF EMPLOYMENT FOR OTHER REASONS. If the employment of a
Participant shall terminate for any reason other than the reasons set forth
in Section 6.8 (and other than for Cause), all Options held by the
Participant which are not vested as of the effective date of employment
termination immediately shall be forfeited to the Company (and shall once
again become available for grant under the Plan). However, the Committee,
in its
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sole discretion, shall have the right to immediately vest all or any
portion of such Options, subject to such terms as the Committee, in its
sole discretion, deems appropriate.
Options which are vested as of the effective date of employment termination
may be exercised by the Participant within the period beginning on the
effective date of employment termination, and ending three (3) months after
such date.
If the employment of a Participant shall be terminated by the Company for
Cause, all outstanding Options held by the Participant immediately shall be
forfeited to the Company and no additional exercise period shall be
allowed, regardless of the vested status of the Options.
6.10 NONTRANSFERABILITY OF OPTIONS. No Option granted under the Plan may be
sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution. Further, all Options granted to a Participant under the Plan
shall be exercisable during his or her lifetime only by such Participant.
ARTICLE 7. STOCK APPRECIATION RIGHTS
7.1 GRANT OF SARS. Subject to the terms and conditions of the Plan, a SAR may
be granted to an Employee at any time and from time to time as shall be
determined by the Committee. The Committee may grant Affiliated SARs,
Freestanding SARs, Tandem SARs, or any combination of these forms of SARs.
The Committee shall have complete discretion in determining the number of
SARs granted to each Participant (subject to Article 4 herein) and,
consistent with the provisions of the Plan, in determining the terms and
conditions pertaining to such SARs. However, the grant price of a
Freestanding SAR shall be at least equal to the Fair Market Value of a
Share on the date of grant of the SAR. The grant price of Tandem SARs and
Affiliated SARs shall equal the Option Price of the related Option. In no
event shall any SAR granted hereunder become exercisable within the first
six (6) months of its grant.
7.2 EXERCISE OF TANDEM SARS. Tandem SARs may be exercised for all or part of
the Shares subject to the related Option upon the surrender of the right to
exercise the equivalent portion of the related Option. A Tandem SAR may be
exercised only with respect to the Shares for which its related Option is
then exercisable.
Notwithstanding any other provision of this Plan to the contrary, with
respect to a Tandem SAR granted in connection with an ISO: (i) the Tandem
SAR will expire no later than the expiration of the underlying ISO; (ii)
the value of the payout with respect to the Tandem SAR may be for no more
than one hundred percent (100%) of the difference between the Option Price
of the underlying ISO and the Fair Market Value of the Shares subject to
the underlying ISO at the time the Tandem SAR is exercised; and (iii) the
Tandem SAR may be exercised only when the Fair Market Value of the Shares
subject to the ISO exceeds the Option Price of the ISO.
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7.3 EXERCISE OF AFFILIATED SARS. Affiliated SARs shall be deemed to be
exercised upon the exercise of the related Options. The deemed exercise of
Affiliated SARs shall not necessitate a reduction in the number of related
options.
7.4 EXERCISE OF FREESTANDING SARS. Freestanding SARs may be exercised upon
whatever terms and conditions the Committee, in its sole discretion,
imposes upon them.
7.5 SAR AGREEMENT. Each SAR grant shall be evidenced by an Award Agreement
that shall specify the grant price, the term of the SAR, and such other
provisions as the Committee shall determine.
7.6 TERM OF SARS. The term of a SAR granted under the Plan shall be determined
by the Committee, in its sole discretion; provided, however, that such term
shall not exceed ten (10) years.
7.7 PAYMENT OF SAR AMOUNT. Upon exercise of a SAR, a Participant shall be
entitled to receive payment from the Company in an amount determined by
multiplying:
(a) The difference between the Fair Market Value of a Share on the date of
exercise over the grant price; by
(b) The number of Shares with respect to which the SAR is exercised.
At the discretion of the Committee, the payment upon SAR exercise may be in
cash, in Shares of equivalent value, or in some combination thereof.
7.8 RULE 16B-3 REQUIREMENTS. Notwithstanding any other provision of the Plan,
the Committee may impose such conditions on exercise of a SAR (including,
without limitation, the right of the Committee to limit the time of
exercise to specified periods) as may be required to satisfy the
requirements of Section 16 (or any successor rule) of the Exchange Act.
For example, if the Participant is an Insider, the ability of the
Participant to exercise SARs for cash will be limited to Window Periods.
However, if the Committee determines that the Participant is not an
Insider, or if the securities laws change to permit greater freedom of
exercise of SARs, then the Committee may permit exercise at any point in
time, to the extent the SARs are otherwise exercisable under the Plan.
7.9 TERMINATION OF EMPLOYMENT DUE TO DEATH, DISABILITY, OR RETIREMENT.
(a) TERMINATION BY DEATH. In the event the employment of a Participant is
terminated by reason of death, all outstanding SARs which are
exercisable as of the date of death shall remain exercisable at any
time prior to their expiration date, or for one (1) year after the
date of death, whichever period is shorter, by such person or persons
as shall have been named as the Participant's beneficiary, or by such
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persons that have acquired the Participant's rights under the SAR by
will or by the laws of descent and distribution.
SARs which are not exercisable as of the date of death shall be
forfeited and returned to the Company; provided, however, that the
Committee may, at its sole discretion, provide for accelerated vesting
of unvested SARs upon such terms as the Committee deems advisable.
(b) TERMINATION BY DISABILITY. In the event the employment of a
Participant is terminated by reason of Disability, all outstanding
SARs which are exercisable as of the date the Committee determines the
definition of Disability to have been satisfied shall remain
exercisable at any time prior to their expiration date, or for one (1)
year after the date that the Committee determines the definition of
Disability to have been satisfied, whichever period is shorter.
SARs which are not exercisable as of the date the Committee determines
the definition of Disability to have been satisfied shall be forfeited
and returned to the Company; provided, however, that the Committee
may, at its sole discretion, provide for accelerated vesting of
unvested SARs upon such terms as the Committee deems advisable.
(c) TERMINATION BY RETIREMENT. In the event the employment of a
Participant is terminated by reason of Retirement, all outstanding
SARs which are exercisable as of the date of Retirement shall remain
exercisable at any time prior to their expiration date, or for three
(3) years after the effective date of Retirement, whichever period is
shorter.
SARs which are not exercisable as of the date of Retirement shall be
forfeited and returned to the Company; provided, however, that the
Committee may, at its sole discretion, provide for accelerated vesting
of unvested SARs upon such terms as the Committee deems advisable.
(d) EMPLOYMENT TERMINATION FOLLOWED BY DEATH. In the event that a
Participant's employment terminates by reason of Disability or
Retirement, and within the exercise period following such termination
the Participant dies, then the remaining exercise period under
outstanding vested SARs shall equal the longer of: (i) one (1) year
following death; or (ii) the remaining portion of the exercise period
which was triggered by the employment termination. Such SARs shall be
exercisable by such person or persons who shall have been named as the
Participant's beneficiary, or by such persons who have acquired the
Participant's rights under the SAR by will or by the laws of descent
and distribution.
7.10 TERMINATION OF EMPLOYMENT FOR OTHER REASONS. If the employment of a
Participant shall terminate for any reason other than the reasons set forth
in Section 7.9 (and other than for Cause), all SARs held by the Participant
which are not vested as of the effective
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date of employment termination immediately shall be forfeited to the
Company (and shall once again become available for grant under the Plan).
However, the Committee, in its sole discretion, shall have the right to
immediately vest all or any portion of such SARs, subject to such terms as
the Committee, in its sole discretion, deems appropriate.
SARs which are vested as of the effective date of employment termination
may be exercised by the Participant within the period beginning on the
effective date of employment termination, and ending three (3) months after
such date.
If the employment of a Participant shall be terminated by the Company for
Cause, all outstanding SARs held by the Participant immediately shall be
forfeited to the Company and no additional exercise period shall be
allowed, regardless of the vested status of the SARs.
7.11 NONTRANSFERABILITY OF SARS. No SAR granted under the Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution. Further,
all SARs granted to a Participant under the Plan shall be exercisable
during his or her lifetime only by such Participant.
ARTICLE 8. RESTRICTED STOCK
8.1 GRANT OF RESTRICTED STOCK. Subject to the terms and provisions of the
Plan, the Committee, at any time and from time to time, may grant Shares of
Restricted Stock to eligible Employees in such amounts as the Committee
shall determine, but in no event shall the total number of Shares of
Restricted Stock available for grant by the Committee exceed 750,000
Shares.
8.2 RESTRICTED STOCK AGREEMENT. Each Restricted Stock grant shall be evidenced
by a Restricted Stock Agreement that shall specify the Period of
Restriction, or Periods, the number of Restricted Stock Shares granted, and
such other provisions as the Committee shall determine.
8.3 TRANSFERABILITY. Except as provided in this Article 8, the Shares of
Restricted Stock granted herein may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the end of the
applicable Period of Restriction established by the Committee and specified
in the Restricted Stock Agreement, or upon earlier satisfaction of any
other conditions, as specified by the Committee in its sole discretion and
set forth in the Restricted Stock Agreement. However, in no event may any
Restricted Stock granted under the Plan become vested in a Participant
prior to six (6) months following the date of its grant. All rights with
respect to the Restricted Stock granted to a Participant under the Plan
shall be available during his or her lifetime only to such Participant.
8.4 OTHER RESTRICTIONS. The Committee shall impose such other conditions
and/or restrictions on any Shares of Restricted Stock granted pursuant to
the Plan as it may deem advisable including, without limitation, a
requirement that Participants pay a stipulated purchase
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price for each Share of Restricted Stock, restrictions based upon the
achievement of specific performance goals (Companywide, divisional, and/or
individual), and/or restrictions under applicable Federal or state
securities laws; and may legend the certificates representing Restricted
Stock to give appropriate notice of such restrictions.
8.5 CERTIFICATE LEGEND. In addition to any legends placed on certificates
pursuant to Section 8.4 herein, each certificate representing Shares of
Restricted Stock granted pursuant to the Plan may bear the following
legend:
"The sale or other transfer of the Shares of stock
represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to
certain restrictions on transfer as set forth in the
Tesoro Petroleum Corporation Executive Long-Term
Incentive Plan, and in a Restricted Stock Agreement. A
copy of the Plan and such Restricted Stock Agreement
may be obtained from Tesoro Petroleum Corporation."
The Company shall have the right to retain the certificates representing
Shares of Restricted Stock in the Company's possession until such time as
all conditions and/or restrictions applicable to such Shares have been
satisfied.
8.6 REMOVAL OF RESTRICTIONS. Except as otherwise provided in this Article 8,
Shares of Restricted Stock covered by each Restricted Stock grant made
under the Plan shall become freely transferable by the Participant after
the last day of the Period of Restriction. Once the Shares are released
from the restrictions, the Participant shall be entitled to have the legend
required by Section 8.5 removed from his or her share certificate.
8.7 VOTING RIGHTS. During the Period of Restriction, Participants holding
Shares of Restricted Stock granted hereunder may exercise full voting
rights with respect to those Shares.
8.8 DIVIDENDS AND OTHER DISTRIBUTIONS. During the Period of Restriction,
Participants holding Shares of Restricted Stock granted hereunder shall be
entitled to receive all dividends and other distributions paid with respect
to those Shares while they are so held. If any such dividends or
distributions are paid in Shares, the Shares shall be subject to the same
restrictions on transferability and forfeitability as the Shares of
Restricted Stock with respect to which they were paid.
In the event that any dividend constitutes a "derivative security" or an
"equity security" pursuant to Rule 16(a) under the Exchange Act, such
dividend shall be subject to a vesting period equal to the longer of: (i)
the remaining vesting period of the Shares of Restricted Stock with respect
to which the dividend is paid; or (ii) six months. The Committee shall
establish procedures for the application of this provision.
8.9 TERMINATION OF EMPLOYMENT DUE TO DEATH, DISABILITY, OR RETIREMENT. In the
event the employment of a Participant is terminated by reason of death,
Disability, or Retirement,
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all unvested Shares of Restricted Stock shall immediately be forfeited by
the Participant; provided, however, that the Committee, in its sole
discretion, shall have the right to provide for accelerated vesting of some
or all unvested Shares of Restricted Stock, upon such terms as the
Committee deems advisable. The holder of the certificates of Restricted
Stock shall be entitled to have any nontransferability legends required
under Sections 8.4 and 8.5 of this Plan removed from the Share
certificates.
8.10 TERMINATION OF EMPLOYMENT FOR OTHER REASONS. If the employment of a
Participant shall terminate for any reason other than those specifically
set forth in Section 8.9 herein, all Shares of Restricted Stock held by the
Participant which are not vested as of the effective date of employment
termination immediately shall be forfeited (and, subject to Section 4.2
herein, shall once again become available for grant under the Plan).
With the exception of a termination of employment for Cause, the Committee,
in its sole discretion, shall have the right to provide for lapsing of the
restrictions on Restricted Stock following employment termination, upon
such terms and provisions as it deems appropriate.
ARTICLE 9. PERFORMANCE UNITS AND PERFORMANCE SHARES
9.1 GRANT OF PERFORMANCE UNITS/SHARES. Subject to the terms of the Plan,
Performance Units and Performance Shares may be granted to eligible
Employees at any time and from time to time, as shall be determined by the
Committee. The Committee shall have complete discretion in determining the
number of Performance Units and Performance Shares granted to each
Participant.
9.2 VALUE OF PERFORMANCE UNITS/SHARES. Each Performance Unit shall have an
initial value that is established by the Committee at the time of grant.
Each Performance Share shall have an initial value equal to the Fair Market
Value of a Share on the date of grant. The Committee shall set performance
goals in its discretion which, depending on the extent to which they are
met, will determine the number and/or value of Performance Units/Shares
that will be paid out to the Participants. The time period during which
the performance goals must be met shall be called a "Performance Period."
Performance Periods shall, in all cases, exceed six (6) months in length.
9.3 EARNING OF PERFORMANCE UNITS/SHARES. After the applicable Performance
Period has ended, the holder of Performance Units/Shares shall be entitled
to receive payout on the number of Performance Units/Shares earned by the
Participant over the Performance Period, to be determined as a function of
the extent to which the corresponding performance goals have been achieved.
9.4 FORM AND TIMING OF PAYMENT OF PERFORMANCE UNITS/SHARES. Payment of each
Performance Units/Shares shall be made in a single lump sum, within
forty-five (45) calendar days following the close of the applicable
Performance Period. The Committee, in its sole discretion, may pay earned
Performance Units/Shares in the form of cash or in
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Shares (or in a combination thereof), which have an aggregate Fair Market
Value equal to the value of the earned Performance Units/Shares at the
close of the applicable Performance Period.
Prior to the beginning of each Performance Period, Participants may elect
to defer the receipt of Performance Unit/Share payout upon such terms as
the Committee deems appropriate.
9.5 TERMINATION OF EMPLOYMENT DUE TO DEATH, DISABILITY, RETIREMENT, OR
INVOLUNTARY TERMINATION (WITHOUT CAUSE). In the event the employment of a
Participant is terminated by reason of death, Disability, Retirement, or
involuntary termination without Cause during a Performance Period, the
Participant shall receive a prorated payout of the Performance
Units/Shares. The prorated payout shall be determined by the Committee, in
its sole discretion, and shall be based upon the length of time that the
Participant held the Performance Units/Shares during the Performance
Period, and shall further be adjusted based on the achievement of the
preestablished performance goals.
Payment of earned Performance Units/Shares shall be made at the same time
payments are made to Participants who did not terminate employment during
the applicable Performance Period. However, the Committee, in its sole
discretion, shall have the right to accelerate the timing of this payout,
upon such terms and provisions as it deems appropriate.
9.6 TERMINATION OF EMPLOYMENT FOR OTHER REASONS. In the event that a
Participant's employment terminates for any reason other than those reasons
set forth in Section 9.5 herein, all Performance Units/Shares shall be
forfeited by the Participant to the Company, and shall once again be
available for grant under the Plan. However, the Committee, in its sole
discretion, may provide a payout on any or all Performance Units/Shares,
upon such times and provisions as it deems appropriate.
9.7 NONTRANSFERABILITY. Performance Units/Shares may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by
will or by the laws of descent and distribution. Further a Participant's
rights under the Plan shall be exercisable during the Participant's
lifetime only by the Participant or the Participant's legal representative.
ARTICLE 10. BENEFICIARY DESIGNATION
Each Participant under the Plan may, from time to time, name any beneficiary or
beneficiaries (who may be named contingently or successively) to whom any
benefit under the Plan is to be paid in case of his or her death before he or
she receives any or all of such benefit. Each such designation shall revoke all
prior designations by the same Participant, shall be in a form prescribed by the
Company, and will be effective only when filed by the Participant in writing
with the Company during the Participant's lifetime. In the absence of any such
designation, benefits remaining unpaid at the Participant's death shall be paid
to the Participant's estate.
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ARTICLE 11. DEFERRALS
The Committee may permit a Participant to defer such Participant's receipt of
the payment of cash or the delivery of Shares that would otherwise be due to
such Participant by virtue of the exercise of an Option or SAR, the lapse or
waiver of restrictions with respect to Restricted Stock, or the satisfaction of
any requirements or goals with respect to Performance Units/Shares. If any such
deferral election is required or permitted, the Committee shall, in its sole
discretion, establish rules and procedures for such payment deferrals.
ARTICLE 12. RIGHTS OF EMPLOYEES
12.1 EMPLOYMENT. Nothing in the Plan shall interfere with or limit in any way
the right of the Company to terminate any Participant's employment at any
time, nor confer upon any Participant any right to continue in the employ
of the Company.
For purposes of the Plan, transfer of employment of a Participant between
the Company and any one of its Subsidiaries (or between Subsidiaries) shall
not be deemed a termination of employment.
12.2 PARTICIPATION. No Employee shall have the right to be selected to receive
an Award under this Plan, or having been so selected, to be selected to
receive a future Award.
ARTICLE 13. CHANGE IN CONTROL
Upon the occurrence of a Change in Control, unless otherwise specifically
prohibited by the terms of Section 18 herein:
(a) Any and all Options and SARs granted hereunder shall become immediately
exercisable;
(b) Any restriction periods and restrictions imposed on Restricted Shares shall
lapse, and within ten (10) business days after the occurrence of a Change
in Control, the stock certificates representing Shares of Restricted Stock,
without any restrictions or legend thereon, shall be delivered to the
applicable Participants;
(c) The target payout opportunity attainable under all outstanding Performance
Units and Performance Shares shall be deemed to have been earned for the
portion of the Performance Period(s) that passed as of the effective date
of the Change in Control. This pro rata value shall be paid out in cash to
Participants within thirty (30) days following the effective date of the
Change in Control. However, regardless of the above, Performance Units or
Performance Shares that were granted less than six (6) months prior to the
effective date of the Change in Control shall be forfeited in their
entirety, and receive no accelerated payout.
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(d) Subject to Article 14 herein, the Committee shall have the authority to
make any modifications to the Awards as determined by the Committee to be
appropriate before the effective date of the Change in Control.
(e) In the event that following the Change in Control the Shares are no longer
traded over a national public securities exchange, Participants holding
Options shall have the right to require the Company to make a cash payment
to them in exchange for their Options. Such cash payment shall be
contingent upon the Option holder surrendering his or her Option. The
amount of the cash payment shall be determined by adding the total "spread"
on all outstanding Options. For this purpose, the total "spread" shall
equal the sum of the differences between: (i) the Fair Market Value of a
Share on the date the Option is surrendered by the Participant; and (ii)
the Option Price applicable to each Share held under Option.
ARTICLE 14. AMENDMENT, MODIFICATION, AND TERMINATION
14.1 AMENDMENT, MODIFICATION, AND TERMINATION. At any time and from time to
time, the Board may terminate, amend, or modify the Plan. However, without
the approval of the stockholders of the Company (as may be required by the
Code, by the insider trading rules of Section 16 of the Exchange Act, by
any national securities exchange or system on which the Shares are then
listed or reported, or by a regulatory body having jurisdiction with
respect hereto), no such termination, amendment, or modification may:
(a) Materially increase the total number of Shares which may be issued
under this Plan, except as provided in Section 4.3 herein; or
(b) Materially modify the eligibility requirements; or
(c) Materially increase the benefits accruing under the Plan.
14.2 AWARDS PREVIOUSLY GRANTED. No termination, amendment, or modification of
the Plan shall adversely affect in any material way any Award previously
granted under the Plan, without the written consent of the Participant
holding such Award.
ARTICLE 15. WITHHOLDING
15.1 TAX WITHHOLDING. 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 Federal, state, and local taxes (including the
Participant's FICA obligation) required by law to be withheld with respect
to any taxable event arising or as a result of this Plan.
15.2 SHARE WITHHOLDING. With respect to withholding required upon the exercise
of Options or SARs, upon the lapse of restrictions on Restricted Stock, or
upon any other taxable event hereunder, Participants may elect, subject to
the approval of the Committee, to satisfy the withholding requirement, in
whole or in part, by having the Company withhold
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Shares having a Fair Market Value on the date the tax is to be determined
equal to the minimum statutory total tax which could be imposed on the
transaction. All elections shall be irrevocable, made in writing, signed
by the Participant, and elections by Insiders shall additionally comply
with the applicable requirement set forth in (a) or (b) of this Section
15.2.
(a) AWARDS HAVING EXERCISE TIMING WITHIN PARTICIPANTS' DISCRETION. The
Insider must either:
(i) Deliver written notice of the stock withholding election to the
Committee at least six (6) months prior to the date specified by
the Insider on which the exercise of the Award is to occur, or
(ii) Make the stock withholding election in connection with an
exercise of an Award which occurs during a Window Period.
(b) AWARDS HAVING A FIXED EXERCISE/PAYOUT SCHEDULE WHICH IS OUTSIDE
INSIDER'S CONTROL. The Insider must either.
(i) Deliver written notice of the stock withholding election to the
Committee at least six (6) months prior to the date on which the
taxable event (e.g., exercise or payout) relating to the Award is
scheduled to occur; or
(ii) Make the stock withholding election during a Window Period which
occurs prior to the scheduled taxable event relating to the Award
(for this purpose, an election may be made prior to such a Window
Period, provided that it becomes effective during a Window Period
occurring prior to the applicable taxable event).
ARTICLE 16. INDEMNIFICATION
Each person who is or shall have been a member of the Committee, or of the
Board, shall be indemnified and held harmless by the Company against and from
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 and
against and 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 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 Articles of Incorporation or Bylaws,
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as a matter of law, or otherwise, or any power that the Company may have to
indemnify them or hold them harmless.
ARTICLE 17. SUCCESSORS
All obligations of the Company under the Plan, with respect to Awards 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
and/or assets of the Company.
ARTICLE 18. LEGAL CONSTRUCTION
18.1 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.
18.2 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.
18.3 REQUIREMENTS OF LAW. The granting of Awards 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.
Notwithstanding any other provision set forth in the Plan, if required by
the then-current Section 16 of the Exchange Act, any "derivative security"
or "equity security" offered pursuant to the Plan to any Insider may not be
sold or transferred for at least six (6) months after the date of grant of
such Award. The terms "equity security" and "derivative security" shall
have the meanings ascribed to them in the then-current Rule 16(a) under the
Exchange Act.
18.4 SECURITIES LAW COMPLIANCE. With respect to Insiders, transactions under
this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the 1934 Act. To the extent any provision of
the plan or action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee.
18.5 GOVERNING LAW. To the extent not preempted by Federal law, the Plan, and
all agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Texas.
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